船舶买卖经纪的代理与授权问题

The authority of an S&P broker may be actual or ostensible.

买卖经纪人的授权可以是实际的或者表面上的。

Actual authority flows from a relationship between the ship broker and his principal under which the broker is authorised to represent the principal. Such authority may be express or implied.

实际的授权是船舶经纪人和其委托人之间的关系产生的结果，按照这种关系，经纪人被授权代表其委托人行事。这种授权可以是明示或默示的。

Authority will be express in respect of those matters dealt with directly in words or in writing, and its scope is established by applying ordinary principles of construction of contracts, including any proper implications from the express words used, the usages of the trade and the course of business dealings between the parties.

就明示授权的有关事项和范围，可以直接用文字或书面形式确立下来，并适用于一般的合约解释原则，其中还包括从所使用的明示词语中正当默示的任何意思，行业惯例和双方当事人之间的商业交易往来。

Authority will be implied where it is necessarily or normally incidental to the activities authorised by the principal or where it accords with the reasonable business customs of the market or trade within which the broker is working. Authority might also be implied by the circumstances or as a result of a course of conduct that has grown up between the principal and the broker.

默示授权是必要地或通常地附属于委托人授权的经营活动，或按照市场或行业习俗，属于经纪人工作范围内合理的业务。授权也可能是当时情况需要而默示的，或由于委托人和经纪人之间日益增长的业务过程所需要的。

Ostensible (or apparent) authority is quite distinct from actual authority. In Hely- Hutchinson v. Brayhead Ltd (1968) Lord Denning MR described ostensible authority as the authority of an agent as it appears to others. Under the doctrine of ostensible authority a principal may be bound to a third party by the act of his agent even though as between the principal and his agent there is in fact no actual authority. When will the doctrine apply? In the case of Armagas Ltd v. Mundogas SA (The Ocean Frost) (1986) Lord Keith stated that:

表面上（或外观上明显）的授权是完全不同于实际的授权。在Hely-Hutchinson v. Brayhead Ltd (1968) 案，[1] 上诉法院院长Denning勋爵把表面授权描述为如同作为代理人的权利所显示出的一样。按照表面授权的学说，即使事实上委托人和他的代理人之间没有实际的授权，这一原则也可能通过代理人的行为约束第三方。何种情况下适用这一学说？在Armagas Ltd v. Mundogas SA (The Ocean Frost) (1986) 案，[2] Keith勋爵陈述道：

“Ostensible authority comes about where the principal, by words or conduct, has represented that the agent has the requisite actual authority, and the party dealing with the agent has entered into a contract with him in reliance on that representation…. In the commonly encountered case, the ostensible authority is general in character, arising when the principal has placed the agent in a position which in the outside world is generally regarded as carrying authority to enter into transactions of the kind in question. Ostensible general authority may also arise where the agent has had a course of dealing with a particular contractor and the principal had acquiesced in this course of dealing and honoured transactions arising out of it. Ostensible general authority can, however, never arise where the contractor knows the agent's authority is limited so as to exclude entering into transactions of the type in question, and so cannot have relied on any contrary representation by the principal.”

‘当委托人通过言语或行为已经声称其代理人具有必要的实际授权，因而，与代理人业务往来的另一方依赖这一陈述并与之签订合同……表面授权就随之产生。在通常所碰到的情况下，表面授权一般的性质是产生于：委托人使代理人所处的位置是被外界普遍认为其拥有参与相关类型的交易并订立合同的授权。一般性的表面授权也可能产生于：代理人在与某一特定承包商交易来往过程之中，且在此过程中委托人已经默许并承诺履行这一交易。然而，若合同当事人知道代理人的授权被限制，以至于被取消了签订该类合同的权利，则表面授权不可能产生，因此也不能依赖委托人任何相反的陈述。’

The burden of proving either actual or ostensible authority will lie with the person seeking to fix the principal with liability for the acts or omissions of the broker. In practice, actual and ostensible authorities will often coexist and coincide, but either may exist without the other and their respective scopes may be different.

