SPRAGUE, District Judge.
This is a libel by the owners of the brig Edinburgh, to recover freight for a cargo of lumber transported from Boston to California.
The libel alleges the shipment by the re spondents, and a delivery by the master, to their consignee, at Sacramento City.
The answer denies the delivery. There is no doubt, that this cargo was taken on board at Boston, and was safely transported to its destination at Sacramento, but whether it was there delivered by the master to the consignee, is a matter in controversy.
The master was part owner, when the contract for the transportation of this cargo was made; but afterwards, and prior to the commencement of this suit, he sold all his right and interest in the ship and voyage, to one of his co-owners, who are'the libel-lants. It was objected, that he ought to have been joined in this suit, and that the assignees of his interest cannot represent it in this libel; but I am satisfied, from the authorities which have been adduced by the counsel for the libellants, as well as by the practice of this court, that an assignee of a chose in action may maintain a suit, in his own name, in the admiralty. It has been urged that, even if such be the rule, where the assignor had the entire interest, it ought not to be permitted where he was only a part owner, as he might thus bring a stranger in, as a co-plaintiff, against the will of his associates. But it will be time enough to consider such an objection, when made by his associates. The respondents certainly cannot avail themselves of it. It is not for them to defeat the suit of the libellants, under color of protecting their rights.
The deposition of Swett was offered by the libellants’ counsel. Its admission was ole jected to, on the ground of interest, and this for several reasons. In the first place, that he is called to testify that he performed his duty, in delivering this cargo to the consignee, and that, if it were not delivered, it was through his default, for which, as master, he is liable to his owner. On the other hand, it is insisted that this creates no interest; and that, if it does, it comes within the exception, by which agents'are'admitted as witnesses, from necessity. Upon this question the authorities are numerous, anu not easily reconcilable. 1 think the law is best laid down by Chief Justice Shaw, in Draper v. Worcester & N. R. Co., 11 Metc. (Mass.) 505. That was a suit for the nondelivery' of goods transported by railroad. The agent, whose duty it was to receive and deliver them at the depot, was called, as a witness, by the corporation. The court were inclined to think that he was not interested. but placed their decision on the ground, that, if interested, still he was a witness from necessity.
In the present case, as it appears that the master had the cargo in his own possession and control, and ought to have delivered it to the consignee, I think lie has an interest that the libellants should recover in ihis suit. If they fail, on the ground of nondelivery of the cargo, they may immediately resort to him for compensation. But if they prevail in this suit, then their legal right to compensation from the shippers is esi.ab-lished; and whether they obtain satisfaction or not. they' cannot say that they nave lost their legal right to enforce payment of the freight, by the default of the master. The decree will establish their right, and if not satisfied, it will be because their demurs are insolvent.
But I think the testimony of the master admissible, because it is within the exception by which an agent is admitted, as a witness, from necessity, to show that he performed acts which were within the regular course of his business.
It is further objected, that the master of a vessel being liable to a suit by the shippers, if the cargo be not delivered. Swett has an interest, because the decree may be evidence in a future suit between him and the respondents.
It is not contended that, if the respondents prevail, they’ can use this decree in a suit against the master. But it is said that, if the deeree shall be against them, lie may set it up in a future suit against him, for not delivering the cargo, But not being a party to this suit, he is not bound by its result, for he has had no opportunity to litigate the matters in issue; and not being bound by it, he cannot, in his own right, and merely for his own protection, avail himself of the decree, as a defence. If he can set up the deex-ee, as a defence, in a fu[548]*548ture suit against himself, it must be because such a course is necessary for the protection of those who have a right to be thus protected — that is, the libellants in the present case.
The contract of affreightment is made for the benefit of the owners of a vessel. Assuming that tlie master is liable to the shippers, such liability is founded upon maritime policy, not upon the general principles of contracts made by agents. His liability, therefore must rather be deemed subsidiary than primary; and if compelled to pay the shippers for a cargo lost, without any fault or neglect of his. he must have a right over against his owners for indemnity. If these libellants prevail in this suit, the decree will, as between the parties, judicially establish the delivery of the cargo; for that fact is directly in issue, and the libellants have a right to be protected, by this decree, against any future suit by the. respondents, for the non-delivery of the cargo.
Suppose, then, that the respondents should hereafter sue the master, for not delivering the cargo, if he cannot set up this decree, as a defence, he may be compelled to pay the whole value of the cargo; and then, if in no default himself, he must have a right to recover the same amount from his principals, the owners of the vessel; and thus they would be compelled, indirectly, through the master, to pay damages to the shippers, for the non-delivery of the cargo. when its actual delivery had been judicially established, in a suit directly between the owners and the shippers.
