stat'errlent:ol tbecrew and pilots·of:t'beLeoi ·the '8cbobner was lying to. waitingfof Ii pilot to board' her, as'shewas bound to The Leo, having sent the plIot, could go She determined to go back to the schooner to 'pick up -her skiff. For· this purpose she put herself on a course following the Eleanor, immediately astern of her. She was bound to keep out of the w.ay of the Eleanor. The Eleanor was as ,close to the wind as she could get, waiting, and being bound to wait, in response to a lawful' summoris. The pilot-boat was free. The rqle bfnavigation is imperative. Applying rules 17 and 22 (Rev. St. 823) it was the duty of the: Leo to keep out of the way. As the Leo failed to observe these rules, she was in fault,and by her own admission. ,'rtis ordered that the libel of the Leo be dismissed, with costs. Let it be referred· to the clerk of this court, as special master, to inquire: report the items of damagestls,tained by the schooner Eleanor.
n.' ¥aryl4nil. ,
November 22, 1887.)
SEl>:A.RATE CONTRACT. :..
Under Code Md. ,art. 67,. giving,(section 44) a lien upon certain vessels for aM wqrk done upon such vessels, but providing (section 48) that the lien "shall not entitle the claimant to preference over creditors or claimants: secured by mortgage' Qr bill of sale properly executed and recorded before tobe .secufed;by such lien shall ba;ve accrued," where thereis no entir,6 contract for the repairing of a vessel, but the repairs are done - from day to day upot! the'ordt,rs of the oWner,oilly such repairs will have preference ove.r a mortgage duly executed and recorded as wer.e done prior to. the date of the recordjngof such mortgage.
In .On· appeal from district court.· Thoma88.Baffr and William P. Lyon8, for appellant mortgagee. Thomas S. Hodson,. for appeIlee lienor. BOND, J. The fact$ in this case ltre that on the 6th of October, 1886, the schooner 'Marcelia Alln was libeled in the district court for wages. By order of the court under that libel she \vassold,' and after the pay. ment of the. seamen's wilges fouildto be due, thereinaihder of the pro.ceeds of sale 'Were paid into the registry of the court for distribution to. proper schoonefwas the property of George S. HoIland.The proceeds are now claimed 'by Sumner W; Dana,. by virtue of aClien under a Maryland statute relating to liens for work and labor, and by George S. McCI'eady,undcr'amortgagefromGeorge' S. ex.ecuted and recorded on the 17th of June, 1884. The first Hemin the account for which a lien is claiined is of June 5.. 1884, arid the last is dated Oct. 17. 1884.
THE. MARCELIA ANN.
The statute under which the lien for repairs is claimed is found in Rev. Code, art. 67, §§ 44-48, which, after providing for a lien upon vessels for materials furnished and work done upon vessels navigating the Chesapeake bay and its tributaries, provi(les that· such lien shall not entitle the claimant to preference over creditors secured by mortgage properlyexecuted and recorded before the lien claim shall have accrued. Section 48, art. 67. Section 44 gives to parties furnishing materials or labor a lien on the vessel for all debts due. In this case there was no entire contract for the repair of the vessel. Fronl all that can be gathered from the record the claimant was to do such repairs upon the vessel as from day to day were discovered to be necessary, and he was directed by the owner to make. At the 'end of the day the cost of what was done in the way of furnishing material or labor was due and payable. The claimant could have stopped work at the end of a day or week without any breach of contract, and the owner 4ave directed him to cellSe, without liability for a breach, at any time. There appears to have been nothing in the contract to. ,make it for the to go to the expense of pr9viding before hand materill'l . forrepll-irs. The labor and materials were furnished ,die in diem and on the 17th of June, when the mortgage was recorded, all that was due or hll.d "accrued" was what bad been furnished or wrought up to that time. no action could then have been maintained, for that appears in this record, by the cla,imant against either the ship, or the owner oHt, for material or lal;>or furnished after .that date. This is not a maritime Jien. If it were, it might be argued that the repairs dOJ:l8 after tlle were dOI;le for the mortgagee's benefit, or that, as bee .knew ot them, and the Jnortgage gave him title, he could be held as . .But this lien is IIremedy, and gives to the beyond that its plain implies; and as it exfor such clairu only pressly provides (section 48) tha,t the lien shall . as hada(lcrued, at the time of. the recording of thl;l mortgage, courts are · not at liberty to extend its operation further. Our atteption has been called, to the fact that. the construction given to the mechanics' lien law relating to buildings is tllat it gi vesa lien for all debts contracted for w'ork done, notwithstanding an intermediate mortgage after the commencement of the building. But this is by statute. Section 15, art. 67, so provides, and the legislature baving seen fit to make this differencebQtween ,liens upon buildings and thqse upon vessels, we have no alternative but to carry out its intentions. . , . It is therefore determined that the fund in court is liable for all material and labor furnished up to and including the 17th of June, as appears by the account filed, and the remaintler, after payment of costs, belongs to the mortgagee. And a decree will be passed accordingly.
THE MALTA.! THE MALTA V. SEVEN -HUNDRED TONS OFCHALX. (DiBf!l'iet OOU'l't. E. D. Pennsylvania.
January 31, 1888.)
by the issuing of attachments under conflicting claims to it.
A claim ap;ainst the oargo for
will be allowed for delay caused
In Admiralty. Charles Gibbom, Jr., for libelant. Adams &- Edmwntb, for respondent.
BUTLER, J. There i5no disputEi about the freight claimed. The l:belant is clearly entitled to demurrage. She is 'not in any way responsible for the delay. She' had a lien for the freight and demurrage on the cargo, alld was not interested in the dispute over it. She had a right to hold it lintil paid. The parties clahiling the cargo having chosen to dispute about it, and thus create d:elay, they must. bear the consequence. '1'0 cast the loss on the libelallt wouldqbe grossly unjust. She was not blamable for to discharge on a filthy wharf at the marshal's requeEt. Had she ,so discharged she would have incurred risk of liability fordamage, as well as risk of losing her proper charges, by injuring the merchandise,to which she must look for payment. The sum claimed fordelay, however, is too great. How much should be allowed per day, the evidence does not render certain: 'The number of days properly chargeable I find to be 16. Starting with October 11th, seven days are allowed for unloading the chalk, As the vessel was not docked until after 9 o'clock 1n themorning,a full day's work could not be done on that day. The interveningSunday must be thrown out; and one day allowed for unloadingthe cement. This leaves 16 days for which the respondent is liablethe uDIoadfng of the entire cargo having been completed by the fourth <,>f November; inclusive. What rate of compensation per day should be !l:llowed must be referred to a cO:qJ.missioner, unless the parties can agree it.
by C. Berkeley Taylor, Eeq" of the Philadelphia bar.