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(1) Alsop v. Coit, 12 Mass. Rep. 40.

(2) Smith v. Cologan, 2

T. R. 188. n.

(3) Sanches

v. Davenport,

6 Mass. Rep.
258. See also

Wallace v.
Tellfair, 2 T.
R. 188. n.

(4) Moore v. Mourgue, Cowp. 579.

The insurance

must be ac

trade.

if he had effected a policy, with a warranty that the vessel would sail with the frigates, as he was authorized to do, nothing could have been recovered against the underwriters, under the policy.(1)

It has been made a question, whether an agent is bound, under a general order, to effect insurance, to do any thing extraordinary, and more than is usual, for the purpose of effecting a policy. A London house having orders to get insurance on a vessel, applied at Lloyd's for the purpose, where the risk was refused, because the vessel was not registered there; upon which Mr. Justice Buller said, if the agents had gone no further, it might have been a doubt whether they would have been liable, for if a person do what is usual to get insurance made, that is sufficient. He is not obliged to get insurance at all events.'(2) But it would obviously not be safe in an agent to limit himself very strictly within this doctrine.

But where the agent could not procure insurance in the place of his residence, or any neighbouring place, at the premium to which he was limited by his principal, he was held not to be liable in consequence of not effecting a policy.(3)

It has been held to be sufficient, if the agent has no particular instructions, if he effects insurance in any usual form. A merchant of Alicant requested his correspondent in London, without giving him any particular instructions, to effect insurance on a cargo of fruit, which the agent caused to be insured, by the London Assurance Company, free from particular average. The fruit was mostly lost, but the loss came within the exception, and so was not covered by the policy. There were said to be two offices in London, where fruit was insured without this exception. The loss was claimed against the agent. Lord Mansfield said, that to make him liable, he must be guilty either of a breach of orders, gross negligence, or fraud. The plaintiff, if he pleased, might have given orders not to insure at the London Assurance-Office, but at some other, where this exception would not have been insisted on. But he gives no such directions at all. Therefore he left it to the discretion of his correspondent, who, if he meant no fraud, was at liberty to elect between the underwriters."(4)

The broker must effect the policy according to the custom in the particular voyage. Brokers were ordered to effect insurance cording to theat and from Teneriffe to London.' Many brokers testified, that custom of the under such an order, and without any particular instructions for the purpose, it was the invariable practice to insert, 'liberty to touch and stay at all, or any, of the Canary Islands.' Lord Ellenborough held, that the brokers were liable for damage arising from the omission of this liberty in the policy.(5)

(5) Mallough r. Barber, 4 Camp. 150.

The policy must be made

strictly conformable to instructions.

A broker in London, was directed by his correspondent at Malaga to insure goods from Gibraltar to Dublin, the correspondent saying, 'I take the risk on myself from this to Gibraltar Bay, where I shall send my letters on shore.' The broker effected a policy on goods at and from Gibraltar to Dublin.' Gibbs, C. J. A broker is bound to have knowledge and dili

1

gence, and must execute his orders. If the instructions were (1) Park v. doubtful, I should think the principal not entitled to recover. Hammond, 1 But I think the letter not doubtful. It was understood, that the Holt, 80; S. C. 4 Camp. goods were to be shipped at Malaga, and the broker ought not 344; 2 Marsh. to have effected a policy which can only attach on goods ship- Rep. 189; ped at Gibraltar."(1)

6 Taunt. 295.

A misstatement of facts by a consignor and vendor of goods, A misrepremay have the effect of making him stand as insurer. Where sentation by a the consignor and vendor made such a representation to the con- render him consignor may signee and purchaser, that an insurance upon the representation liable as insuwould have been void, it was held that the consignor thereby rer. made himself insurer, and the goods being lost by the perils (2) Arnot v. usually insured against, he was not entitled to recover the price Stewart, 5 of them.(2)

Dow, 274.

An agent is liable if he cause a policy to be cancelled without authority. The sum of 3000l. being insured by a valid policy, upon the life of a person absent at sea, his agent, supposing that it had been effected through mistake as to the amount, had the policy cancelled, and procured another for a smaller sum. But it appeared that the amount had been insured without any mis- (3) Gray v. take. The person, whose life was insured, died during the pe- Murray, 3 Johns. Chan. riod of the risk. The agent, by cancelling the first policy, 'Rep. 67. under these circumstances, was held to be liable as insurer; on (4) Bousfield the ground that he had no sufficient reason to suppose that there . Creswell, had been any mistake.(3)

2 Camp. 545. If the policy remains in the hands of the agent, he is bound The duty of to use reasonable diligence to obtain payment of the loss.(4) an agent in He is answerable for a mistake of his principal's orders, through payment of a procuring haste or carelessness. Where the assured instructed his agent loss. upon what terms he would adjust the loss, and the agent, by a hasty reading of the instructions, mistook them, and settled the Moore, 3 loss upon different terms, he was held to be answerable.(5)

(5) Rundle v.