In Greely v. Dow, 2 Metc. (Mass.) 176-180, a question arose as to the admissibility oí a surety, as a witness for his co-surety, and the right of contribution was adverted to. That case, however, is not analogous to the present, and I am not satisfied that the master would not be entitled to plead a decree in favor of the present libellants, in bar of a future suit against him, as master, by the respondents, for the loss of his cargo, provided such loss was without his fauit, so that, if compelled to pay. he would have a remedy over against the ship owners. But in the present case, upon the facts now presented to the court, it is quite clear that, if this cargo was not delivered to the consignee, at Sacramento, it was wholly owing to the fault of the master; and, if compelled to pay the shippers, he could have no claim for indemnity against his principal.
Looking, then, at the actual state of this case, the master would not have a riglu to jilead this decree, in a future suit by the shippers, for his own protection, because he is no party to the suit; and he would have no right to plead it for the protection of his owners, because they would be subject to no liability over to him. As master, then, he has no such interest as to exclude him from being a witness. But it is further urged, that he is interested, as an original contractor for the transportation and delivery of this cargo, as he was then a part owner of the vessel. Should he be sued alone, for the loss of the cargo, he might plead the non-joinder of his co-owners in abatement.
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SPRAGUE, District Judge.
This is a libel by the owners of the brig Edinburgh, to recover freight for a cargo of lumber transported from Boston to California.
The libel alleges the shipment by the re spondents, and a delivery by the master, to their consignee, at Sacramento City.
The answer denies the delivery. There is no doubt, that this cargo was taken on board at Boston, and was safely transported to its destination at Sacramento, but whether it was there delivered by the master to the consignee, is a matter in controversy.
The master was part owner, when the contract for the transportation of this cargo was made; but afterwards, and prior to the commencement of this suit, he sold all his right and interest in the ship and voyage, to one of his co-owners, who are'the libel-lants. It was objected, that he ought to have been joined in this suit, and that the assignees of his interest cannot represent it in this libel; but I am satisfied, from the authorities which have been adduced by the counsel for the libellants, as well as by the practice of this court, that an assignee of a chose in action may maintain a suit, in his own name, in the admiralty. It has been urged that, even if such be the rule, where the assignor had the entire interest, it ought not to be permitted where he was only a part owner, as he might thus bring a stranger in, as a co-plaintiff, against the will of his associates. But it will be time enough to consider such an objection, when made by his associates. The respondents certainly cannot avail themselves of it. It is not for them to defeat the suit of the libellants, under color of protecting their rights.
The deposition of Swett was offered by the libellants’ counsel. Its admission was ole jected to, on the ground of interest, and this for several reasons. In the first place, that he is called to testify that he performed his duty, in delivering this cargo to the consignee, and that, if it were not delivered, it was through his default, for which, as master, he is liable to his owner. On the other hand, it is insisted that this creates no interest; and that, if it does, it comes within the exception, by which agents'are'admitted as witnesses, from necessity. Upon this question the authorities are numerous, anu not easily reconcilable. 1 think the law is best laid down by Chief Justice Shaw, in Draper v. Worcester & N. R. Co., 11 Metc. (Mass.) 505. That was a suit for the nondelivery' of goods transported by railroad. The agent, whose duty it was to receive and deliver them at the depot, was called, as a witness, by the corporation. The court were inclined to think that he was not interested. but placed their decision on the ground, that, if interested, still he was a witness from necessity.
In the present case, as it appears that the master had the cargo in his own possession and control, and ought to have delivered it to the consignee, I think lie has an interest that the libellants should recover in ihis suit. If they fail, on the ground of nondelivery of the cargo, they may immediately resort to him for compensation. But if they prevail in this suit, then their legal right to compensation from the shippers is esi.ab-lished; and whether they obtain satisfaction or not. they' cannot say that they nave lost their legal right to enforce payment of the freight, by the default of the master. The decree will establish their right, and if not satisfied, it will be because their demurs are insolvent.
But I think the testimony of the master admissible, because it is within the exception by which an agent is admitted, as a witness, from necessity, to show that he performed acts which were within the regular course of his business.
It is further objected, that the master of a vessel being liable to a suit by the shippers, if the cargo be not delivered. Swett has an interest, because the decree may be evidence in a future suit between him and the respondents.
It is not contended that, if the respondents prevail, they’ can use this decree in a suit against the master. But it is said that, if the deeree shall be against them, lie may set it up in a future suit against him, for not delivering the cargo, But not being a party to this suit, he is not bound by its result, for he has had no opportunity to litigate the matters in issue; and not being bound by it, he cannot, in his own right, and merely for his own protection, avail himself of the decree, as a defence. If he can set up the deex-ee, as a defence, in a fu[548]*548ture suit against himself, it must be because such a course is necessary for the protection of those who have a right to be thus protected — that is, the libellants in the present case.
