This was an action brought by the agents for the owners, to recover damages for injury done to six bales of twist, whilst on their transit on board the ship Hastings from Madras to Calcutta, the defendant being the Master of the vessel. An objection was taken on the part of the defendant that the plaintiffs, being only agents for the owners, could not sue. The Judge however entered up judgment for the plaintiffs, contingent upon this objection being sent up to the Judges of the Supreme Court for their opinion. The following is the case sent up under Act 9 of 1850 Sec. 55.
Ochterlony & Co. of Madras, shipped in the usual manner on board the defendant's vessel, certain goods to McVicar, Smith & Co. of Calcutta. The bill of lading was signed by the defendant in the usual form, engaging to deliver the said goods “unto Messrs. McVicar, Smith & Co. or their assignees.” The goods were damaged on board, and McVicar, Smith & Co. sue for the damage done (as estimated by a survey) in their own name.
It appeared in evidence, that McVicar, Smith & Co. were simply the agents of Ochterlony & Co. who were the owners of the goods, and to whom the proceeds were remitted.
First.— Did such a property pass by the hill of lading as warranted McVicar, Smith & Co. to sue, as they have done, in a Court like the Small Cause Court.
Second.— Whether, under the Act, the Court has the power, under the 26th and 27th Sections to order the record to be amended, so as to admit of McVicar, Smith & Co. suing as the agents of Ochterlony & Co.; or whether there ought to be a nonsuit, defendant being clearly liable on the merits of the case.
Judgment was given for the plaintiffs, contingent upon the opinion of the Judges of the Supreme Court, in terms of the 55th Sect. of Act 9 of 1850.
The following was the opinion of the Judges of the Supreme Court.
We are of opinion that the plaintiffs cannot maintain their action. The contract of carriage was not made with them, but with Messrs. Ochterlony & Co. who were the shippers and owners: and remained the owners. The case states a case of mere agency; and as the agents did not make the contract in point of fact, that foundation of right of suit does not exist, nor does any right of suit for damage to property exist on the ground of ownership, either general or special: there was no specific appropriation of the goods to them for value, or in respect of any engagement to make advances. The consignment was counter mandable.
It is not the case of vendor or vendee, and delivering to a carrier by the vendor: therefore every ground on which a suit for damage to the goods on the transit could be maintained by the agent, is wanting in this case. The plaintiffs are the contractors, neither in fact, nor in law: nor contracted with. The bill of lading as between shippers and owners is but a receipt, and the presumption of ownership is merely prima facie. The facts stated in the case show that the plaintiffs had no property of any kind in the goods at the time of the shipment, or at the time of the damage.
The Act enables the Court to supply by amendment errors in the description of the plaintiff; but not to substitute a new plaintiff when by error the suit is intentionally brought in the name of one who has no right to sue.
(Signed) Lawrence Peel,
The 17th May, 1857.Arthur Buller,
J.W Colvile.
Nonsuit entered accordingly.