, ·'.1'B:&: .:8., s.· CAltT,E&:·!'. ,'J
"agreedeto, leti",and:thesaidcha'rterers l!agreeB 'to of," etc, i an,Fthe" em arter-party further providej:l' that ":whenthe vessel is to the :owners? agent-that is',' after. the termination ,of the difference," etc. ThereforE\:the phraseologyofthe charter-party is that of an instrrimentwliich'was tended by the parties thereto to grant and "to freight let." 8'0 far,as relates, to provisions of the charter-party that the charterers shall have permission to appoint a supercargo, who shall sel, and,see that the voyages are prosecuted with the utmost dispatch. it does, not contr91 the general effect of the charter-party, but is ,in aid of it. Much less does it do away with the particular provision that thE! captain, although appointed by the owners, shalf be under' thei ordere and directions of the charterers as regards employment, agency, or other arrangements. Now, in Clarkson v. Edes,4 Cow. 477; although the Iaa. guage was that the vessel was let, the second and third clauees;were that the party of the second part, the charterer, may load and 'discharge froD;l on board ,the schooner such cargo in either of the ports or places as by the party of the first part (the owners) shall be ordered. The court held that those clauses were .inconsistent with the possession" being in the charterer, and the correctness of this conclusion candot be doubted; but the agreement in that case had not the features, the pres.. ent charter has. After a careful review of the cases, and a considera" tion of all the arguments urged, I am still of the opinion that in the present case it is my duty to follow the authorities referred to' :in illY' former opinio.\l. ,and therefore the motion for a rehearing is, refused.
THE JOHN LoUD et
(Di8trict Court, E. D. New YO'I'k. ,t\pril 5, 1889.)
JURITDm LIENS-PmORITy-REPAIR8-SUBSEQUENT TORT.
The Hen tor damages arising out of ,a collision takespr(lcedence over the lien of a material-man for repairs to the negligent vessel malle, prior to such collision. . ' '
In Admiralty. George A. Black, for libelants. Alexander &: Ash, for claimants.
BENEDICT, J. This case comes before the court upon 'the :question of' priority.' In March, 1886, the schooner Flint, atthe' time being tvwed
I . ' ,
by Edward G. Benedict, Esq., of .theNew ¥ orkbar.
REPORTER, vol. 88.
by the tug John G. Stevens, and by the libelant LOud, was run Into by the bark Doris Eckhoff, a vessel at the time being towed by the tng R. S. Carter. Thereupon the libelant Loud filed his libel aga.inst both the tugs to recover the damage caused. to the Flint and her cargo by the collision. .The R. S. Carter was found by the marshal, and against her the libelant has obtained a decree for the sum of$15,155.15 by default. At the time of the seizure of theR. S. Carter by virtue of the process in Loud's action, she was subject to various liens for wages and for repairs, the amount of which exceeded the amount realized from the sale of the vessel by the marshal, to recover which various libels were filed against the vessel. Of these demands the wages have been paid out of the proceeds, leaving a sum in the registry less than the amount of the liens of the. material-men, and very much less than the amount of Loud's claim for the damage to his schooner. Whereupon the question has arisen whether Loud's claim for the damage done to the Flint by the collision with the Doris Eckhoff is entitled to be paid out of the proceeds arising from the sale of the R. S. Carter prior to any payments to the materialmen. It will be noticed that the question presented is a question of priority, not of the marshaling of securities. Moreover, the question is not between a wages claim and a collision claim, nor between material-men and a claim arising out of a q'UtMi tort, where the cause of action is a neglect of some duty assumed in pursuance ofa voluntary agreement between the parties. The claim of Loud is for damages caused by collision, a tort pure .and simple, committed by the R. S. Carter. The claims of the material-men are for repairs done to the R. S. Carter prior to the collision, which liens have not been lost or impaired by laches. The question is analogous to the question decided by this court in the case of The Pride of the Ocean, 8 Fed. Rep. 162. In respect to that case I have noticed that Judge BROWN, in deciding the case of The Amos D. Carver, 85 Fed. Rep. 667, seems to have supposed that. in the case of The Pride of the Ocean liens for wages'arid for repairs were subordinated to a collision claim. But such, was not the decision. . It was a prior bottomry in thafdtse which: was subordinated to a collision claim. The question , there was analogous to tgequestion here, but it was not the same. Neither is the qtiestion here the sume as that decided by this court in the case of The Samuel J. Ohristian, 16 Fed. Rep. 796. In that case the controverGywas between claims arising ex contractu. . The action was oased u'pon a dontract to tow, a: breach of which contract was the sale foundation of the claim as stated in the libel. The libel set forth no duty and charged no neglect of duty. It disclosed that the damage claimed arose from the action of a tug in dragging her tow against a pier; but a contract was set forth, and that not by way of inducement, as in the case of The Quickstep, 9 Wall. 665, but as the sale foundation of the ·. ,7'h,e claim wa.sthel'efore ,treated by this court as arising ex contra,ctu ex delicto, upon the. supposition that it was for the llbelant to waive the tort and rely upon the contract, and that !uch had been the ,course pursued. And the decisioll was not only that
THE R. S. CARTER.
