Sect. 150. How far must agent go in quest of insurance? was held liable for the deficiency caused by the insolvency of the brokers and of one of the underwriters (f). If, however, the agent does all that the foreign principal, on the spot and acting with due care, skill and diligence as a man of business, could reasonably be expected to do, he will not be liable for the consequences of a failure to procure insurance. Thus, where the correspondents in London of a foreign merchant, being directed by him to procure an insurance, and, having failed to do so at Lloyd's because the ship was not in Lloyd's register, ultimately caused it to be effected with a Newcastle company through the medium of the shipowners, who afterwards refused to deliver up the policy, or pay over a loss they had received on it from the underwriters, it was intimated to the jury by Buller, J., before whom the case was tried, that this afforded no ground of action against the agents for negligence in effecting the policy (g). "If," said the learned Judge, "the defendants had made a blunder in effecting the insurance, which would have avoided the policy, that would have been negligence; but the policy is a good one, and it was only owing to the knavery and insolvency of the shipowners that the plaintiffs have lost the benefit of it " (g). At the present day, Buller, J., would hardly be justified in the doubt, which he expressed in this case, whether the defendants, who lived in London, were bound to seek insurance elsewhere than at Lloyd's, as, for instance, at the public metropolitan insurance offices. They would perhaps, however, not be bound to extend their endeavours beyond the limits of the metropolis. In the case of correspondents resident in provincial towns the obligation might be different. 151. In the United States the extent of the obligation to procure insurance has been well illustrated in the following case:-The correspondents in Boston of shippers at Surinam (f) Hurrell v. Bullard, coram Cock- verdict was given partly, if not principally, on the ground that the foreign correspondents had adopted the agents' acts. received orders to effect insurance on a valuable cargo on their account. When this order was received the ship was out of time, and the insurance was declined, on that ground, by the insurers at Boston, to whom the agents applied on the very day they received the letter. They subsequently tried in vain to effect the insurance at Salem, Newburyport, Portsmouth and Providence, the principal commercial places within sixty miles. They then wrote to New York for the same purpose, fixing a limit (but a very high one) to the rate of premium; part of the amount was eventually insured there at high premiums, (the highest being 333 per cent.), the rest could not be done at the limit. An action having been subsequently brought against them for not having insured the whole amount, a verdict was found for the defendants under the direction of the presiding Judge, on the ground that in their prompt endeavours to procure insurance at Boston and the other neighbouring ports, they had extended their efforts at least as far as their duty required, and that, having done so, they were not liable for having failed in procuring a full insurance at New York, though such failure might possibly have been ascribed to their having set a limit on the premium (i). Sect. 151. that is 152. In none of these cases does the law require an extra- A reasonable and average ordinary degree of skill on the part of the agent, but only degree of such a reasonable and ordinary proportion of it as persons of skill is all average capacity in his situation and profession might fairly required. be expected to exert. In inquiries, therefore, as to his liability in case of loss, the question is, whether the act or omission complained of is inconsistent with that reasonable and proper degree of care, skill and judgment which persons of common prudence or ordinary ability might be expected to show in the situation and profession of the defendant (k). Every policy broker of average capacity must know that Duty of (i) Sanches v. Davenport (1810), 6 Mass. R. 258; cited 2 Duer, 242— 244; 2 Phillips, s. 1890. It might, however, now be considered reason able to take steps which ninety years (k) Per Tindal, C. J., in Chapman broker to communicate the time of the ship's sailing. Sect. 152. all communications respecting the time of the ship's sailing are material to be submitted to the underwriter. Hence, where a policy broker, who was supplied by his principal with the requisite information as to the time of sailing, omitted, through inadvertence, to forward it to a second broker, who at the wish of the principal was employed to effect the policy, it was held that the first broker was liable to his principal for the failure of insurance arising out of this neglect; for although he personally was to receive no remuneration, he had yet undertaken to employ the other (7). Effect of withholding information, the mate riality of which is a doubtful point. Duty of broker to procure the delivery of a stamped policy. Where, however, the materiality of the information is of a more doubtful description, and has been made the subject of nicely-balanced legal decisions, or may fairly be a matter of divided opinion amongst persons conversant with the trade, it may very reasonably be urged that a policy broker, though acting in the ordinary way as a paid agent, may be ignorant of the point without such a degree of negligence as to make him responsible for the failure of a policy he was directed to effect, owing to the withholding by him of such information (m). 