was shown to be the invariable practice in all voyages from Teneriffe to London, to insert a clause "giving liberty to touch and stay at all or any of the Canary Islands," it was held that a London policy broker was guilty of actionable negligence in omitting this clause.1 ment of risk It has been repeatedly and notoriously decided, that a Commencepolicy on goods, "beginning the adventure from the loading on goods. thereof on board," without any addition, only attaches on goods loaded at the port which is the terminus a quo of the voyage insured.2 So completely is this settled law, that all insurance brokers are bound to know and act on it. Hence, a London insurance broker, being directed to effect a policy for a voyage “ from Gibraltar to Dublin," upon goods which, upon his instructions, clearly appeared to have been loaded on board at Malaga, was held liable for negligence in having effected the policy on such goods "at and from Gibraltar to Dublin, beginning the adventure upon the said goods and merchandise from the loading thereof aboard the said ship." 3 The rule which we have been discussing regards what is ordinary, usual, and settled; when we leave this common beaten track, it ceases to be applicable. As Judge Duer well expresses it, "The mistake of the agent, where the practice is unsettled, and the law uncertain, affords no evidence of that want of reasonable skill and ordinary diligence for which alone he his responsible.' clear and Directions that are clear, precise, and intelligible, make Directions the failure of the insurance agent to comply therewith precise, make actionable, in so far as they may lawfully be followed. default inex cusable. Directions in writing supersede prior verbal communications. What policy will suffice. Thus, where clear directions were given by the plaintiffs to the defendants to insure goods and also the premium, and the defendants insured the goods, but not the premium, it was held that they were liable to the plaintiffs for not complying with the order thus far to insure, notwithstanding it also directed them to insure against British capture, which could not legally be done.1 An agent who has faithfully followed express written instructions, is not liable for omitting a provision which, from the verbal communications of his principal, he might fairly have inferred to be necessary. Thus, a policy broker, who had heard in the course of conversation with the captain, that the ship was to carry simulated papers, followed the written instructions sent him, in which nothing whatever was said as to inserting a liberty to carry them, and was held not to be liable in an action for negligence in not inserting the clause, though the ship was subsequently condemned for carrying such papers.2 In case the orders of the principal are so ambiguous as to be susceptible of two distinct and perfectly consistent meanings, and the agent honestly and fairly assuming one of these to be the intention of the principal, carries out the orders accordingly; he has done his duty, and the principal is bound by his acts.3 Whether the policy effected in the particular instance answers the directions given, or meets the necessities of the case stated in the instructions, is a difficult question of fact upon the evidence that should be considered quite apart from private views on either side, and with reference to the ordinary ways of business men. 1 Glaser v. Cowie, 1 M. & Sel. 52; see also S. P. in Fomin v. Oswell, 3 Camp. 357. 2 Fomin v. Oswell, 3 Camp. 357. "The captain," Lord Ellenborough remarked, "notwithstanding his prior conversation, might have resolved not to carry any such papers; or if he still meant to carry them, might not have wished that a leave for that purpose should have been inserted in the policy." 3 Ireland v. Livingstone, L. R., 5 H. of Lds. 395. A general order to insure seems to be satisfied by an in- A policy in the general surance in the form in general use at the place to which the form. order refers, with regard to such a subject in such circumstances. If the principal wishes to have an insurance in a particular form, or with a particular class of insurers, he should give specific instructions to that effect. In the following case the subject of insurance, it was thought, would have indicated a different course from that which the agent pursued; but the Court held otherwise. The plaintiff, a merchant of Alicante, sued the defendant, Moore v. Mourgue. his agent in London, for not insuring the plaintiff's goods agreeably to his directions. The goods were a cargo of fruit, which the plaintiff without other more particular directions gave the defendant a general order "to insure." The defendant effected the policy with the London Assurance Office, where they only insured fruit "free from particular average," an exception at that time not to be found in the policies of Lloyd's or the Royal Exchange, although the rate of premium was the same in all three; and the consequence was, that when an average loss happened the plaintiff was precluded from recovering for it on the policy. The Court held that the plaintiff was not entitled to maintain his action, unless the defendant were guilty of a breach of orders, of gross negligence, or of fraud; and as the verdict of the jury was in favour of the defendant on all these grounds, the Court refused to disturb it. "The. plaintiff," says Lord Mansfield, "if he pleased, might have given orders to the defendant not to insure at the London Assurance Office, but at some other office, where this exception would not have been insisted on. But he gives no 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."1 It may be said in favour of this decision, that it by not means follows that a policy from a particular office containing 1 Moore v. Mourgue, Cowp. 479. Comber v. unfavourable conditions is not a policy on the best terms, at all events in the hands of an agent, who is not justified in accepting what is doubtful, or expected to undertake a risk by doing something which may be perilous. Judge Duer commenting on the case says:-"A general order to insure implies a direction to make the insurance on the best terms that the agent, in the exercise of reasonable diligence, will be able to obtain, and binds the agent at least to that degree of diligence that a person of ordinary prudence is accustomed to employ in his own affairs. Certainly no person of ordinary prudence, about to determine on an insurance, would fail to ascertain the usual terms of the respective companies or sets of underwriters to whom he might apply, nor would fail, if the credit of the underwriters was equally solid, to effect his insurance at that office whose terms, at an equal premium, secured to him the largest indemnity. Hence, an agent, who in acting for another should omit to make the same inquiries and pursue the same course, would be chargeable with such a want of reasonable and ordinary diligence as would render him justly liable for a resulting loss."1 The defendants, London insurance brokers, having received from the plaintiff, a merchant in Liverpool, general orders to insure a cargo of wheat on his account, but no specific instructions as to how or with whom to insure, effected a policy with the Royal Exchange Assurance Company, who at that time left out of their memorandum the exception which makes them liable for an average loss on wheat in case of stranding. In this case there was a stranding and an average loss on the wheat; but the plaintiff, by reason of the form of the policy, could not recover under it. He lay by till some time after the loss had happened, without complaining of the form of the policy effected, and then brought his action against the plaintiff for not having effected such a policy as would 1 Duer on Ins., vol. ii. p. 231, and see also pp. 229–232. have secured him an indemnity for average loss in case of stranding. Lord Ellenborough, as to this part of the case, said: "The plaintiff must be taken to have been cognizant of the existence of the chartered companies and the tenor of their policies. If he wished that the policy on this cargo should not be effected on the terms of the Royal Assurance Company, he ought to have given special directions to the defendants for this purpose; and, at any rate, having been so late in reproaching them with what they had done, he had acquiesced in and adopted the policy which they had actually effected." experts be A question of some importance in relation to the subject Whether of a broker's duty in a particular case has been agitated admissible but not yet authoritatively determined as to the evidence of witnesses on the question other persons engaged in the same business as the defendant, of skill and whether they may be examined as experts and asked what an insurance broker of reasonable skill would, in their judgment, have done under the circumstances. In the only two cases which have been decided on the express point, the Court of King's Bench and Common Pleas were at variance.2 care. Accordingly where a merchant in Sydney had shipped a Campbell v. consignment to England, and wrote to the defendants, his Rickards. correspondents in London, desiring them, if the ship had not arrived in England when they received the letter, to wait thirty days and then effect an insurance on the 1 Comber v. Anderson, 1 Camp. 523. To justify the opinion of the learned Judge as to the effect of delay in complaining, one must assume that the policy was in the hands of the plaintiff some time before the loss happened. 2 Mr. Phillips says, and I think in accordance with the spirit of English law and practice, in discussing this question-"A witness is not admis sible to testify, and cannot be in- |