who employs and puts a trust and confidence in the deceiver should be a loser, than a stranger.”55 Crowder ended his arguments by endorsing Holt’s view, and teasing a general principle from the cases, that “he who places a man in a position which enables him, acting as his general agent, to obtain a false credit, is himself liable.”Crowder’s argumentation had moved from treatises to convenience and case law. In reply, the defendants’ counsel, Butt, argued that the master’s authority was to be gathered from the nature of his employment. By the nature of his task, he could only be seen to be an agent once goods were on board. Since principals were not liable for acts done by the agent outside the scope of employment, there could be no liability here.At this point, Cresswell J interjected.He reminded Butt that the plaintiff ’s argument was that the ship’s master had been given anapparent authority, being held out to the world to be an agent in signing any bill.The problem, he felt, needed exploration by analogy. “Try that by the test of a partner’s authority to sign bills of exchange for the purpose of the trade,” he said, “One draws or accepts a bill in fraud of his partner, - what answer does this afford to a bona fide holder for value?”56 This was to suggest that if the bill of lading in this case could be analogized to a bill of exchange, then the plaintiffs would win. Butt’s response was to focus on the details of English law. He argued that bills of exchange were different from bills of lading, because the negotiation of the former assigned a contract, whereas negotiation of the latter did not.57 Butt’s argument here effectively took up the second of the judges’ concerns (which Crowder had not directly addressed): whether a principal could be liable for the frauds of an agent.58 Drawing on a recent House of Lords decision59 he pointed out that whereas in the case of contractual liability, the false representation of an agent would bind the principal, in a tortious action of deceit, it would not.The deceived person would have to sue the agent for his fraud. This was to show that the general principle which Crowder had concluded his case with applied only to m i cha e l lob ban 151 55 Grant v. Norway (1851) 10 cb 665 at 687, citing Hern v. Nichols 1 Salk 289. 56 Grant v. Norway (1851) 10 cb 665 at 681. 57 The law in 1851 was that the transfer of a bill of lading transferred property in the goods shipped, but did not assign the contract of carriage.This was changed by the 1855 Bills of Lading Act, 18 &19Vict. c. 111. 58 Cresswell J had hinted at this when questioning Crowder onHernv. Nichols, when he pointed out that that case concerned an agent making a contract, where in this case, the agent had “enabled a man with whom I did contract, to cheat me” - a fraud: Grant v. Norway (1851) 10 cb 665 at 678-9.
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