实际或表面授权的举证责任，在于试图使委托人承担其经纪人的行为后果或者疏忽责任的人。在实践中，实际和表面授权通常是共存的和重叠的，但，任何一种都有可能独立存在，所以它们各自的适用范围就也可能有差异。

 

If a principal clothes his broker with limited actual authority or imposes conditions on the exercise of such authority, the principal should ensure that the limitations or conditions are made known to any third party with whom the broker deals. In Ateni Maritime Corp v. Great Marine Ltd (The Great Marine (No. 2)) (1990) the seller's broker committed the seller to deliver its ship to the buyer on completion of her then current voyage. In the event, the ship was delivered three weeks after the end of that voyage and buyer claimed damages for late delivery. The seller contended that its broker's actual authority was limited, and in particular that the broker had no authority to conclude an agreement providing for the ship to be delivered on completion of the current voyage. These contentions were rejected by Leggatt J.

如果委托人授予其经纪人的实际权力有限，或在行使这种授权时施加一些条件，委托人应确保与经纪人交易往来的任何第三方知道这些限制或条件。在Ateni Maritime Corp v. Great Marine Ltd (The Great Marine (No. 2)) (1990) 案，[3] 卖方的经纪人承诺卖方会在船舶完成当前航次时把她交付买方。结果，船舶在航次结束之后3周才交付。因而，买方要求赔偿延迟交付的损失。卖方辩称，他的经纪人的实际授权是有限的，特别是经纪人无权缔结协议规定船舶在完成当前航次时进行交付。这些争辩被Leggatt法官拒绝接受。

Similarly, if a principal subsequently narrows the scope of his broker's actual authority or terminates the broker's appointment, the principal should ensure that such developments are promptly brought to the attention of the relevant third parties.

同样，如果委托人后来限制其经纪人的实际授权范围或终止经纪人的任命，委托人应确保这些事态的发展及时提醒相关第三方的关注。

Viewed from the other side of the contractual divide, a principal should be wary if the opposing principal's broker purports to exercise powers which one would not normally expect such an agent to possess or if that broker proposes to contract on unusual terms. In such circumstances, the first principal would do well to obtain confirmation from his opposing principal that the broker is in fact empowered to commit his principal to the terms proposed.

从合同分界线的另一方看，如果对方委托人的经纪人声称行使其作为代理人正常预计不会拥有的某些权利，或该经纪人提议订立一些非正常的合同条款，委托人就应该提高警惕。在这种情况下，第一个委托人应该合理安排并从其对方委托人处获得信息确认，该经纪人事实上是被授权且他的委托人已同意所提议的条款。

Where a broker purports to do some act (e.g. enter into a contract) on behalf of his alleged principal without having the authority to do so, the principal may become bound if, by his subsequent words or conduct, he adopts or ratifies the broker's acts. Ratification will have the effect of retrospectively giving the broker the authority which he previously lacked – so the broker will be treated as if he had always had such authority. But there are limits to the ratification concept. For example, where a broker purports to make a contract on behalf of a company which has not yet been legally formed, the company could not validly ratify the contract after the company's legal formation has been completed and the broker could find himself under an obligation to perform the contract as principal.

当经纪人没有授权却声称某些行为代表他所宣称的委托人（例如，签订合同），如果根据委托人后来的言语和行动接受或批准经纪人的行为，那么该委托人就可能承担相应的责任。批准并给予原先缺少权利的经纪人以授权是具有追溯性的作用效果——因此，经纪人将被视为他一直拥有这样的权力。但事后批准的概念也有一定的局限性。例如，当某公司还没有合法成立时，经纪人声称是代表该公司签订合同，而在该公司合法成立之后，又不能有效地批准该合同，那么，经纪人就可能会发现其自己就有义务作为合同当事人履行合同。[4]

Principals should choose their brokers carefully (bearing in mind that nowadays many brokers specialise in particular markets and types of ship) and ensure that their instructions to the chosen brokers (and any limits to the scope of their authority) are clearly understood by all concerned. In practice, principals and their brokers normally maintain close contact during pre-contract negotiations and principals will usually require to be provided with copies of all important messages sent or received by their brokers. Indeed, experienced principals will insist on pre-clearing certain messages (such as the “recap”) before they are sent out by their brokers.

委托人应当谨慎选择自己的经纪人（需要铭记的是，现今，很多经纪人是专门限定于研究某些特定的市场和类型的船舶），并确保他们给予其所选择的经纪人的指示（以及他们授权范围的任何限制）是被所有各方完全清楚理解。在实践中，合同前期的谈判阶段，委托人和他们的经纪人通常保持紧密的接触，而且委托人经常要求他们的经纪人提供所有发送或接收的重要信息的复印文件。事实上，在经纪人发出某些信息之前，有经验的委托人会坚持要求事先批准这些信息（如，要点重述）。[5]

 In normal circumstances, where the role of the S&P broker and the extent of his authority are clearly understood by the broker and by the parties to the contract under consideration, and where the broker signs the contract on behalf of (and with appropriate authority from) a named principal, the broker will be acting as agent only and he will not be or become liable under the sale contract.

