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Scottish Court of Session Decisions |
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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Larsen v. Ireland & Son [1892] ScotLR 30_228 (24 December 1892) URL: http://www.bailii.org/scot/cases/ScotCS/1892/30SLR0228.html Cite as: [1892] SLR 30_228, [1892] ScotLR 30_228 |
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Page: 228↓
[
A charter-party was entered into between Dessen Brothers, as representing the owners of the steamship “Arbutus,” and a firm of coal exporters. Thereafter an action for damages was raised by Lars Larsen, “master and part-owner, and as such master representing the ownership of the foreign vessel ‘Arbutus,’” against the coal exporters for breach of the charter-party. Held that the pursuer had a title to sue.
At Glasgow on 18th January 1892 a charter-party was entered into between Dessen Brothers, as representing the owners of the steamship “Arbutus” of Flekkefjord, Norway, and David Ireland & Son, merchants and coal exporters, Dundee.
In June 1892 an action was raised by Lars Larsen, designed in the summons as “master and part-owner, and as such master representing the ownership of the foreign vessel ‘Arbutus’ of Flekkefjord, and now or recently lying in Methil, pursuer and Messrs Boyd, Jameson, & Kelly, Writers to the Signet, Leith, his mandatories, against the said David Ireland & Son, for £90, 15s. 6d., being the loss alleged to have been sustained by the pursuer through the defenders' refusal to implement their part of the charter-party.
The defenders lodged defences, and pleaded, inter alia—“(1) No title to sue.”
Page: 229↓
Thereafter a mandate was signed by H. E. Jansen, manager of the “Arbutus” Steamship Company, who under section 3 of the byelaws of the company bound the ownership by his signature. In this mandate the registered owners of the “Arbutus” declared that the action was raised by Lars Larsen, as master, and representing them with their instructions and authority, and authorised the said Lars Larsen and Messrs Boyd, Jameson, & Kelly to continue to prosecute the action to final judgment, and to grant a receipt as binding as if granted by the owners themselves for any sum found due under the said action.
On 13th December 1892 the Lord Ordinary (
Stormonth Darling ) repelled the defenders' plea-in-law of no title to sue.The defenders appealed, and argued—The master of a vessel was entitled to sue for breach of charter-party (1) made by himself, or (2) made by the owners of the vessel if he sued in the character of the owner's mandatory or agent. But he could not sue “as master” for breach of a contract made by third parties as representing the owners of the vessel. Here the contract had been made by Dessen Brothers, as representing the owners of the vessel, and the master sued “as such master.” Therefore his title was bad. The mandate changed the character in which the pursuer sued, and no effect could be given to it— Smith v. Stoddart, July 5, 1850, 12 D. 1185.
Counsel for the pursuer were not called on.
At advising—
I have no doubt, accordingly, that that is a perfectly good instance. Of course it may not be true that the pursuer has the owner's authority, and if that were proved the instance would be negatived. But that is not the question at present. The mandate produced from the owners seems quite sufficient, and not open to any objection.
I am of opinion that the interlocutor of the Lord Ordinary should be affirmed.
The
The Court adhered.
Counsel for the Pursuer— Jameson— Salvesen. Agents— Boyd, Jameson, & Kelly, W.S.
Counsel for the Defenders— Dickson— Aitken. Agents— Beveridge, Sutherland, & Smith, S.S.C.
