The plaintiffs' complaint against the defendants avers that a propeller, belonging to them, on Lake Michigan, was proceeding on her voyage when the boiler burst, and the body, tackle, apparel and furniture of the propeller and the boilers were blown to pieces and sunk and destroyed. The propeller was insured by the defendants under the usual policy, with a clause therein providing that the defendants were not to be liable for any derangement or breakage of the machinery, or bursting of the boilers, unless occasioned by stranding, but if the propeller took fire or the machinery or boilers should be damaged thereby, the said defendants were to be liable therefor.
The defendants demurred to the complaint, and the question which arose thereon depends upon the construction of the exception above stated as to the bursting of the boiler. It must be conceded that the damage to the vessel was occasioned by the bursting of the boiler, and that there is nothing to show that any other cause than a defective boiler led to the explosion. No cause whatever for the explosion is stated in the complaint, nor are any circumstances alleged to take the case out of the exception.
The ordinary use of language and the understanding of the words used, looking at them in the common sense mode of interpretation, would both lead to the conclusion that the defendants intended by this provision in the policy to avoid the risk which might arise from the bursting of the boilers or the derangement or breakage of the machinery. They were not to be liable for either, except it was occasioned by stranding. In such a case the loss was assumed by the defendants for the very obvious reason that the bursting was not the cause of the loss, but a consequence of what would probably have caused it, whether the boiler burst or not. *Page 112
Whether or not the vessel was seaworthy, has nothing to do with this exception. It does not assume the risk if seaworthy, or seek to avoid it if otherwise; but the exception is general and applies equally, whether the vessel was sound or not.
The plaintiffs contend that the defendants are liable for the loss in all respects except for the damage to the boiler itself.
It is not necessary to inquire, in this case, whether the defendants would have been liable for the loss if, after the bursting of the boiler, the vessel had attempted to get in port by the use of sails, or otherwise, and had been then lost. The loss then would have been consequential and not direct. In this case the bursting of the boiler is alleged to be the direct and immediate cause of the loss; the averment being that by such bursting the body, c., of the propeller was blown to pieces and sunk. The cases cited by the appellants as favoring the liability of the defendants, were all cases in which the loss was not the direct result of the injury attempted to be guarded against by the exception, or where the wording of the exception was such as to relieve the question of any doubt, with the exception of TheWestern Insurance Co. v. Cropper (32 Penn., 351). Even in this case the bursting of the boiler was not the immediate and direct cause of the loss. The court say they do not consider the exception such "as to exempt from the obligation to pay for a total loss, though the loss could be traced back to the breakage of the machinery as its first cause." From the statement of the case it is apparent the vessel was not destroyed by the bursting, but such destruction followed from causes originating perhaps in the destruction of the boiler, but not by the bursting itself. I cannot, however, adopt the conclusion that that case is controlling as applied to the present one; on the contrary it seems to me to be the very liability which the company intended to guard against, by excepting a liability for the bursting of the boiler.
I see no difficulty in construing the subsequent part of this clause in regard to fire so as not to conflict with the interpretation given to the exception by the court below. That provided *Page 113 for liability if the propeller should take fire, and that fire should cause the destruction of the machinery or boiler, they would bear the loss. The very statement of such a liability is a clear expression of intent not to bear the loss where it arises in the first instance from the bursting of the boiler.
It seems to me to be clear that the exception in the policy was intended to guard against the bursting of the boiler, and all injury directly produced by such explosion.
The judgment of the court below should be affirmed.
All the judges concurring,
Judgment affirmed.