Prohaska v. St. Paul Fire & Marine Ins.

Fifth Circuit

Prohaska v. St. Paul Fire & Marine Ins.

270 F. 91, 1921 U.S. App. LEXIS 2399

CourtCourt of Appeals for the Fifth Circuit

DecidedFebruary 9, 1921

DocketNo. 3618

StatusPublished

This text of 270 F. 91 (Prohaska v. St. Paul Fire & Marine Ins.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Prohaska v. St. Paul Fire & Marine Ins., 270 F. 91, 1921 U.S. App. LEXIS 2399 (5th Cir. 1921).

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Opinion

WALKER, Circuit Judge.

This is an appeal from a decree sustaining an exception to a libel on a marine insurance policy upon the steamboat Helen Lane, on the ground that it failed to state a cause of action, and dismissing the libel. The risks assumed by the policy sued on were: ■

“The unavoidable dangers of rivers, or fires, and of jettisons, that shall cause loss or damage to said vessel or any part thereof, excepting,” etc.

It is not necessary to set out the enumerated exceptions, as it is not claimed that the alleged loss was attributable to -any excepted marine peril. The libel contained allegations to the following; effect: Some time after the Helen Lane had been placed on shipways at Ber-wick, La., to receive needed repairs, and after a number of planks forming part of her hull had been removed, the fastenings holding the crib which supported the boat gave way, the crib with the boat on it slid down the ways into the river, the water rushed in through the hole made in the hull by the removal of the planks, with the result that the boat sank to the bottom, and became a total loss.

[1, 2] In our opinion the loss of the boat is to be attributed, not' to any risk or peril insured against, but to the breaking or giving way of the means used to keep it in the proper place while it was undergoing repairs. Though the entry of water operated more immediately in producing the disaster, the loss is to be attributed, not to that cause, but to the one which set it in motion. The. proximate cause is the efficient cause; the one that necessarily sets the other cause or causes in operation. Ætna Insurance Co. v. Boon, 95 U. S. 117, 24 L. Ed. 395; The G. R. Booth, 171 U. S. 450, 460, 19 Sup. Ct. 9, 43 L. Ed. 234. The last-cited case involved an explosion of detonators, forming part of a ship’s cargo, which burst open the side of the ship below the water line, and the sea water rapidly flowed in through the opening made by the explosion, and injured another part of the cargo. It was decided that the explosion, not the inflow of sea water, was 'the predominant cause to which the damage complained of was to be attributed, and that the damage w.as not caused by a peril of the sea.

That decision is not deprived of controlling effect in this case by the circumstance that the instrument before the court in that case was a bill of lading providing that the carrier “shall not be liable for loss or damage caused by the perils of the sea.” Where the question presented is that of determining to what cause a loss or injury is to be attribut[93]*93ed, the circumstance that the question arises in a suit on an insurance policy does not have the effect of making the above stated rule inapplicable. The first above cited case, in which the rule was stated and applied, was a suit on a fire insurance policy.

It was not claimed that the policy sued on insured the sufficiency of the fastenings used by the repairer of the boat to keep in place the crib which supported it, or that the appellee was liable for a loss attributable to the giving way of those fastenings.

The decree is affirmed.

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WALKER, Circuit Judge.

This is an appeal from a decree sustaining an exception to a libel on a marine insurance policy upon the steamboat Helen Lane, on the ground that it failed to state a cause of action, and dismissing the libel. The risks assumed by the policy sued on were: ■

“The unavoidable dangers of rivers, or fires, and of jettisons, that shall cause loss or damage to said vessel or any part thereof, excepting,” etc.

It is not necessary to set out the enumerated exceptions, as it is not claimed that the alleged loss was attributable to -any excepted marine peril. The libel contained allegations to the following; effect: Some time after the Helen Lane had been placed on shipways at Ber-wick, La., to receive needed repairs, and after a number of planks forming part of her hull had been removed, the fastenings holding the crib which supported the boat gave way, the crib with the boat on it slid down the ways into the river, the water rushed in through the hole made in the hull by the removal of the planks, with the result that the boat sank to the bottom, and became a total loss.

[1, 2] In our opinion the loss of the boat is to be attributed, not' to any risk or peril insured against, but to the breaking or giving way of the means used to keep it in the proper place while it was undergoing repairs. Though the entry of water operated more immediately in producing the disaster, the loss is to be attributed, not to that cause, but to the one which set it in motion. The. proximate cause is the efficient cause; the one that necessarily sets the other cause or causes in operation. Ætna Insurance Co. v. Boon, 95 U. S. 117, 24 L. Ed. 395; The G. R. Booth, 171 U. S. 450, 460, 19 Sup. Ct. 9, 43 L. Ed. 234. The last-cited case involved an explosion of detonators, forming part of a ship’s cargo, which burst open the side of the ship below the water line, and the sea water rapidly flowed in through the opening made by the explosion, and injured another part of the cargo. It was decided that the explosion, not the inflow of sea water, was 'the predominant cause to which the damage complained of was to be attributed, and that the damage w.as not caused by a peril of the sea.

That decision is not deprived of controlling effect in this case by the circumstance that the instrument before the court in that case was a bill of lading providing that the carrier “shall not be liable for loss or damage caused by the perils of the sea.” Where the question presented is that of determining to what cause a loss or injury is to be attribut[93]*93ed, the circumstance that the question arises in a suit on an insurance policy does not have the effect of making the above stated rule inapplicable. The first above cited case, in which the rule was stated and applied, was a suit on a fire insurance policy.

It was not claimed that the policy sued on insured the sufficiency of the fastenings used by the repairer of the boat to keep in place the crib which supported it, or that the appellee was liable for a loss attributable to the giving way of those fastenings.

The decree is affirmed.

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270 F. 91, 1921 U.S. App. LEXIS 2399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prohaska-v-st-paul-fire-marine-ins-ca5-1921.

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