, THE; J()HN G. STEVEKS.
to increase the amount of liens upon the ship, because, under the rule, they serve to lighteu, and sometimes, as in the present case, destroy, all liability for collision,is a rule of doubtful expediency, and may be rejected 88 contrary to public policy. Upon these grounds. following the analogy of my decision in the case of l'h6 Prid6 ofth6 Ocean, I have determined to direct that the claim of, Loud be paid oU,t of the proceeds in court, prior to the uemands of the material-men. " The case of The Prank G. Fowler, 21 Blatchf. 410, 17 Fed. Rep. 653, decided by me in JU1Yi 1883, in the circuit court for the southern district of New York, does not cover the question here involved. In that case there were two collisions, at intervals of time, caused by the negligence of the same tug in the course of the ex.ecution of contracts of towage. E,ach claimant for damageS arrested the tug at the same time, and, there being no laches, or waiver or abandonment, the court held that the elder lienor was entitled to priority in payment over the younger Henor. The view of the court was that each elaim was to be considered as one sounding in damages for a tort; that the second tort or collision could have no effect in 'reference toa party injured by the prior tort or 'collision, to benefit the vessel or add to her value or preserve her; that there was nothing in the mere fact of the second, tort to extinguish' the lienapsing out of the first torti and that, when both torts were Of the same character, each arising out· of negligence on the part of the tug in fulfilling a contract of towage, and each claimant arrested the vessel at the same tit;ne to respond, there was no prinoiple of the maritime law, 'and De) intetestofcommerce or navigation, which required elder lienor,' not-guilty of laches, and not having committed any waiver or' abandonment, should have his claim postponed to that of the younger .lienor. . The rule ill England is thus laid down in Abb; Shipp. (11th Ed.) 621: lien of damage, in the wrong of the master arid . crew of the vessel in fanIt, andfonnded on considerationa of public policy for the prevention of careless naVigation, takes precedence, within, tl)e which the law assigns to the indemnification of the injured party, even though anterior in.date, of liens excont1"Qctu. It absorbs. in the event of the 1'e8 proving insufficient to meet all demands, the liens of wages, towage, pilotage, and bottomry, leaving them to be enforced by proceedings against the persons of the owners. Were it otherwise. the owners to whom the damage is imputed would be indemnified at the expense of the injured party; the wrong-doer at the cost of him to whom the wrong has been done." As authority, the author cites The Benares, 7 Supp. Notes Cas. Adm. & Eco. 50, 54, decided by Dr. LUSHINGTON in May, 1850, and The Linda Flor, Swab. 309, decided by the same judge in December, 1857, and reported also in 6 Wkly. Rep. 197. In The Elin, L. R. 8 Prob. Div. 39, decided by Sir ROBERT PHlI.LIMORE, in August, 1882, he held that the maritime lien arising out of damage done by a foreign vessel, in a collision for which she is to blame, takes precedence of the maritime lien of the seamen on board such vessel at the time of collision for wages earned by them subsequently to the collision; and stated that it was admitted that the claim for damage took precedence over the claim of the
REPORTER, vol. 40.
crew as regarded wages earned before the collision. He cited with approval the case of The Ohimera, decided by himself in November, 1852, (Shipping and Mercantile Gazette ,of November 27, 1852;) The Linda Florj and the case of The Dtvna, deoided in the Irish Admiralty Court, in October, 1861, (1 Mar. Law Cas. 159, and 5 Law T. N. S. 217.) In.the court of appeal, in May, 1883, in The Elin, L. R. 8 Prob. Div. 129,bp,fore BRETT, Master of the Rolls, and Lords Justices COTTON and BOWEN, the decision of Sir ROBERT PHILLIMORE in the same case was affirmed. That court approved the decisions in The Benar88. The Ohimera, The Linda Flor, and The Duna. BRETT, M.R., stated ,that it would be unjust to the owner of the injured ship to allow the fund against which the lien for damage had priority to be diminished by a payment of wages. COTTON,L. J., said that it was ajust principle that the owner who had caused the damage should DOt be at liberty to withdraw anypart of the fund arising from. the value of his ship and freight out of the reach of the claimant for damages. In Macl. Shipp. (2d Ed.) 653" it is said that liens in damage causes "rank against ship and freight, in derogation of any rights of ownership or rights by mortgage or beneficial lien existing at the time of the collision;" and that "they acquire thereby priority over mortgages, prior bottomry, wages, pilotage, towage, aQd salvage;" referring to The Benar88t (above cited.) . In NortO'idt 00. v. Wright, 18 Wall. 104, 122, the supreme court, speaking by Mr. Justice BRADI,:gy, said: "Liens for reparation for wrong , done are superior to any prior liens for money borrowed, wages, pilotage, etc." The reasons assigned by Judge BENEDICT in the present case, for co.ming to the conclusion at which he arrived, seem to me to be more sound than the opposite views, and ll, decree must be entered to the same effect as that made by the district cOllrt,&warding priority to the libelants in respect of their claim for damages. .