Montgomery, &c. vs. Firemen’s Insurance Company.
APPEAL FROM LOUISVILLE CHANCERY COURT.
X. Contracts are to be construed according to the real intent and understanding of the parties, primarily by the words which they have used, with the aid, if necessary, of such other considerations as may show the sense in which the party intended to be understood.
2. When a stipulation in a policy of insurance is that the insurers are are not to be liable for loss1 arising from the bursting of boilers, and the boiler burst, and the boat took fire and burned up: Held, that there was no liability under the policy.
The facts of the case aré stated in the opinion of the Court. Rep.
B. Ballard for appellants—
Argued that the loss of the boat of the appellants was by fire, and though the fire originated from the bursting of the boiler of the boat, it was nevertheless a loss by fire, which is within the terms of the policy. City Fire Insurance Company vs. Collier, 21 Wendell, was a case of insurance against fire only. It was shown that the house was blown up by gunpowder by order of the mayor of the city, at the great fire in 1835, to arrest the progress of the fire. It was held that the company was liable — the insurance being, against fire it was not material how it it had its origin, if it was not by the fraud of the insured.
In the case of Waters vs. Merchant’s Insurance Co., the plaintiff’s boat was, among other things, insured against a loss by fire; it appeared that a keg of powder on board the boat burst in consequence of the carelessness of some of the hands, set fire to the boat, and she was a total loss. The defendant relied, in defence, that the boat was lost by the negligence of the plaintiff’s hands; which negligence was not insured against; but the insurance being against loss by fire the court held the company liable, and it *428was not material how it originated. The same doctrine was approved by this court in the case of Powell vs. Firemen's Insurance Co., 13 B. Monroe, 311.
The case of Lewis vs. Jamison, 12 Fast., 648, is relied on as maintaining the principle that the immediate cause is to be looked to, and not the cause of the cause, as also Rice vs. Horner, 12 Massachusetts Reports, 230.
It is believed that no case can be found in which the insured has been denied indemnity when he established the loss as arising directly from one of the perils insured against, on any such ground that that peril was caused by another peril not insured against, or even by another peril which was excepted.
The risks insured against are all in one clause of the policy, in these words : “Of the rivers, fire, enemies, pirates, assailing thieves, &c.” In a subsequent clause, but not the next succeeding, it is stipulated as follows : “It is agreed that this insurance company is not liable for any loss or damage which may arise from, or be occasioned by the said boat being unduly ladened, nor for any loss arising from the explosion of gunpowder, the bursting of boilers, the collapsing of flues, or breaking of the engine, or any part thereof, except from unavoidable or external causes.” '
In this case the fire did not immediately succeed the explosion — it was some twenty minutes thereafter — but all the proof shows that it was caused by the explosion. Assuming that the fire was caused by the explosion, the defendant insists that he is not liable for the bursting of the boiler, nor for any of the consequences resulting from it, and that such is the effect of the exception in the policy on that point. What is the effect of the exception ? Without the exception it is plain that the defendant would be liable for the damages done by the explosion, as well as by the fire. This follows from the fact that the explosion is oné of “the perils of the rivers,” and that the “perils of the rivers” are expressly insured *429against. That the explosion of a boiler is a peril of the river is clear upon principle, and is settled by authority. (Phillips on Insurance, 592, 627; Perrin's adm'rs vs. Protection Insurance Company, 11 Ohio Reports, 147 ; Citizens Insurance Company vs. Glasgow, 9 Missouri Reports, 411.)