Johns.Cas. 36.

Johnson, 6

Payment to an authorized broker, is payment to his principal.(6) What is payA broker settled a loss which had become due, by taking the ment to the underwriter's bill at a credit of three months. This was held broker. to be payment to the broker, and made him immediately liable (6) Erick r. to the assured for the whole amount of the loss.(7) But where Mass. Rep. the insurers initials were struck out of the adjustment in token 193. of payment, and the broker had charged the loss to the insurer, (7) Wilkinson Lord Ellenborough said, 'The assured is never estopped from Taunt.' 110; v. Clay, 6 demanding the money, unless there is actual payment to the S. C. 4 Camp. broker, or a credit given."(a)

In England, as has been already mentioned,(8) the broker is generally considered to be debtor to the underwriter, for the premium. But in the United States there is no distinction, in this respect, between an insurance broker or an agent for effecting insurance, and any other broker or agent. The broker may become a debtor to the insurer, or a creditor to the assured, for the premium, in virtue of an agreement to this effect,(b) or by holding himself out as principal, he is liable to be so consi

(a) Jell v. Pratt, 2 Starkie, 67. (b) Taylor v. Lowell, 3 Mass. Rep. 352; Supr. 79. See also Bethune v. Neilson, 2 Caines, 139.

171.

(8) Supr. 78.

Williams, 7

T.R. 356. n.;

Maanss v.
Weldon,
1 East, 335.

(1) Rabone v. dered by the party with whom he contracts.(1) And the party with whom he contracts is entitled to all the advantages of considering him as principal. White and Lubbern, merchants in London, directed their brokers to effect insurance upon a cargo without making known that the cargo did not belong to themselves. The cargo in fact, belonged to a merchant at Rostock, to whom it was shipped. A loss happened, which the insurers paid to the brokers. Lord Ellenborough said, 'The brokers having had no notice that the policy was not for White and Lubbern, they had a lien upon it for their general balance. They must be supposed to have made advances on the credit of the policy, which was allowed to remain in their hands.' Accordingly, the brokers were held liable to pay over to the assured only the excess, after satisfying their own demands against White and Lubbern.(2)

(2) Mann v. Forrester 4 Camp. 60. See also

Westwood v.

Bell, 1 Holt,

122.

(3) Bowne v. Shaw, 1 Caines, 489.

(4) Edgar v. Bumstead, 1 Camp. 411.

(5) Jameson v. Swainstone, 2

Camp. 546. n.

(6) Shoemaker v. Smith, 2 Binn. 239.

In the United States this rule would be applicable between the broker or agent, and the underwriter.(3) If the agent discloses his principal, and does not render himself liable by any special agreement, it does not appear that cither of the parties has a right to consider him as principal, in respect to any part of the transaction. In the United States the premium note is generally made payable to the broker, where the policy is made in a private office.

Where a broker paid a loss, not knowing that the insurer had previously become bankrupt, Lord Ellenborough said, 'According to the well known course of dealing between the broker, underwriters, and assured, the money could not be recovered back.'(4)

A broker paid a loss, and two years afterwards claimed repayment of the money, alleging that he had not been able to recover the loss from the insurers. Sir James Mansfield said, 'After so great a lapse of time the broker must be presumed either to have received actual payment, or to have settled with the underwriters in some way or other.'(5)

Where a broker paid the premium to the underwriter, after notice from the assured not to pay it, as the property had not been put at risk, it was held that he could not recover it from the assured.(6)

The rights of lien and set-off are of importance to insurance brokers and agents, but the particular consideration of these subjects is omitted, as not coming within the plan by which this treatise is limited.

INDEX.

