J.C. Browning v. Provincial Insurance Co. of Canada. 1873 and by law the appellant cannot be known as claimant except as assignee of the insured. The insurance is to Leduc, and no other in this case: not having been assigned to appellant, he has no claim; the allegation of the declaration that the assurance was made to Leduc as agent and all whom it might concern is not proved. Again, by the insurance certificate or receipt, it is conditioned that no suit or action shall be commenced against the insurers after the term of twelve months after the loss, and not, as argued, from the time when the vessel was last seen in the St. Lawrence, not from notice given of loss. The office common policy usually issued and produced in evidence, contains the same condition. No action after twelve months next after any loss or damage shall occur, and if suit be commenced after twelve months after such loss shall have occurred, the lapse of time shall be taken and deemed as conclusive evidence against the validity of the claim attempted to be enforced. Upon the question of the loss, and the time of its occurrence, no possible better evidence can be afforded than the testimony of Mr. Allan, and of Captain Basile Deroy, whose vessel accompanied the Babineau and Gaudry in her course down the river and gulf, and was caught in the same storm, which, he says, wrecked the Babineau and Gaudry on Anticosti, at the end of November, 1867. The evidence of McGregor is, I think, conclusive that the vessel was driven ashore on the island, stern on, during the gale spoken of. Mr. Watkin Williams, Q.C., and Mr. Kerr, for the appellant: In entering into the contract of insurance, Leduc was acting as the agent of the appellant; and the general rule of law, that an undisclosed principal may take advantage of the contract entered into by his agent, applies to policies of marine insurance. Though the agent cannot escape liability, the principal can sue: Sims v. Bond('); Higgins v. Senior (); Humble v. Hunter(); Ramazotti v. Bowring(); Civil Code of Lower Canada, art. 2,492. Moreover, the "certificate of insurance" entitled the holder to a policy, and the policies issued by the company were in the names of all persons interested. * The appellant, therefore, was entitled to claim in [268 his own name against the insurance company for the loss of the flour. He is not precluded by lapse of time from bringing his action. The onus of proving the lapse of the year after (1) 5 B. & Ad., 389, (2) 8 M. & W., 834. (3) 12 Q. B., 310. 1873 Browning v. Provincial Insurance Co. of Canada. J.C. the occurrence of the loss lies on the insurance company: Wing v. Angrave ('). It has not been proved at what time the ship was actually lost; and there is no improbability in the suggestion that the ship wintered safely on the north shore, and was lost in the spring of 1868, whilst striving to reach the port to which she was bound. Moreover, the loss did not arise when the ship was wrecked; it arose only, when the loss of the ship became known, and it was found necessary to sell the flour. It was then that the right of action first arose. There were some negotiations between the appellant and the respondent with reference to the claim, and in the midst of them a promise (without prejudice) to pay was made by the company. The delay in bringing the action was owing to these negotiations. The respondents thereby waived the condition in the "certificate" as to time. Sir John Karslake, Q.C., and Mr. Bompas, for the respondents In Canada the French law prevails, where no provision in the code is applicable. There is nothing in the English law or the French law or the Canadian law, which shows that where an insurance has been made by an agent in his own name, the company can be sued in any other name than his. (See Arnould on Marine Insurance, vol. i., p. 223, 3d ed.) Moreover, there is no proof that Leduc was contracting otherwise than in his own name. The "certificate of insurance" indicates that the insurance was for himself; he had an insurable interest, having bought the flour with his own money: Watson v. Swann); United States v. Parmele (†). The company never heard of the appellant. If they had heard of him, they might have had good reason for refusing to contract with him. They probably would not have insured both principal and agent. 269] *Even if the certificate were a contract for a policy, the policy would be limited to the terms on the back of the certificate. This assurance was in the name of Leduc, and it could not vest in the appellant without a transfer. (Civil Code of Lower Canada, art. 2,483). With regard to time, there is sufficient to show that the loss of the ship took place early in December, 1867. And this was when the loss of the cargo also occurred. The loss occurs when the goods are lost, not when the fact becomes known to the owner; the sale of the part recovered has nothing to do with the time of the occurrence of the loss. (1) 8 H. L. C., 183. (2) 11 C. B. (N.S.), 756. () 1 Paine's U. S. Circ. Rep., 252. J.C. Browning v. Provincial Insurance Co. of Canada. 1873 The action was not brought until the 3d of March, 1869. This was more than a year after the occurrence of the loss; and the provision in the "certificate of insurance" precluded the appellant from bringing an action. In the course of the arguments reference was also made to the following: Brown v. Hare ('); Joyce v. Swann ('); Montreal Assurance Company v. McGillivray(); Wolff v Horncastle (); Skinner v. Stocks ('); Bell v. Gilson ("); De Vignier v. Swanson ('); Stringer v. English and Scottish Marine Insurance Company (*). Their lordships' judgment was delivered by SIR MONTAGUE E. SMITH: This is an appeal from a judgment of the Court of Queen's Bench for Lower Canada, affirming a judgment of the Superior Court for the province, which dismissed the appellant's suit. The action was brought on a contract of insurance made with the respondents on 1,063 barrels of flour shipped in the schooner Babineau and Gaudry, on a voyage from Montreal to St. John's, Newfoundland. The contract was in the name of Mr. Joel Leduc, who had purchased and shipped the flour for the appellant. Two objections have been made to the appellant's right to maintain the action, viz. (1), that he cannot sue on the contract made in Leduc's name; and (2), that under a clause of limitation *contained in the contract his