Chapter 4 - Agency of Necessity

Chapter 4 - Agency of Necessity, UKBC-BOWSTEA 458573389 (2022)
Chapter 4 - Agency of Necessity

Bowstead & Reynolds on Agency 22nd Ed.
Mainwork
Chapter 4 - Agency of Necessity
Article 33
Doctrine of Agency of Necessity
4-001 (1)A person may have authority to act on behalf of another in certain cases where that person is faced with an
emergency in which the property or interests of that other are in imminent jeopardy and it becomes necessary, in order
to preserve the property or interests, so to act.
(2)In some cases this authority may entitle the agent to affect the principal’s legal position by making contracts or
disposing of property. In others it may merely entitle the agent to reimbursement of expenses or indemnity against
liabilities incurred in so acting, or to a defence against a claim that what the agent did was wrongful as against the
person for whose benefit the action was taken. 1
Comment
Introduction
4-002 The term “agency of necessity” is used to indicate a general notion derived from a group of cases in which a person is
regarded as justified in taking action for the benefit of another in an emergency. They are said to create a special category
of agency which arises by operation of law in such situations. In earlier editions these cases were treated in Chapter 2
under the heading of “Creation of Agency”. They cannot, however, be classified entirely as creating agency, for although
some can be regarded as recognising agency powers in persons who had none before the event concerned, the majority
refer to a person who is already an agent, but is by this doctrine given greater powers. This, together with the fact that
it is highly doubtful whether any coherent doctrine is to be derived from them for the modern law, makes it appropriate
now to place the topic apart in its own chapter.
The cases from which the doctrine stems seem to be analytically of two quite different types, and treating these two groups
of cases as components of a single doctrine has caused confusion. The two types of cases have been treated together because
it is said that similar specific rules regarding the emergency requisite to trigger off certain legal results apply to both; and
that these are rules which create a special form of agency or authority by operation of law. It is suggested below that the
first proposition does not now appear to be true: that the emergency rules do not apply to all the cases. It is also suggested
that even if the second proposition was formerly regarded as true, the notion of a special type of authority by operation of
law is in this context at the present time no longer necessary or appropriate.
The traditional cases: the shipmaster and the acceptor for honour
© 2023 Thomson Reuters. 1

4-003 The two traditional cases from which the concept of agency of necessity derives are those of the shipmaster, who has wide
powers to bind by contract the owner, and also sometimes the cargo owners, in situations of emergency 2 ; and the person
who accepts a bill of exchange for honour and succeeds to the rights of the holder against the person for whom the acceptor
accepts. 3 The second case appears to originate from the law merchant 4 and is now statutory 5 : it may in effect confer a
right to reimbursement on the acceptor but its relation to agency is tenuous from the start. The dissimilarity between these
two cases is enough to indicate immediately that a category comprising them both is unlikely to be a satisfactory one.
First category: the shipmaster
4-004 The first category, based on the case of the shipmaster, creates full agency in that it involves both the external and the
internal aspects of the agency relationship. As to the external aspect, the master can create contracts binding and conferring
rights on the principal (usually the shipowner or demise charterer), make dispositions of the principal’s property and receive
money and property for the principal also. The agent has also the internal entitlement to reimbursement and indemnity
against the principal in respect of what the agent has done 6 ; even if that is not needed, the agent has a defence to any
action brought by the principal in respect of the acts done. And the act will be valid where validity is in issue. Thus there is
old authority that the master can sell 7 or hypothecate 8 the ship, enter into a salvage agreement regarding it 9 and contract
for the cargo to be transhipped and carried forward. 10 The master can also sell or hypothecate the cargo, whether together
with or separately from the ship, 11 and enter into a salvage agreement regarding it. 12 There are a few cases suggesting
that these powers may apply also to land carriers. 13 The actual decisions concerning the latter type of carrier involve only
claims to reimbursement and indemnity between principal and agent and so may only be examples of the second category:
they are further referred below in that connection. It is there submitted, however, that they should in fact be attributed to the
first category if that category can be enlarged and re-explained on a broader basis than that of agency by operation of law.
In respect of the shipmaster selling, hypothecating or contracting for salvage of the ship, this can be treated as involving no
more than the extension of the authority of one who is already an agent in the full sense, for the master obviously has already
in many situations actual authority, express or implied, from the shipowner (or demise charterer) to make normal trading
contracts. However, where the action taken relates to the cargo, the master as such has no legal relationship with the cargo
owner; and it can therefore be said that the master is by the emergency created an agent where there was no agency before,
and that this requires special rules. Yet the master is still agent for the shipowner, who is bailee of the cargo: and although
the shipowner may well have had no agency powers prior to the emergency, the shipowner’s position as bailee means that
it has a legal relationship with the cargo owner which is in principle capable of giving rise to such powers, which can be
exercised through the master, who is its agent. So the significance of the distinction between ship and cargo is doubtful.
Rules determining necessity
4-005 The traditional rules applicable to the exercise of this authority may be stated as follows. They derive largely from the
shipmaster case, and it will be obvious later that they are in large measure inapplicable to the second category. Indeed in
The Winson, 14 discussed below, Lord Diplock said that they should be confined to cases of the first category 15 :
(a)It must be impossible, or at any rate impracticable, for the agent to communicate with the principal. Some cases
imply that communication must be impossible, 16 but this seems too strict: as long ago as 1851 Parke B spoke of the
principal’s being unable to be “conveniently communicated with”, 17 and in 1895 Lord Esher MR of an “opportunity
to consult”. 18 In Springer v Great Western Railway Co Bankes LJ approved the phrase “practically impossible” 19
and Scrutton LJ spoke of communication as being “commercially impossible”. 20 This would include situations where
there are too many principals to consult (e.g. owners of cargo shipped under bills of lading on liner terms 21 ).
(b)The action taken must be necessary 22 for the benefit of the principal. 23 The agent’s opinion as to the necessity is
irrelevant. It is, however, sufficient if a reasonable person would think there was a necessity. 24 Mere inconvenience

