DENNY and; others'll. THE ACORN·.
(District Court, lY. D. Pennsylvania.
MARITIME LmNs-CONTRACT FOR SERVICES-REFUSAL TO ACCEPT.
Mariners hired for a voyage,. who. pursuant to the contract, presented themselves at the wharf where the boat lay, and offered their services, but without good reason were refused admission to the boat, may sue in rem in admiralty for their stipulated wages, the boat having prosecuted the voyage.
In Admiralty. S1tr exceptions to libel. Geo. a. Wilson, for E. J. Smail, for libelants. ACHESON, J. According to the allegations of the libel,. which for the present must be accepted as true, the libelants were hii'ed. as firemen on the steam-boat Acorn, for a trip from Pittsburgh to Cin;cinnati or Louisville, at certain wages; and, pursuant to the terms of the hiring, presented themselves at the wharf where the boat lay, ready and desirous to perform their part of the contract,but were refllsedadmission to the boat, without good reason, other perSons having been hired in their places. It was then too late for the libelants to procure employment 011 that rise upon OIlY other boat, and thus they lost a trip. The Acorn made the voyage for the libelants were hired. Upon such a state of facte, why may not the libelants proceed in rem against the boat in this court for redress? They sue, not, as is supposed, for damages fol' breach of thepontract, but for their stipulated wages, to which they are as much entitled as if there had been actual performance on their part. Kirk v. Hartman, 63 Pa. St. 97. If, after a voyage has begun, it is lost or abandoned by the wrongful act of the owner or master, it is not to he doubted that the seamen are entitled to full wages, recoverable in admiralty by suit in rem. Sheppard v. Taylor,5 Pet. 675, 710. It has been distinctly held, also, that where a mariner has been impropshipping articles have been signed, erly discharged from a but before the commencement of .the voyage, he may sue in admiralty for his agreed wages, the voyage for which he was engaged having been .prosecuted. The Oity of London, 1 W. Rob. 88. To the like effect was the ruling in the case of The Dolphin, 6 Ben. 402. I deem it unimportant that the libelants did .not actually enter upon any maritime service, since they were wrongfully prevented by the owners of the boat or their agent from going aboard the Acorn. The exceptions to the libel are overruled.
mE WOODWARD. THE WOODWARD.
October 115, 1887.)
lrLuuTnnc LIENS-PRIORITY. oVEBlNSlJll4.NCE LIEN.
In the distribution of the proceeds of sale of a vessel, maritime llens are to be preferred over liens created by state statute for premiums of insurance.
In Admiralty. Sur exceptions to the report of the commissioner appointed to distribute the fund in the registry of the court from the sale of said vessel. KnfY.t &; Reed, for exceptants. WiUiB F. McCook and. Goo. O. WilBon, contra. ACHESON, J ·. l.; ',l'hatclaimants. who have maritime liens are to be preferred, in the distribution of the proceeds of sale of a vessel, over those having domestic liens existing .only by virtue of state statute, has long been the, estllbli,shed rule in this district. This right of priority was distinctly recognized in Shrodes v. OoUier, 2 Pittsb. Leg. J. 319, by Mr. Justice GRIER', who, speaking of liens for materials, supplies,etc., at the hoilie' port, given by the Pennsylvania act of April 20, 1858, said: "The maritime liens being first satisfied, the surplus in the registry of the court should be distributed to the parties having these liens in their order." This subject was. carefully considered by Judge BUTLER of the Eastemdistrictof Pennsylvania, in the case of The E.A. 2 Fed. Rep; 712, and.the.conclusion re:;lched that liens given by state legislation for repairs to a vessel at her home port are to be subordinated to liens created ,by the maritime law. The reasoning of Judge BUTLER is cogent, and bis opinion well sustained by the citation of numerous au. thorities. More recently, indeed, in the Sixth circuit,in the cases of The Gen. Burnai:de, 3 Fed. Rep. 228, and The Guiding Star, 18 Fed. Rep. in the earlier 263, it has been held (contrary to the doctrine case of The SuperiQr, 1 Newb. Adm. 176) that claimsf6r materials, etc., at the home port, for which a lien is given by local which have law, are entitled in: to be put on an equality with lieng strictly maritime. But I am not convinced that this is the better opinion; and, even if so satisfied, I would not feeill-t libertyto change the rule of distribution which has so long prevailed in this district. Adhering, then, to that rule, I sustain the commissioner in postponing the statutory claims for insurance premiums to the maritime liens. 2. After careful consideration of the evidence, I am not satisfied that the commissioner erred in rejecting the claim of A. J. Sweeny & Co. for the new cylinder. The opinion of Mr. Rees as an expert witness is entitled to weight, and I cannot say that the commissioner attached too much importance to his testimony, or, upon all the proofs, reached an unwarrantable conclusion.