Kuljis v. Union Marine & General Ins. ( 1933 )

NETERER, District Judge

(after stating the facts as above).

The contention of the defendant that the loss was not attributable to fire, hut 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 that 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. AJI 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 cansa 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 contrast to their natural silent influence upon the fabric of tbe vessel. In the policy, tbe perils are enumerated; in tbe instant ease “fire,” and upon tbe faee the policy shows more than the fire from the natural elements, and the defendant must he 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.