does not create necessity. 25 The necessity must of course be for the protection of the interests of the principal, not
of the agent.
(c)The agent must have acted bona fide in the interests of the principal. 26
(d)The person in whose interest the agent is acting must be competent: for example, a dissolved corporation, 27 or an
alien enemy, 28 cannot be a principal under these rules. This limitation is inevitable if the doctrine is one of agency,
but its results can be criticised. 29
(e)It would also seem that in both types of situation the authority could not prevail against express instructions to the
contrary: this follows from the fact that it does not operate where the principal can be consulted. 30 The inference is
that the principal could forbid the action at the time: if so, the principal can do so in advance. 31
Second category: the acceptor for honour

4-006 The second type of case involves situations where a person who acts for another in an emergency seeks only reimbursement
or indemnity from the person benefited, or to raise a defence in respect of what that person has done in an action for breach
of contract (if there is a contract) or in tort (usually conversion, which might otherwise have been committed by the dealing
with property of the principal). No issue arises as regards third parties: if this is an example of agency reasoning, it involves
only the internal relationship between principal and agent. Although in 1841 Parke B said that the acceptor for honour
was, after the shipmaster, the only other example of agency of necessity, 32 it is clear that the second category is not in
fact confined to the acceptor for honour. Thus it has been held that a carrier may make a contract for the stabling of an
uncollected horse and recover the charges from the consignor 33 ; that the carrier is justified in selling perishable goods
which remain uncollected and are deteriorating 34 ; and that a salvor may warehouse goods on behalf of their owner at the
termination of the salvage service and recover the cost of doing so. 35 These cases may in fact be examples of the first
category: it may be that these carriers made or could have made contracts binding the goods owners to third parties. The
actual decisions, however, relate only to the internal relationship between principal and agent. It has also been held that
an agent for sale was justified in shipping the goods elsewhere, even contrary to instructions, where they were in danger
because of potentially hostile conditions. 36 On the other hand it has been held that a bailee of furniture was liable in
conversion when the bailee sold it after fruitless attempts to contact the owner: though in this case it appears that necessity,
as opposed to inconvenience, had not arisen. 37 It should be noted that in these cases the supposed agent may have no prior
relationship with the principal, as in the leading case of the acceptor for honour: but equally the actor may already be an
agent, and is at any rate likely to have some relationship with the person for whom he or she acts, such as that of bailee.
Since cases in the second category only give rise to internal rights, duties and defences between the person acting and the
person benefited, they are not dissimilar to the negotiorum gestio of Roman law, which is a quasi-contractual institution
entitling the gestor, a person intervening in situations of necessity, to reimbursement and also making the intervenor liable
for acting inappropriately. 38 As such they seem in the modern law more appropriately dealt with as part of the law of
restitution. The second category in fact contains a limited number of rather miscellaneous situations where the law of
agency was pressed into service long ago to provide a way of dealing with problems which probably ought nowadays
to be approached differently. The cases usually involve an inappropriate use of agency reasoning, as in another context
does the use of a notion of irrevocable agency to create what are really property or security interests. 39 The problems of
this category should nowadays, therefore, be considered against the background not of agency but of a possible general
principle of necessitous intervention within the law of restitution. 40
Only first category a true example of agency
4-007 Thus only the first category is a true example of agency reasoning, and only that category is therefore really relevant
for discussion in this book. It is also much less significant than it was, for modern communications will normally make