在正常情况下，经纪人和谈判的各方当事人都已经清楚地认识和理解买卖经纪人的职能和他的权利范围，所以，当经纪人代表（并具有适当的授权）指定的委托人签署买卖合同时，经纪人仅是作为代理人行事，他不会成为合同当事人或不承担买卖合同的责任。

The capacity in which a person signs a sale contract is important. Where a broker signs any part of a contract in his capacity as an agent without qualifying his signature in such a way as to make this clear, the broker's failure to reveal the existence of his principal could lead the other principal to conclude that he is making a contract with the broker. In such circumstances the broker could be held personally liable for the performance of the contract. The same result might follow where the broker reveals the existence but not the identity of his principal.

某人签署买卖合同的资格身份是很重要的。当经纪人以他自己的身份签署合同的部分内容，却对其签字不加限制以如此表明其作为代理人的身份，且经纪人未能披露其委托人的存在，这就会导致另一方委托人认定他是与经纪人签订的合同。在这种情况下，经纪人就可能被认定是承担履行合同的责任。[6] 经纪人虽然披露其委托人的存在，但并没有指明委托人的身份特征，也有可能得出同样的结果。

Where an S&P broker signs a sale contract on behalf of his principal, the broker should therefore qualify his signature by additional words clearly stating the source of his authority and the capacity in which the broker signs, for example, “as broker only for and on behalf of [the named buyers] under authority dated [ ] …”. An express qualification of this kind will set up a presumption that the broker has not signed as a contracting party, unless it is clear from words used in another part of the contract or from the surrounding circumstances that, despite the qualified signature, the broker intended to undertake personal liability for the performance of the contract.

当经纪人是代表他的委托人签署买卖合同，因此，经纪人应该通过附加文字限制他自己的签字，以清楚地表明他的权力的来源，以及他是以经纪人的资格身份签署合同的，例如，‘仅作为经纪人的资格并根据[ xx日期]的授权代表[指定的买方]签字……’。这种明示的资格限制是将推定认为该经纪人不是作为合同当事方签字的，除非是从合同其他部分内容使用的措辞或当时的合同背景明显得出，尽管是限制性的签名，经纪人意图承担合同履行的个人责任。

Of course, in certain circumstances, the buyer's broker may sign both as broker and for his own account. In such a case the buyer's broker would do well to make it clear, on the face of the sale contract, where he signs in a pure broking capacity and where, by his signature, he intends to enter into the relevant part of the sale contract for his own account.

当然，在某些情况下，买方的经纪人可能会以经纪人的身份签字，同时也是为自己的利益而签署。[7] 在这种情况下，买方的经纪人合理安排并在买卖合同的正面清楚表明，何处是以纯粹的经纪人的资格签字的，以及，何处的签名是为他自己的利益而意图订立的买卖合同的部分相关内容。

 If, with the knowledge and consent of both the buyer and the seller, a broker acts as the sole intermediary broker and as agent for both parties, his role will involve negotiating with each principal on behalf of the other and he will be under a duty to his principal on each side of the transaction.

如果，买方和卖方的知情和同意，经纪人可以作为唯一的中间经纪人和双方的代理人，他的角色将涉及代表每一个委托人与另一个委托人进行谈判，以及站在交易的每一方来看，他都对其委托人负有责任。[8]

In practice such an appointment might prove embarrassing for the broker who may find it difficult to serve the interests of both principals without a conflict arising. For example, if the broker obtains sensitive information from one principal which may have a significant impact on the position of the other principal (such as information in relation to a latent defect in the ship), how is the broker supposed to reconcile his duties to both principals? Or if one principal makes a formal proposition and the broker fails to communicate that proposition to the other principal, would the broker's knowledge of the proposition be imputed to that other principal?

