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but without his authority, may be ratified by the latter after the loss of the subject matter of the insurance, even though he knew of the loss at the date of such ratification (1)
A mere order to consign or forward goods will not authorize an insurance on them by the person ordered to consign or forward the goods.
Cases. 1. A native Spaniard, domiciled here in time of war between England and Spain, was licensed in general terms by the king to ship goods in a neutral ship from this country to certain Spanish ports. Held, that a policy effected by him on goods so shipped was valid, though the vessel was captured by a French privateer and condemned by a French consular court, sitting in a Spanish port, France and Spain at that time being allies (m).
2. A ship’s husband, through the agency of a broker, effected an insurance on an adventure, in which all the part owners were jointly interested. The amount of the premium was carried to the ship’s account in the ship's husband's books, which were open to the inspection of all the part owners; they saw the account, and raised no objection. It did not appear that the broker knew the names of all the part owners, or whether or not they had authorized the insurance. Held, that the jury were justified in inferring a joint authority to insure, and that all the owners were jointly liable for the premium; though the broker had debited the ship's husband only, and divided with him the profits of the commission on effecting the insurance (n).
$ 127. If a policy or insurance broker be employed, the broker Duties and will be liable to the underwriters for the payment of the liabilities of premium; the insured being liable in his turn to the broker. bruker. In such a case the broker is not merely an agent, but a principal, to receive the premium from the insured, and to hand it over to the underwriter (0).
An insurance broker is bound to communicate all the material information he may possess to the underwriter (p), and to insert the usual and proper terms in the policy he effects (). For if he show any negligence or want of ordinary skill, he will be liable to his principal for damages in respect of any loss sustained by the principal in consequence thereof (r).
If after the insurance is effected, the policy remains in the broker's possession, he must take care of the interest of his employer. Therefore he will have to prove and collect any losses or demand a return of the premium, if his employer be entitled to either, and even give notice of abandonment, but in this case only if the principal lives too far away to be consulted (s). Unless the policy be in writing and duly stamped, the broker cannot recover his brokerage, or any premiums he has paid, from his employer; while the employer may, on the other hand, recover from him any monies the employer has paid him (t).
CASES. 1. Insurance brokers were ordered to effect a policy at and from Teneriffe to London. They effected the policy, but did not insert in it a liberty“ to touch and stay at all or any of the Canary Islands.” Such a liberty was usually inserted in policies from Teneriffe. Held, that the brokers were liable for the omission (u).
2. A broker, employed to insure goods from a certain point in their voyage home, effected the policy “at and from” that point, “ beginning the adventure from loading thereof on board.” Held, gross negligence, for which the broker was liable to the insured, as the policy would not attach to goods previously laden ().
(p) Maydew v. Forrester, 5 Taunt. 615; Seller v. Work, 1 Marsh, Ins. 305.
(9) Park v. Hammond, 6 Taunt. 495; see "Cases
(2) at end of this $ ; Chapman v. Walton, 10 Bing. 57.
(r) Wilkinson v. Coverdale, 1 Esp. 75; Mallough v. Barber, 4 Camp. 150; see “Cases" (1) at end of this $; Webster v. De Tastet, 7 T. R.
157; Turpin v. Bilton, 5 Man. & Gr. 455.
(s) Bous field v. Cresswell, 2 Camp. 545; Jardine v. Leathley, 3 B. & S. 700.
(t) 30 & 31 Vict. c. 23, s. 16.
(u) Mallough v. Barber, 4 Camp. 150.
(3) Park v. Hammond, 6 Taunt. 495.
$ 128, The broker will have a lien on a policy he is employed Broker's lien. to effect, to the extent of any premiums he has paid thereon, and for his commission, and also if he be employed immediately by the insured, for the general balance of his insurance account. If he be employed by some agent, and he knows that to be so, he will have against such agent a lien only for the premiums and commission. But if he did not know that his employer was only an agent, he will also have a lien on the policy for the general balance of his insurance account.
The lien will be lost by the broker handing over the policy to his employer, or by his wrongfully disposing of it. The lien, however, will revive, except in a few cases, if the policy comes again into the broker's possession (y).
The agent in England of a foreign merchant will have a lien on a policy, he is instructed by his foreign principal to effect, for the general balance due to him from his principal.
A policy deposited with some one merely for its safety, will confer no lien thereon in favour of the depositary.
The lien of the broker on the policy for any premiums he has paid may be superseded not only by a special arrangement, but also by his particular mode of dealing with his principals. But where he merely agrees to state monthly accounts and receive monthly payments, but does not deliver up the policies till he is actually paid, he will not lose his lien (z). This will be the rule although the broker effected the policies through an agent, whom he knew not to be the principal, and although the principal has paid the agent.