The effect of making an exception of the bursting a boiler is to except it as one of the perils oí the rivers. It is in effect saying, by the underwriters, though we have in the first part of the policy said we would insure against the perils of the rivers, yet we do not intend to assume the risk from bursting of boilers. This leaves the risk from fire, without the exceptions embraced by the terms of the policy; and they are bound for all risks resulting from fire, however it may have originated. A different construction would be to reverse the well established rules in the construction of policies. It would be to construe the general terms of the policy rigidly against the assured, and the exception liberally for the insurer; while on the contrary the policy is to be liberally construed to give indemnity to the assured — all exceptions are to be construed liberally against the insurer. Duer says “as a contract of indemnity to the assured, the policy is to be liberally construed in his favor, not only because this mode of construction is most conducive to the interest of commerce, but because, for the reasons that have been stated, it is most consonant to the intention of the parties. It is certain that the assured desires as ample an indemnity as he can obtain, and it is probable that the insurer means that he shall understand the indemnity given to be as extensive as its terms, upon any fair interpretation, import.” “For the same reasons, and not in obedience to a mere technical rule, an exception from the risks of the policy is to be construed strictly against the insurer. Such an exception is a modification of the promise of indemnity, and all that promise is to be construed liberally. It is a necessary consequence that the exception cannot be *430permitted.to abridge its operation toa greater.extent than the terms used plainly require.” (1 Duer on Risuranca, 161, 2, sections 5 and 6; Potter vs. The Ontario and Livingston Mutual Insurance Company, 5 Hill’s New York Reports, 14.)
In Turney vs. Etherington, quoted and adopted by Mansfield in Pelly vs. Royal Ex. Ass. Co-., 1 Burrow, 341, Lord Chief Justice-Lee said: “It is certain that in construction of policies stricture jus or apex juris is not to be laid hold on, but they are to be construed largely, for the benefit of trade and for the assured.” In Dow vs. Whetton, 1 Hall’s Supreme Court Reports, 274, Chief Justice Jones said: “The policy is a contract of indemnity, and such construction is to be given to the words employed in it as will make the protection it affords co-extensive, if possible, with the risk it assumed.” The same principle is recognized in the following cases: Palmer vs. Warren Insurance Company, 1 Story’s Report, 360 ; Blocket vs. Royal Ex. Assurance Co., 2 Crough. Jarvis, 244; Zeaton vs. Fry, 5 Branch, 335 ; Louisville Fire and Marine Insurance Company vs. Bland Coleman, 9 Dana, 151. Such, it is believed, is the universal rule. In the case of Zeaton vs. Fry, supra, the court said, in substance, that the exception being in the words of the insurer, and introduced for his benefit, does not exempt him from liability except from risks necessarily embraced by it.
The exception does not extend farther than to save the insurers from the direct injuries resulting from the bursting of the boilers, and does not exonerate them from injuries resulting from fire, though the bursting of boilers may have caused the damage from fire; and it cannot be assumed that the assured understood that there was to be any exemption, in any case, from liability for an injury resulting from fire, from whatever source it might arise. The exception can have its full effect by confining it to the direct injury resulting from the bursting of boilers, and it certainly does not necessarily embrace any other risk, *431and we rely that on the authority of the cases cited it can have no other meaning.
Fire and explosion are two distinct perils, and that is important to be borne in mind in considering the meaning of the exception. In Millandon..vs. New Orleans Insurance Company, 4 Louisiana Reports, 15, referred to in Angel on Fire Insurance, the insurance was against fire only. The house insured was destroyed by the explosion of a steam boiler used in it. The court held that the insurers had not taken the risk against explosion, but only of fire, and as the loss was from' explosion the insurers were not liable.
In Babcock vs. Montgomery County Insurance Company, 6- Barbour's New York Reports, 637, the building was insured against fire by lightning; the building was struck by lightning, and destroyed by its explosive power, but there was no fire ; held that the insurer was not liable. Then if fire and explosion be distinct perils, it follows that, an insurer may take one risk‘.and not the other, or he may except one risk and not the other.
