Providence Washington Ins. v. Morse

In May, 1883, the libelants insured a cargo of grain owned by Armour, Plankiuton & Co., which the respondents agreed safely to transport from Buffalo to New York on board the canal-boat Worden, propelled by the steam canal-boat Sydney. The cargo having been lost in transitu the libelants paid the loss to Armour, Plankinton & Co., the insured parties, and, being subrogated to their rights, bring this libel in personam against the respondents as common carriers. The libelants have heretofore obtained a decree in rem against the boats. The facts fully appear in The Sydney, 27 Fed. Rep. 119, 23 Fed. Rep. 88, and Insurance Co. v. Wager, post, 364.

It is thought that the decision of the circuit court is conclusive of this action. The Sydney, 27 Fed. Rep. 119. Some additional testimony has been taken, but the facts are not materially changed. In the language *364of one of the briefs submitted by respondents, “the theory of the libel m rem against the Sydney and the libel in personam at bar is the same.” There is no way fairly to distinguish the two cases. In the light of this controlling authority the situation is a simple one. Armour, Plankinton & Co., as owners, had a cause of action against the respondents as common carriers. Armour, Plankinton & Co. were alone insured as owners of the cargo. By paying them the libelants were subrogated to all their rights. Morse & Co., as carriers and advancers, were also insured, but it was for $520 only, the extent of their actual pecuniary interest in the cargo.

The considerations now urged by the respondents may properly be presented to the circuit court on appeal, but it is thought that this court cannot with propriety consider them. It follows that the libelants are entitled to a decree for the amount agreed upon at the trial, with costs.