On safe delivery, E. B. Brooke & Co. collect as above and pay captain... "Hold, subject to our draft, $319.44. "Care E. B. Brooke & Co., New York. "J. W. Schlehr, Dept. Clerk." $395 00 319 44 $75 56 H. MORSE & Co., Fero. Morse & Co. advanced to Meadows, the agent of Armour, Plankinton & Co., $200 for prior advances made by said agent upon the wheat, being charges for carriage from Chicago to Buffalo, and by the bills of lading the cargo was to be delivered upon payment of this advance and the freight. Pursuant to the contract between Meadows, agent, and Morse & Co., the latter agreed and undertook, for and in consideration of the payment of $395, the payment of which was made a lien on the cargo, to transport the same to New York, and to insure the cargo. Morse & Co. paid the premium to the insurance companies. Upon the voyage the William Worden was wholly under the control of the steamboat Sidney, and both boats were navigated practically as one vessel. On May 28, 1883, while proceeding on the voyage down the Hudson River, the William Worden struck the rocks on Esopus Island and sunk, and her cargo was damaged to the amount of $6175.89. On June 26, 1883, the insurance companies paid to Armour, Plankinton & Co. the sum of $9211.75 on account of the loss of the cargo insured and upon an abandonment by the owners to the insurance companies, and about the same time they paid Morse & Co. the sum of $520 in full for their interest in the cargo, in which sum was included $14.82, the premium theretofore paid by them on the policy. Subsequently the insurance companies brought an action in rem against the boats William Worden and Sidney in the Circuit Court for the Southern District of New York, and in that action Wager intervened as owner of the vessels, and Opinion of the Court. Morse & Co. became sureties for the Worden and for claimant's costs. In this suit it was found that the carriers had been guilty of negligence in their management of the said vessels in the voyage, which had resulted in the loss, and the Circuit Court decreed that the two vessels be condemned in favor of the insurance companies. In May, 1887, the insurance companies filed in the District Court of the United States for the Northern District of New York a libel and complaint against Henry Morse & Co. and Charles E. Wager, whereby the libellants sought to be subrogated to the claims of the owners against the respondents as carriers. This cause was so proceeded in that a decree in favor of the libellants was rendered by the District Court. against the respondents for $6292.16, whereof $4617.16 was payable by all the respondents, jointly and severally, and $1675 was payable by Wager severally. From this decree separate appeals were taken, one by H. Morse & Co. and one by Charles E. Wager, to the Circuit Court of the United States for the Northern District of New York. The Circuit Court reversed the decree of the District Court against H. Morse & Co., and dismissed the libel as to them, and affirmed the decree against Wager, and gave judgment against him, including interest and costs in both courts, for $8446.37. From this decree of the Circuit Court separate appeals have been taken to this court, one by the insurance companies, complaining of the dismissal of the libel against H. Morse & Co., and the other by Charles E. Wager, complaining of the decree against him. We shall first consider the questions arising under the appeal of the insurance companies. It is contended that the insurance companies, having paid the loss to the owners of the cargo, are entitled to be subrogated to the rights of the assured against the carriers. It is too well settled by the authorities to admit of question that, as between a common carrier of goods and an underwriter upon them, the liabilty to the owner for their loss in destruction is primarily upon the carrier, while the liability of Opinion of the Court. the insurer is only secondary. The contract of the carrier may not be first in order of time, but it is first and principal in ultimate liability. In respect to the ownership of the goods, and the will incident thereto, the owner and the insurer are considered but one person, having together the beneficial right to the indemnity due from the carrier for a breach of his contract or for non-performance of his legal duty. Standing thus, as the insurer does, practically, in the position of a surety, stipulating that the goods shall not be lost or injured in consequence of the peril insured against, whenever he has indemnified the owner for the loss he is entitled to all the means of indemnity which the satisfied owner held against the party primarily liable. His right rests upon familiar principles of equity. It is the right of subrogation, dependent not at all upon privity of contract, but worked out through the right of the creditor or owner. Hence it has often been ruled that an insurer, who has paid a loss, may use the name of the assured in an action to obtain redress from the carrier whose failure of duty caused the loss. Hall & Long v. Railroad Companies, 13 Wall. 367, 369. But it is equally well settled that the right, by way of subrogation, of an insurer, upon paying for a total loss of the goods insured, to recover over