THE DAISY DAY. MARINE
'/1. THE DAISY DAY.
(CfJrcutt Oourt, W. D. Michigan, 8. D. September 28, 1889.)
MABITI'Mlll LIENS-INsURANCE PREMIUMS.
law gives no maritime lien on a vessel for unpaid premiums on insur-
Though',a state law confers a lien on a vesselfor nnpaidJ,remlUms on insurauce thereon, such lien is subordinate to maritime liens for suppuea and repairs, and for damages from negligent ,
. In Admiralty. Application for of proceeds. \ On appeal from district court, ante, 538. M. O. A. A. Krause, for original libelants. '. Fletcher Wanty, for Marine Insurance Company. Peter Doran, for other intervenors.
JACKSON, J. The decreeof the district court, directing the.distribution of the proceeds arising from the sale of the propeller Daisy Day, is only appealed from by the intervening libelant, the Marine Insurance Company. The decree below ordered the fund to be distributed as follows, viz.: First, in payment of seamen's wages, with costs; second, in payment of damages awardedG. F. Gunderson for injuries sustained by his towage by the Daisy Day, with costs; schooner G. Barber from th,ird, in payment of claims for supplies and repairs, (foreign and domestic claims of this class being placed upon the same footing, under the authority of The GenP.ral Burnmde, 3 Fed. Rep. 228, and The Guiding Star, 18 Fed. Rep. 263-269,) with costs; and, lastly, in payment of theMarine Insurance Company's claim for unpaid premiums on insurance upon said propeller Daisy Day, said insurance having been taken out by and for the benefit of the owners of said propeller. The fund will be almost, if not altogether, exhausted before reaching the claim of the Marine Insurance Company, which alone appeals from said order of distribution. This appeal of the insurance company does Dot bring up or make it necessary to consider the correctness olthe order of distribution as between the seamen and Gunderson and the material-men. Those parties all acquiesce in the decree. But the Marine Insurance Company plains of the position assigned it in the distribution. It contends that its debt for unpaid premiums should rank and be paid equally with the claims for supplies and repairs, and should have priority or precedence over the claim of said Gunderson for damages sustained by him from negligent towage of his schooner G. Barber by the Daisy Day. In support of these claims on behalf of the insurance company it is urgedF'irBt, that by the general admiralty law of the United States, said insurance company had a maritime lien on the Daisy Day for unpaid premiums on the policy of marine insurance, which the owners of said pro-
peller procured from libelant; and, second) that, if no such maritime lien of Michigan confer existed by the general admiralty law; the such a lien, and the contract of insurance being maritime in its character, and being supplemented by the lien conferred. by state law, this court should place the claim of the insurance company upon an equal footing with material-men, presenting claim's for supplies and repairs, Rnd should give it priority over the'claim of Gunderson for damages resulting from negligent towage. " The first position is supported by the case of The Dolphin) 1 Flip. 580, but the weight of authority and of reason is against the correctness of that decision, and this court, in the fall of 1888, at Detroit, declined to follow the ruling announced in The Dolphin. and held in conformity with the decision in Be Insumnce Co., 22 Fed. Rep. 109, and other cases holding the same doctrine, that no maritime lien existed by the admiralty law for unpaid premiums of insurance. This court adheres to this view of the law· .As to the second position, while it is true that the admiralty court will enforce the lien given by the state law for unpaid premiums, as was done in the case of The Guiding Star, 18 Fed. Rep. 264, still it does not follow, nor was the question either made or decided in The Guiding Star, that claims under insurance contracts or for unpaid premiums should rank and be placed upon the same footing as strictly maritime claims and liens in the distribution of funds insufficient for the payment of all claims When we consider that insurance is effected for the personal indemnity 6f the owner or owners, and in no way aids' the vessel or promotes its security, ol'the better prepares it for undertaking and conducting the business of commerce, and then reflect that the supplies and repairs which material-men furnish are directly for the benefit of the vessel itself, and enable it the better to perform the duties and responsibilities of navigation and carrying) we think it is perfectly just and proper to postpone the daim for unpaid premiums to those for supplies and repairs. In the case of Insurance Co. y. Proceeda, 24 Fed. Rep. 560, Judge WALLACE has well expressed the true character of such insurance claims, and their relative value to maritime claims. We concur in the distinction he tllere draws between the two classes of claims. The claim of Gunderson \Vas clearly maritime. It is not material to determine whether his claim fur damages be considered as arising out of a maritime tort, or jor a breach of contract implied from the undertaking of the Daisy Day to tow his schooner carefully and without negligence. Whether a tort or a breach of contract) the negligent towage causing injury to his schooner gave hi:n a valid maritime lien for damages, which under the authorities entitles him to priority of payment over the Marine Insurance Company. In the judgment of this court there is no error in the decree of the district court of which the Marine Insurance Company can properly complain, and the same is accordingly affirmed, as against said insurance company, with costs of the appeal.
RILEY II. A CARGO OF IRON PIPJI&
CARGO OF IRONPlPBs.
(Df.8trlot Oourt, 8. D. New York. November 2, 1889.)
DEMURRAGE-ABSENCE 011 STIPULATION-BuRDEN 011 PROOIl.
When the contract is silent on the subject of demurrage, the burden Is on the ant to show some negligence in the consignee of the cargo. or that he eJl:ceeded some customary period which. by implication. is apart of the contract.
SAME-NOTICE 011 CLAIM-ACTION IN REM.
When no notice of any claim or lien for demurrage is made at the time of delivery of the cargo. nor before the commencement pf a suit to recover demurrage, no action 'f,n rem against the cargo can be sustained. Though the cargo has not been discharged within a reasonablE! time, the vessel cannot recover demurrage, it it appears that the unreasonable conduct of libelant has induced the delay.
011 VESSEL OWNER,
Peter S. Carter, for libelant.
Action for demurrage.
Alexander &7 Ash, for claimant.
BROWN, J. The contract being silent on the subject of demurrage, the burden of proof, in order to rebover for demurrage, is upon the libelant to show that the consignee is chargeable with some negligence in unloading the vessel, or that he exceeded some customary.period which, by implication, is a part of the contract. A Cargo of Lumber, 23 Fed. Rep. 301; The Z. L. Adams, 26 Fed. Rep. 855; The John Cottrell,34 Fed. Rep. 907; RailrolldTies, 38 Fed. Rep. 254. No customary period is proved in the present case, and the testimony is conflicting as to the precise time necessary to unload the cargo. If it was improper that more than one boat should be sent a time to Dobb's Ferry, the libelant who took them there is as much chargeable with blame as the respondent. His own acts preclude him from claiming damages on that account. His objections to unloading at the steam-boat wharf prevent any account of the delay in going to the upper wharf. The weight of evidence is six days were a reasonable time for unloading two boats like those in which cross-beams created some delay. There would remain one day's demurrage, to which the libelant might have been entitled; but his unreasonable conduct in interrupting the delivery for a considerable period, to the loss of the respondent, before the delivery was completed, more than balances the one day's demurrage; so that nothing is equitably due him; and as the weight of evidence against the libelant's testimony is that no notice of any claim or lien for demurrage was made at the time of the delivery of the cargo, nor before the commencement of this suit, some time after, no action in rem against the cargo Can be sustained. Bags of Linseed, 1 Black, 108; The Giulio, 34 Fed. Rep. 909,912. The libel is therefore dismiSE!ed, but without costs.
lReported by Edward G. Benedict, Esq., of the New. York bar.