wages, but a material-man, claiming for prior necessary repairs to the vessel, was entitled to priority in payment over a demand based on a subsequent contract which had no relation to any necessity of the ship and in no way tended to increase her value, and which had been voluntarily entered into by the creditor. The, precise question here involved has never, as I recollect, been decided by this court. It has however been decided by Judge NIXON, in the case of The M. Vandercook, 24 Fed. Rep. 472, in one way, and ,in the opposite way by Judge BROWN in the case of The Am08 D. Carver, 35 Fed. Rep. 665. In this conflict of opinion I incline to follow the analogy of the case of The Pride of the Ocean, above alluded to, and give the subsequent collision claim priority over the prior claims of the material-men. As between such creditors, when one or the other must lose his debt, it seems to me more equitable that the loss should fall upon the materialman, who voluntarily and for a consideration agreed with give delay in payment in order that the Ship-owner by the use' of his "'essel might earn profits wherewith to pay the material-men. The material-man, for a consideration in the price he char!l:ed, voluntarily assumed the risk of a total loss of his security by the sinking of the ship he repaired, in a collision. Why, in fairness, should not the creation ora lien upon the ship he repaired arising from a collision be held to be included in his risk? Why may not a material-man, who gives be fairly held to become a party to the employment of the vessel in' the course of which the accident occurred, since he has a beneficial interest in that employment? I find nothing inconsistent with such, a view in the case of The Frank G. .Fawler, 17 Fed. Rep. 653. No doubt the filarithne law gives a lien in order that the ship may gain time, but the policy ()f the law is to make the time of credit as short as possible; arid to me that a rule which in effect tends to extend the duration of liens of material-men and to increase the amount of liens upon the ship because under the rule they serve to lighten and sometimes, as case, destroy all liability for collision, is a rule of doubtful expediency, and may be rejected as contrary to public policy. Upon these groungs, following the analogy of my decision in the case of The Pride ofthe I have determined to direct that the claim of Loud be paid out oCthe proceeds in court prior to the ,demands ofthe material-men. ,Thiedetermination renders it unnecessary to consider the other questions discussed by counsel.
' , ' . ' , ' (": Ii
,(DiBtrict .Court; D; Soutlo Carolina. March SO, 1889.) 1.
,A French steam-ship, briniof steel, of 2,540 tons burden, 346 feet in length; worth about $200,000. with a cnrgovalued at $103,000,' while on It voyage from Rio to New York, lost her rudd.er.on the 29th of Jauultry. about 250 miles E. S. E.:of'Cape Hatteras. By the of atempor!.lry steering appl.lratus, anc! by going under steam, sometimes with all her engines, sometinies witli only a. part, she arrived, FebrUllry 5th, about 1, A.M., off St. Helena 'bar, South Caro. lina, displaYing signals of a disabled steam·ship. A pilot-boat, having on board two full pilots and an apprentice, while cruising on he!-,pilotage ground, sighted 'her'about 5 A. :M., and went to her, displaying the' light of 'a pilot. The,mltster informed her thltt he watited It port, and was told that he could not enter Chndeston, because of his draught, but could enter Port Royal, whete the master expressed a desire to be taken, and requested the pilot to send for· two tugs.. One of the pilots boarded the ship, and the other wentoff in the pilot-boat into Coosawriver, about 25,rniles, for the tugs. There were no tugs in that neigh borhood engag(;ld inse.a towing, but a phosphate mining company, at work in the Coosawri'ver, owned five large tugs, which were constantly in use in its business. When the pilot-boat arrived two were absent, two were.!Ltwork, and the other was at the company's establishment. After some parleying 'the manager of the company, on hearing that the steam-ship was 8 passenger vessel, consented to let the two tugs go, and telephoned for tbethird,tocome on at once, On the arrival of one of the tugs at the stell.m, ship, and afteraull.ttempt had been made to adjust the compensation. with., out result, the tug Was placed behind the steam-ship, to act as a rudder, and the , steam-ship" under her own steam, and with a pilot in charge, proceeded to Port Royal, about 20 miles away. Shortly afterwards another tug came up,' and a,pilot put aboard her, and a line taken from the bow of the steamship. They arrived 011 the entrance of the port about 6 o'clock, where the Tesselanchored, the going on to a coaling station, where they spent the night.. The· next mornmg were Joined by the.third tug, and the vessel was taken into port. The value of the tugs was $liO,OOO. Held, that the service of tne 'tugs was a salvage service; but, in view Of the minimum risk, an award of ,only $750 would be made to each of the tw'O tugs that first arrived, and $300 to the third.
BAME-SERVIOlll OF. PILOT. '1'UG-:-AWARD... ..'. . '
The service of tbe pilots In procuring the tugs was a salvage service, for which they are entitled to $200. but the subsequent service was in the line of their d1lty all. pilots. for which,in view of the extrj\ordinary skill displayed in taking the vessel through a difficult channel, they are entitled to aIt allowance of $150 eaCh, ail e:lrtra compensation. . ' ,. ,
In Admiralty. Libels for salvage. Libels by Lopez, owner of the tugs Catherine, Cecilia, and Reliance, and by Santos and others, owners of the pilot-boat Charleston, for services rendered the steam-ship Cachemire. Smythe &; Lee, for Lopez. McCrady, Sons &- Bacot and W. J. Verdier, for Santos et al. J. N. Nathan8, for claimant.
J. These libels, claiming salvage, were consolidated at the The Cachemire, a French steam-ship, propeller, built of steel,