在实践中证明，对于经纪人来说，这样的任命可能非常尴尬，他可能会发现很难同时满足双方委托人的利益而没有冲突的产生。例如，如果经纪人从一方委托人那里获得一个敏感信息，可能会对另一方委托人造成显著影响（例如，有关船舶潜在缺陷的信息），设想经纪人将如何协调他对双方委托人负有的义务？或者，如果一方委托人提出一个正式的建议，而经纪人没有将该建议传达给另一方委托人，经纪人知道这一建议是否推定另一方委托人也知道它？

Where a single broker is working on a transaction, the true analysis may be that he is in fact working as agent for one party only even if he is in direct communication with both parties. It may well be the case that the broker's role is not clear, either to him or to the parties to the negotiations. Much will turn on the way in which the negotiations commenced. If the broker contacted the seller offering to find a buyer for its ship, the broker will be working as seller's agent. But if the broker's first contact with the seller was to advise it that he had a buyer wishing to inspect the ship with a view to purchasing her, he may be acting as buyer's agent. Where a broker intends to act as sole intermediary on behalf of the seller and the buyer, the best policy will be to ensure that both principals understand and consent to the broker working on the transaction in that capacity. For a case in which a broker mistakenly believed that he had acted as agent for the seller and the buyer, see Marcan Shipping (London) Ltd v. Polish Steamship Co (The Manifest Lipkowy) (1988). In that case, the claimant S&P broker negotiated a contract for the sale of a ship and later claimed that he acted as sole agent for the seller and the buyer. It was held that the concessions made by the broker during negotiations and the assistance which he gave to the seller could not support the broker's contention that he was also representing the buyer.

当交易中只有一个经纪人的情况时，正确的分析可能是，该经纪人的工作事实上仅是作为某一方的代理人，即使他是在与双方直接沟通。在这种情况下，无论是对于经纪人本人，或是对于谈判双方当事人，经纪人的职能可能尚不清楚。很大程度上，这在谈判开始阶段就已经确定下来。如果经纪人联系卖方并提议去为船舶寻找买方，经纪人将作为卖方的代理人开展工作。但是，如果经纪人首先接触卖方并通知有买方希望检查船舶以及意图购买她，他就可能是作为买方的代理人。当经纪人打算代表买卖双方作为唯一的中间人，最好的策略是确保双方委托人都知道并同意该经纪人是以这样的身份在交易中开展经纪工作。对于经纪人错误地认为他是作为买卖双方的代理人的情况，请参看案例：Marcan Shipping (London) Ltd v. Polish Steamship Co (The Manifest Lipkowy) (1988) 案。[9] 在该案，原告，买卖经纪人促成了一个船舶销售合同并后来声称他是作为买卖双方的唯一代理人。法院判决：经纪人在谈判过程中做出的让步和他给予卖方的协助，是不能支持经纪人也是代表买方这一论点。

In Arctic Shipping Co Ltd v. Mobilia A.B. and others (The Tatra) (1990) the shipowner, acting through a Norwegian broker, believed that it had concluded a sale contract through a Swedish broker purporting to represent and contract on behalf of Mobilia as the buyer. However, the court held that there was no concluded contract since the Swedish broker had no authority to contract on behalf of Mobilia and Mobilia did not subsequently ratify the Swedish broker's activities.

在Arctic Shipping Co Ltd v. Mobilia A.B. and others (The Tatra) (1990) 案，[10] 船东，是通过挪威经纪人，相信与买方通过瑞典经纪人达成了船舶销售合同，该瑞典经纪人声称代表作为买方的Mobilia公司签订合同。然而，法院判定，这并没有缔结合同，因为瑞典经纪人无权代表Mobilia公司签订合同，以及Mobilia公司后来并没有批准认同瑞典经纪人的行为。

Where a broker purports to make a contract on behalf of a party to a set of negotiations, the broker is deemed to warrant that he is duly authorised to represent the party and that he has authority to make the contract in question. A broker who does not in fact have authority to contract on the terms which he transmits will risk being held liable in damages to the disappointed seller or, as the case may be, buyer for breach of warranty of authority.

在一系列的谈判过程中，当经纪人声称代表某一方签订合同时，这就视为经纪人保证自己是被正式授权代表该方以及他有权利签订有关合同。事实上，若经纪人确实没有权利按照他所给出的条款签订合同，他就可能因违反授权保证而被判定承担失望的卖方或买方（视具体情况而定）的损害赔偿。[11]

In these circumstances, the party whom the unauthorised broker purported to represent will not be liable if that party was not responsible for the broker's unjustified warranty of authority.

在一些情况下，如果一方当事人不负责某一经纪人不合理的授权保证，则未授权的经纪人声称代表的当事方将不承担责任。

Furthermore, brokers should be aware that a reasonable belief that they possessed the relevant authority will be no defence to a claim for breach of warranty of authority.

