[After stating the principal facts.] In arguing the case before this Court several exceptions are taken and objections urged by the counsel for the defendant to the charge given by the court.
It is contended that the court, in giving their opinion to the jury, that by the transfer of the vessel the defendant is owner, proceeded erroneously, on the ground that the custom-house books were conclusive evidence of ownership; whereas on all the facts stated in the motion, whether the defendant was owner or not was a question of fact to be left to the jury without any expression by the court of their opinion thereon.
In the second place, it was contended that the defendant was mortgagee merely, and never had been in possession ; and that the mortgagee of a vessel out of possession is in no case liable.
The first of these exceptions is not warranted by the pre*58mises; and the second is founded on the assumption of a fact entirely out of the case, as no legal testimony was adduced to shew that the defendant’s title was by mortgage.
It does not appear from the motion in this case, that the defendant on the circuit contested the truth of the matters alleged to appear on the custom-house books at New-London, or denied in any way his being purchaser and owner, and that he gave bond, &c. Indeed, he admitted it, if not expressly, by necessary implication, by resting his defence on the claim that “ his title to the vessel was by mortgage only, and that he had never taken possession of, or used her in any way whatever, or employed Whipple as master.” The question of fact, therefore, raised before the court and jury was not whether the title to the vessel was in the defendant by a regular conveyance;-that was admitted;—but whether that title was by mortgage, and whether the defendant was in possession, and employed the captain.
It appears further from the motion, that although the defendant claimed, he did not produce any written document to shew, that his title was by mortgage ; or, in other words, he failed to make good his claim, as the proof offered in support of it was wholly inadmissible as against the plaintiffs, who were neither parties nor privies to the bill of sale. Without considering the custom-house books, therefore, as conclusive evidence, the court were warranted in the opinion given to the jury in the charge, viz. “ that by the transfer of the vessel, which is not denied to be a genuine instrument, the defendant is owner of the vessel.” In this view of the case presented by the motion, it becomes unnecessary to discuss or decide the question raised by the counsel, whether the custom-house books are conclusive evidence of ownership ; and equally so to discuss or decide the question, whether a mortgagee out of possession is in any case liable.
In the argument before this Court, it was further urged, that inasmuch as the defendant in the trial claimed, and produced parol testimony to prove, that as he had never taken possession of the vessel, or used her in any way whatever, or employed Whipple as master, he could not be made liable ; that there must be possession, the employment of a master, and the setting up of the ship by the owner, to subject him. In respect to this claim, it may be observed, that the defend*59ant’s ownership being established, as in the present case, and Whipple being in fact master with the privity of the defendant, whether by his special appointment or not is immaterial; this is a sufficient setting up of the vessel; the master is in fact the agent of the owner, and as such, his possession is the possession of the owner.
As to the principle laid down by the court, “ that the owner is liable for any loss that arises from the negligence or mismanagement of the master in transporting property put on board from port to port in the United States, in the usual course of the business in which the vessel is employed, either on the express contract, or one implied by law,” it is sufficient barely to remark, that the general responsibility of owners or principals for the acts of their agents necessarily results from the relation in which they stand to each other. They, like all other carriers for hire, are liable to the proprietor of goods put on board for transportation, for their loss, or any injury they may sustain from negligence in the owner, or his captain; and that whether the contract is made by themselves, or their agent the captain in the usual course of his employ.
In regard to the contract between the plaintiffs and Whipple given in evidence, it contains no stipulation of which the plaintiffs, had it been placed in their hands, could have availed themselves to obtain an indemnity for the injuries complained of in this declaration, viz. injuries arising from the insufficiency of the vessel, and the carelessness, negligence and mismanagement of the defendant and his captain. Consequently, the existence of such a contract with Whipple, admitting the defendant had subscribed it himself, would be no bar to the present action.
For these reasons I am satisfied a new trial ought not to be granted.
In this opinion the other Judges severally concurred.New trial not to be granted.