INSURAKCE . co·. V.
INSURANCE CO. OF PENNSYLVANIA 1). PROCEEDS OF THE SALE OF THE BARGE WAUBAUSHENE.
(Oircuit Oourt, N. D. New York.
MARINE INSURANCE-OONTRACT, WHERE J'rlADE-LIBN FOR UNPAID PREMIUMSMAIUTIME LIEN.
No maritiJ;ne lien exists in favor of underwriters for unpaid premiums of marine insurance. Opinion of district judge (i2 FED. HEP. 109) affirml::d.
Appeal from District Court. See 22 FED. REP. 109. fVilliams eX Potter, for appellant. Marshall, Clinton cf; Wilson, for appellee. WALLACE, J. In deciding against the application of the insurance company to be paid the premium due upon the marine policy issued by it upon the barge out of the proceeds arising from her sale in the registry of the court, the learned judge of the district court held that the contract for insurance was made in Canada, and the rights of the parties to a lien were controlled by the lex lod contractus. He also held that such a lien is not recognized by our jurisprudence, and that the statutes of this state creating a lien for premiums in favor of un· derwriters do not apply to foreign vessels. He therefore held that as the company had no lien by the law of Canada, it could assert none here. 'l'hese conclusions are fully approved, and it seems superfluuus to attempt to re·enforce the reasoning of the very able and careful opin. ion of the district judge further than briefly to indicate the reasons which have led this court to deny the existence of the maritime lien for insurance premiums. As early as 1815 Mr. Justice STORY decided, in De Lovio v. Boit, 2 Gall. 398, that a policy of insmance upon a vessel was a maritime contract, in an opinion which has been characterized as "a learned and elaborate essay on admiralty jurisdiction, and one of the most luminous views of the subject extant." 2 Hoff. Leg. Stud. (2d Ed.) 465. Although the doctrine of that case was not uni· formly accepted, (Ramsay v. Allegre, JOHNSON, .T., 12 Wheat. 638; Jackson v. The Magnolia, CAMPBELL, J., 20 How. 335,) the jurisdiction over such contracts was always maintained subsequently in the First cir· cuit, and was generally approved by commentators of authority. Gloucester Ins. Co. v. Younger, 2 Curt. 322; Hale v. Washington Ins. Co. 2 Story, 176; Dunl. Adm. Pro 43; 1 Kent, Comm. 370, note; Ben. Adm. § 294; Conkl. Pl'. 13. Yet until the decision in The Dolphin, 1 Flippin, 580, as is conceded in the opinion of the court in that case, the general understanding of the profession was adverse to the existence of a lien for the premium secured by such a contract. In that case, reasoning from analogies, and influenced by the views recently declared by the learned judge of the Sixth circuit, that every maritime agreement, upon principle, shollld bind the ship as well as the owner, (The Williams, Brown, Adm. 208,) the court held that the lien should be recognized as extending to the premiums for insurance. It was said by Mr. Justice CURTIS, (The Kiersage, 2 Curt. C. C. 424,)-
"To be a settled rule that privileged liens, constituting a jus in re accompanying the property into the hands of bona fide purchasers and operating to the creditors, are matters stricti juris, which cannot be exprejudice of tended from one case to another argumentatively, or by analogy or by inference."
And he cites Pardessus, (3 Droit, Comm. 597, 598,) when reasoning on the policy of allowing a privilege for premiums of insurance:
"Analogy cannot afford a decisive argument, because privileg-es are a strict right. They are an exception to the rule by which all crl;lditors have equal in the property of their debtor, and an exception should be declared and described in express words; we cannot arrive at it b1' reasoning from one case to another."