此外，经纪人（们）应该明白，合理相信他们拥有相关权限是不能抗辩违反授权保证的索赔。

The lesson for brokers is that before warranting to have any authority they should obtain clear (and, preferably, written) confirmation from their principal (or, in the absence of a direct contact with the principal, then from the next broker in the chain) of the existence and precise scope of their authority.

经纪人的教训是，在保证拥有任何授权之前，他们应当得到其委托人（或，若无法直接联络委托人，从其关系链中紧邻的经纪人）清晰明确的（或，最好是书面的）确认该授权的存在和精确的范围。

Where brokers are working a deal through other brokers, there may be several links in the chain from the principal and the broker in direct contact with him at the top end of the chain to the last broker at the bottom end of the chain, with each broker relying upon the instructions and authority of the person directly above him in the chain. Warranty of authority issues may give rise to significant problems between brokers at different points in the chain, and a lack of authority at the top end of the chain may result in liability being fixed on brokers lower down the chain. In the case of C.H. Rugg & Co Ltd v. Street (1962), the court held that a broker at the bottom end of a broking chain was entitled to claim an indemnity from the next broker in the chain for that other broker's breach of warranty of authority.

当经纪人是通过其他的经纪人达成协议的情况，在这一关系链中可能存在多重复杂关系。从委托人和与委托人直接联络的经纪人作为关系链顶端开始，直到关系链的最底端的经纪人，每一个经纪人都是依赖关系链中在他前面的上级经纪人的指示和授权。在关系链的不同节点处，经纪人之间的授权保证的争议就可能会导致严重的问题，因而，最顶端的经纪人缺少授权可能导致连锁的反应，上一级的经纪人依次承担其低一级的经纪人的损害赔偿的责任。在C.H. Rugg & Co Ltd v. Street (1962) 案，[12] 法院判决，由于其它经纪人违反授权保证，在经纪关系链最底端的经纪人有权向上一级的经纪人要求损害补偿。 

[1] [1968] 1 QB 549, 583 (CA).

[2] [1986] 2 Lloyd' Rep. 109 at 112, 113。Freeman & Lockyer v Buckhurst Properties (Mangal) Ltd [1964] 2 QB 480 at 503, [1964] 2 WLR 618 (CA) applied in IRC v Ufitec Group Ltd [1977] 3 All ER 924.

[3] [1990] 2 Lloyd' Rep. 250 at 251.

[4] Section 36(c) of the Companies Act 1985 provides that a contract which purports to be made by, or on behalf of, a company at a time when the company had not been formed has effect as if it was made with the person acting for the company.《1985公司法》第36(C)条款规定：当某一公司当时还未形成出现，而由某公司，或代表该公司签订的合同，是有效的，好像与代表该公司的人士签订的合同一样。

[5] 参看上文第一章第1.4.3节。

[6] Elpis Maritime Co Ltd v Marti Chartering Co Inc (The Maria D) [1991] 1 Lloyd's Rep. 521 (CA) and [1991] 2 Lloyd's Rep. 311 (HL)。Seatrade Groningen BV v. Geest Industries Ltd (The Frost Express) [1996] 2 Lloyd's Rep. 375 和 Petroleum Shipping Ltd v. Vatis (t/a Kronos Management) (The RIZA)；Liner Shipping Ltd v. Same (The Sun) [1997] 2 Lloyd's Rep. 314.

[7] 在此情况下，经纪人同意给予某种补偿。例如在Saleform2012背景下，请参看下文第五章第5.11.3节。

[8] See Durrell v Evans (1862) 31 L.J. Ex. 337 and Gavghan v Edwards [1961] 2 QB 220.

[9] [1988] 2 Lloyd's Rep. 171. See also Behnke v Bede Shipping Co Ltd [1927] 1 KB 649, [1927] All ER 689.

[10] [1990] 2 Lloyd's Rep. 51.

[11] See Collen v Wright (1857) 8 E & B 647; Starkey v Bank of England [1903] AC 114; C.H. Rugg & Co Ltd v Street [1962] 1 Lloyd's Rep. 364; V/O Rasnoimport v Guthrie & Co Ltd [1966] 1 Lloyd's Rep. 1; Mitsui & Co Ltd v Marpro Industrial Ltd and Goukeket & Co NV [1974] 1 Lloyd's Rep. 386.

[12] [1962] 1 Lloyd's Rep. 364.

海运圈聚焦专栏作者 魏长庚船长（微信号CaptWei）