ABANDONMENT, defined, 382-object of,
is to entitle assured to recover the entire
value insured-to turn that into a total loss,
which otherwise would not be, 383-is
therefore optional with assured whether to
make it or not, 383-is unnecessary, where
assured has no right of property in the sub-
ject, 382-or where there is an entire de-
struction of it, 382, 384, 385-is necessary
only where there is a constructive or technic-
al total loss, 383-is required, where any part
of the thing insured is left, 384-held neces-
sary, where ship is disabled and broken up,
384 or captured, 384, 385-of freight,
when requisite, 383, 386-of profits, whether
requisite, 387, 430-of commissions, when
requisite, 388, 433-in case of reinsurance,
unnecessary, 388-cannot be made, when
thing insured is taken from control of assured
by peril not insured against, 388-or where
there has been a prior abandonment of the
same subject, 388-whether consignee can
abandon cargo arrested in port of loading,
389-is allowed only in cases of total loss,
382, 436-therefore necessary to consider
what constitutes a total loss, (see Loss To-
tal)-right of, depends on facts at the time
of abandoning, 400, 401-whether offer of
insurers to pay expense of repairs, &c. takes
away right of, 406, 407-not authorized by
loss in consequence of sale, but by events,
(constituting total loss) which induced sale,
408, 409-cases of master's authority to sell,
407 to 412, 420 to 424-cannot be made, in
case of capture, after decree of restitution,
420-whether abandonment of ship affects
the rights of insurers on freight, 429, 430,
473 to 481-whether abandonment of the
goods affects the liability of insurers on
profits, 432-of commissions, transfers noth-
ing except in case of assured having done
all he agreed to do towards earning them,
433-of part only of property insured, may
be made, if total loss happens on this part,
if the other part is not at risk, 433, 434—
whether it can be made of part of the pro-
perty at risk, 434-not if one sum be insured
indiscriminately on different kinds of mer-
chandise, 434-otherwise if different sums
are insured on different parts of the cargo,

434, 335-whether goods separately valued
may be separately abandoned, 435-may be,
in New York, 435-remarks on this doc-
trine, 435, 436-can be made only accord-
ing to facts existing at the time; not accord-
ing to the state of intelligence received, 436,
437-discussion of this doctrine, 437 to 440
-if made on false intelligence, is not valid,
440-grounds of, must be stated, at the
time it is made, 440-may be made upon a
report, and will be valid if report prove to
be true, 441-(see PRELIMINARY PROOF)
the time of making, is often restricted in
policy, 441-if not thus restricted, it must
be made within reasonable time,' 441-not
yet reduced to such certainty as to enable
the court to pronounce upon it without a
jury, 442-cases on the subject, 443 to 446
-principles of the cases, 444, 445-rule
more strictly enforced in England than in
United States, 445-in U. S. assured may
abandon after hearing of condemnation, and
after appeal from the sentence, though he
neglected on notice of capture, 446-right
of, may be kept in suspense by agreement
of parties, 446-form of, is immaterial, 447
-need not be in writing, 447—but must be
positive and absolute, 447-whether demand
of total loss amounts to, 447, 448-reasons
of, must be made known at the time, 448--
operates as an assignment, 449, 458-deed
of cession not necessary to, 443-unless
under particular circumstances, and if de-
manded, 448, 449-defect in form of, may
be waived, 449-is valid without accept-
ance, 449-acceptance of, to be binding,
must be made by persons authorized, 449,
450-and is not to be inferred, generally,
from mere silence, 450-nor is there any
established form of accepting, 451-may be
inferred from conduct, 451-instances, 451
-revocation of, must be by consent of in-
surer, 452-but insurer, when he alleges a
revocation, is not required to show his as-
sent at the time it was made, 452-1. What
is a revocation or implied waiver. Assured's

buying in the ship and selling her on his
own account, 452-despatching ship on
another voyage, 453-unnecessary involving
of the property in new speculations, 453-

repairing ship without consulting insurer,
453. 2. What is not. Assured selling the
ship; case of, 452-ordering sale of cargo
and remittance of the proceeds, 453-pro-
ceeding, under a policy on commissions, on
the voyage, and earning commissions; case
of, 453, 454-defeat of, by subsequent events;
doctrine discussed, 454 to 458-not allowed
in U. S. 457, 458-otherwise, it seems,
in England, 455 to 457-refers, so far as it
operates as an assignment, to time of loss,
458, 459-and of course entitles insurer, for
most purposes, to the advantages, and sub-
jects him to the liabilities, of ownership, 458
-(see SALVAGE)-made to several insurers
does not make them joint owners, 464-is
not necessary to give insurers a right to re-
ceive proceeds of claims arising out of losses
paid by them, 464-(see INSURER)-of
goods, when not accepted, whether it makes
insurers liable to pay the freight, 467, 468
-makes the master agent of the insurer,
468, 469-transfers risk of agent's solvency
to the insurer, 468, 469-entitles insurer to
benefit of agent's purchase; case of, 469,
470-whether it ought not to make assured
the only agent for insurer, and master only
subrogated agent, 471, 472-of ship, trans-
fers to insurer on ship all pending freight in
England, 477, 488-in New York and Mas-
sachusetts, only pro rata freight, i. e. freight
prior to the loss; and the remainder to in-
surer on freight, 478 to 481.

