PAYMENTS BY His relation in When Policy is With regard to payments due in respect of the policy from the assured and from the underwriter, the course of trade, as observed in London, and most of the large ports of this country, has placed the broker in a position that somewhat complicates his relation to each and the rule of law with regard to it. "According to the ordinary course of trade," says Mr. Justice Bayley,' "between the assured, the broker, and the underwriter, the assured do not in the first instance pay the premium to the broker, nor does the latter pay it to the underwriter. But, as between the assured and the underwriter, the premiums are considered as paid. The underwriter, to whom in most instances the assured are unknown, looks to the broker for payment, and he to the assured. The latter pay the premiums to the broker only, and he is a middleman between the assured and the underwriter. But he is not solely agent; he is a principal to receive the money from the assured and to pay it to the underwriters." Hence the general rule of law is, that the broker is the debtor of the underwriter for premiums, and the underwriter the debtor of the assured for losses." The broker, therefore, as a general rule, may, whether he has previously paid the underwriter or not, recover for the premiums against the assured; and it is no defence that the policy was to be effected under such names as should be approved of by the assured, and the names were never submitted for approval, if the defendant has meanwhile lain by till the voyage came to a prosperous termination.* It is usual for the assured to leave the policy in the hands left in his hand. of the broker, who is thereby impliedly authorised to adjust the policy in case of loss, and bound to use all diligence to collect and pay over the sums due in respect of it. When the policy has been adjusted, payment, according to usage in the business, is due from the underwriter in a month after; 1 Power v. Butcher, 10 B. & C. 329, 21 Arnould, Ins. 118; Power v. 3 Power v. Butcher, 10 B. & C. 329; but not under a count for money paid, until payment is made by the broker, ibid. 4 Dixon v. Hovill, 4 Bing. 665. 5 Bousefield v. Creswell, 2 Campb. 545. but instead of payment being made in cash, the more usual course in London and other large ports, is for the underwriter and the broker, at the expiration of the month, to pass the amount severally to the account of each, and to strike the name of the underwriter out of the policy and indorsement.' As for the broker, he is in that case liable to the assured for the amount of the loss, which may be recovered as money had and received for his use, unless his subsequent dealing with the broker was such as to show that he had waived his right.3 2 Sums in Account. The liability of the underwriter to the assured for the loss Effect of passing continues, notwithstanding the amount is passed in account with the broker, unless the assured is cognisant of the usage, and so acts as to be an assenting party to this mode of settle mium, when As the amount of premium is often subject to a reduction, Contingent Precontingent upon the happening of a future event, the broker in recoverable. the meanwhile is, as to the assured and the underwriter, their mutual agent, for the one to pay, and for the other to receive." It is in the power of either, at any time before the event, to put an end to his agency; the assured, by taking the policy out of his hands, and the underwriter, by calling for payment of the unreduced premium. But if the agency continues until the event happens which reduces the amount of the premium, the broker is entitled to make the deduction before payment, or to set it off in an action by the underwriter for the unreduced premium.R The broker, while he retains the policy in his hands, has a lien upon it for the premium and commission due in respect of it, and also for the general balance of his account against the same principal in respect of insurance,' but in respect of 11 Arnould, Ins. 119. Andrew v. Robinson, 3 Campb. 199. Ovington v. Bell, 3 Campb. 237. Bartlett v. Pentland, 10 B. & C. 760. Scott v. Irving, 1 B. & Ad. 605, 612, 613; Bartlett v. Pentland, supra; Stewart v. Aberdein, 4 M. & W. 211. Per Lord Ellenborough, Shee v. Clarkson, 12 East, 507, 510. Per Lord Ellenborough, Shee v. Clarkson, 12 East, 507, 511; per 5 Taunt. 543, 544. 8 Shee v. Clarkson, 12 East, 507, 509, 510, 511. • Per Gibbs, J., in Olive v. Smith, 5 Taunt. 56; Mann v. Forrester, 4 Campb. 60; Westwood v. Bell, 4 id. 349; Cahill v. Dawson, 26 L. J. (C. P.) 253. His lien on the nothing besides;' and his general lien is not defeated by any subsequent notice that his principal is, as to the policy in hand, himself the agent of another. But if at the time he was employed to effect the policy, he was informed or might reasonably infer, that his employer was acting as agent for another, his lien is restricted to the premiums and commission due in respect of that particular transaction only. A mere depository with whom the policy is left for safe custody acquires no general lien upon it." 1 See Olive v. Smith, 5 Taunt. 56. 253; Maanss v. Henderson, 1 East. 335; Westwood v. Bell, 4 Campb. 349. Muir v. Fleming, 1 Dow. & Ry. 29. MARINER. 1 We have already considered the authority conferred on the THE MASTER master, as the agent of the owners, in his dealings with strangers. In his command on board, a totally different description of duties and qualifications is required of him. Some of these are peculiar. The office itself is singular for the wide variety of functions and duty which it combines. The responsibility of his position; the careful providence of his administration; the tact and temper of one who daily lives among those whom he is to govern and conciliate, including, when passengers are on board, individuals probably of every grade; the skill and seamanship, and divining sagacity of the navigator; the vigilance of one who must rely on wind and sea with unceasing distrust, and still hold human life and material wealth in his keeping; and the courage, self-posses The application of the Merchant Shipping Act, the 17 & 18 Vict. c. 104, to the subjects considered in this chapter, is specifically defined by § 109. See the Appendix. By § 8, 9, 10, no stamp is necessary for instruments in the form required N HIS QUALIFICA- Certificate of sion, and prompt decision of the mind that rules alone through storm and sunshine,-such are the accumulated requisites of this one office. 2 It is a little remarkable, however, unless it be traceable to the familiarity of our people with the sea, as contrasted, for instance, with the French nation,' that in the greatest maritime country the world has yet seen, the public had no security, till a few years ago, for the qualification of those to whom they freely committed their property and their life. Provision is now made by the Merchant Shipping Act, for giving certificates of fitness to those who are found, by testimonials and personal examination, to be qualified by previous good conduct, and by ability, skill, and knowledge, to undertake such a command. The possession of such a certificate by any one going to sea from this country in the capacity of master or mate, is compulsory; and the use of fraudulent means for the purpose of dishonestly supplying the want is declared to be a crime.' There are certificates of competency for master, and first or second, or only mate of a foreign-going ship, and for master and mate of a home trade passenger ship. The certificate for the higher office qualifies for the lower, and that for the foreign-going ship qualifies for the home trade passenger ship; but the reverse does not hold good." A certificate of service entitles an officer who has served as 1 The first article under the title Du Capitaine in the second book of the Marine Ordinance of Louis XIV. in 1681, requires experience and a public examination on the part of every candidate for this office. See Cleirac on the first article of the laws of Oleron; French Ordinance, liv. 2. tit. 1. Du Capitaine, and Valin thereon; Hans. Ord. of 1614, tit. 3, art. 1-2 Pardess. 532. 2 13 & 14 Viet. c. 93. 3 17 & 18 Vict. c. 104, § 131-140. Ibid. § 134. 17 & 18 Vict. c. 104, § 136, 137. between some place or places in the United Kingdom, and some place or places situate beyond the following limits; that is to say, the coasts of the United Kingdom, the islands of Guernsey, Jersey, Sark, Alderney, and Man, and the continent of Europe between the river Elbe and Brest inclusive. "Home Trade Passenger ship" shall include every ship employed in trading and carrying passengers, or going within the following limits; that is to say, the United Kingdom, the islands of Guernsey, Jersey, Sark, Alderney, and Man, and the continent of Europe between the river Elbe, and the river Brest, inclusive. Ibid. § 2. |