extraordinary contradictions,. and tha:t I am uo:ab1e to arrive at the conclusiontbat;the loss of the raft was caused by any neglect or want or skill on! the part of the steamer. It follows that the libel of Leary a:gainst the steamer must be dismissed, with costs, and that. in the action of the New York, Newfoundland & Halifax Stel1m-Ship Company, owne1'8ofthe steamer, against Leary" the libelants must have a decree for the sum of $3,600, being for 12 days' service, at 8300 a day, as the contract provided. . .. . . In regard to the claim for demurrage"it is disallowed , and,as at present advised, the claim for chains, etc., is also rejected; but as to this latter claim I will hear counsel further on the settlement of the decree, if they deaire then to be heard.
S. D. February 28, 1889.)
gent towagll, gence. ..
Sllli\men's wages Il'Ilsuperior,toa lien for damages from negll. appear that the seamen contributed to such negli· .
I. SA:MlIi-DuUGlIiS. . '." '. . '. A lieJ!. fOf da1J1li\lif6s f1'()m. negligent towage,has priority over a lien for lupplies . and repairs. . ' . . . . .' , 8. SAME-SuPPLIES. ., ' ' . . . . , The lien fOr supplies tlIrnished to a vessel in a home port, glven by How. St. Micb.§ 8236,ltands on the same footing as maritime liens for supplies and repairs furnished in'foreign ports. .' : ' .
". SAME-1NSu1u.NdB PRBM;roM&.
A lien for: unpaid premiums on insurance'on a vessel, whether maritime or tory, is toUens forsUpplil$ and repairs. , . ,
In Admiralty. On application.(or distribution of M. C. A.:A. Krauae, for Gunderson. .· .' Peter Doran, for intervening libelants for supplies and repairs. 'Fletcher &: Wanty, for Insurapce Co.
SEVERENS, I ·. On the!17th day 1888, <JP.arles G. AI'}eyandothers, composing· the firm of C. & Co., filed their f·Ubelin this court against thepl'opellex: Daisy DaY, for the purpose of :enforcing an alleged lien fQrsupplies furnishe4 the vessel d\lring the sea"son·of navigation for that year. The owners having made default,.a on the 21st day decree was entered pursuant. tq.the claim of the of November following, and. the \'essel qrdered sold. MeanUme a. num· :·ber;of additional libels ha<l been filed, some fqr; sailors' waies, some for ;,&upplies, some formateriaJ, and . one (that Lor· G. F.·Gunderson) fordall:ilages ansmg 1:>Y the propeller of theschQone.l\(j. Barber, belongmg, to. that li1:>elant.. 'l'he . vessel wassoldilluder the: upon the originlll. libel, and the probrought. into thi\ regi,lItry of the
i'RE DAISY DAY.
ba.vesince been passed, establishing the claims of the other libelants, in whole or in part, and upon the il1tervention of the Marine Insurance Cdmpany an order has been made admitting its claim Jor an 'I;1npaid premium for an insurance effected by the owners upon . the vessel in May1 'Hitherto the proceedings in the case have run on under the direction of the proctors for the parties interested, without seriously attracting the atlentionof the court. But it now appearing that the several sums allowed for seamen's wages, damages for negligence, insurQ,nce, supplies, materials, aod repairs, together with the costs of the suit, amount to inore than the proceeds of the vessel, it becomes necessary to determine the rank in which the several claims are entitled to stand in the order for distribution. And here serious questions arise; for the decisionson: almost everyone ofthem are in conflict, and the only resource, left to the court is to follow suob adjudications as should have here the force of authority, and, where such adjudications are wanting, to follow the lights whioh seem fed with the better reasons. 1. And first, with regard to the seamen's wages. The Gunderson claim for damages in tort contests with that class the priority. of lien. It is not contended that any o.ther claims could do this. Notwithstanding what is said in Norwi.eh Co. v. Wright, 13 . Wall., at page 122, namely, "Liens for reparation for wrong done are superior to any prior liens for money borrowed, wages, pilotage, etc., but they stand on an equality with ,regard to each other, if they arise from the same cause." I am satisfied that the rule in the admiralty law of this country is to prefer the claims of seamen for wages to claims for such torts as negligence in towage" provided the seaman whose claim is in question was free from fault. It ,would most generally happen that the subordination of common seamen in the marine service would render them guiltless in such occasions as collisions, and accidents from negligent towage; but if Happeared (as it does not here) that the seaman was in fact in fault, his claim should be postponed to the damages. to which he had contributed. If Iwere satisfied that this question was present to the mind of the supreme court in Norwich 00. v. Wright,and intended to be adjudged, I should, of course, unhesitatingly follow what was there held; but I do not understand that it was so presented and adjudged. The line of reasoning in which the court was employed did not involve it. The lien for seamen's wages is a highly favored one, and, with the proviso above stated, I am of opinion that the rule declared and acted upon in The Orient, 10 Ben. 620, and The Samuel 'J. Ohristian, 16 Fed. Rep. 796, that this claim should be preferred to claims against the offending vessel for torts of such a character as the one in question, is correct. 2.. The next question. arises upon the relative rank of the claim for damages, as compared with the claims for supplies and repairs and insurance. And here I feel compelled to adopt the rule affirmed by.Tudge NIxON in the case of The M. Vandercook, 24 Fed. Rep. 478, and which I think the supreme court by necessary implication did adopt and hold in NO'I"l.Cich Co. v. Wright, at,tpra, namely, that such claims in damages Qutrank ..the claims: arising contractu, above enumerated. It is
FEDERAltltEPORTER, vol. 40.