§ 129. The insurer must have an interest in the thing insured. Insured's Therefore, insurances on a British ship, or goods on board interest in
thing insured. (y) Westwood v. Bell, 4 Camp. (s) Fisher v. Smith, 4 App. Cas. 349; Levy v. Barnard, 2 J. B. 1; 48 L. J., Ex. 411; 27 W. R. Moore, 34 ; 8 Taunt. 149.
113; 39 L. T. 430.
it, or on profits, “interest or no interest,” or “without further proof of interest than the policy,” or by way of gaming or wagering, or “without benefit of salvage to the insurer,” are void (a). Such assurances are termed wager policies. Wager policies, however, may be made on British privateers, fitted out solely to cruise against enemies (6); and on all foreign ships (c); but even in these instances the policy must on the face of it contain terms, showing it to be a wager policy (c).
Thus the insured must be interested in the British ship or goods insured. However, it is now sufficient if he has an interest in the ship or goods while the risk is running and at the date of the loss; though formerly the insured had also to have an interest at the date of the policy ().
In all actions by the insured the plaintiff, or his solicitor, must within fifteen days after he is requested in writing by the defendant or his solicitor to do so, declare in writing what sums he has insured altogether, and what sums he has borrowed at respondentia or bottomry for the voyage or any part of it (e).
It being necessary that the insured be interested in the subject matter of the policy, he cannot sue on the policy in cases where he has assigned, prior to any loss, his interest in the thing insured to another person. Therefore, if, after effecting a policy of insurance on a vessel, the insured sell it, he cannot sue on the policy for any loss or damage it may sustain after the assignment, except as a trustee for the assignee, in cases where the policy was expressly or impliedly assigned to the assignee of the vessel (f).
Sale of thing insured.
(a) 19 Geo. 2, c. 37, 8.1; Allkins
() 19 Geo. 2, c. 37, s. 2.
(c) Thelluson v. Fletcher, 1 Doug. 315; Nantes v. Thompson, 2 East, 385; Cousin v. Nantes, 3 Taunt. 513 (S. C.)
(d) Rhind v. Wilkinson, 2 Taunt. 237.
(e) 19 Geo. 2, c. 37, s. 6.
In the case of a sale, the terms of the contract will determine in whom the insurable interest in the article sold is vested (). If under an agreement to purchase the vendor appropriate a specific cargo, and the vendee accept the same, the goods so appropriated can be validly insured by the vendee ().
An indorsee of a bill of lading, or a pledgee who holds the bill of lading as security for advances made to the consignees of the goods, can insure the goods (i). So the consignee of goods, to whom the consignor is under liabilities, or who has been engaged to sell the goods on commission, can insure them to their full value (;).
Cases. 1. It was expressly stipulated in a policy" that the goods insured were and should be valued at five tierces coffee, valued at 271. per tierce, say 1331., the policy to be deemed sufficient proof of interest.” Held, that the policy was void (k).
2. A., after advancing to L., the captain of an East Indiaman, 26,0001. on a common bond, insured that sum. The policy on its face appeared to be “ on Captain Lawson's bond for 26,0001.,” and stipulated that in case of loss no other proof of interest was to be required than the bond, warranted free of averago, and without benefit of salvage to the insurer. The policy was held void (?).
3. A. being indebted to B., without any order from him, consigned goods to C. to be held for B., and indorsed the bill of lading to C. Held, that B. had an insurable interest in the goods (m).
4. B. sold to the plaintiff, to be delivered at P., from 500 to 700 barrels of oats to be shipped by J. from Y. Four days afterwards B. advised the plaintiff that J. had engaged space in the packet to carry about 600 barrels on the plaintiff's account. The next day the plaintiff insured 4001. on oats per the packet. The oats were
(9) Fragano v. Long, 4 B. & Cr. 219.
() Sparkes v. Marshall, 2 Bing. N. C. 761; see “Cases" (4) at end of this s.
(i) Sutherland v. Pratt, 12 M. & W. 16.
() Hill v. Secretan, 1 B. & P. 315; see “Cases” (3) at end of
this s; Robertson v. Hamilton, 14 East, 522; Knox v. Il’ood, 1 Camp. 543; UcSuinney v. Royal Ex. Ass. Co., 14 Q. B. 631.
(1) Murphy v. Bell, 4 Bing. 567.
(1) Lowry v. Bourdieu, 2 Doug. 468.
(m) lill v. Szeretur, 1 B. & P. 315.