Only two cases have been found in the decisions of the courts oí the United States, in which such an exception has been considered. In one case the action was founded on a fire policy, and in the other on a river policy, and in each case the decision is in accordance with the views here presented. In St. John-vs. The American Mutual Fire and Marine Insuiance Company, 1 Duer's N. Y. Sup. C. Rep., 371, reported also in Livingston"s Law Reg. for 1854, p. 429, by this policy the defendant agreed to indemnify the plaintiff against all such loss or damage as should happen by fire on the machinery and fixtures, and brick buildings Nos. 5 and 7. By one exception annexed to the policy, it .was provided, “that the company will not be liablé for any loss occasioned by the explosion of a steam boiler.” The proof showed that a steam boiler exploded on the premises, producing fire which destroyed the subject of insurance. The court below refused to non-suit the plaintiff, and he had judg*432ment. This decision was reversed by the superior court; but this court’s attention is called to the particular grounds of that reversal. That court say: “All kinds of loss resulting from the explosion of a steam boiler, not producing fire, nor bringing the insured property and fire in contact, must necessarily have been borne by the plaintiff, even if no part of this clause had been contained in the policy. The insurance is only against loss and damage by fire. If there had been no fire, and the insured property had been utterly destroyed by the explosion, no recovery could have been had against the company, even if this clause had been omitted, for the simple reason that only loss or damage by fire was insured against. It cannot be supposed that the clause was introduced to guard against a liability which could not by any possibility arise, but to guard against one which might arise but for the existence of this provision. The only one which could arise from the explosion of the steam boiler, would be for an immediate loss or damage by fire occasioned or communicated by such explosion.”
“The policy, after providing that the company will not be liable for any loss or damage by fire happening by means of any invasion, &c., adds that they will not be liable for any loss occasioned by the explosion of a steam boiler. The most comprehensive terms are here used, and if this loss was occasioned by the explosion, it would seem to be covered by the clause whether the loss resulted from the fire being directly communicated to the injured property, or from its being crushed into worthless fragments.” — - “A loss of the former nature was the only one which the company had any occasion to guard against; we think they have done this by the clause in question.”
It is plainly to be inferred from this decision, that if the risk of explosion, as well as that of fire, had been covered by the policy, the court would have construed the exception as exempting the underwriters only from the loss by explosion, and have held *433them liable for loss by fire ensuing the explosion.— In the policy in the case under consideration, the risk of explosion as well as fire is assured, and the exception is not only not nugatory if the insurer is held liable for the loss by fire, though the fire was caused by the explosion.
In the case of Citizens’ Insurance Company vs. Glasgow, 9 Missouri R., 40, the risks were the same as in this case. The condition is in these words: “It is agreed that the assurers are not liable for any partial loss or pai’ticular average, unless such loss or average amounts to 10 per cent, on the value of the boat; nor shall they be held liable for the bursting of the boilers, or the breaking of the engines, unless occasioned by external violence.” One of the boilers bursted, producing fire which destroyed the boat.— The court held the insurers liable.
It is insisted that although the insurer is not responsible for the loss arising directly from the bursting of a boiler, they are liable for the loss resulting from fire resulting as an effect of the explosion of the boiler. In support of this principle the following authorities are relied on: Simpson vs. Charlestown Insurance Company, Dudley’s Rep., 239; Zeaton vs Fry, 5 Granch, 335; Carrington vs. Merchts. Ins. Co., 8 Peters, 495.
It is only when the damage by each peril cannot be distinguished, that the whole loss is to be ascribed to the efficient peril, that is, the peril by which the other is directly occasioned. (I Phillips on Ins., sec. 1137, p. 675.) But if the damage by each peril can be distinguished (which can be done in this case,) the whole loss cannot be ascribed to one peril, though that peril putin operati m the other peril.
Speed <Sf Worthington for appellees—
This cause comes up now upon the following facts.
The steamboat Oregon being under Insurance, burst one of her boilers, and taking fire therefrom was totally lost. The proof shows incontestably that *434tbe fire arose instantly and necessarily from the explosion.
The perils which are covered by the policy are of the rivers and fires, and all other perils losses and misfortunes which shall come to the damage of the boat, according Lo the true intent and meaning of this policy, as herein expressed. In an after part of the policy, it is declared that the company shall not be liable for any loss or damage arising from the bursting oj any of the boilers.
