W. and R. Russell and W. Moffat - Cople - Pollock v. Shannon, Stewart, and Company - Cler - Cuninghame [1821] UKHL 1

UKHL
W. and R. Russell and W. Moffat - Cople - Pollock v. Shannon, Stewart, and Company - Cler - Cuninghame
[1821] UKHL 1 · 1809-03-11
Held (affirming the judgment of the Court of Session,) that where a shipmaster had altered the voyage of a vessel specified in a charter-party, at the request of the freighters, and where the vessel was lost in the course of the voyage so altered, the freighters were, in the circumstances of the case, not liable, as insurers, for the value of the ship; but this without prejudice as to the question of their liability for freight.On the 3d September 1810, Russell and others of Kirkaldy entered into a charter-party with Shannon, Stewart, and Company of Greenock, by which the former chartered the vessel called the William on a voyage “from the Frith of Forth to St. Johns, Newfoundland, and from thence with a cargo to either Lisbon, Cadiz, or Gibraltar, a safe port within the Straits as high as Alicant, or to either Greenock or Liverpool.” By the charter-party, Shannon, Stewart, and Co. were to pay the freight of two loadings of the vessel in the course of the voyage, namely, the freight of a cargo of coals from the Frith of Forth to Newfoundland, and of a cargo of fish from Newfoundland, either to a port on the west side of the Spanish Peninsula, not beyond Alicant, or to those ports of Britain above described. A few days after the execution of the charter-party, Russell and others enclosed a copy of it to Robert Graham, the master of the vessel, in a letter of

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“It is hereby agreed between Robert Graham, master of the within-mentioned brig William, and acting as agent for his owners, takes it upon himself to proceed to Leith by the north of Scotland, a port not mentioned in this charter-party, on the same terms as if direct to the Fairlie Roads, * being the wish of Shannon and Company, a branch of the house of Shannon, Stewart, and Company, Greenock, the charterers.”
The first of the above letters was received by Russell and others on the 1st December 1810, the second on the 4th, and the third and fourth letters on the 6th and 7th of that month. To these letters, however, they made no answer, nor did they intimate to Shannon, Stewart, and Company that they objected to the proposed alteration of the voyage. On the 8th of December they wrote to their broker at Leith to get the policy of insurance altered, so as to

Footnote

* In the Frith of Clyde.

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Russell and others then appealed to the House of Lords, on the ground, 1. That the master had no power to alter the terms of the charter-party, which had been solemnly executed and acted on by the parties; and, 2. That, in the circumstances of the case, there was no foundation for alleging that they had either homologated the act of the master, or that they had been guilty of negligence in not communicating their dissent from the intended alteration of the voyage. To this it was answered, 1. That the agreement by the master to change the destination of the vessel was within the special powers conferred upon him by the letter of instructions; 2. That, even although he had not possessed these powers, yet, as he was the servant or agent of Russell and others, Shannon, Stewart, and Company could not be made liable for the error or fault of this person, the more especially as it was not alleged that they had either corrupted or deceived him in the performance of his duty; and, 3. That it was entirely attributable to the remissness, and want of punctuality, of Russell and others, when they first heard of a probable change in the home voyage, that any loss at all was sustained. The House of Lords found, “That, in the circumstances of this case, the defenders Shannon, Stewart, and Company were not liable to make good any loss or damages sustained by reason of the alteration of the voyage or destination of the chartered vessel, as specified in the charter-party; but this is without prejudice to the question as to freight: And it is therefore ordered and adjudged, that the interlocutors complained of, so far as they are consistent with this finding, be affirmed: And it is further ordered, that the cause be remitted back to the Court of Session, to review the interlocutors complained of, having regard to this finding, and also as to the demand of freight; and after such review, to do therein as to them shall appear to be just.”

Footnote

* Not reported.

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Appellants' Authorities. Appellants' Authorities. —(1.)—Abbot on Shipping, 112. 119; Molloy, 381; Lawes on Charter-Party, 63. Respondents' Authorities. Respondents' Authorities. —(1.)—2. Camp. Rep. 529; 6. Bro. Parl. Cases, 474.Solicitors: Reardon and Davis,— J. Richardson,—Solicitors.

