Allison v. . Corn Exchange Ins. Co.

Reynolds, C. As the order of reversal does not state that the reversal proceeded from any error of fact by the referee, we can consider only questions of law resulting from the facts found. The court below evidently considered the case one not free from difficulty, and so far, at least, we concur in their opinion. If it had not been for the ice the injury would not have happened, nor would it have occurred but for the presence of a large quantity of water in the Oswego river at the critical moment. The absence of either element, therefore, would probably have avoided the injury. We must, if it be possible, determine which, in the eye of the law, was the immediate and which the remote cause of the disaster. It is quite impossible to conceive of any disaster, marine or otherwise, which is not produced by the agency of several causes operating in a greater or less degree. Shipwrecks on the sea and conflagrations upon the land, do not, ordinarily, result from a single cause, but generally from the combined influence of many unfriendly elements. An insurance against damage by fire, subjects the underwriter to liability if the insured property receives injury consequent upon fire, from water, breakage and various other incidents of such a misfortune. But for the fire the other incidents would have been inconsequential, and hence the fire, however occasioned, is the proximate cause, and if a high wind spreads the conflagration beyond'all calculation, it is still the fire, and not the wind, in the judgment of the law, that produces the calamity and makes the insurer responsible, and yet, but for the unforeseen wind, the fire itself would have been comparatively harmless. We must, if we can, give full effect to the contract of insurance made between the parties, and, in the effort to do that, we must at once discard the suggestion that the excepted *91 injury from, ice related only to those incident to the perils of navigation. The navigation of canal boats on the internal canals of this State, we may safely assume, is not usually attended with serious peril from ice, and when it is specially provided, as in this case, that the vessel was not to navigate between the fifteenth of December and the first of April following, and that during that period the vessel was to be “ laid up tight and safely moored,” we are bound to conclude that the exemption from injuries, occasioned by ice, were not those only happening when the vessel was actually engaged in navigation. If the vessel had been intended to visit the Arctic ocean, it is possible that a different presumption might have been indulged. We have no right to say that the exemption from liability, caused by ice, ivas intended to be limited to injuries happening while the boat was engaged in actual navigation. The language exempts the defendant from liability from all damage caused by ice. In a marine policy against the “ perils of the sea,” the underwriter assumes only extraordinary risks, and if a vessel goes down by the ordinary action of the wind and the waves, the insurer is not responsible, for the vessel is assumed to have been unseaworthy. In making the insurance, therefore, the fitness of the vessel for the intended voyage is to be considered. “ A coasting schooner needs one kind of fitness — a freighting ship to Europe another — a whaling ship another, and a ship insured only while in port another ” (Parson’s Here. Law, 427, and cases cited); and it may be added, a canal boat intended for internal navigation, quite another, and it is, therefore, well settled that in construing such a contract, regard is to be had to the navigation intended and to the fitness of the vessel for the perils likely to be encountered. Under an insurance against the perils of the sea, it has been held that if a vessel reach a harbor in the course of its voyage, and is detained therein by stress of weather, or by being frozen in, or by any such cause, the damage does not fall upon the insurer. (Evertts v. Smith, 2 M. & Selw., 278.) But the insurer may specially contract for greater or less risk, *92 according to the nature of the case, and where a canal boat is insured with an exemption, for damages caused by ice, it must be assumed that the exemption was intended to refer to injuries most likely to occur in such a case from such a cause, and it could not, therefore, very well refer solely to mere canal navigation, or the other navigation permitted by the policy in controversy, within the period of time to which it was limited. We must, therefore, endeavor to find out the' proximate cause of the injury, in the present case, within the meaning of the law. What is or what is not the immediate cause of any disaster, is a question of fact, and, if the finding of the referee in this case, as to the proximate cause of their injury, is to be regarded as a pure question of fact, we have no alternative but to regard it as conclusive upon this branch of the case. But the finding ought not to be so regarded. It is rather more a finding of law, upon certain facts established and stated in detail in his report, and is quite like an old-fashioned special verdict, and should be so considered in giving our judgment. The injury in this ease was obviously occasioned by the combination of two causes operating at the same time: one an undue quantity of water at the stern, and the other the tenacity of the ice at the bow of the vessel insured. It may be added that the excess of water, at the time of the injury, resulted largely, if not entirely, from an ice-dam in the river. If the ice-dam had not obstructed the flow of the water, the water would not have disturbed the stern of the boat, and even then, if the ice' had not imprisoned the bow, the excess of water would not have twisted the vessel to its injury. Giving, therefore, full effect to the maxim causa próxima non remota spectatur, as paraphrased by Lord Bacon (Bac. Max. Beg. 1; Broom Leg. Max., 215; Babcock v. Montgomery Co. Mutual Ins. Co., 4 N. Y., 326): “ It were infinite for the law to consider the cause of causes and their impulsion one on another, therefore, it contenteth itself with the immediate cause and judgeth of acts by that, without looking to any further degree,” we must, conclude that the *93 ice was the effect, and in law, the proximate cause of the injury in the present case. It was the ice-dam that caused the waters of the Oswego river at just this time to flow in wild commotion, and when this was done it was still the ice that held the bow of the vessel, in its grasp, until the injury happened for which damages are now sought to be recovered. As the defendant is exempted from liability for any damage caused by ice, the plaintiff cannot recover. This conclusion renders the consideration of any other questions in the case unimportant. The referee found that the boat had not been safely moored by the insured as required" by the policy, and some questions of evidence relating exclusively to that proposition, were raised upon the trial, but their determination either way would not alter our judgment. The order of the Genera] Term should be reversed, and judgment absolute ordered in favor of the defendant, with costs.