Universal Steam Navigation Company v McKelvie & Company
| Jurisdiction | UK Non-devolved |
| Judge | The Lord Chancellor,Lord Shaw of Dunfermline,Lord Sumner,Lord Parmoor,. |
| Judgment Date | 04 May 1923 |
| Judgment citation (vLex) | [1923] UKHL J0504-2 |
| Date | 04 May 1923 |
| Court | House of Lords |
[1923] UKHL J0504-2
Lord Chancellor.
Earl of Birkenhead.
Lord Shaw.
Lord Sumner.
Lord Parmoor.
House of Lords
After hearing Counsel for the Appellants on Monday the 12th day of March last, upon the Petition and Appeal of the Ariadne Steamship Company, Limited, of 2, Fenchurch Avenue, in the City of London, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal, of the 9th of December 1921, might be reviewed before His Majesty the King in His Court of Parliament, and that the said Order might be reversed, and that the Petitioners might have the relief prayed for in the Appeal, or such other relief in the premises as to His Majesty the King in His Court of Parliament might seem meet (which said Appeal was, in pursuance of an Order of this House, of the 26th day of October last, revived in the name of the Universal Steam Navigation Company, Limited, in the place and stead of the said Appellants, the Ariadne Steamship Company, Limited); as also upon the printed Case of James McKelvie and Company, lodged in answer to the said Appeal; and Counsel appearing for the Respondents, but not being called on; and due consideration being had this day of what was offered for the said Appellants:
It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 9th day of December 1921, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And it is further Ordered, That the Appellants do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.
My Lords,
This appeal from the Court of Appeal in England raises the question whether the respondents, Messrs. James McKelvie & Co., are personally liable under a charter-party for demurrage.
By the charter-party, which was dated the 15th October, 1919, and was expressed to be made between T. H. Seed & Co., Ltd., agents for the owners of the S.S. "Ariadne Irene" and "James McKelvie & Co., Newcastle-on-Tyne, Charterers," it was agreed that the steamship should proceed to the River Tyne and there load from the charterers a full and complete cargo of coal, and should proceed to one of certain Italian ports as ordered, and there deliver her cargo. Provision was made for the payment by the charterers of demurrage in the event of the steamer being detained beyond the stipulated time either at the port of loading or at the port of discharge, and it was provided that "the charterers" liability should "cease as soon as the cargo was shipped and the advance of freight, dead freight and demurrage at the ports of loading and/or discharging (if any) paid, the owner having a lien on the cargo for freight and average." The charter-party was signed:—
"For and on behalf of James McKelvie & Co. (as agents), J. A. McKelvie."
Liability for demurrage at the port of discharge having been incurred, the owners brought this action against the respondents for the amount claimed, viz., 2,444 l. 12 s. 6 d., and the respondents pleaded that they had signed the charter-party as agents for the firm of Brandt Pagnini of Rome, and denied liability.
At the trial of the action before Mr. Justice Bailhache it was proved that the respondents had sold a cargo of coal to Pagnini & Co. at a price per ton, f.o.b. Newcastle, and had chartered the vessel for this cargo as agents for and on behalf of that firm. It was also proved that it was customary when selling f.o.b. to charter on behalf of the receivers, and that the custom was well-known to ship-agents and shipowners. Under the regulations of the Coal Controller, coal could only be exported under licence naming the consignees; and in the licence for this cargo, which was referred to in the charter-party as having been granted, Pagnini & Co. were named as consignees. The bill of lading, which was signed by the agent for the shipowners, showed a shipment to the order of Pagnini. The representative of the shipowners in his evidence maintained that he dealt only with the respondents; but his answers to certain questions, and his refusal to answer others, leave no doubt in my mind that he knew perfectly well that the respondents were acting for other persons. It was not suggested that the respondents ever withheld the name of their principals. The learned Judge found as a fact that the owners knew when the charter-party was signed that the cargo was sold on f.o.b. terms; but on the authority of the case of ( Lennard v. Robinson 1855, 5 E. & B. 125) he held that the respondents were personally liable, and gave judgment for the plaintiffs for the amount claimed. The Court of Appeal by a majority (Bankes and Atkin, L.JJ., Scrutton, L.J. dissenting) reversed that decision and entered judgment for the respondents with costs; and thereupon the present appeal was brought.