dramatic actions by shipmasters, or indeed others, unnecessary even in remote places: even in maritime salvage situations a
master may often be in touch by radio. Situations can obviously still arise, however, where communication is impossible or
impracticable; and as regards cargo, where the ship contains goods covered by many bills of lading it may be impracticable
to trace and/or communicate with all the cargo owners. 41 Cases may also arise where the cargo owner does not answer,
or does not answer clearly, requests for instructions. 42
This type of agency of necessity seems in origin to be a primitive example of what would now be regarded as vicarious
liability reasoning. To impose liability on the principal in such cases was more important than to think of any correlative
rights for the principal. A justification given in 1808 was that the master “is seldom of ability to make good a loss of any
considerable amount” 43 : hence the owner should be liable. The idea of authority arising in specified circumstances by
operation of law is not, however, so satisfactory as the combination of the more general rules of implied and apparent
authority, which (particularly the latter) have been developed subsequently to the old cases. For the old rules require that
the third party dealing with the agent take the risk as to whether the circumstances creating authority by operation of law
have arisen—whether there really is an emergency and whether it really is impracticable for the agent to communicate with
the principal. Furthermore, if it is correct, as is suggested above, that there is no possibility of authority if the principal has
been communicated with and has forbidden the act in question, this also is not easy to reconcile with the idea of authority
by operation of law. Yet as the law at present stands, if the full requirements are not complied with, the agency power
does not exist, whatever the appearance to the third party. Such an approach is much less sensitive to the merits of the
cases than the normal rules of implied and apparent authority. 44 It is true that under the doctrine of apparent authority
the third party cannot rely merely on the statement of an agent that the agent has authority, so that if the requirements
for operation of the doctrine have not arisen but the master says that they have, the third party will not on that ground
alone be protected. 45 But if there was an appearance of authority, modern doctrine would make the shipowner liable in
some cases where old cases would not—for example, where it appeared that the act was justified; where the act had been
forbidden by the principal but this was not known to the third party; and perhaps where the agent gave the impression that
the principal could not be consulted. 46
The old English rules were much more elaborately worked out than the corresponding law in the US, which has been
content with the idea of implied (incidental) authority to act in emergency. 47 There is, however, some other English case
law which approaches the question of emergency powers simply on the basis of implied (and hence in appropriate cases
apparent) authority, suggesting that the authority of an agent may be enlarged in situations of emergency. This reasoning
has been used to justify delegation by an agent of the agent’s powers, 48 lending on unusual terms 49 and giving credit
in circumstances where this would not be normal. 50 It is submitted that this is the correct approach. If it is correct, it
entails that the person acting already has a legal relationship with the principal. It is necessary, however, to add to it the
proposition, to be derived from Tappenden v Artus and The Winson, discussed below, that a person already in some other
legal relationship with the principal which is not one of agency (such as a bailee) may likewise have agency powers in
certain situations, some of which may involve emergencies. If such an approach is followed, the supposedly separate notion
of agency of necessity, or at any rate much of it, could, and, it is submitted, should be absorbed into the general law relating
to implied and apparent authority.
Salvage contracts: an opportunity for improved analysis

4-008 In the case of salvage agreements, where rapid decisions may be required, the advantages of detaching from the ancient,
strict rules and subsuming the problem under the general rules of authority can readily be seen. The first step in doing so
was taken by Brandon J in The Unique Mariner, 51 where in a salvage situation he held owners bound by the master’s
signature on Lloyd’s Open Form on the basis of apparent authority, without reference to the old rules (which probably
were not satisfied, because the master had already been in touch with the owners at the time). The case only concerned
salvage in respect of the ship, for whose owner the master is certainly agent. Subsequently however in The Choko Star 52
the Court of Appeal applied the ancient case law to hold that the master’s signature to a Lloyd’s Open Form did not bind
cargo unless it had been impracticable to consult cargo (which was not so).
The main reason given was that though a master is agent of the owner, the master is not an agent for cargo, and so cannot
act for it except when the special rules of agency of necessity are complied with. There are certainly abundant old dicta to
that effect against the background of shipping operations in the nineteenth century. Against this it may be said, as has been

