Routh and Others v Macmillan and Others
| Jurisdiction | England & Wales |
| Judgment Date | 07 December 1863 |
| Date | 07 December 1863 |
| Court | Exchequer |
English Reports Citation: 159 E.R. 310
IN THE COURT OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 33 L. J. Ex. 38; 10 Jur. (N. S.) 158, 12 W. R. 381; 9 L T. 541.
routh and others v. macmillan and others. Dec. 7, 1863.-The defendants, shipowners at Liverpool, by power of attorney appointed G. P. their agent, inter an'a, to charter their ship " Hannah Eastee," or employ her as a general ship, on such terms or in such manner as he should think proper, and generally to represent them in relation to the premises, and to the said brig, her management or sale, as fully as if they were personally present. The " Hannah Eastee " had been an Al ship at Lloyd's, but had run off her letter before the power was executed and "was not described as Al in the power. The plamtitts, British subjects and merchants at New York, having an order from England for a cargo of wheat, chartered the "Hannah Eastee" to carry it from New York to Gloucester. The charter-party, which was not under seal, purported to be made between the plaintiffs and G. P. agent for owners of the Al Br. brig "Hannah Eastee" of Liverpool. The consignee of the cargo, on learning that the ship was not Al at Lloyd's, refused to accept. Ultimately he agreed to accept, upon the plaintiffs' agent in England undertaking to pay the extra expense of insurance in consequence of the ship not being Al The cargo arrived safe. In an action for breach of warranty of the ship's class the plaintiffs sought to recover the extra expense of insurance which they had repaid their agent -Held : First, that the description: in the charter-party was a warranty that the " Hannah Eastee " was at the date of the charter-party an Al ship at Lloyd's in England -Secondly, that the power of attorney authorized the warranty -Thirdly, that the damage which the plaintiffs had sustained was legal damage [S. C. 33 L. J. Ex. 38; 10 Jur. (N. S.) 158 , 12 W. R. 381 ; 9 L T. 541.] The declaration stated that in parts beyond the seas, to wit, at New York in America, a charter-party was made and entered into by and between the plaintiffs, (e) The case of Abbott v. Macfie was tried a second time, when the question submitted to the jury was in accordance with the above judgment. The jury found a verdict for the defendants. 2H&C751 ROUTH 1*. MACMILLAN 311 therein described by and under the name, style and turn of Messrs. H. L. Koiith and Sons, merchants, of New York, and the defendants, by one Gilbert Periarn, their agent iii that behalf, and theiem described as agent for the owners of the ship therein mentioned. (The declaration then set out the charter-party, the material parts of which are stated post, [751] p. 752 ) Averments That the planitifts loaded the said cargo of wheat in bulk, at New Yrork aforesaid, to be earned fiom New Yoik dfoiesdid to Gloucester aforesaid, according to the said chai ter-party, and under and by virtue of it, and they did and performed all things and all things happened and existed to entitle them to a performance by the defendants of the said charter-party in respect of the matters hereinafter alleged not to have been peiformed by them, and the said terms and words in the said charter-party, that is to say, the said words "of the AI Bi biig 'Hannah Eastee' of Liveipool," were by the plaintifts and defendants, as the time of the making of the said chaterpaity, intended to mean, and did mean (among other things), that the said brig theiem described was of the class called and known as Al at Lloyd's, and the defendants by the said charter-party wairanted that the said vessel was of that class Breach. That the defendants broke the said charter-party and the said warranty in this, to wit, that the said vessel at the time of the making of the said charter-party, 01 at any time since, was not of the said class. And the plaintiffs say that by reason of the premises, and of the said vessel not being of that class, they could not procure persons to insure the said cargo against damage 01 loss whilst on board the said vessel during the said voyage without paying extra premiums, and monies for the insurance of the same And the plaintiffs, in order1 to procure such insurance, were forced and obliged to pay, and did pay di\ers large sums of money for premiums of insurance to divers persons for insuring the said caigo on board the said vessel from damage or loss during the said voyage, and over and beyond the monies and premiums which they otherwise would have had to pay for such insurance had the said vessel been of the class aforesaid. And the defendants, at the time of the making of the said charter-party, had [752] notice and knowledge that the plamtitis would insure the said cargo on boaid the said vessel against...
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