For the plaintiff it is contended that a recovery can be had for all the damage by fire; that the insurance is against fire, and. the insurer must, under the contract, make good the loss, no matter how the fire originated.
The familiar rule that every instrument must be construed, not by looking at each particular sen tence, or paragraph, or part, but at the whole instrument, is required upon the face of this contract, and the very sentence that, affords indemnity to the plaintiff. Indemnity is contracted to be afforded, not “according to the true intent and meaning of this sentence,” but of this “policy.” Does the contract intend to afford indemnity for any loss “arising from the bursting of the boilers”? Is not the language of the policy simply that a fire which is an inevitable consequence of an explosion is not covered herein, or does it not mean that?
What is the difference betwixt the modes of expression “arising from,” “occasioned by," “-and necessarily consequent upon”? For all practical purposes they are the same. The effect which arises from a given cause is necessarily consequent upon it, and that effect which is necessarily consequent from •a cause arises from it. If other than one cause may intervene to produce an effect, then the effect cannot be said to arise from, nor to be consequent upon, either cause.
All damages are more or less consequential. If a hole that could be repaired for one hundred dollars, *435writers are not liable for the direct consequences of an-excepted risk. (2d vol., page 478, sec. 1793.) It seems to me to be a rule of such plain equity that it needs no citation of authority to establish it. is knocked in a boat, and she sinks therefrom, the insurer is liable. Why liable? Because the loss is a direct consequence, or arises from the injury. Why is not the same rule applied to the exceptions in the contract? If an insurer is liable for all the immediate consequences of a peril insured against, he should have the benefit of all the immediate consequences of an .excepted peril. Mr. Phillips says that-under-
Suppose this case reversed; that an explosion had been an immediate and necessary consequence-of a fire. The whole loss would'have been -recoverable, because explosion in such case would be an effect, and not the less an effect because it contributed to increase the loss. An -effect may become a cause of further disaster, but it does not therefore cease to be an effect.
That is the immediate cause of loss to which dll the effects can be certainly traced.
On the other hand, that can never be said to be the immediate cause of the loss, when other and independent causes may have intervene d, either to originate or increase the loss.
Atwood on the same side—
«Argued : 1. The boat was lost by the bursting of a boiler causing fire. The insurers are not liable, but are exempted from liability by the express terms of the policy. The terms of the policy are comprehensive. The company “is not liable for any loss arising from the bursting of the boilers.” An explosion may occasion a partial, or It may, and frequently does, occasion a -total loss; but for a loss either partial or total, or any loss, in the language of the policy, arising from the explosion of the boilers, the underwriters are not liable. The loss being the result of the explosion, is within the exception in the policy.— *436Phillips says some insurers take the risk of fire iw such cases — (3d ed. Phillips on Ins., p. 41, sec. 60, note} —that is, that some insurers, while they expressly losses from explosion, expressly bind themselves to pay a loss by fire in such case. This shows that when the exception remains in full force, as in this policy, the assured, and not the underwriters, take the risk resulting from the explosion of the boilers.
The doctrine is that the underwriters are liable for the direct effect of the perils insured against, while the assured bears the direct effect of those excepted. (Phillips on Ins., 3d ed.,p. 687, sec. 1151.) In this case the fire was the direct cause of the loss.
Again: “In case of the concurrence of different perils, to one of which it is necessary to attribute the loss, it is to be attributed to the efficient, predominating peril, whether it is or is not in activity at the consummation of the disaster. (Phillips on Ins., 3 ed., 671, sec. 1132.) In this case the explosion was not in activity at the time of the burning, but the explosion caused the fire, and therefore was the efficient cause of the loss. (Phillips on Ins., 3d ed., 672, sec. 1134; lb., 675, sec. 11.37.) The assured having taken the risk of explosion, takes the risk of all the consequences of explosion. (Petersvs. Warren Ins. Co., 14 Pet., 99; Magoun vs. New Eng. Ins. Co., 1 Story, 158; Savage vs. Pleasants, 5 Binney, 103 ; American Ins. Co. vs. Dunham, 12 Wendell, 463.) Judge Story lays down the rule that all the consequences naturally flowing from, or incident to, a particular peril, are attributable to the peril itself. The same doctrine is maintained in Waters vs. Merclits Ins. Co., 11 Peters; Perrin vs. Protection Ins. Go., 11 Ohio, 147; Coit vs. Smith, 3 Johnson's N. Y. cases, 16.