action is too [270 late. The judge of the Superior Court decided against the appellant on the second objection. Upon the appeal in the Court of Queen's Bench, three judges held that the action was brought in time, but that the appellant could not sue in his own name; one judge (Mr. Justice Badgley) alone upheld both objections. The following general facts appeared on the evidence: The appellant, who carried on business as a baker at St. John's, had for some time employed Mr. Leduc, a commission merchant, to make purchases at Montreal of flour and ship it to St. John's. In the usual course of this agency, Leduc, in November, 1867, purchased 1,063 barrels of flour, shipped it on board the Babineau and Gaudry (a vessel owned by himself) for St. John's, and insured it for $7,000 with the respondents in the form and manner which will be hereafter stated. The bill of lading stated the flour to be shipped by Leduc, deliverable to the appellant or his assigns, (1) 4 H. & N., 822. (2) 17 C. B. (N.S.), 84. (3) 13 Moo., P. C., 87. () 1 B. & P., 316. (5) 4 B. & Ald., 437. (6) 1 B. & P., 345. (7) 1 B. & P., 346. (8) Law Rep., 5 Q. B., 599. 1873 Browning v. Provincial Insurance Co. of Canada. J.C. and an invoice was sent by Leduc to the appellant, debiting the latter with the price paid for the flour, commission, the expenses of cartage, cooperage, and wharfage, and the premium on the insurance. Bills were drawn by Leduc on the appellant for the amount of this invoice, which were duly accepted and paid. The Babineau and Gaudry sailed from Montreal on the 16th of November, 1867, and left Quebec on her voyage down the Gulf of St. Lawrence on the 20th. She was last seen proceeding on her voyage, on the 22d, and no more was heard of her until the middle of May, 1868, when the news reached Montreal that she was ashore on the island of Anticosti, in the Gulf of St. Lawrence. An agent of the respondents reached the island in the middle of June, and found the schooner lying bottom up. None of the crew appear to have been saved. A hole had been cut in the ship, out of which part of her cargo, including some of the appellant's flour, had been taken, and some remained on board. The flour saved, or so much of it as could be recovered, viz. 547 barrels, was taken to Gaspé and sold by the respondents' agent there for the gross price of $1,796. An accout was made out by the agent, which, after debiting the flour with the share of salvage expenses and other charges, showed the net proceeds to be $533. The schooner was recovered and repaired. 271] *It was contended, in support of the first objection, by the respondent's counsel, that the insurance was in fact made by Leduc on his own behalf to protect his own interest, or, at all events, partly on his own behalf and partly on that of the appellant. Their lordships, however, feel little difficulty in coming to the conclusion, upon the evidence in the case, that the insurance was effected by Leduc as agent on behalf of the appellant, his principal. Leduc, who was called as a witness by both parties, states that the appellant, from the purchase of the flour up to its loss, was "le seul propriétaire et le seul qui y avait intérêt." Again, when examined by the respondents, he says in English, "The insurance was in my name, though it was really the plaintiff's." He, no doubt, also says that he made the insurance in his own name "in case of some accident, or that the appellant should not have met his drafts;" but further explanation given by him shows that what he wanted to have, and considered he had, was a lien only on the policy which would end when his drafts were honored. All the facts are consistent with what seems to be the effect of Leduc's evidence taken as a whole, viz., that the insurance was effected for the appellant, and that Leduc had a lien upon J.C. Browning v. Provincial Insurance Co. of Canada. 1873 the policy. Having paid for the flour with his own money, Leduc might, in the event of the appellant's insolvency, have had the right, as a quasi vendor, to stop in transitu, but it nowhere appears that he kept any control over the bills of lading, under which the goods were deliverable to the appellant or his assigns. The result of the evidence is that the property in the flour passed to the appellant, that it was shipped at his risk, insured at his cost, and that the insurance was effected by Leduc for him as the owner of it. It was next urged that, if this were so, the appellant could not sue on the contract effected in the name of his agent. This objection makes it necessary to consider the form of the present contract, and how it was made. The chief office of the respondents is at Toronto, and their agent at Montreal, in taking insurances there, issues what are called "certificates of insurance" of a provisional kind, signed by the agent, upon which policies under the seal of the company are afterwards issued at Toronto. The certificate in this case, dated on the 15th of November, 1867, commences as follows: "Joel Leduc, Esq., has this day effected *an insurance to the extent of $7,000 [272 on the under mentioned property from Montreal to St. John's, Newfoundland, shipped on board the Babineau and Gaudry, &c." The property is described as "1,063 barrels of flour." The certificate also states "the insurance to be subject to all the forms, conditions, provisions, and exceptions contained in the policy of the company, copies of which are printed on the back hereof." Routh, the agent of the respondents at Montreal, proved the form of policy used by the respondents, and it is set out in the record. This form runs thus: "I, A. B., as well in my own name as for and in the name and names of all and every other person and persons to whom the same doth, may, or shall appertain in part or in all," do make insurance, &c. These words are the same as those usually inserted in Lloyd's and other English policies. It was contended that the certificate was a complete contract, and that as it did not contain these words, the appellant could not sue upon it. Some authorities, principally American, were cited for this proposition, and Arnould on Marine Insurance (vol. i. p. 223, 3d ed.) was also referred to. Mr. Arnould no doubt in this place states this to be so; but in another part of his book it is stated as a general rule that actions may be brought either by the broker whose 8 ENG. REP.] 29 |