Miller v. California Insurance

Paterson J. This is an action brought on a policy of marine insurance issued by the respondent on the steamer Pilot. The risks insured against were as follows: “Touching the adventures and perils which this insurance company" is content to bear and take upon itself in this policy, they are of seas, fires, pirates, assailing thieves, jettison, barratry of the master or mariners (unless the assured be owner or part Owner of the vessel), embezzlement and illicit trade excepted in all cases, and all other losses and misfortunes - th at shall come to the hurt, damage, or detriment of the said vessel, or any part thereof, to which insurers are liable by the rules and customs of insurance in San Francisco, -excepting such losses and misfortunes as are excluded by this policy.....It is also agreed that in case'of'insurance on a steamer this company is not liable for any injury, derangement, or breakage of the machinery, or bursting of the boilers, unless occasioned by stranding.”

The complaint alleges that on May 25, 1883, “the boiler on said vessel exploded, and said vessel became then and there unmanageable, and" swung around on the water, and within a few minutes thereafter sank and became a total wreck, and was wholly and totally lost to the owner thereof, and was abandoned by the owner to defendant.”

There is no allegation in the complaint that under the customs of insurance" in San Francisco insurers are liable for explosions of boilers or damages resulting therefrom.

A demurrer to the complaint was filed, on the ground that it does not state facts- sufficient to-constitute a cause of action. The demurrer was sustained, and plaintiff declining to amend, judgment was entered for defendant.

Passing over the question as to- the- sufficiency of the [147]allegation in the complaint to show that the destruction of the vessel was caused by the bursting of the boiler, or by any other means admitted to be such as would make the company liable; and conceding that the complaint shows the loss to have occurred by reason of the bursting of the boiler without any fault of the plaintiff, these inquiries remain: 1. Is the explosion of the boiler a peril of the sea within the first clause above quoted? and 2. If it be a peril of the sea, are not the damages resulting therefrom excepted under the special provision of the policy which is quoted above, and which relates to the bursting of the boilers ?