Kivenko v. Yagod

-The appellants entered into a "space"

charter-party with the Southern Alberta Lumber Company under which the latter agreed to load lumber on appellants' ships. Afterwards the Southern Alberta Lumber Company, as charterer, engaged the respondent to do the stevedoring work. Owing to the bankruptcy of the charterer before the respondent was paid, the latter sued, not the charterer who engaged it but. the appellants who owned the ships, alleging agency.

Clause 15; and addendum C of the charter-party read as follows: " (Printed) Cargo to be stowed under the master's supervision and direction, and the stevedore to be employed by the steamer for loading and discharging, to be nominated by the charterers or their agents, at current rates. " C " (typewritten) In connection with clause charterers agree to load and stow cargo for one dollar seventy cents ($1.70) per thousand board feet or its equivalent, *

*

*."

The court of appeal construed the 'charter-party as constituting agency in fact. Held, reversing the judgment of the Court of Appeal ([1928] 1 W.W.R. 308), that, although clause 15 without the addendum may support actual agency, the stipulation in the addendum "charterers to load and stow the cargo, etc.," excludes any actual agency of the charterer to engage a stevedore on behalf of the owners of the vessels and thus to render them liable to such stevedore for the cost of the loading and stowing of cargo.

Held, also, that, upon the evidence, there was no ostensible agency of the charterer entailing the same result.

When actual authority of an alleged agent has been negatived, a plaintiff seeking to hold the *PRESENT:-Anglin CJ.C. and Duff, Mignault, Newcombe and Lamont JJ.