Page:Federal Reporter, 1st Series, Volume 7.djvu/239

 tHE LIBERTY NO. 4. 227 �(3) That an action by the insurance companies, to recover for the luss occasioned by negligence, is not an action upon contraot. �(4) That such action may be maintained in admiralty in their own names, although no privity may Iiave existed between them and the tow-boat. �In Admiralty. On Exceptions to Libel. �Sayler e Sayler and Paxton e Warrington, proctors for libel- lants. �Lincoln, Stephens e Slattery, for defendant. �Swing, D. J. This action cornes before the court on excep- tions filed by the defendant to each of the 14 sections of the libel, the defendant claiming that the libel does not state facts sufficient to constitute a cause of action. The averments of the libel, in short, are as follows : �(1) That the Seourity Insurance Company and the Providence Wash- ington Insurance Company were, in December, 1879, and now are, en- gagea in the business of insuring all kinds of goods laden upon board of vessels, barges, etc., under the narae of the New England Underwriters. (2) That in Decem'ier, 1879, the Ohio River & Kanawha Sait Company •was and still is a corporation in the business of manufacturing, sale, and shipping of sait. (3) That on December 4, 1879, a contract was entered into between the said sait company and the libellants, providing, among other things, for the insuranee of all ahipments of sait belonging to sai^ sait company for one year at and from ports on the Kanawha and Ohio rivers to ports and places on the Ohio and other rivera by barges, model or square, and by steam ; said barges to be towed by regular tow-boats. (4) That under said contract the said libellants did issue their policy of in- surance to said sait company, and which, among other things, provides as follows : " That in case pf losa or damage under said policy, the assured, in accepting payment thereof, hereby and by that act assigns and trans- fers to these companies all bis or their right or claim for loss or damage as against the carrier, or other person or persons, — to enure to its beneflt, however, only to the extent of the amount of the loss and damage and attendant expense of recovery paid or incurred by said companies;" that said policy was in force, and covered and insured the goods stated as lost. (5) That the said sait company was the owner of 2,400 barrels of sait ; that certain parties named Hudson Brothers were the owners of a line of barges and steam-boats running on these rivers, and, among others, of the barge Speed ; that said Hudson Brothers contracted for a consid- eration, with said sait company, to receive on said barge Speed, in tow of Liberty No. 4, at Pomeroy, said 2,400 barrels of sait, and deliver the same in good order, etc., at the port of Cincinnati. (6) That in pursuance of said contract said sait company delivered on board said barge Speed the said sait, and the same was covered by said policy of insurance. (7) That said Hudson Brothers contracted with said steam-boat Liberty No. 4 for ��� �