1880 West India Telegraph Co. v. Home, &c., Ins. Co. the plaintiff's intestate might have ridden from the landing to the station, did not affect the question, it being the general custom for the passengers to walk Northrup v. The Railway Passenger Assurance Co., reversing 2 Lans., 166. The deceased, in this case, being intoxicated, fell off a bench in the barroom and was placed upon the floor in a small room adjoining, with nothing. under his head. While there he died from apoplexy or congestion of the brain, brought on, as the plaintiff alleged, by placing him in an improper position while intoxicated. Held, not a case of death by "accident" within the statute, but of death from natural causes induced by intoxication: Bobier v. Clay, 27 U. C. Q. B., 438. The fact that a person insured against injury or death by accident was guilty of negligence which contributed to an injury received by him, will not prevent a recovery on the policy. A provision in the policy that the company should not be liable for an injury happening to the assured by rea (C.A.) C.F.D. son of his "wilfully and wantonly exposing himself to any unnecessary danger or peril," held not to prevent a recovery, where he received the injury in consequence of getting from the platform at a railroad depot upon the cars while in motion at a rate of speed less than that of a man walking: Schneider v. Provident Life Insurance Co., 24 Wisc., 28, and 8 Am. Law Reg. (N.S.), 349; S. P., Tooley . Railway, etc., 3 Biss., 399; Champlin v. Railway, etc., 6 Lans., 71. The words "totally disabled from the prosecution of his usual employment" in an accidental policy, mean wholly disabled from doing substantially all kinds of his accustomed labor, to some extent. A disability that prevents his doing as much in a day's work as before is not total, but one that entirely prevents his doing certain portions of his accustomed work is total, though there are other portions that he is able to do: Sawyer . U. S., etc., 8 Am. Law Reg. (N.S.), 233, Mass. Superior Court, nisi prius. [6 Queen's Bench Division, 51.] Nov. 15, 1880-(C.A.), C.P.D. [IN THE COURT OF APPEAL.] 51] *THE WEST INDIA AND PANAMA TELEGRAPH COMPANY, Limited, v. THE HOME AND COLONIAL MARINE INSURANCE COMPANY, Limited. Insurance (Marine)—General Words-Explosion of Boiler of Steamer, whether a Peril insured against-Contributory cause of Loss, and proximate Cause. The explosion of the boiler of a steamer is a peril insured against by a marine policy in the ordinary form. A steamer insured by a time policy became a wreck, by reason of the explosion of her boiler in ordinary weather under ordinary pressure of steam. The causa sine qua non of the explosion was that the boiler had become, from external and internal corrosion by bilge water and "scale," too thin to resist the steam. The corrosion might have been discovered, and in some measure prevented, by ordi nary care: Held, affirming the judgment of Baggallay, L.J., that though unseaworthiness was a causa sine qua non of the loss, the explosion was a proximate cause, and a peril insured against. APPEAL of the defendants from the judgment of Baggallay, L.J., in an action tried by him without a jury. The plaintiffs had insured the steamer Investigator with the defendants by a time policy effected on the 9th of May, 1878. The Investigator was a steam vessel of 569 tons regis (C.A.) C.P.D. West India Telegraph Co. v. Home, &c., Ins. Co. 1880 ter, and had been purchased by the plaintiffs in the early part of the year 1875, for voyages on telegraphic purposes between the island of St. Thomas and the continent of America. Shortly after the purchase the vessel was thoroughly overhauled and repaired, and her boilers and engines surveyed and found to be in good order and condition. The insurance covered the period from the 6th day of May, 1878, to the 5th day of May, 1879, and was for the sum of £5,000 *upon-first, the hull, stores, &c., val- [52 ued at £7,500; secondly, the paying out and picking up machinery, &c., valued at £4,000; and thirdly, the machinery, boiler, &c., valued at £3,500; average payable on each interest separately or together. The perils insured against were described in the ordinary form, as follows: "And touching the andventures and perils which the said company [the defendants] are made liable unto, or are intended to be made liable unto by this insurance, they are of the seas, men-of-war, fire, enemies, pirates, rovers, thieves, jettisons, letters