suggested above, that the master acts for the shipowner, and the shipowner as bailee may be regarded as having implied and
therefore normally also apparent authority to do what is necessary to preserve the cargo during the voyage. This argument
was rejected on the basis that there were no grounds for implying such a power (beyond what the agency of necessity
doctrine permits) into the contract of carriage between cargo owner and shipowner. The rules regarding the implication of
terms into contracts are of course strict 53 : perhaps too much so. But even if those rules are accepted, despite suggestions
that “[a]gency of necessity is traditionally regarded as part of the law of contract”, 54 it is not clear that questions of
authority are always to be determined by reference to implied terms of the contract between the supposed principal and
the supposed agent. Particular relationships, such as that of bailor and bailee, may carry their own implications of implied,
and hence apparent, authority. Implied authority is inferred “from the conduct of the parties and the circumstances of the
case”, 55 which is quite different reasoning from that relating to implied terms of contracts.
In the third of the three principal recent cases on the doctrine, The Winson, 56 a salvor procured the warehousing of the
goods salved, after completion of the salvage service, and claimed reimbursement of the cost of so doing. This was therefore
a case in the second, not the first, category. The full requirements for the operation of traditional agency of necessity were
not operative, for the salvor was able to communicate with the cargo owners (who did not give a clear answer) and was
in any case acting partly for personal benefit (to preserve a lien). But the salvor was held able to recover, Lord Diplock
saying that the strict requirements were inapplicable to the second (negotiorum gestio) category. 57 It was said that the
salvor was under a duty to the goods owner to care for the goods, and that the salvor had “a correlative right to charge the
owner of the goods with the expenses reasonably incurred”. 58 But with subsequent development of principle, it may be
argued that the strict rules are not needed in the first category either. It can then be argued that the bailment relationship is
sufficient to give the bailee authority not only to do things entitling the bailee to reimbursement but also to make contracts
binding on the principal. On this basis the principal might in an appropriate case have been liable directly to the warehouse
proprietor. (Though in this particular situation, if the salvor warehoused to protect his lien, the salvor would be unlikely
to do so on behalf of another.) Thus in Tappenden v Artus 59 it was held that the bailee of a car could leave it for repair in
circumstances creating a lien against the owner. The case is not directly in point, because the decision was based on the
bailee’s right to use the goods, and hence to keep them in a usable state: but the reasoning is relevant.
The statement by Lord Diplock in The Winson that the strict rules should be eliminated from the assessment of cases of
the second category is therefore to be welcomed in so far as it provides support for the detachment of the second category
from the first. But it does not follow that all the cases where the only questions that have arisen were as to the internal
relationship between principal and agent, and in particular the case of the bailee who makes a contract in respect of the
goods bailed, are really no more than examples of the second category. Some may in fact be real agency cases, attributable
to the first category, and now to be explained on the basis of implied or apparent authority. It has already been suggested
that this is true of the land carrier decisions. It is submitted therefore that the old strict rules should no longer have any part
to play in cases of the first category any more than in the second; and that the substance of all cases in the first category
should be assimilated to the general rules as to implied and apparent authority. On this basis a master may be held to have a
general implied authority (under the category of incidental authority) to sign a salvage agreement for ship and (because of
the bailment reasoning above) cargo, except perhaps where consultation is practicable and expected; and hence apparent
authority even in some circumstances where the implied authority is not applicable (e.g. because the owner has forbidden
the contract, or could easily have been consulted). As for the more drastic acts of selling or hypothecating ship or cargo,
this would normally require consultation, and it may well be that the third party’s belief that the master’s act is justified
is less likely to appear reasonable under the doctrine of apparent authority.
The present law as to the first category
4-009 As regards salvage contracts, the matter is now settled by statute. Article 6 of the International Convention on Salvage of
1989, now law under the Merchant Shipping Act 1995, 60 gives the master or owner the power to sign a salvage contract
for cargo. But although the Court of Appeal in The Choko Star 61 had thought this topic an unsuitable one for judicial
development, it is submitted that the Supreme Court should, if the opportunity arises, take the opportunity to bring the case
law on situations of necessity into line so far as possible with present-day thinking on agency authority, which no longer
needs a special and rather rigid notion of agency by operation of law, a notion which antedates the development of the
doctrine of apparent authority, and even the full development of that of implied authority, and depends on the existence of
facts which may not be known or even knowable to the third party.

Development of the second category: restitutionary doctrine
4-010 In this area, the analogy of agency is a mistaken one, perhaps caused by the lack of the civil law concept of negotiorum
gestio. If any wider principle in respect of necessitous intervention is to emerge from the cases in the second category,
however, creative development of a different order within the principles of restitution would be required. In 1924 McCardie
J, in a case of the first category, spoke strongly in favour of enlarging the whole doctrine of agency of necessity, and was
prepared in principle to apply it to an agent for purchase who was unable because of wartime conditions to forward goods
purchased to his principal in Romania and resold them in England. 62 The dicta were, however, doubted by Scrutton LJ
three years later in a case of the second category, 63 and other dicta against extension of the reasoning can be cited. 64
Proper analysis has been hampered by the running together of the two categories. Any attempt at development within the
second category has to contend initially with the dictum of Bowen LJ in 1886 that “work or labour done or money expended
by one man to preserve or benefit the property of another do not according to English law create any lien upon the property
saved, nor even, if standing alone, create any obligation to repay the expenditure”. 65 Nevertheless, though they were said
by Bowen LJ to be a special exception, the rules of maritime salvage, 66 including the decision in The Winson, can be used
to justify movement towards generalisation; as can certain cases concerning the payment of funeral expenses of a deceased
person 67 ; and an established line of cases remunerating liquidators and other insolvency practitioners for work done in
preserving and realising property belonging to others but in the possession of the company or other insolvent person. 68 On
the other hand it has been held that no lien arises in favour of a person who succours a stray animal, 69 or conveys timber
on the bank of a river to a place of safety. 70 Though writers strongly advocate the development of generalised principle,
the picture remains unclear and the case law very limited indeed. 71 Other doctrines may sometimes secure a similar result
by different means. Thus where there is an established cause of action, the damages awarded may cover expenses incurred
in emergencies 72 ; and a person who seeks to recover property may sometimes be able to do so only if payment is made for
work done on it. 73 But the appropriate reasoning for cases of necessitous intervention in general must be found outside
the law of agency, and further discussion is beyond the scope of this work. 74
Agency of deserted wives
4-011 Until comparatively recently a line of cases whereby a deserted wife was regarded as having, even if forbidden to do so,
authority to pledge her husband’s credit for necessaries was said to be a further instance of agency of necessity, and of
agency by operation of law. These cases made any general principle behind the notion even more difficult to extract, for
the necessity in such cases was that of the agent and not of the principal. This seems another example of agency law being
deployed to achieve a desired result which did not at the time seem attainable by other means. This method of protecting
deserted wives has, however, been superseded by other institutions for that purpose, and the doctrine inherent in the cases
has in consequence been abolished in England by statute. 75 Discussion of these cases is therefore omitted: a full account
appeared in the thirteenth edition of this work.
Mentally incapacitated persons
4-012 The Mental Capacity Act 2005 creates what may be called a statutory form of agency of necessity. It permits a person
intervening on behalf of a mentally incapacitated person to pledge that person’s credit and use that person’s money for acts
in connection with his or her care or treatment: the person intervening may also be entitled to indemnity for expenditure
incurred. 76 This does not affect any power or any other power which a person may have who has lawful control of the
mentally incapacitated person’s property or power to spend money for his or her benefit. 77

