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.
3. In respect to the claims of Leander B. Woods, T. M. Jenkins & Co., and H. Fry & Son, I think that the conclusions of the commissioner are clearly right. And now, October 15 1 1887, the exceptions to the commissioner's report l:lud schedule of distribution are overruled, and the court confirms the same absolutelYi and it is ordered that the fund in the registry of the court be paid out in accordance with the commissioner's distribution, unless an appeal is taken within 10 days.
THE CONNAUGHT. 1 NORDLINGER
(Iiist'l'ict Oourt, E. D.New York. November 9,1887.)
DAMAGE TO CARGO-BURDEN OF PROOF-SHIPPING.
In an action for darilage to cargo. where claimant, proved a hard voyage of the vessel, and that the casks which contained the cargo damaged were weak. and libelant offered evidence that the casks were good, but gave no Pfoof of their bad stowage, lwid, that the burden was on the libelant to show that the cargowas badly stowed, and, this burden not being sustained, libelant could not recover.
Oha8. E. Hill, for libelant. E. B. Oon'VerB, for claimant. '
The evidence in this case as to the character of the voyage of the ship in which the libelant's prunes were transported, and the weak character of the casks in which the prunes were contained, is abundantly sufficient to cast upon the libelant the burden of showing bad stowage. This burden has not been discharged. The libelant, instead of proving bad stowage, has offered testimony to show that the casks were good, and asks the court to infer bad stowage. This cannot be inferred from the facts proved here. On the contrary, from the evidence as to the character of the casks, the natural inference is that the character of the casks caused the damage to the prunes. '
Reported by Edward G. Benedict, Esq., of the New York bar.