My Lords, apart from authority, I should feel no doubt whatever as to the correctness of the judgment of the Court of Appeal. If the respondents had signed the charter-party without qualification, they would of course have been personally liable to the shipowners; but by adding to their signature the words "as agents" they indicated clearly that they were signing only as agents for others and had no intention of being personally bound as principals. I can imagine no other purpose for which these words could have been added; and unless they had that meaning, they appear to me to have no sense or meaning at all.
When the cases are examined, it appears that the weight of authority is in favour of the above view. It is true that in a series of cases, in which the signatories were referred to in the body of the contract as agents for others but appended no qualification to their signature, they were held to be personally liable. Decisions to that effect were given in ( Tanner v. Christian 1855, 4 E. & B. 591), ( Cooke v. Wilson 1856, 1 C.B., N.S., 153), ( Parker v. Winlow 1857, 7 E. & B. 942) and ( Paice v. Walker 1870, L.R. 5 Exch. 173). Whether all those decisions can stand with the later decisions of the Court of Appeal in ( Southwell v. Bowditch 1876, L.R. 1, C.P.D. 374) and ( Gadd v. Houghton 1876, L.R. 1 Exch. D. 357) it is not necessary for present purposes to determine; for in none of them was the signature qualified by any words showing that the signatory signed as agent only, and in each of them it was expressly stated, in the judgment that if the signature had been so qualified the decision would or might have been the other way. On the other hand, in ( Deslandes v. Gregory 1860, 2 E. & E. 602), where the defendants were described both in the body of the charter-party and in the signature as agents for a known person, they were held not liable; and in Gadd v. Houghton ( ubi sup.) James, L.J., said that he could not conceive that the words "as agents" could be properly understood as implying merely a description, adding "the word 'as' seems to exclude that idea."
To this current of authority the only exception is the case of ( Lennard v. Robinson 5 E. & B. 125), on which the learned trial judge and Lord Justice Scrutton relied. There the defendants were named in the charter-party itself as parties, but signed "by authority of and as agents for" a person named; and it was held that they contracted personally. There may be minute distinctions between that case and the present; but I think it best to say that in my opinion that case cannot now be treated as law. It is, as Lord Justice Bankes said, to the interest of the commercial community that a signature "as agent" should have a generally accepted meaning, and I agree with him that such a qualification of the signature should be taken as a deliberate expression of intention to exclude any personal liability on the part of the signatory.
I think it desirable to add, in order to prevent misapprehension, that in the present case no evidence was given (as in Pike v. Ongley, 1877, L.R. 18 Q.B.D. 708, and the cases there cited) of any custom of the trade or port that agents not disclosing the names of their principals at the time of making a contract were personally liable as principals; nor was it suggested (as in Miller Gibb & Co. v. Smith & Tyrer Ltd., L.R. 1917, 2 K.B. 141) that there was any general or special custom that an agent acting on behalf of a foreign principal undertook the liability of a principal. In the absence of such a custom, and where a principal exists, the general rule applies although the principal be not named or be a foreigner.
For these reasons, I am of opinion that this appeal fails, and I move your Lordships that it be dismissed with costs.
My Lords, my noble and learned friend Lord Birkenhead desires me to say that he agrees with the judgment of Lord Justice Atkin, but subject to the qualification contained in the opinion to be delivered by my noble and learned friend Lord Sumner.
My Lords,
The question in this Appeal is whether the Respondents are liable to payment of demurrage in discharging a cargo of coal from the steamship "Ariadne Irene." The liability is said to arise under the terms of the Charter Party founded on: the Respondents deny liability; and they plead that the Charter Party was entered into by them as Agents and, as they submit, solely as Agents, for a firm, Brandt Pagnini, of Rome.
The Charter Party states that "the licence for the above cargo is granted." The meaning of that is, that, under the regulations of the Coal Controller operative during this contract, a licence was...
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