vol. 40. .
.. The oIaim of the master and crew of.the Sampson, set up in their pcstands, I think, on a better footing. The ordinary business of the American Towing Company of Baltimore, of which the master and crew of the Sampson were employes. was that of towing in the Chesapeake, bay, "nd the rivers and harbors tributary to the bay. Their contract with the company was in contemplation of such service,-tnat of towing vessels within the capes. As long as the Sampson was employed in these inland waters, no extraordinary labor, skill, or risk was involved; but, when the owners Qf the Sampson authorized her to be sent outside of the capes, on extraordinary service. down the coast in stormy weather, for the purpose of rescuing a .vessel in distress, and in fact engaging in a wrecking and salvage service, all without consulting the .crew of the Sampson, there ,arose, ipdependently of any existing statutes on the subject, an implied 'permission on the part of the owners to .,the crew to l1emandand receive the usual proportion of whatever salVagetn0Iley might accrue from such expedition. While the owners of ashipntay release, by express ,0riD.\plied contract,a claim for salvage, Yet the seamen'of a vessel which s,aves. another are rendered incapable, .by section 453i of the Revised StatuJes of the United States, of releasing their, claim to, participate in any salvage that may accrue from the enterprise. A,deqree may therefore be taken in favor of the master and crew of theSaOlPSQD for on,c-thirdofthe reward of 83,000, after deducting costs,,,,hich was decreed in this cause on the 9th February last.
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On appeal to the circuit court. the foregoing decision was adlrmed.
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THE AINA.' HOYESEN
tI. THE AINA.
001.M't, E. D. New York. September 20, 1889.)
The lien of shipping merchants for advances made In attending to the business of a vessel at the end of her voyage takes precedence of the lien of a bottoD1l'7 lender. B.BAlDIo A lien on the ship exists for advances made for the purpose of the following charges, viz.: Hospital charges for attending the sick of the crew while th.· vessel is in port;· surveys to ascertain the ship's condition; expenses of cabling owners; consulagE!; and services attending the entry of the vessel at the customhouse. ' ,
SAME-RIGHTS OJ!' JUNIOR LIENOR-PRACTICBo
After a lienor has obtained an interlocutory decree against a vessel by defaUlt, it is not open to a second lienor to contest the 1lrst lien. The only question open is the question of priority.
On application to determine the priority of liens.
Butler, StiUman kHubbard, (Edward Kent,) for libelants. Biddle &: Ward, (Oharles M, Hough,) for holders of bottomry bond.
BENEDICT, J.. This action was brought by shipping and commission merchants to recover of the brig Aina the amount of certain advances made by them under the following circumstances: The Aina was a for.eign vessel, which putinto the port of New York in distress. Her mas.ter having died on the passage, the mate was in charge in his place. Upon arrival, she was surveyed, and found to be leaking and, tO1'&quire repairs, to do which it was necessary toland the cargo. After the ,cargo was landed, she witS again surveyed, and found to be unworthy (If repair, and she was condemned by the port-wardens. Upon the ar.rival of the vessel in New York, the master, being without funds to defray the ship's expenses, placed her in the hands of the libelants, with :a request that they advance any sums that might be necessary for the ship. Thelibelants accordingly attended to the business of the vesseJ., :and made certain advances. When the result of the survey showed the vessel was not to be repaired, the vessel was libeled by her crew, and the libelants filed a libel against her to recoyer the amount of their advances. Another action was also commenced against her by the holdersof a bottomry bond. No one. appearing on behalf of the vessel, the libelants obtained, by default, an interlocutory decree condemning the vessel to be sold by the marshal, and directing a. reference to ascertain the amount due them. The proceeds of the sale amounted to the sum of $2,000, out of which has been paid $87.40 for the crew and costs. The amount' reported by the commissioner as due the libelants, ia 81,· 260.48. In ,this state of the case, it was before the oourt upon
RepOrted by Edward G: Benedict., Esq., of the New York bar.
an applicatjon in behalf of the libelants to determine the question of priority between the claim of the libelants and the claim of the bottomry holder. Upon the hearing, however, the question of priority was not , argued, but only the question'Oflienjand the court was asked by the bottomry holder to reduce the claim of the libelants by striking from the libelants'biIlbettain itenls, upon the ground that advances to pay such itl'ms do not subject the vessel to a lien. This method of obtaining an adjudication on the right of the libelants to recover their demand is irregular. After the interlocutory decree in favor of the libelants by default, it was not open to any person to contest the question of lien. After the entry of the interlocutory decree in favor of the libelant, the only question, open to the holders of the bottomry bond was the question of priority"and upon that question there is no dispute. The libelants' demand, of course, takes precedence over the bottomry bond. Notwithstanding the irregular method in, which thA question of lien has been presented,--a. method whiohis not approved,-inasmuch as the question has been argued by both sides, it will be disposed of now, to save the parties further trouble and expense. The first question is whetherthe'libelantshave a lien upon the vessel seven dollars paid by them to the Long College Hospital. The proof as to this item is that it was a. charge made by the hospital for attending to sick of the crew while the vessel was here in port. Upon this evidence, it must be found tha.t the item constituted alien upon the ship. Caring for the crew is a necessary expense of the ship, for which the ship herself is chargeable. ' The next question is whether the item of $102.50, being sums paid th6pereonswbo made the'suTveys upon the vessel to ascertain her condition afterdher 'arrival in New York, is a lien. No question arises as tothe'reasonableheas of the charges of tbe surveyors or as to the propriety of bolding,the surveys.,' Theiusageof maritime nations requires sucb surveys to be ilre strictly in the interests of the vessel. Upon their result depends the question of whether the vessel is to :becondemned, or to continue her v6yage; and I see no reason why one ·who,on the request of theniRster, holds a survey upon a ship. should not',be entitled'to a lien upon tbe ship herself for the valne of his servbeing so, the libelants are entitled toiecover the amount adIftnced by them' to pay' the charges made by the'surveyors. ,iThe item objected to is the sUm of $'45.96, paid for tbe expenses of cabling to the owners respecting the affairs of the ship. It was certainly under the circumstances, for the 'master to communica.te With ,his own'ere itiregard to the disposition to be made of the ship. It 'wasequallyprbper for the libelarits, upon the request of the master, to The expense incurred was t'Or tbebenefit of the and, it seeins' to me, constitutes a proper charge upon the ship herself. -' ": ' , , ' ",!,' " iiBhtls consulage. Such' an item' was before the supreme court in the case of The Emily Souder, 1,7 Wall. 666, and was illowed. .,', ,," ,