2. It is contended that in the body of this contract, and its obligatory clause, there is an exception to the liability of the company which narrowed the responsibility, and for such loss the defendants were not responsible. In such cases the plaintiff must show that *437the case is not within the exception. (3d ed. Gould’s Pleadings, chap. 4, sec. 20 ; 9th Amer. from 6th London ed., Chitty’s Pleading, 309 ; Lb., ed. of 1828, 317.) If certain risks are excepted the loss must appear to have been caused by those not excepted. (2d ed. Arnould on Ins., 2d vol., 1262. 3d ed. Phillips on Ins., 2d vol., sec. 2025 ; Daglishvs. Brook, 15 East., 295; ELahn vs. Corbet, 2 Binghan, 315; Latham, vs. Rutley, 2 Barn, fy Cress., 20.) The causes of the loss must be truly stated. (Phillips on Ins., 2d vol., sec. 2022, page 616; 2d ed. Arnould on Ins., 2d vol., 1273.) And must be proved if denied. (2 Phillips on Ins., sec. 2046.) And the proof must bring the case within the terms of the contract. (Merchants’ Ins. Co. vs. Wilson, 2 Mad., 217, cited 13th vol. XI. S. Dig., 420.)
The cases of Roe vs. Columbus Ins. Co., 17 Missouri Rep., (2 Bennet,) 301; McCallister vs. Tennessee Marine and. Fire Inssurance Co., 17 Missouri Reports, 306, are strictly analagous to the case before the court. The policies are almost identical in their provisions.
December 19.
Chief Justice Marshall
delivered the opinion of the Court.
On the 14th day of November, 1849, the Firemen’s Insurance Company of Louisville executed a policy insuring J. E. Montgomery, or whom it may concern, in the sum of $5,000 on the steamboat Oregon, for twelve months from that day. The insurance was afterwards, by endorsement on the policy, extended for twelve months from the 14th day of November, 1850, and on the 2d day of March, 1851, while the Oregon was under full headway descending the Mississippi river, one of her boilers bursted, by which the furnace or fire-bed was uncovered, the neighboring timbers and woodwork broken and shattered, and brought in contact with the fire, which soon after spread through the boat, and in a short time it was burnt to the water’s edge. In October, 1853, Montgomery and Dean, as owners of the boat at the time of the disaster, brought this action, upon *438the policy, to recover for the loss, and the question is whether’ the insurers are liable for it. This question depends upon a comparison of two clauses in the policy and upon tHe cause of the loss.
The clause describing tbe perils or risks undertaken by the insurers, states that they are of rivers, fire, enemies, pirates, assailing thieves, &c. And after the usual clause authorizing the insured, in case of loss or misfortune, to labor, travel, &c., for the defense, recovery, á¡tc., of the boat, follows a. clause by which “it is agreed that this insurance company is not liable for any loss or damage which may arise from, or be occasioned by, the said boat being unduly laden,nor for any loss arising from the explosion of gunpowder, the bursting of the boilers, the collapsing of the flues, or breaking of the engine, or any part thereof, exeept from unavoidable external-cause or causes.”