Illustrations
4-013 (1)A salvor, after the completion of the salvage operation, warehouses salved goods at a nearby port, principally to
preserve them but partly with a view to preserving his lien. He asks the cargo owner to make arrangements to accept
the goods at that port. The cargo owner does not respond. The salvor was bailee of the cargo owner from the time
the goods were put into the vessels which he provided, and even if the salvage service was finished when the vessels
arrived at the port, he remained bailee of the cargo owner thereafter. As such he had a duty to the cargo owner to take
reasonable measures to preserve the cargo, and a correlative right to charge its owner with the warehousing expenses,
which had been reasonably incurred in fulfilling that duty. 78
(2)A ship strands in the River Paraná in Argentina. The master signs a salvage agreement on Lloyd’s Open Form
with Greek salvors, though local salvors are available. There is only one cargo owner, who could have been consulted
but was not. The master has no authority to sign for cargo (as opposed to the ship itself) except under the agency of
necessity rules, which are not satisfied because of the lack of consultation, quite apart from the question whether the
act of the master was reasonable or the third party was aware of the lack of consultation. 79
(3)A ship strands. The master contacts his owners, who notify him that a tug will be sent. By chance the captain of
another tug with different owners is completing a salvage service nearby. He notices the stranded ship, goes to it and
offers his services. The master takes this to be the tug sent by his owners and signs a salvage agreement. As his owners
are already sending another tug, he is not authorised to do so, and the agency of necessity rules do not apply: but his
owners are nevertheless liable under the doctrine of apparent authority. 80
Footnotes
1 See Comment. See also Powell, Ch.IX; Treitel (1954) 3 U. Western Australia L.Rev. 1; W.B. Williston (1944) 22 Can.
Bar Rev. 492; Wade (1966) 19 Vanderbilt L.Rev. 1183; Birks [1971] Current Legal Problems 110; Hunter (1974) 23
U.New Brunswick L.J. 5; Marasinghe (1976) 8 Ottawa L.Rev. 573; McCamus (1979) 11 Ottawa L.Rev. 297; Matthews
[1981] C.L.J. 340; Rose (1989) 9 O.J.L.S. 167; Brown (1992) 55 M.L.R. 414; McMeel (2000) 116 L.Q.R. 387 at 408–
410; Goff and Jones, Law of Unjust Enrichment (9th edn), Ch.18; Burrows, Law of Restitution (3rd edn), Ch.18; Virgo,
Principles of the Law of Restitution (3rd edn, 2015), Ch.11. But the relevance of discussion in books and articles on the
law of restitution to pure agency issues is doubtful: see Comment.
2 See below, para.4-004.
3 Bills of Exchange Act 1882 ss.65–68; and see Hawtayne v Bourne (1841) 7 M. & W. 595 at 599.
4 See Hawtayne v Bourne (1841) 7 M. & W. 595 at 599 at 599.
5 See fn.3 above.
6 See Article 62.
7 The Glasgow (1856) Swab. 145; The Australia (1859) Swab. 480; Atlantic Mutual Insurance Co v Huth (1880) 16 Ch.D.
474.
8 The Gratitudine (1801) 3 Ch. Rob. 240; The Bonaparte (1853) 8 Moo.P.C. 459; The Hamburg (1864) 2 Moo.P.C.(N.S.)
289; The Onward (1873) L.R. 4 A. & E. 38; Gunn v Roberts (1874) L.R. 9 C.P. 331 at 337; Kleinwort, Cohen & Co v
Cassa Maritima of Genoa (1877) 2 App.Cas. 156 (cases of bottomry, viz. hypothecating the cargo also).
9 The Renpor (1883) 8 P.D. 115; The Unique Mariner [1978] 1 Lloyd’s Rep. 438, Illustration 3, discussed also below.
10 See The Soblomsten (1866) L.R. 1 A. & E. 293; Scrutton on Charterparties (24th edn), Arts 140–141.

