The opinion
HELD
BY THE COURT
(BETTS, District Judge):
That the decision of the court upon the merits proceeded upon the ground that the libelant, as a common carrier, had a qualified property in the Mist and her cargo sufficient to enable him to maintain an action in his own name for the injuries caused by the collision. That the claimant’s exception to the allowance of damages beyond what he had actually paid goes to the merits of the action, and the question cannot be brought up again by exception, but must be raised, if at all, by appeal, or at least by motion for a new trial. Moreover, by the law of this state, a common carrier is a competent party to sue a wrong-doer for and recover the full value of property injuriously interfered with by strangers while in his possession. 7 Cow. 670 ; 2 Kern. [12 N. Y.] 343. The same privilege and authority has been recognized in admiralty as belonging to him. That the payment by the insurance company was not in favor of the steamboat, or in discharge or extenuation of its liabilities. She, by her fault, had incurred a liability to the amount decreed against her for the consequences of the collision. This single responsibility, and nothing more, is sought to be enforced against her by this action, and it clearly cannot be claimed, as an acquittance of that charge, that another party, under a contingent contract of insurance, paid the libelant a portion or the whole of the liability which the steamboat had legally incurred to him. There is no privity of contract or interest between the insurance company and the steamboat in this respect. The company and the libelant may stand in quite a different relation in respect to the application of that money, but whether the company attempts to reclaim the payment made on her contract or abandons it, is solely a question between that party and the libelant, with which the claimant has no concern. [The Monticello v. Mollison] 17 How. [58 U. S.] 152. Exception, therefore, overruled, except that the claimant is entitled to a recomputation of the charges, to ascertain whether “lighterage and towage” has been twice allowed by the commission.