of mart and countermart, surprisals, takings at sea, arrests, restraints and detainments of all kings, princes, and people of what nation, condition, or quality soever, barratry of the master and mariners, and of (sic) all other perils, losses, and misfortunes that have or shall come to the subject-matter of this insurance, or any part thereof." On the 8th of January, 1879, the Investigator was lying in the port of St. Thomas, and her master, having received orders to proceed to repair a break in the telegraphic cable between St. Thomas and San Juan, Porto Rico, weighed anchor about half past 10 on the morning of that day in fair weather. After making some fifteen revolutions, her engines were stopped to allow of the vessel's head canting round, and within a few seconds of their being so stopped, the port boiler burst, gutting the middle of the ship and blowing up her decks. The wreck of the hull was ultimately sold for £250. Upon examination it was discovered that the bursting was due to the reduction of the shell of the boiler from three-eighths of an inch to less than one-eighth of an inch, and that such reduction was due chiefly to the action of bilge water upon its external surface, and to some, though to a less, extent by the accumulation of sediment and dirt, in the form commonly known as "scale," on the inside. This action having been brought to recover the loss sustained in respect of the hull and stores, Baggallay, L.J., in a trial without a jury, gave judgment for the plaintiffs, be 1880 West India Telegraph Co. v. Home, &c., Ins. Co. (C.A.) C.P.D. ing of opinion that the bursting of the boiler was a peril insured against by the policy, and that such bursting was due to the negligence of those who had charge of it, the negligence consisting in the engineers not examining the boiler 53] from time to time, and in allowing it to become corroded and reduced in thickness by the action of the bilge water, which might and ought to have been kept down by the pumps (). The defendants appealed. November 11, 12, 13. Benjamin, Q.C., and Arbuthnot, for the defendants: The explosion of a boiler is not one of the perils insured against. This is a point of the first impression. [COCKBURN, C.J.: Without incurring such a peril, the navigation of a steamer cannot take place.] Every risk remains with the owner unless it be specified in the policy, and a risk so incidental to navigation by steam as the explosion of a boiler ought to have been insured against by express words. It cannot be implied that the parties intended that it should be insured against. This loss was caused by the inherent vice of the subject-matter of the insurance, and it is well settled that underwriters are not liable for a loss so caused. The general rule is thus stated in Phillips on Insurance, 5th ed., at p. 1089. "From the enumeration already given of the perils usually insured against, it appears that insurers undertake to make indemnity only for damage arising from external accidents, not for that occasioned by the qualities or defects of the thing insured." "The underwriter," it is said in Arnould on Insurance, 5th ed., pt. 3, ch. 1, p. 707, "indemnifies the assured against such losses only as are caused by the direct and violent operation of the perils insured against, and not against loss by the ordinary wear and tear of the voyage;" the insurance being not against what must happen, but what may happen. It was inevitable that this boiler should explode in course of time, and if the defendants are to be held liable, there is nothing to prevent shipowners insuring steamers equipped with boilers utterly unfit and inadequate. (1) Upon the first point the learned judge referred to the United States cases of Perrin v. Protector Insurance Co., 11 Ohio State Reports, 147, and Citizens Insurance Case v. Glasgow, 9 Missouri State Reports, 407, in the former of which it was held that explosion is a peril insured against by any ordinary United States policy describing the risks insured against as "of the seas, rivers, fires, enemies, pirates, rovers, assailing thieves, and all other losses or misfortunes which shall come to the damage of the said steamboat, according to the true intent and meaning of the said policy.” (C.A.) C.P.D. 1880 West India Telegraph Co. v. Home, &c., Ins. Co. *[BRETT, L.J.: If there had been no negligence, [54 this loss would not have happened.] Only the efficient cause of the loss is to be regarded; Thompson v. Hopper ('); Fawcus v. Sarsfield ('): and the efficient cause of the loss here was the thinness of the boiler, that is, the vice of the thing insured. The plaintiffs have not sued for the loss to the boiler itself. [They also referred to the following authorities: Dixon v. Sadler(); Davidson v. Burnand ('); Jackson v. Union Marine Insurance Co. (†); Taylor v. Dunbar ("); Cullen v. Butler ('); Bohm v. Combe ('); Dudgeon v. Pembroke ('); Paterson v. Harris ("); Anderson v. Morice (").] Cohen, Q.C., and J. C. Mathew, for the plaintiffs: The perils insured against comprise all perils incident to the navigation of the vessel, including those arising from the improper navigation of the vessel, which latter term comprehends improper management of the boiler and engines. It is established by authority that the perils of the sea insured against are not confined to perils arising from the external violence of the wind or waves, Dixon v. Sadler ("); Davidson v. Burnand ('); and that underwriters are liable for a loss caused by a peril insured against, although the peril may have been brought into operation by the negligence of the crew: Busk v. Royal Exchange Assurance Co. ("). The passage from Phillips on Insurance, relied on by the other side, applies to goods; an attempt was made to apply the doctrine of that passage to a ship in Dudgeon v. Pembroke (*), but the House of Lords refused so to apply it. This policy is the ordinary form of policy by which a steamer is insured; if the argument for the defendants be correct, all insurances on steamers, that is, most modern insurances, have been for many years practically worthless. In the ordinary course of business, it must be taken that an [55 insurance against explosion was intended by the parties, and the common form, though an old one, must be construed liberally. [COCKBURN, C.J.: It is certainly a reasonable construction of the policy that explosion should be insured against.] 1880 (C.A.) C.P.D. West India Telegraph Co. v. Home, &c., Ins. Co. If explosion be included in the policy, there is nothing in the facts of this particular explosion to exonerate the defendants as underwriters. The facts show gross negligence on the part of the crew, which underwriters cannot set up as a defence, Dixon v. Sadler ('), and even if the loss were attributable to wear and tear, either wholly or in part, that would be no answer: Dudgeon v. Pembroke (3). [They also referred to Meredith's Emerigon, ch. xii, s. 1, p. 286; Carruthers v. Sydebotham (); Merchants' Trading Co. v. Universal Marine Insurance Co. (); Pickup v. Thames Marine Insurance Co. ("); Phillips v. Barber (); Anderson v. Morice (').] Arbuthnot, in reply, cited Blower v. Great Western Ry. Co. (*). Nov. 15. The following judgments were delivered: LORD SELBORNE, L.C.: The question in this case is, whether a loss by the explosion of a boiler was or was not covered by a time policy on the steamship Investigator, dated the 6th of May, 1878. The insurance was for twelve months from that date, in port and at sea, at all times, and in all services, situations, and circumstances. The risks, to which the appellants, the insurers, were made liable, were described in the ordinary form: "of the seas, men-of-war, fire, enemies, &c., and of all other perils, losses, and misfortunes, that have or shall come to to the hurt, detriment, and damage of the aforesaid subject-matter of this insurance or any part thereof." The ship, when about to leave the port of St. Thomas on the 8th of January, 1879, was reduced to a wreck (though not submerged or filled with water) by a sudden explosion of her boiler, in ordinary 56] weather. The underwriters disputed *their liability on two grounds; first, that such an explosion was not a peril insured against within the true meaning of the policy; and, secondly, that (assuming it to be so) this particular explosion happened because the boiler was worn out, and that they were not liable for any loss due to that cause. these grounds of defence were overruled at the trial (without a jury) before Baggallay, L.J., and judgment was given for the plaintiffs, the assured. The present appeal is from that judgment. Both Assuming (as for the purpose of this decision I think it (1) 8 M. & W., 895, affirming S. C., 5 M. & W., 405. (2) 2 App. Cas., 284; 19 Eng. Rep., 105. (3) 4 M. & S., 77. (4) Asp. Mar. Cas., vol. ii, p. 431. (5) 3 Q. B. D., 594. (") 5 B. & A., 161. (7) 1 App. Cas., 713; 18 Eng. Rep., 1. (*) Law Rep., 7 C. P., 655. |