11 As to sale, see Tronson v Dent (1853) 8 Moo.P.C. 419; Australasian S.N. Co v Morse (1872) L.R. 4 P.C. 222; Acatos v
Burns (1878) 3 Ex. D. 282; Atlantic Mutual Insurance Co v Huth (1880) 16 Ch.D. 474. As to hypothecation, see cases
cited in fn.8 above.
12 The Winson [1982] A.C. 939, Illustration 1. See below, para.4-008.
13 Great Northern Ry Co v Swaffield (1874) L.R. 9 Ex. 132 (stabling uncollected horse); Sims & Co v Midland Ry Co
[1913] 1 K.B. 103 (sale of uncollected goods); cf. Springer v Great Western Ry Co [1921] 1 K.B. 257.
14 China Pacific SA v Food Corp of India (The Winson) [1982] A.C. 939, Illustration 1, also discussed below.
15 China Pacific SA v Food Corp of India (The Winson) [1982] A.C. 939 at 958.
16 e.g. Prager v Blatspiel, Stamp & Heacock Ltd [1924] 1 K.B. 566 at 571.
17 Beldon v Campbell (1851) 6 Exch. 886 at 890. See also Australasian S.N. Co v Morse (1872) L.R. 4 P.C. 222.
18 Gwilliam v Twist [1895] 2 Q.B. 84 at 87.
19 Springer v Great Western Railway Co [1921] 1 K.B. 257 at 265.
20 Springer v Great Western Railway Co [1921] 1 K.B. 257 at 268. And see Barker v Burns, Philp & Co Ltd (1944) 45
S.R. (N.S.W.) 1 (communication possible despite wartime conditions); Sachs v Miklos [1948] 2 K.B. 23.
21 See The Choko Star [1990] 1 Lloyd’s Rep. 516, Illustration 2, also discussed below.
22 For the meaning of “necessary”, see Prager v Blatspiel, Stamp & Heacock Ltd [1924] 1 K.B. 566 at 571–572; The
Australia (1859) Swab. 480; Australasian S.N. Co v Morse (1872) L.R. 4 P.C. 222; Atlantic Mutual Ins. Co v Huth (1879)
16 Ch.D. 474. And see Phelps, James & Co v Hill [1891] 1 Q.B. 605.
23 See Burns, Philp & Co Ltd v Gillespie Bros Pty Ltd (1947) 74 C.L.R. 148 (doctrine inapplicable where measures
undertaken (in wartime) for security of ship and cargo considered as one adventure).
24 Tetley & Co v British Trade Corp (1922) 10 Ll. Rep. 678.
25 Sachs v Miklos [1948] 2 K.B. 23.
26 Prager v Blatspiel, Stamp & Heacock Ltd [1924] 1 K.B. 566 at 570; Tronson v Dent (1853) 8 Moo.P.C. 419 at 449–
452; The Winson [1982] A.C. 959, Illustration 1, discussed also below; Re F (Mental Patient: Sterilisation) [1990] 2
A.C. 1 at 75, per Lord Goff of Chieveley.
27 Re Banque des Marchands de Moscou [1952] 1 T.L.R. 739.
28 Jebara v Ottoman Bank [1927] 2 K.B. 254; reversed [1928] A.C. 269.
29 See Goff and Jones, Law of Restitution (7th edn), para.17-006 (not carried forward in subsequent editions).
30 See Illustrations 1 and 2. See also Goddard [1984] L.M.C.L.Q. 255; but cf. Great Northern Ry Co v Swaffield (1874)
L.R. 9 Ex. 132.
31 But in Graanhandel T. Vink BV v European Grain & Shipping Ltd [1989] 2 Lloyd’s Rep. 531 at 533, Evans J said that
there could be circumstances where “it might well be argued that the seller’s refusal to acknowledge these facts would
not prevent the buyer from alleging that the agency did exist”. The deserted wife’s agency of necessity, now obsolete,
applied even though the husband had forbidden the act: see below, para.4-011.
32 Hawtayne v Bourne (1841) 7 M. & W. 595 at 597.
33 Great Northern Ry Co v Swaffield (1874) L.R. 9 Ex. 132.
34 Sims & Co v Midland Ry Co [1913] 1 K.B. 103; cf. Springer v Great Western Ry Co [1921] 1 K.B. 257.
35 The Winson [1982] A.C. 939, Illustration 1: see below.
36 Tetley & Co v British Trade Corp (1922) 10 Ll. Rep. 678. See too Liu Wing Ngai v Lui Kok Wai [1996] 3 Singapore
L.R. 508.
37 Sachs v Miklos [1948] 2 K.B. 23; followed in Anderson v Erlanger [1980] C.L.Y. 133. See also Munro v Wilmott [1949]
1 K.B. 295 (similar facts). In Ridyard v Roberts Unreported May 16, 1980, CA a bailee of ponies was held justified
in selling them when the owner in breach of contract failed to remove them. In Coldman v Hill [1919] 1 K.B. 443 at
456 Scrutton LJ suggested that a bailee of cattle from whom they are stolen ought, if he cannot contact the owner, to
“act as agent of necessity on behalf of and at the expense of the owner”. Sometimes statute gives a power of sale: e.g.
unpaid seller’s right to resell: Sale of Goods Act 1979 s.48(3); Protection of Animals Act 1911 s.7; Unsolicited Goods
and Services Act 1971 as amended; Torts (Interference with Goods) Act 1977 ss.12 and 13.
38 See Buckland, Textbook of Roman Law (3rd edn), pp.537–538.
39 See Article 118.
40 See Goff and Jones, fn.1 above; Tongue v Royal Society for the Prevention of Cruelty To Animals [2017] EWHC 2508
(Ch) at [68].
41 See The Choko Star [1990] 1 Lloyd’s Rep. 516, Illustration 2, also discussed below.
42 As in The Winson [1982] A.C. 939, Illustration 1, also discussed below.