( Ap. Ca. No. Ap. Ca. No. 40.)

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ELIOTT V. POTT, ante, No. 5. p. 16. *

Lord Chancellor .—My Lords, there is another case which stands for judgment to-day, which has been argued in two Sessions of Parliament, the case of Sir William Francis Eliott of Stobbs, Bart., appellant, and George Pott, tacksman of the farms of Langside and Pcnchrise, respondent. There are two appeals. The appellant in the original appeal is the proprietor of an estate called Stobbs in the county of Roxburgh; and an action was brought in the Court of Session to set aside, for a violation of the provisions of the entail, a lease granted by the appellant's father to the father of the respondent Mr. Pott. My Lords, the restrictions which, it is supposed, prohibited the granting of that lease, are found in a deed which is conceived in the form of a bond of tailzie, executed in the year 1719; and it will be unnecessary for me to read to your Lordships the whole of the prohibitory, irritant, and resolutive clauses in that bond of tailzie, as they have been so frequently stated to your Lordships in the course of the discussion at the bar, and so very much observed upon.My Lords,under this entail the late Sir William Eliott, father of the appellant, entered into possession of the estate. In the year 1790 he granted a nineteen years lease of the farms of Penchrise and Langside, which consisted of between four and five thousand acres of the estate, at the rent of £281. 8s., to Gideon Pott, the father of the respondent. After his possessing the farm four years under this lease, a new transaction was entered into between the parties. On the 20th of March 1794, Sir William

Footnote

* This speech was not received till after the case was reported and printed, and is therefore given separately.

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My Lords,the action came first before my Lord Gillies, and the respondent's defence consisted of two propositions: He first maintained that the irritant and resolutive clauses of the entail were so loosely, so inaccurately, and so incomprehensively worded, as to render the entail unavailable against third parties contracting with the heirs in possession of the estate; and, secondly, that even supposing the irritant and resolutive clauses to be effectual to the extent of the acts of contravention therein enumerated, they could not invalidate the lease under discussion, because that enumeration, while it mentioned the act of disponing, omitted that of alienating, under which alone, in the absence of any express limitation of the power of leasing, it was insisted that the lease could be struck at as contrary to the restrictions of the entail. The Lord Ordinary, having heard the counsel for the parties, repelled the reasons of reduction, assoilzied the defender from the conclusions of the action, and decerned. This was upon the 27th of January 1813; so that in effect, by this interlocutor, whatever ground there might be for saying that a lease or alienation was subject to objection, he was of opinion there was no ground for sustaining that allegation.Upon the 19th of February 1813, a short representation was given in by the appellant, and refused, without answers. Upon the 17th of December 1813, after another representation had been given in, the following interlocutor was pronounced:against alienating, such as is necessary to render the same effectual against third parties.”
“The Lord Ordinary having considered this representation, with the answers thereto—Finds that the lease in question having been granted in consideration of a grassum, and for a period of seventy-seven years, is to be considered as an alienation; and finds that alienations are prohibited by the entail of the estate of Stobbs; but finds that the irritant and resolutive clauses in the same deed of entail contain no reference to the specific prohibition