true the:'district judges inthe eastern and southern districts of New York held otherwise in The Samuel J. Christian, 16 Fed. Rep. 796; The Grapeshot, 22 Fed. Rep. 123; and The Young America, 30 Fed. Rep. 789; and freedom ofaoti6n, as against the case of Norwich 00. v. Wright, is sought to beviiidicated by the suggestion that in the quotation made from Maclachlan (and heretofore quoted) Mr. Justice BRADLEY was thinking only of the ranking together of claims arising from the same cause, and I have no doubt this was so. But it cannot be doubted that the supreme court did adjudge in that case that the claim for the loss of the cargo laden u,pqnthe offending vessel under a contract of affreightment was entitled to the same rank and to share equally with the claims for the injury to thE(wronged vessel and its cargo. It was necessary for the court to decide that question, because the damages of the libelants did not ex.tend to the amount at which the liability of the ship-owner was limited by the act of congress, and qnless the value of the cargo upon the libeled vessel would share with the claim of the libelants (which was for the value of the lost vessel and its cargo) no further question was in the case. But the court, having held as above stated, proceeded to adjudge the other questions upon that footing. And it seems to me that that adjudication destroys the validity of the reasoning pursued in the New York cases above cited. Their argument is that, conceding the damages resulting from· collision are entitled to priority over claims for supplies and the like, arising ex contractu, still the damages resulting from fault in towage arise substantially from a breach of contract, and are suffered by one who has voluntarily come into contract relations with the towing vessel, as distinguished from one who has exercised no freedom of action, as in a case of collision. And the inference drawn is that the damll,ges, being thus essentially for breach of contract, must rank with ordinary claims arising upon contract, and fall under those arising out of tort, as in collision. But 'every incident thus assumed as the basis for the difference of rank in claims for collision and negligent towage exists' in the case of the claim fi>r· damages to the cargo on board the i>ffending ship in collision. Surely there would' seem to be no solid grqund for distinguishing in this particular' between claims arising out of a contract of affreightment and those arising out of a contract for towage. ,Besides, the question whether a claim is i>ne in contract or fo): tort is by no means' a,'sure test of priority,as the course pursued in one of those cases of giving priority for seamen's wages shows. But, aside from all that, the reasoning adopted by those courts to show that a claim arising from negligent towage is in its nature and analogies ex contractu is not, I must say, with great deference, satist:wtory to me, and it seems that the view taken by Judge NIxoN in The M. Vandercook is the correct one, (and see,'also, The Liberty No.4, 7 Fed. Rep. 226;) for, although the parties are in contract relations, they oontemplate the op, posite of negligence. By oontract the towing vessel undertakes the duty of vigilance andskilt' 'It is quite similar in its general features to that implied in the' contract for carriage, thotlgh ittnay not be in all respects the same. Is the duty whiah binds to skill and watchfulness
any the less because the contract relation exists? The law imputes the duty in either case, whether to a vessel proceeding on her course among strangers, or to one who has by stipulation undertaken an obligation wherein the law implies that duty as specifically and distinctly due to one. An action in tort would lie for a violation of that duty, (The Quickstep, 9 Wall. 665, 670,) and I know of no rule of law or anything in reason whIch should lead to any distinction in the character of the duty or in the merits of the claim for damages in the two cases. It was also said in The Sam'lUl J. Christian, 16 Fed. Rep. 796, 798, as a reason for postponing such damages to those for supplies, that the contract of towage has no relation to any necessity of the tug, in no way tends to incl'ease the value of the tug, or to preserve her, or to enable her to earn freight; and that it is one of the necessities of commerce that a ship needing repairs and supplies should be forthwith relieved. This is true, undoubtedly, but it is also essential to commerce that the ship when equipped should find employment. Giving it legs and wings to speed on its way is profitless, if it goes empty. The ultimate object of the system of maritime liens was the encouragement and increase of commerce. It is therefore held that the claim for damages will have priority over those for supplies and repairs. 