The same citation is quoted with approbation by Mr. Justice GRIER in Vandewaterv. Mill, 19 How. 89. Although the proposition is generally true that maritime contracts import au hypothecation of the ship for their performance, the important qualification must not be overlooked that the lien does not extend to contracts which do not aid the vessel, but are merely for the personal benefit of the owner. One reason why the master of a vessel, clothed as he is with almost plenary powers to represent the owner, extending even to the authority to sell the ship, when necessity justifies a sale, cannot enter into a contract for insurance, is because such a contract does not aid the vessel. It inures solely to the personal interest of the owner. Unlike contracts and engagements in which every lienholder has an interest, because they fortify his security, the contract of insurance contributes to no fund for the general benefit, and its fruits are monopolized by the owner. It has been held in this court that he is not required to surrender the insurance to a trustee, under the statutes limiting the liability of a veRsel-owner for the benefit of those having claims against the vessel when the vessel is lost after liability accrues, (In re Norwich et N. Y. Transp. Co. 17 Blatchf. 221; Thommesen v. Whitwill, 21 Blatchf. 45; S. C. 12 FED. REP. 891,) because it is not an "interest" in the ship. For the reasons, therefore, that a lien should not be extended to a contract to which it has not generally supposed to adhere, even if the analogies should justify recognizing it, and also because the contract of insurance is peculiarly distinguishable from the class of maritime engagements which import a lien, the court cannot follow the decision in the case of The Dolphin. The question of a maritime lien was not involved or discussed in the case of The Guiding Star, 9 FED. REP. 521. affirmed, 18 FED. REP. 263, cited as an authority in favor of the lien. The note of Mr. Flippin to the case of The Dolphin presents all the arguments for denying the existence of the lien. and for following the case of The John T. Moore, 3 Woods, C. C. 61. to which it is ni;;cessary to refer. The decree of the district court is affirmed.
DW YOlK axHAll'S:r VENTILATOR CO. tI. AlIEBICAll INBTl'l"DTB.
EXHAUST VENTILATOR CO. 'V. AMERICAN INSTITUTE OF NEW YORK and another.
(Oircuit Oourt, S. D. New York. August 7, 1885.)
INJUNCTION-AWARDING MEDAL OF SUPERIORITY TO OWNER OF MACIUNE.
When the owners of machines have submitted them to a competitive examination and test before judges appointed by an institute for the promotion of art!'l and manufactures, and the judges have determined that one of such machines is entitled to a medal showing its superiority to the others, an unsuccessful exhibitor cannot, by injunction, prevent the delivery of such medal to his rival.
In Equity. James A. Whitney, for plaintiff. J. A. Davenport, for Simonds Manufacturing Company. Alexander cf; Green, for American Institute. WHEELER, ,T. According to the bill of complaint, the plaintiff manufactures a machine for ventilating, called the "Blackman Fan," and the defendant manufacturing company manufactures a machine of different construction for the same purpose, known as the" Wing Disc Fan." The defendant institute is engaged il1 the promotion of arts and manufactures by making provision for ",ubmitting machines to tests and experiments conducted by judges appointed by its officers, and makes award of merit of different degrees, upon the reports of the judges. These fans were submitted for competition by their reo spective manufacturers, and were subjected to a series of tests by judges appointed for that purpose, who recommended an award of a medal of superiority to the Wing Disc fan, and of excellence to the Blackman fan. The delivery of the medal of superiority to the defendant manufacturing company is sought to be restrained by injunction, and a decree for its delivery to the. plaintiff asked for, upon the ground principally that, upon the tests which were arranged for, the Blackman fan showed the best results, and that the recommendation of award was made upon tests at b,igh speed, and adjustability of the blades of the Wing Disc fan, which were not contemplated when the competition was entered into. The cause has now been heard upon a motion for a preliminary injunction to restrain the delivery of the medal of superiority of the Wing Disc fan. The medals themselves ale not alleged or understood to be of any intrinsic value, nor to be the property of anyone but the institute. Their only importance is derived from their being statements, in an attractive form, of the award of the degree of merit fouud. They are the expressions of the opinion, formed upon the exhiLition made. of the power and utility of the machines; and in them there is nothing derogatory to the plaintiff's In the statement ml.. le, or to be made, on the medal of superiot'ity, it is not under8tood that anything is stated about that machine, but only an exv.24F,no.l0-36