The contract of affreightment is made for the benefit of the owners of a vessel. Assuming that tlie master is liable to the shippers, such liability is founded upon maritime policy, not upon the general principles of contracts made by agents. His liability, therefore must rather be deemed subsidiary than primary; and if compelled to pay the shippers for a cargo lost, without any fault or neglect of his. he must have a right over against his owners for indemnity. If these libellants prevail in this suit, the decree will, as between the parties, judicially establish the delivery of the cargo; for that fact is directly in issue, and the libellants have a right to be protected, by this decree, against any future suit by the. respondents, for the non-delivery of the cargo.
Suppose, then, that the respondents should hereafter sue the master, for not delivering the cargo, if he cannot set up this decree, as a defence, he may be compelled to pay the whole value of the cargo; and then, if in no default himself, he must have a right to recover the same amount from his principals, the owners of the vessel; and thus they would be compelled, indirectly, through the master, to pay damages to the shippers, for the non-delivery of the cargo. when its actual delivery had been judicially established, in a suit directly between the owners and the shippers.
In Greely v. Dow, 2 Metc. (Mass.) 176-180, a question arose as to the admissibility oí a surety, as a witness for his co-surety, and the right of contribution was adverted to. That case, however, is not analogous to the present, and I am not satisfied that the master would not be entitled to plead a decree in favor of the present libellants, in bar of a future suit against him, as master, by the respondents, for the loss of his cargo, provided such loss was without his fauit, so that, if compelled to pay. he would have a remedy over against the ship owners. But in the present case, upon the facts now presented to the court, it is quite clear that, if this cargo was not delivered to the consignee, at Sacramento, it was wholly owing to the fault of the master; and, if compelled to pay the shippers, he could have no claim for indemnity against his principal.
Looking, then, at the actual state of this case, the master would not have a riglu to jilead this decree, in a future suit by the shippers, for his own protection, because he is no party to the suit; and he would have no right to plead it for the protection of his owners, because they would be subject to no liability over to him. As master, then, he has no such interest as to exclude him from being a witness. But it is further urged, that he is interested, as an original contractor for the transportation and delivery of this cargo, as he was then a part owner of the vessel. Should he be sued alone, for the loss of the cargo, he might plead the non-joinder of his co-owners in abatement. Whether a replication to such plea, setting forth the proceedings and decree in this suit as a severance of his right and interest, by his own act, and claiming to recover only the one-fourth for which he would have no claim to contribution from his co-owners, would be a good answer to the plea in abatement, I will not pause to consider. But supposing that he lias a right to abate the sua, for the non-joinder, this right he would have, whether the decree in this case be for or against the libellants, or if there be no decree. But the consequence of the exercise of such right to plead in abatement may be to compel the shippers to bring their suit against all the owners, including the libellants, wno may then defend themselves by pleading the decree in this ease, should it be in their favor. And if Swett should join in that plea with the libellants, he would, perhaps, be protected by it. But his protection, in such case, would not be owing to any right to plead the decree himself, for his own benefit, but to the right of his associates, to plena it for their benefit. If, therefore, they should make no defence, or refuse to put in suck a plea, (and this might happen, either from a sense of justice to the shippers, or their own insolvency,) then Swett could not interpose it. So also, if the co-owners were dead, the suit might be against Swett alone, and he could not avail himself of the decree, merely for his own protection. The interest, then, that he would have in suca a decree, would not be certain, but contingent upon the lives of his associates, or their choosing to make defence and plead the decree.
But it may be urged that, if his associates be dead, and he be sued alone, he would have a right of contribution over against his co-owners, if compelled to pay for the cargo, and. therefore, he must have the right, in such case, to set up the decree, in order to protect the estate of those who have a right to its benefits. But here, too, the actual state of facts show that, if Swett, the co-owner. is liable to pay for this cargo, it is a liability arising from his own personal default, he being the master as well as the part owner, and, therefore, he could have no claim against the estate of deceased part owners for indemnity or contribution. In the case of Sheehy v. Mandeville, 6 Cranch [10 U. S.] 253. the effect of a judgment against one of several joint promissors was considered. In that case, a promissory note having been given by two partners. James-son and Mandeville, one of them, Jamesson. was sued alone, and a several judgment rendered against him. In a subsequent suit against both, Jamesson made no defence, aud it was held, that Mandeville could not set [549]*549up the former judgment against his co-prom-issor, as a defence.
The deposition of Swett is competent evidence.