3. The third question arises in regard to the different claims for supplies, material, and repairs, upon the circumstance that some of them were furnished at the home port of the vessel, and within the state, while others were furnished abroad. The statute of Michigan (How. St. § 8236) gives a lien· for such furnishing at the home port. But it was held by WITHEY, J., in The St. Joseph, Brown, Adm. 202, that liens for supplies and repairs furnished in foreign ports, which are strictly maritime liens, should have priority over liens under state laws. That rule has been followedin this district ever since by acquiescence a,nd without question. Its correctness is challenged now... The que6tion al1\o arose in the easi;. ern district, in the case of The General Burnside, 3 Fed: Rep. 228, and was decided by;Judge BROWN in the same way; but on appeal to the circuit court thiS'· decision was reversed by BAXTER, J., who held, for reasOlis which were then stated, that claims for which the state law gives a.lien . should have equal rank with claims for which a lien is given by the maritime law, and should share with them pro rata in case of deficiency. This rule was followed by the district judge in the southern district of Ohio in The Guiding Star, 9 Fed. Rep. 521, and on appeal the Clecree below was affirmed by Mr. Justice MATTHEWS in the same case, (18 Fed. Rep. 263,) the circuit judge being also present and concurring. I feel bound to follow this ruling, without entering upon any piscussion of it. The effect of the latter cases is to overrule The St. Joseph, supra. The supplies, etc., in the horne port, will therefore stand on the same footing with foreign claims in respect to those items. 4. The remaining question is in regard to the location on the schequle of the claim for insurance. It was held in The Dolphin, 1 Flip. 580, that the maritime law gives a lien for such claims, but that they were of low rank, and should go to the root of the schedule. In The Gui1ing
Stair it was: held that there' was'no mal1itime lien;: but as the, statute of
O'hitfga-vea:lien"and thecontra;ef itself'had been held to be nU\'ritime in. its by the supreme court in' Insurance Co. v. ]):wMaltnj: 11 Wall. ,1, the admiralty would enforce it, and in that case it was diirected to be 'Ptit'with the claims for foreign and domestic supplies, and to share withth'efuin the proceeds. It is: not clear to my m.ind that the relative t:llaim was considered by the court in the case of, The Gu;iding Star. Hit werecleal' that it waseonsidered, I should,of course, follow it; but the"case of The Dolph:;"" had been decided, and the V'olume of Repoi'tsootitaining it published several years before. That, decision, which'(loritairied afuU discussion of tb,e subject, was not referred to, nor wdni:nyother authority referred to, and the matter was not discussed. The fact that the statutes in that' state and in this give a Hen for this claim does not at all determine itsrelative merit, nor confound the ciples'which prevail fin admiralty. If it did it would put such, a claim on a footihg with seamen's wages and' other favoredclaima. ' This court wilhi()t 'admit the statute ora state to accomplish such:results in its cedlire. The claim fOl'insurance, though admitted,must stand on its own merits; and considering that the contract is one simply of indemnity to the owner, in no way helps the ship, and is collateral to its ment,l shall,with a little misgiving ohny right to this opinion, in view of what'wasdone in theoase of The Guiding Star, hold that this claim should be subordinated to the claims fOrBupplies and the like, and given the next In holding this, no stress is laid upon the question whether the lien is maritime '6rstatutory, consideration being given solely to its merits asa lien upon the ship; having in mind the principle and purpose'for which the court as a court of admiralty must. regard such liens as attaching. 'It has been the practice in this district in such cases to adjust the costs,so that the costs on the original claim should be paid first, and after that so that those incurred in respect of each class of claims should precede in payment the class to which such claims spectively belong, Bnd 'Boon down through the list. Thatpracticewill be followed in the present case. An order for distribution will be entered in accordance with the f()regoingopinion.
LA.VERTY (mstriet Court,
et al. 11. CLA.USEN.'
York. November 1IG, 1889.)
s. D. New
SinPPINQ-LnnTATIoN 011' LIABILITY ACTS-CONTRACT TO INsUB-a-:AoT JUNB 26, 1884. , " Where a earrier contracts to insure cargo, and: rails to do B(l, and tbe cargo is lllst
bytbe sinking of the veS\lel, thl;l carrier cannot limit bisliabilityto the value of ,the vessel. The limitation of'liabiUty acts do not affect the li,abilltY of vessel owners upon their direct personal oontracts outside of the Qrdi.nIU'Y Pl1siness of the vessel.
In Admiralty." , " . Action for the valueofa cargo of tin)ost on respondent's lighter.
Reported by Edward G.Benedict. Esq., of ,the New York bar;