We think there is no room for reasonable doubt on the evidence that the fire which actually destroyed the boat was caused directly and immediately by tbe bursting of the boiler. But some of the witnesses attempt to estimate the damage which was or would have been done by the mere force of the explosion, if there had been no burning; and it is contended on the part of the plaintiffs, that although under the clause of the policy just quoted, the défendant is exempt from the loss produced by the mere explosion, the clause cannot be construed to embrace a loss by fire, although the fire itself be attributable solely andeerta-inly to the bursting of a boiler. The argument is that loss by fire being expressly, and loss by bursting of boilers impliedly, included among the perils insured against, and the insurer being by the succeeding clause exempt from liability for loss by bursting of boilers only, the liability for loss by fire remains, whatever, m-ay have been the cause of the fire, because the insurance against loss by fire is not restricted by any reference to- the cause which may produce it; that the clause containing the exemption. *439is an exception of hazards or losses of a particular description from the general undertaking of the insurer, which must have been understood as including them, and that as the description of the perils insured against, should be liberally construed to effectuate the expected indemnity, the same reason requires that the exception inserted by the insurer for his own benefit, should be construed strictly, and forbids the exemption of the insurer from his express undertaking, without the express exception of a loss within that undertaking.
l. Contracts Record|jng &e real 'derstanding Rf j^niRRy’ the /words 'which Rith the aidRif necessary, •anp.h r»f.hi»T> of such other considerations as show the sense in which the party intended to be understood.
The principle of construction here appealed to just and reasonable, but it must operate in subordination to the still higher and more universal principle, that contracts are to be construed according to the real intent and understanding of the parties, to be ascertained primarily by the words which they have used, with the aid, if necessary, of such other considerations as may show the sense in which they! 47 *> . were used, or m which the party using them must! What have supposed them to have been received, ever, then, might under the principles of construction appealed to by the plaintiffs, have been the case if the exempting clause had been that the company “is not liable for bursting of boilers,” or even “for loss by bursting of boilers,” we think the terms actually used plainly and necessarily extend the exemption beyond the injury occasioned by the mere force of the explosion, either to the boiler itself or to the machinery connected with it, or to the adjacent parts of the boat, and include any loss which, in view of the actual facts, can be properly said to arise from the bursting of the boiler. There seems to be no room for construction, liberal or strict, except in regard to the words “arising from,” which designate the connection or relation between thé bursting of boilers and the losses for which the insurer is not to be liable. In the law of insurance these words are understood to refer to a proximate, and not a remote connection between the loss and its cause. Causa *440•próxima non remota spectatur, is a maxim in that law which, although differently construed at different periods, has in terms been adhered to from time immemorial.
In the application of this maxim, many of the older cases determined that the loss must be attributed to the cause of injury or destruction actually in operation at the time of its occurrence, and it was consequently held that, although a peril insured against had in fact subjected the vessel to the cause which destroyed or injured it, or although a peril assumed put in operation the destructive cause, the loss was to be attributed to the cause immediately operating at the time of its occurrence. But the modem decisions still adhering to the same maxim, but under a broader construction, have established the more reasonable doctrine, that if the vessel is by a peril insured against subjected to the operative cause of destruction or injury, or if the peril insured against puts the destructive cause in operation, the peril insured against being in fact the real cause of the loss, is to be deemed the proximate cause, and especially when the destructive cause is in operation before the vessel is relieved from the peril insured against.
If this policy had insured the Oregon expressly against any loss arising from the bursting of boilers, and against no other peril whatever, there would have been no doubt that the loss which actually occurred through the immediate effect of fire, and not of the explosive force which bursted the boiler, would have been attributed to the bursting of the boiler as the efficient and sufficiently approximate cause of the loss; and that the loss through fire was the immediate means of producing it, would have been regarded as the proximate consequence of that cause which immediately produced the fire by which the boat was destroyed. Nor can it be doubted, as we suppose, that if the plaintiffs, in consequence of the exempting clause in this policy, had procured from another insurer, a policy insuring the Oregon against any loss arising from the bursting of boilers, *441the last insurer would have been held to be exclusively liable for the loss which actually occurred, and would have had no right either to apportionment or contribution; nor do we suppose that in the last case the plaintiffs could at their own option throw any part of the loss upon the underwriter of the policy now before us.
