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partnership or company never were necessarily subscribed, notwithstanding the 36 Geo. 3, c. 63, s. 11.1 In some cases, the matter is left as at common law, so that a valid policy is made by the subscription of the partnership firm, or the adhibition of the seal of the body corporate. But the form of execution may be indefinitely varied by the statute, charter, deed, or articles of association under which the company is constituted.2

1 Now repealed by the 30 & 31 Vict. c. 23. If partners do underwrite their several names for separate sums, the right of the assured against the partnership assets is not thereby invalidated; Brett v. Beckwith, 26 L. J. (Ch.) 130, coram M. R.

2 See the general principle laid down and applied in Reid v. Allan, 4 Exch. 326; Dowdall v. Allan, 19 L. J. (Q. B.) 41. In an unreported case where a rule for a new trial or to enter a verdict for the defendants was obtained on several grounds, and among these on this that the declaration purported to be on a simple contract, whereas the policy

was made by a company under seal; when cause came to be shown on that point, Blackburn, J., inquired whether the seal in that case was of any other legal effect than merely the form proper to the company? Counsel for plaintiff thereupon desisted from arguing the point, and it was not further pressed by the defendants; Roper v. English and Scotch Marine Ins. Co., coram Q. B.

This, accordingly, seems now to be the opinion entertained in the profession, at all events in respect of trading and similar companies registered under the Companies Act.

158

CHAPTER IV.

THE AGENTS FOR MARINE INSURANCE.

Considered

in relation to the law of agency.

Agents of the
Assured.

Their authority.

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IN the present chapter it is proposed to consider the relations of insurance agents to their employers,-first, as governed by the general principles of the law of agency,— and, secondly, as affected by the general course of business in sea insurance, in so far as that has grown to be a usage and a custom.

Insurance agents may be employed either for the assured to effect, or for the underwriters to subscribe, policies; we treat of them in their order. Confining, therefore, our attention to insurance agents acting on behalf of the assured, we shall consider, in the first place, the nature of the authority under which they act.

Insurance agents may procure policies to be effected either, first, in consequence of orders expressly given them by their employers; or, secondly, by virtue of an implied authority arising out of the relation in which they stand to the persons for whom, or the property on which, they procure the insurance to be effected; or, thirdly, insurance made by them without the prior authority may be ratified by the subsequent adoption of the assured. In

effect, the third coincides with the first in point of principle, but in facts it differs, and may therefore be considered apart.

authority.

First, with regard to persons procuring sea insurances to Their express be effected at the express request, instance, or direction of the assured. In these cases no difficulty can arise as to the authority to insure; every person who is specially requested or directed so to do by the party interested may effect a policy to protect the interests of his employer; if, indeed, he himself puts the policy in suit or founds any legal claim upon it, he must, of course, be prepared, in the first instance, to prove the express authority, as given, whether verbally writing.

The questions that have arisen in these cases of express authority turn mainly on this,-whether and under what circumstances the express order to insure imposes on the agent the positive duty of causing the insurance to be effected; as both points will more properly fall to be considered when we are discussing the duties and liabilities of insurance agents, we pass on to the next part of our subject.

authority.

As to the implied authority to insure arising out of the Their implied relation of the agent to the parties for whom, or the property on which the insurance is effected, the following are some of

the principal points that have been decided.

A partner may, without express authority from the other A partner. members of the firm, procure an insurance to be effected for him and them on partnership property; and if, by his directions, such an insurance is effected "on account of the firm," all the members of the firm are liable to the broker by whom the policy was effected, for premiums and commissions.1

1 Hooper v. Lusby, 4 Camp. 66. That which is unusual in this case is that one of the partners was held to have made the firm liable for insurances, directed on account of

the firm, on two ships of which
the several partners held separate
shares as part-owners and not as
partners.

Not a part

owner.

Although such partowner be ship's husband.

Special adventure in

But the same rule does not apply to part-owners, none of whom can bind the other part-owners by any policy originally effected without their express authority, and not subsequently adopted by their ratification. The reason of this, in the words of Lord Ellenborough, is that, "each separate share in the ship is the distinct property of each individual partowner, whose business it is to protect it by insurance; so that the insurance of another cannot be binding on such proprietors without some evidence importing an authority by them."1

This is so even where the part-owner, who has given orders for the insurance, is ship's husband or managing owner, appointed in the usual way to act discretionally for all the other owners. Nothing will make his insurance binding on the others, except either a particular direction from them to insure, or satisfactory proof that the other part-owners severally approved and ratified the insurance after it came to their knowledge as a step taken for their benefit.2 Consequently, without such express direction, or subsequent ratification, the brokers who effect the policy under his directions must look to him only for premiums, and are liable to him alone for the amount received by them from the underwriters on account of losses.3

Whether a special partnership in a particular adventure partnership. merely, imply, ex rei naturâ, at common law such an agency in each partner or even in the common manager as without express authority enables him to bind all for the premiums of insurance, admits of doubt, notwithstanding the affirmative is favoured by the language of some of the Judges in Robinson v. Gleadow. Considering how immediately the end is in contemplation of the adventurers from the instant of beginning, so as to be specified and detailed in the very

1 Per Lord Ellenborough, in Bell v. Humphries, 2 Stark. 345. See French v. Backhouse, 5 Burr. 2727.

2 French v. Backhouse, 5 Burr. 2727; Robinson v. Gleadow, 2 Bing.

N. C. 156.

3 Roberts v. Ogilby, 9 Price, 269. 4 Robinson v. Gleadow, 2 Bing. N. C. 156.

act of contributing the means, one is almost driven to construe the silence of the partners in respect of insurance under the maxim "Expressum facit cessare tacitum," unless the adventure be so completely one and indivisible that the partners could not conveniently insure each his own share.1

commission

A consignor or commission agent, to whom funds are Consignor or remitted to purchase and ship goods for his employer-has agent. he any implied authority, as such, in the absence of express orders, to insure such goods on behalf of his principal? Such insurances are not unfrequently made in expectation of their being subsequently adopted by the principal. In the absence of a course of dealing, of prior authority, or subsequent adoption, would such insurances be upheld, so as to give the agent who had effected them a right to charge the premium to his principal, or to demand a loss from the underwriter?

As a general rule, and in accordance with ordinary mercantile practice, the answer to this question, it seems, must be in the negative. Where orders are given to consign, and no orders given to insure, the practical inference generally would be, either that the principal meant to effect the insurance himself, or intended to remain uninsured. Exceptions to the general rule may, of course, be created by circumstances. An established course of dealing between the principal and agent; or the usage of a particular port or trade,2 may be reasonably held to confer an implied authority on the consignor to effect an insurance on behalf of his principal.3

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