against the carrier, is only that right which the assured has, and that accordingly when a bill of lading provides that the carrier, when liable for the loss, shall have the full benefit of any insurance that may have been effected upon the goods, this provision is valid, as between the carrier and the shipper; and that, therefore, such provision limits the right of subrogation of the insurer, upon paying the shipper the loss, to recover over against the carrier. Phonix Ins. Co. v. Erie & Western Transportation Co., 117 U. S. 312; St. Louis, Iron Mountain &c. Railway v. Commercial Union Insurance Co., 139 U. S. 223. If a valid claim by the underwriter to be subrogated to the rights of the owner will not arise where the carrier has contracted with the owner that he, the carrier, shall have the benefit of any insurance, it would seem to be clear that where the carrier is actually and in terms the party insured, the Opinion of the Court. underwriter can have no right to recover over against the carrier, even if the amount of the policy has been paid by the insurance company to the owner on the order of the carrier. The facts in the present case were that the open policy declared that it was issued on account of H. Morse & Co. for whom it may concern, and that it insured the several persons, whose names should be thereafter endorsed thereon as owner, advancee, or common carrier on goods, wares, merchandise, or country produce, on his own boat, or boats belonging to others, loaded on commission or chartered. Under this open policy, Morse & Co. applied to the insurance companies, stating that insurance was wanted by H. Morse & Co., on wheat valued at $9875, from Buffalo to New York. Loss, if any, to be payable to Morse & Co. or order. Upon this application, the insurance companies issued what is termed an insurance certificate to H. Morse & Co., setting forth that, subject to the conditions of policy No. 772, H. Morse & Co. insured, in the sum of $9875, the inboard cargo of boat William Worden; the loss, if any, to be payable to assured or order, and return of this certificate. The premium was paid by H. Morse & Co. Clearly, under this state of facts, H. Morse & Co. were, nominally at least, the parties insured, and came within the terms of the policy, and, upon a loss, were entitled to receive the amount of the policy, and, of course in that event, the insurers could not, after having paid H. Morse & Co. the amount of the loss, recover it back from them under the principle of equitable subrogation. The question then arises whether a different conclusion should be reached because of the fact that II. Morse & Co., when they delivered the bill of lading to Meadows as agent for Armour, Plankinton & Co., attached thereto the insurance certificate endorsed by them in blank. So far as the insurance companies were concerned, H. Morse & Co. were under no obligation to transfer the policy to Armour, Plankinton & Co., nor to make it payable to them in case of loss. That was a matter entirely between H. Morse & Co., as carriers, and Armour, Plankinton & Co., as consignees and owners of the cargo. Opinion of the Court. When, subsequently, the insurance companies paid to Armour, Plankinton & Co. the amount of the loss, they did so, not by virtue of any contract between themselves and the consignees, but of the contract between themselves and II. Morse & Co., whereby they had agreed to pay the loss to the latter or order. We think, therefore, that the Circuit Court was right in dismissing the libel against H. Morse & Co., and its decree to that effect should be affirmed. Coming now to the appeal of Wager, No. 41, October term, 1893, we are met by the contention that Wager, as master of the Sydney and as carrier, was entitled to the benefit of the insurance, and that, hence, it was error on the part of the Circuit Court to allow the insurance companies to recover against him by way of subrogation. It is admitted that Wager was not nominally, and in terms, insured; but the testimony of Morse and of Wager himself is relied on as showing that it was understood and intended that Wager was a beneficiary under the policy. We are not called upon to consider whether this parol evidence was admissible to affect the meaning and legal effect of the policy and certificate of insurance, nor what the proper conclusion would be, if the evidence were competent, because the question of Wager's liability was determined and adjudicated against him in the case of The Sydney, in the Circuit Court for the Southern District of New York, as stated in the findings of facts in this case, and reported in 27 Fed. Rep. 119. In that case, the libellants, the insurance companies, alleg ing that they had paid the owners of the cargo the loss occasioned by the negligence of the carrier in charge of the vessel, sought to be subrogated to the owner's cause of action, and Wager, having been permitted to intervene as claimant, by his answer admitted that he was owner of the vessel, denied that the libellants had insured the owners of the cargo, and claimed that he had paid the premium to the insurance companies, upon the agreement that the benefit of the policy, in case of loss, should accrue to his benefit as carrier, and that, |