Opinion
Sather & Livesey, of Bellingham, Wash., for plaintiff.
Cosgrove & Terhune, of Seattle, Wash., for defendant.
Trial by jury having been waived, the cause tried and submitted, the court now finds that on June 30, 1932, the defendant for value issued a contract of insurance to plaintiff on a certain gas boat called the 'Tiger', the insurance 'touching the adventures and perils which we, the said insurers, are contended to bear and take upon us, they are of the seas, men-of-war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, reprisals, takings at sea, arrests, restraints and detainments of all kings, princes and people, of what nation, condition or quality soever, barratry of masters and mariners, and of all other perils, losses and misfortunes that have or shall come to the hurt, detriment or damage of the said ship, etc., or any part thereof. Free from average under three per cent. unless general or the ship be stranded, sunk or burnt, on fire or in collision with another ship or vessel,' to the extent of $7,140, with the proviso that the liability of the defendant be limited to $4,750 in case of total and/or constructive total loss of the vessel; that on September 14, 1932, while said contract of insurance was in full force and effect, at about 5 o'clock p.m., one of the members of the crew of plaintiff's gas boat went aboard the vessel with some eggs and a rib steak, opened the galley door into the companionway, and also opened the skylight, saw there was no kindling in the wood box, went to the pilot house, and got some box stuff, got some kindling, 'put paper and some little tiny bit of kindling' in the stove, struck a match on top of the stove, and placed it in the fire box and ignited the paper and kindling, and explosion followed, resulting in conflagration with flames rising to a height of twenty or thirty feet, totally destroying the gas boat, with the exception of the engine, which was cracked and is valued at $50, and anchors and chain, also valued at $50; that at the time of said destruction said gas boat was of a value more than $4750; that, after destruction, plaintiff requested that defendant approve of a surveyor to survey and report the damage suffered, and in response to such request the plaintiff was advised September 21, 1932, that the policy covering the said vessel was canceled prior to the fire, and that the defendant had not interest therein; that liability for the damage and loss sustained by plaintiff resulting from the fire was denied; that prior to the fire the plaintiff had requested the cancellation of said policy, but some correspondence arose between the defendant and the plaintiff with relation thereto, and the policy was not canceled prior to the said fire or at any time. And the conclusion must follow that the plaintiff is entitled to judgment against the defendant for the sum of $4,750.
NETERER, District Judge (after stating the facts as above).
The contention of the defendant that the loss was not attributable to fire, but rather to explosion, cannot obtain. There is no evidence of spontaneous combustion. The testimony clearly is that the fire had ignited the paper on which was placed the kindling wood, and from this fire the explosion emanated which caused the conflagration destroying the gas boat, burning everything except the hull, the engine, anchors, and chain. But for the fire the explosion would not obtain. The proximate and direct cause of the loss was the fire.
The rule of ejusdem generis in connection with the words of the policy, 'all of the perils, losses and misfortunes,' has no application here, in view of the fact that the testimony is clear in the proximate loss was the fire which caused the explosion, which scattered the fire and added new flames, to the end that total destruction followed. All other 'perils, losses and misfortunes' can be entirely eliminated, and the damage is traceable directly to the fire as the proximate cause, and not the causa remota. The explosion was caused by the fire in the fire box, and caused the damage to the hull, but the fire destroyed everything above the hull.
The term 'perils of the sea,' standing alone, means marine casualties occasioned by the violent action of the elements, in contract to their natural silent influence upon the fabric of the vessel. In the policy, the perils are enumerated; in the instant case 'fire,' and upon the face of the policy shows more than the fire from the natural elements, and the defendant must be held to the statements upon which premiums are based, and may not, when the proof is definite as to the cause, avoid liability under the phrase 'perils of the sea,' which is limited, and limit it to operation of natural phenomena arising upon the sea from which the destruction was occasioned.