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It is unnecessary for me to state, in the presence of your Lordships, that in order to make the prohibition effectual against third parties, there must be not only a clause prohibiting the thing to be done, but a clause rendering it null and void, and a clause resolutive in its nature, so that all the three clauses must strike the act complained of; and if the one does strike the act complained of, and the others do not, it would not be effectual as against third parties. This interlocutor was submitted to the review of the Court, and having been followed by answers, their Lordships pronounced the following interlocutor:
“The Lords having resumed consideration of this petition, and advised the same with the answers thereto, they refuse the prayer of the said petition, and adhere to the Lord Ordinary's interlocutor reclaimed against; but find the petitioner not liable in the expenses of process.”
My Lords,there have been two appeals presented to your Lordships, one of them against that part of the interlocutor which represented the lease in question as an alienation, as having been granted in consideration of a grassum, and for a period of seventy-seven years; but with reference to that appeal, it appears now not necessary to take much notice of it, because, by many of your Lordships' decisions of late, such a lease has been considered as an alienation; and therefore, if the prohibitory, irritant, and resolutive clauses are sufficient to prohibit alienation, they must now, under the effect of your Lordships' decisions, be taken to prohibit such a lease as an alienation. With respect to the other appeal, the substance of it is, that if the Court held the bond of tailzie to be intelligible, they were not authorized in so holding it; and again, if they held it to be intelligible, but that the act which is to be taken as the alienation was not struck at by all the clauses, that they are wrong in so considering it, because the word disponing disponing being in the other clauses, whilst the word alienate, and so on, is only in the prohibitory clause, that that word disponing disponing is in law a word which includes in it all that would be expressed by alienating; alienating; that it is not to be understood as technically meaning merely disposition, but that it will include alienation; and therefore, if a lease for seventy-seven years, with a grassum, is an alienation, such an alienation is struck at by the word dispone dispone , as much as it would be struck at by the word alienate, alienate, if the word alienate alienate had been in all the clauses.My Lords,it is a very remarkable circumstance, that this case has been twice decided by the Court of Session. In the year 1803, it appears from the report I have now in my hand, that

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It is unnecessary for me to state to your Lordships what the result of this action of declarator is, but in the process it is mentioned, “Sir William maintained this separate plea, that the entail was ineffectual to prevent a sale, being defective in its various clauses, in support of which,” (and I will read the pleadings to your Lordships,) “he maintained that the limitations of an entail are not to be extended by inference or implication beyond what is expressed in the entail itself,—(a proposition to which full assent will be given); and wherever these limitations are directed against third parties, as in the case of a prohibition to sell or contract debt, in order to render these effectual against purchasers or creditors, it is necessary that the prohibitory and irritant clauses should be accompanied by a resolutive clause making void the right of the contravener.” Then, my Lords, cases are mentioned. “The irritant and resolutive clauses, besides, must be precisely applicable to the act of contravention, in order to be effectual against third parties.” Bruce of Tillycoultry's case is mentioned; then they say, “In the present case, the irritant and resolutive clauses, instead of bearing in general that all the acts of contravention contained in the prohibitory clause shall be void and null, or shall subject the heir to a forfeiture, specially enumerate the various cases to which they are meant to apply.” That would be more accurately put if it was stated, that after the declaration that they are not to contravene in any respect, which is contained in the instrument, it enumerates various cases in

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On the other hand, the answer appears to me to contain the substance and marrow of all that has been stated at the bar on the other side. The act of 1685, permitting proprietors to entail their property, has prescribed no form of words which shall be essential for carrying the entailer's intention into effect, nor have the decisions of the Court as yet supplied the deficiency. It is only necessary that the clauses should be clearly and distinctly expressed, so that the meaning of the entailer may be carried into effect, without resorting to any constrained or violent construction of the words. In Bruce v. Bruce , 15th January 1799, the

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My Lords,Mr. Solicitor-General Blair and Mr. Ross were concerned as counsel in this cause; and the Court of Session were of opinion, which they expressed on the 19th of May 1803, both that this clause was intelligible, and that the word dispone dispone in the irritant and resolutive clause was quite sufficient to support the entail. But it has been intimated to us, that we are to consider this a case of collusion. Now, I do not see how that is made out; for unless the Judges were colluding, I must look at it as containing their opinions in 1803. It is said this is not a res judicata between the parties. I agree that it is not a res judicata with respect to the respondent at the bar; but still it is the opinion of the Court of Session upon precisely the same points; and if they were to be of opinion a man cannot sell, they must be of opinion a man cannot buy. The question therefore, upon the whole, appears to be this, Whether the opinion of the Court of Session in 1803, or the opinion of the Court of Session in the present case, is the better opinion? It appears to me to be reduced to two points; namely, whether this deed is intelligible; and if this deed be intelligible, what is the effect of it with respect to the sufficiency of the three respective clauses. Now, my

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