Are these results sufficiently, accounted for by saying that the liberal construction by which, in the first case, the policy would be understood to cover the loss, is in the last case repelled from the general clause, or applied also to the exempting clause of this policy, in consequence of the conduct of the insured, from which it would be clear that he did not understand this policy, taken altogether, as insuring against any loss arising from the bursting of boilers? We are not aware of any general principle which allows the understanding of one of the parties to determine the meaning of the contract between them. It is a rule sometimes applied in cases of ambiguity, that words are to be construed most strongly against the party using them; and it is a rule founded upon the same principle of honesty and good faith, that when a promise or stipulation is susceptible of two meanings, it should be construed and effectuated in that sense in which the party making it knew, or had reason to believe, it was understood and received by the other party. But these and all other rules of construction are resorted to for the single and just purpose of ascertaining and carrying into effect the real intention of both parties, to be arrived at by a fair interpretation of their language under such lights as may be furnished by the context, and by all the circumstances which it indicates. And when the common signification of the language used by ordinary men is plain, and may be regarded as certain in its import as understood by ordinary minds, unless in the sense thus indicated the provision or stipulation be absurd, or evidently unjust or unreasonable, there is more danger of perverting than of effectuating *442the real intention of the parties, by resorting to refined and artificial construction for the purpose of giving to their language a meaning and effect different from its plain and natural import.
2. Where a stipulation in a policy of insurance is that the insurers are not to be liable for logs arising fro in the bursting of boilers, and the boiler burst, and the boat took fire and burned up: Held, that there was no liability under the policy.
We think that when it is plainly said in the negative clause, that the company is not liable for any loss arising from the bursting of boilers, the iusured must have understood this language according to its obvious meaning, and could not have expected the company to be liable for any loss arising from the bursting of boilers; and that although the burning of the boat, or any injury by fire, does not always, nor often, attend the bursting of its boilers, yet as he must have known that it did sometimes, or at least that it might sometimes be the necessary and inevitable consequence of that cause, and as he must have understood that a loss so happening would be a loss arising from the bursting of boilers, he could not have expected the company to be liable for such loss, when it was expressly agreed that they were not liable for any loss arising from the bursting of boilers. Even if the policy had expressly insured against the bursting of boilers as well as against fire, it would not have occurred to an ordinary mind that the comprehensive declaration that the company is not liable for any loss arising from the bursting of boilers, should be restricted to the immediate effects of the explosive force of the steam, and would not embrace a loss by fire, although it should be in fact the necessary and immediate consequence and attendant of the actual explosion. As the company did not in terms assume the peril of any loss arising from the bursting of boilers, there is no reason on the face of the policy why the declaration of non-liability for any such loss, if regarded as an exception to a liability which would otherwise exist, should not be understood as an exception to the liability for a loss by fire necessarily and immediately caused by the bursting of boilers. The parties may not have known that under the general terms of this policy there was any *443liability for the mere bursting of boilers, unless it set in operation, or was the consequence of, one of the perils expressly assumed or well understood to be included in the perils enumerated, and the declaration of non-liability may have been expressly intended to except losses by fire or other peril expressly insured against, but arising in fact and immediately or necessarily from the bursting of boilers. Or the declaration may have been inserted in the policy to make that certain which the parties, or the insurer, might have considered as uncertain; and as it does, in terms plain and unambiguous, clearly embrace the loss which has occurred, and as the destruction of the boat was the certain and natural consequence of the bursting of the boiler, and was a loss arising from it by the agency of fire communicated by the explosion itself, and simultaneous with it, we are of opinion that the peril of such loss was expressly, and as must be supposed, knowingly, assumed by the insured. This conclusion, drawn from the instrument itself, and from general considerations applicable to it, may derive some corroboration from the infrequency of the burning of boats by the bursting of boilers, which may account for the willingness of the owner to assume that risk, while the general uncertainty as to the causes of the explosion of boilers, and as to the extent of its consequences in particular cases, may account for the refusal of the insurer to be liable for any loss arising from that cause.
Wherefore, the judgment is affirmed.