ACCEPTANCE of Abandonment, 449. See
ABANDONMENT.

ADJUSTMENT, of a claim for a loss, 500—
conclusive, if no mistake or fraud, 501.

AGENTS, acts of, may be insured against,
224-master and crew the only, whose acts
are insured against by common form of
policy, 224, 225-as to acts of, whether
there is a distinction between owner of ship
and owner of goods, 225, 226-carelessness
and misconduct of, unless barratrous, does
not subject underwriter to loss, 226-exam-
ples, 226 to 228-exceptions, 228, 229.

AGENT and BROKER, usually effect insu-
rance with private underwriters, 519—who is
-when general agent-authorized to insure,
519--ratification of his acts is equivalent to
previous authority, 519-acting voluntarily
and gratuitously, is still answerable, 519-
an agent to insure, is such to abandon and
adjust the loss, 519-sub-agent, 520-when
an agent is obliged to comply with an order
to insure, 520-his duty in effecting a policy,
521-whether he must make extraordinary
endeavours, 522-must effect the policy ac-
cording to the custom, 522-is liable for
cancelling policy through mistake, 523-is
not debtor for premium in U. S. 523.

AGREEMENT FOR INSURANCE, described,
5-must be stamped, in England, 5-not
binding on the parties till it is signed, 6-
made by correspondence by letter, 6.

ALIEN ENEMY, cannot insure, 19, 160-
unless by permission of the government, 20

-domicil constitutes national character, 21
not easily defined, 21-time of residence an
ingredient, 21, 22-examples, 21, 22—alien
enemy cannot insure his interest in a neutral
house, 23-of subjects and citizens abroad
when war is declared, 23 to 26-the na-
tional character of a corporation depends on
that of its members, 26-mariners' national
character determined by that of the ship in
which they are employed, 26. See INSURED.

AMOUNT, of insurable interest, 304-re-
coverable over total loss, 481, 482, 483—of
contribution to general average, 353—of
partial loss, 374, 375, 381.

APPORTIONMENT of Premium, 178, 506—
in case of successive risks, 508.
ARBITRATION, clause as to, 8-may be
by parol, 500.
ARRESTS. See CAPTURE and DETEN-

TION.

ARRIVAL, return of premium for, 510.
ASSIGNMENT of the policy, 11. See Po-

LICY.

ASSURED. See INSURED.

AVERAGE, General, what constitutes, 330
-must be for expense incurred, or sacrifice
made, with deliberate intent, by the agency
of persons acting for the general benefit, 331,
335, 340-distinguished from particular,
331.

1. What entitles to average contribution.
Loss by jettison, 331, 332-in case of ship,
extraordinary expenses and sacrifices only;
such as constitute a loss under a policy, 332
-as mast cut away, cable cut, guns or pro-
visions thrown overboard, if necessary, 332
-(question as to boat carried on sides or at
stern of ship, 333) mast cut away to make
vessel right, 333-(question as to mast, &c.
cut away after it is sprung, or rigging, which
hangs over the sides, 333)-loss by cutting
cable when anchor is fixed in foul bottom,
if cut to avoid impending peril, and it would
probably have been recovered, under favour-
able circumstances, 333, 334-voluntary
sacrifice of part of ship or cargo to save
remainder from impending peril, 334-da-
mage incidentally to ship or cargo in making
jettison, 334-examples, 334-loss of part of
cargo put into boats to lighten ship, 334-or
put into another ship to lighten original ship,
in order to find and stop a leak, 335-loss
by ship's slipping cable to avoid going
ashore, or running foul of other vessels, or
other impending peril, 335-loss by applying
materials of ship to extraordinary uses, in
emergency, 336-by abandoning boat to de-
ceive enemy, 336-expense of getting off
ship intentionally stranded, to escape from
enemy, 338, 339-remarks, 339, 340-ex-
pense of salvage, especially in case of re-
capture, 340-loss by giving goods to pirates
or plunderers by way of composition, 340-
expenses of compromise between neutrals
and belligerent captors, 340, 341-though
the master is part owner, 341-and though
the state of the market be such that the

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