153. Every policy broker is bound to know all the ordinary and formal details necessary to be complied with in order to make a sea-policy a legally valid instrument. Hence, a policy broker employed to effect a policy on a ship, having negotiated an insurance with the Newcastle Commercial Insurance Company on the terms directed, was held liable for not procuring a stamped policy, in consequence of which neglect the shipowner was unable to recover from the company in respect of a loss that subsequently took place (n). (1) Seller v. Work (1801), 1 Marshall on Ins. 306. See Duer's remarks on this case, vol. ii. pp. 202, 203; see also Maydew v. Forrester (1814), 5 Taunt. 615, as to the point that, whenever the information concealed is unquestionably material, the broker will be liable; see also, as to what constitutes negligence, (n) Turpin v. Bilton (1843), 5 M. Sect. 153. Duty of broker to insert all usual and ordinary Every policy broker, or other insurance agent, is bound, without any express directions, to insert in the policy all the ordinary risks and customary clauses, which are usual and proper in respect of the contemplated voyage. Thus, as it was shown to be the invariable practice in all voyages from clauses. 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, and thereby causing the failure of the insurance (o). Commence ment of risk on goods must be properly It has been repeatedly and notoriously decided, that a policy on goods, "beginning the adventure from the loading thereof on board," without any addition, only attaches on goods loaded at the port which is the terminus a quo of the described. voyage insured (p). So completely is this settled law, that all insurance brokers are bound to know and act on it. Hence, a London policy broker, being directed to effect a policy for a voyage "from Gibraltar to Dublin " upon goods which, by 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 in the common printed form, "at and from Gibraltar to Dublin, beginning the adventure upon the said goods and merchandise from the loading thereof aboard the said ship" (9). 154. The rule which we have been discussing regards what is ordinary, usual, and settled; when we leave the common beaten track it ceases to be applicable. As Judge & G. 455. By s. 97 of the Stamp Act, 1891, a broker writing any policy of sea insurance upon material not duly stamped, or otherwise offending against the true intent of the Act, forfeits all claim for brokerage and expenses, and is also liable to penalties. (0) Mallough v. Barber (1814), 4 Camp. 151. (p) Robertson v. French (1803), 4 East, 130; Spitta v. Woodman (1810), 2 Taunt. 416; Horneyer v. Lushing- (a) Park v. Hammond (1814), Holt, Broker not mistake due tainty of law liable where to uncer or practice. Sect. 154. Duer well expresses it, "The mistake of the agent, where the practice is unsettled, or the law uncertain, affords no evidence of that want of reasonable skill and ordinary diligence for which alone he is responsible" (1'). Unless the directions of his principal are clear and precise. All prior verbal communications instructions. If the directions given be clear, precise and intelligible, the failure of the insurance agent to comply therewith is actionable, where it has caused damage to the principal, although the directions may embrace a partially illegal insurance. Thus, where clear directions were given by the plaintiffs, (foreign merchants), to the defendants, (their London mercantile agents), 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 in damages for not complying with this order to insure, and that they could not avail themselves of the defence that the order also directed them to insure against British capture, for although on that ground they might have renounced the order altogether, yet, having adopted it, they were bound to execute it as far as by law they might secundum formam jubentis (s). 155. An agent who has faithfully followed express written instructions to insure will not be liable for having omitted to are superseded insert a provision in the policy which, according to the verbal by subsequent written communications of his principal, he might fairly have inferred to be necessary for the complete protection of the insured property. Thus, where the captain of a ship told a policy broker, in the course of conversation, that the ship was to carry simulated papers, but afterwards sent him written instructions for effecting a policy on the ship, in which nothing whatever was said as to inserting a liberty to carry them, the broker 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 (t). (r) 2 Duer, 214. (s) Glaser v. Cowie (1813), 1 M. & S. 52. (t) Fomin v. Oswell (1813), 3 Camp. 357. "The captain," Lord Ellen borough remarked, "notwithstandhis 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 |