43 Abbott, Merchant Ships and Seaman (3rd edn), cited in Holdsworth, H.E.L. VIII, p.250.
44 See in general below, para.4-008. The same can in fact be said of the Factors Acts: see Article 89.
45 Armagas Ltd v Mundogas SA (The Ocean Frost) [1986] A.C. 717.
46 cf. United Bank of Kuwait Ltd v Hammoud [1988] 1 W.L.R. 1051, where a solicitor was held liable on an unauthorised
and fraudulent transaction by an assistant where the transaction could have been authorised had a certain background of
facts existed: the third party was entitled to assume from the conduct of the agent that it did. “The bank, knowing that
[X] was a practising solicitor with established firms, were entitled to assume the truth of what he said unless alerted to
the fact that the contrary might be the case”—per Lord Donaldson of Lymington MR at 1066. But cf. Hirst v Etherington
[1999] Lloyd’s Rep. P.N. 938 and below, para.8-021.
47 See Restatement, Third, § 2.02, Comments e, f.
48 De Bussche v Alt (1878) 8 Ch.D. 286, Illustration 7 to Article 34. See also Walker v G.W. Ry Co (1867) L.R. 2 Ex. 228;
Langan v G.W. Ry Co (1873) 30 L.T. 173 (railway officials ordering medical attention for passengers: company liable:
but here the emergency is not that of the principal, the company).
49 Montaignac v Shitta (1890) 15 App.Cas. 357, Illustration 15 to Article 72.
50 Gokal Chand-Jagan Nath v Nand Ram Das-Atma Ram [1939] A.C. 106.
51 The Unique Mariner [1978] 1 Lloyd’s Rep. 438, Illustration 3.
52 The Choko Star [1990] 1 Lloyd’s Rep. 516, Illustration 2; noted [1991] L.M.C.L.Q. 1; (1992) 55 M.L.R. 414; followed
in The Pa Mar [1999] 1 Lloyd’s Rep. 338.
53 See Liverpool City Council v Irwin [1977] A.C. 239.
54 Goff and Jones, Law of Restitution (7th edn), para.17-006 (not carried forward in subsequent editions); citing Notara v
Henderson (1872) L.R. 7 Q.B. 225; and Cargo ex Argos (1873) L.R. 5 P.C. 134. It is not clear exactly what this means.
If it indicates that it stems from an extension of authority granted by contract, this may be so in most cases, but agency
can be gratuitous (as indeed the text goes on to point out).
55 Hely-Hutchinson v Brayhead Ltd [1968] 1 Q.B. 549 at 583.
56 The Winson [1982] A.C. 939, Illustration 1. See too Brasileiro SA (Petrobas) [2012] UKSC 17; [2012] 2 A.C. 164.
57 The Winson [1982] A.C. 939 at 958.
58 The Winson [1982] A.C. 939 at 960.
59 Tappenden v Artus [1964] 2 Q.B. 185.
60 Merchant Shipping Act 1995 s.224(1) and Sch.11. See this provision applied in The Altair [2008] EWHC 612 (Comm);
[2008] 2 All E.R. (Comm) 805.
61 The Choko Star [1990] 1 Lloyd’s Rep. 516, Illustration 2. The judgment of Sheen J at first instance repays study.
62 Prager v Blatspiel, Stamp & Heacock Ltd [1924] 1 K.B. 566. In this category, extension in cases where the principal has
forbidden the act might be easier: cf. Tetley & Co v British Trade Corp (1922) 10 Lloyd’s Rep. 678; above, para.4-006.
63 Jebara v Ottoman Bank [1927] 2 K.B. 254 at 270–271; reversed [1928] A.C. 269 (selling goods overseas after outbreak
of war).
64 Gwilliam v Twist [1895] 2 Q.B. 84 at 87, per Lord Esher MR (substitute driver where official driver drunk); Sachs v
Miklos [1948] 2 K.B. 23 at 35–36, per Lord Goddard CJ.
65 Falcke v Scottish Imperial Insurance Co (1886) 34 Ch.D. 234 at 248; Glasgow v ELS Law Ltd [2017] EWHC 3004
(Ch); [2018] 1 W.L.R. 1564 at [42]. See Birks, Introduction to the Law of Restitution (1989), p.194 onwards.
66 See Goff and Jones, Law of Unjust Enrichment (9th edn), Ch.18.
67 Jenkins v Tucker (1788) 1 H.Bl. 90; Tugwell v Heyman (1812) 3 Camp. 298; Rogers v Price (1829) 3 Y. & J. 28; Ambrose
v Kerrison (1851) 10 C.B. 776; Shallcross v Wright (1850) 12 Beav. 558; Bradshaw v Beard (1862) 12 C.B.(N.S.) 344;
Rees v Hughes [1946] K.B. 517; Croskery v Gee [1957] N.Z.L.R. 586. See also Matheson v Smiley [1932] 2 D.L.R.
787 (medical expenses).
68 See Re Berkeley Applegate (Investment Consultants) Ltd [1989] Ch. 32; Green v Bramston [2010] EWHC 3106 (Ch).
See too MF (Australia) Ltd v Meadow Springs Fairway Resort Ltd [2009] FCAFC 9.
69 Binstead v Buck (1776) 2 Wm. Bl. 1117. But there may in appropriate cases be distress damage feasant. See Sorrell v
Paget [1950] 1 K.B. 252, where both matters are discussed. See also Protection of Animals Act 1911 s.7.
70 Nicholson v Chapman (1793) 2 H.Bl. 254. See also J. Gadsden Pty Ltd v Strider 1 Ltd (The AES Express) (1990) 20
N.S.W.L.R. 57 (carriage of goods after termination of time charter).
71 For example, as to the relevance of the fault of the person concerned in getting into the situation of emergency, it has
been held that a car recovery company instructed by the police to remove an abandoned stolen car did not act as agent
of necessity for the owner: Surrey Breakdown Ltd v Knight [1999] R.T.R. 84 CA; and see Lambert v Fry [2000] C.L.Y.
113. The Surrey Breakdown case is doubtful authority, as it appears to proceed on the basis that the company was agent

