Page:Federal Reporter, 1st Series, Volume 7.djvu/242

 230 FEDBBAIi BBPOBTBB. �owners of the cargo filod a separate libel against the steam- boat City of Hartford and the steam-tug Unit ; and Justice Clifford, in delivering the opinion of the court, says that the "owners of the cargo in such a case may, if they see fit, join with the owners of the vessel in promoting the cause of collision, or they may separately, at their election." But the learned eounsel for the exceptor claims that the doctrine of this case is only applicable to cases where thero has been a positive act, direct force, a collision ; but I do not see why a different principle should apply where the loss of a cargo by the sinking of the vessel is occasioned by the wrongful and neglectful act of the steamer towing her without collision, and where such wrongful and negligent acts resuit in a collision from which the sinking of the vessel is produced which results in the loss of the cargo, Phila. Wil. e Balt. R. Co. v. Phila. (e Havre de Grace Steam-boat Co. 23 How. 209. The wrong- ful and negligent party is equally liable in eitlier case, and the innocent party has a right to recover his damages. Steamer Franconia, 3 Fed. Eep. 402; The Atlas, 93 U. S. 302. This Jjeing so, can the insurer, who has paid to the insured the damages sustained by the wrongful act, and has obtained an assignment of the rights of the insured, maintain the action against the wrong-doer ? There is no privity existing between the insurer and the wrong-doer, and at law he might not maintain an action against him ; but in equity the insurer is subrogated to all the rights of the insured, and so acquires his claim against the injuring party. 2 Parsons' Maritime Law, 226; Hall v. Bailroad Co. 13 Wall. 367; Desty's Ad- miralty, 264. And being thus subrogated in all cases where the insured has the right against the authors of the injury, the insurer, on making good the loss, is entitled to enforce the remedy of the insured, although between him and the wrong-doer there is no direct relation or privity of contract upon which to found the action. The recovery is not upon the legal right, but upon the equitable doctrine of subroga- tion. May on Insurance, 553, 554, And in such a case the insurer may sue in admiralty in his own name. Propeller Monticello v. Molli-son, 17 How. (S. G.) 153; Ins. Co. v. C. D. ��� �