CASES

ARGUED AND DETERMINED

IN THE

Court of KING's BENCH,

IN

Easter Term,

In the Fourth Year of the Reign of GEORGE IV,

MEMORANDUM.

IN the course of this vacation John Hullock, Esq., Serjt. at law, was appointed one of the Barons of the Exchequer, (on the resignation of Mr. Baron Wood,) and took his seat in that court on the first day of this

term.

1823.

DRAKE against Marryat.

Thursday, April 17th.

against an un.

ASSUMPSIT on a policy of insurance on sugars, In an action at and from Matanzas to port or ports of discharge derwriter upon goods which in Europe between Saint Petersburgh and Bourdeaux, sustained seadamage: Held, that although the defendant was a subscriber to Lloyd's, a certificate granted by their agent, resident abroad, was not admissible to prove the amount of the damage.

VOL. I.

I i

both

both included. The sugars were warranted free from average under 51. per cent. At the trial before Abbott C.J., at the London sittings after last term, it appeared that the terito

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vessel discharged at St. Petersburgh, and that the sugars had been damaged by perils of the sea. In order to prove damage to a greater amount than 57. per cent., the plaintiff tendered in evidence a certificate of the agent to Lloyd's, resident at Petersburgh, signed by him after surveying the sugars. The following admissions were, entered into by the parties. The merchants, shipowners, and underwriters in London, have been for centuries in the habit of meeting at Lloyd's for the purpose of transacting the business of insurance. The management of the affairs at Lloyd's has always been conducted by a committee of nine members appointed at a general meeting of the subscribers; the authority of the committee is vested in them by a deed, executed by such of the subscribers as vote in the election of the committee; the committee, in pursuance of this deed, nominate agents at nearly all the out-ports in the united kingdom, and all foreign ports over the world with which any trade is carried on; printed instructions are sent out to the agents on their appointment, requiring them to communicate to the committee all the information that they can collect regarding trade and commerce generally, and all losses, misfortunes, and accidents which may happen to ships or property within the district for which they are respectively nominated. The printed instructions transmitted to the agents contain the following passages. "No power from the subscribers to Lloyd's can divest the assured, their agents or assigns, or the masters of vessels, of that right over property which the law has given them; but it is presumed, that

the

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the assured or their representatives will readily avail themselves of the assistance of an agent, who is appointed by the general body of subscribers to act on their behalf, and whose co-operation will facilitate the settlement of loss or average with the underwriters. When called upon by consignees to ascertain damage, the agent is to act as a surveyor only, and in this capacity to require the presence at surveys of the master of the vessel by which the goods have been imported, who is to sign the certificate of the damage. The agent is further to see that the sound part of every package is separated from the damaged, and particularize the quantity of each in his certificate, taking care in the first instance to satisfy himself, that the goods were properly stowed, and that the damage was occasioned by sea water whilst on board. The sale must take place within a reasonable time from the period of landing, otherwise the underwriters will be exonerated; and in such case the agent is not to act. The agent is not to make up or sign any statement of average, either general or particular, as representative of the underwriters leaving that to be adjusted between them and the assured upon the documents which he furnishes." It was further admitted, that the persons by whom this policy was effected and the Defendant were at the time subscribers to Lloyd's, and had executed the deed from which the committee derived their authority, The question meant to be tried was, whether the certificate signed by Lloyd's agent was admissible in evidence against the defendant. The Lord Chief Justice held it inadmissible, and nonsuited the plaintiff with leave to move to enter a verdict in his favour.

1823.

DRAKK Tagainst MARRYAT.

"

Campbell accordingly now moved, and contended that the evidence ought to have been received. From the limit put upon the authority of Lloyd's agents, it must be admitted that they cannot bind the underwriters by adjusting a total loss or settling an average; but they are appointed expressly to survey goods that are damaged by perils of the sea, and to grant a certificate of the quantum of the damage. In granting such a certificate, therefore, they are acting within the scope of their authority, and a certificate so granted is good evidence against their principals. If the defendant himself had signed this certificate, he would have been bound by it, and it seems equally binding upon him, though signed by his agent. Lloyd's agents always authoritatively interfere in foreign ports upon any misfortune happening to property insured; they are understood to represent the underwriters; upon the certificates which they grant, losses are constantly settled; and it would be injurious to commerce if any act which they are directed by their instructions to do, could, when disagreeable to the underwriters, be treated as a nullity. In Read v. Bonham (a) it appears to have been thought, that an agent for Lloyd's resident at Calcutta, might even receive notice of abandonment, which would be extending his authority far beyond what is necessary for the plaintiff in this instance.

Per Curiam. If the agent had been employed by both parties to make a certificate of the loss, that might have been conclusive between them. But that was not so, and in the very instrument of appointment, the agent

(a) 3 B. &B. 147.