for the owner (with whom it had no prior connection), and was claiming reimbursement of expenses under the second
category of agency of necessity. The argument had been however that the police were agent for the owner to make a
contract with the company, which sued for its normal charges: i.e. a first category situation. In this category the police,
having no prior relationship with the owner, have by private law at least no authority to make such a contract for another.
See Kortmann, Altruism in Private Law (2005), pp.167–169.
72 Schneider v Eisovitch [1960] 2 Q.B. 430 (tort); Kolfor Plant Ltd v Tilbury Plant Ltd (1977) 121 S.J. 390 (sale of rejected
goods).
73 Munro v Wilmott [1949] 1 K.B. 295; Greenwood v Bennett [1973] 1 Q.B. 195.
74 See Goff and Jones, Law of Restitution (7th edn, not carried forward in subsequent editions), para.17-009 onwards
(which, since it approaches the law from a different angle, should be taken into account by any reader of this chapter);
Birks, Introduction to the Law of Restitution (1989), p.193 onwards.
75 See above, para.3-041.
76 See Mental Capacity Act 2005 ss.5, 6 and 8. The Act also provides for the appointment of a “deputy” who may have
more extensive powers.
77 As under a lasting power of attorney, created by the 2005 Act.
78 China Pacific SA v Food Corp of India (The Winson) [1982] A.C. 939. Quaere, however, whether the salvage service
was really terminated: if it had not been, the case would have been more easily solved.
79 Industrie Chimiche Italia v Alexander G. Tsavliris & Sons Maritime Co (The Choko Star) [1990] 1 Lloyd’s Rep. 516.
But see Comment above.
80 The Unique Mariner [1978] 1 Lloyd’s Rep. 438.
End of Document © 2022 SWEET & MAXWELL

Chapter 4 - Agency of Necessity

Uploaded by

Copyright:

Available Formats

You might also like

Chapter 4 - Agency of Necessity

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Chapter 4 - Agency of Necessity

Uploaded by

Copyright:

Available Formats

Chapter 4 - Agency of Necessity, UKBC-BOWSTEA 458573389 (2022)