The opinion
By the Court, Harris, J.
The owner of a vessel is never made liable as a carrier, merely by virtue of his ownership. The vessel must also have been in his employment, so as to make him a party to the contract for carriage. Thus, if the owner charter his vessel to another, the charterer alone is liable. The criterion of liability, therefore, is not ownership, but employment. The party who has the control of the vessel, and in whose business it is engaged, is regarded as the owner pro hac vice, and as such is answerable to the freighter. (See 3 Kent, 138, and cases there cited.) Nor is it material to the question of liability whether the owner of the vessel receive for its use a stipulated sum, or a share of its earnings. In either case, the party who, by the contract with the owner, is entitled to the “ possession, command and navigation of the ship,” and not the ovnxer., is liable in an action for not delivering goods. Cutler v. Winne, ( 6 Pick. 335 ,) cited in the opinion of the judge who *193 tried the case, is to this effect. (See also Thompson v. Hamilton, 12 Pick. 424 . Taggard v. Loring, 16 Mass. Rep. 336 . Reynolds v. Tappan, 15 Id. 370 . Manter v. Holmes, 10 Metcalf, 402.) The judgment at the circuit was right, and should be affirmed.
[Albany General Term,
September 5, 1853.
Watson, Wright and Harris, Justices.]