The Windber

Exceptions of libelant to the following portion of claimant’s answer:

It was held in Phoenix Insurance Co. v. Erie & Western Transportation Co., 117 U. S. 312 , 6 Sup. Ct. 1176, 29 L. Ed. 873 , that a provision in a bill of lading that the carrier, when liable for the loss, shall have the full benefit of any insurance that may have been effected upon the goods, is valid as between the carrier and shipper, and that the right, by way of subrogation, of an insurer, upon paying the loss, to recover over against third persons, is only the right which the assured himself has. And in Liverpool Steam Co. v. Phœnix Insurance Co., 129 U. S. 397 , 9 Sup. Ct. 469, 32 L. Ed. 788 , the same doctrine is impliedly, if not directly, reiterated. The rights of the various parties, the shipper, the carrier, and insurer, must be determined by the .provisions of the bill of lading and the policy of insurance, and in the case last above cited the failure of such a defense as is here set out arose from the bill of lading itself.

In Walter Baker Co. v. New York, N. H. & H. R. Co. (D. C.) 162 Fed. 496 , the defense was based on the proposition that the libelant should first proceed against the insurer,…