FELICE B.l FELICE
BERTSCHMANN et ale v. THE
(District Oourt, E. D. New York. December 6, 1889.)
MARITIME LIENS-ITALIAN VESSEL-MASTER'S WAGES.
The master of an Italian ship has a lien on the vessel for hIs wages, whIcn nized in this court.
SAME-MAsTER'S ADVANCE\l-PRIORITY-BOTTO:MRY BOND.
The lien for wages and advances of the master of an Italian vessel takes precedence of the lien 01a bottomry bond, on which the master is not personally liable. The lif3n of material-men, for tbe value of wbosf3 services the master is pf3rson!illy liable, is supf3rior to a lien for tbf3 master's wagf38. 'J,'hf3liell of material·mell is superior to tlIe lien of a bottomry bond wben the ices of the material-men have tended to make tbe ship more valuable, or when de. lay in enforcing the b9ttomry has tended. to induce the services of t!If3 materialmen.
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·8AME-ELEdTION OF REMllJDIES.
Where material'men have proceeded under the twelfth admiralty rule against the vessel inlltead of tbe master, sucb election dges not destroy their right to p!;'oceed against thf3 mastf3r for the sallle de.bts. . The .Aina, ante, 269, disting'uished.
In Admiralty.On application to determine the priority of Heria.:
Sidney Chubb, for Bertschmann.
DUo &; Ruebsamen. for material-men· and seamen.
R. D. Benedict, (E. G. Benedict,) for the master. Wing, Shoudy &; Putnam, 'for Revere Copper Co. Fredk.W. Hinrichs, for. Empir.e Warehouse Co.
BENEDICT. J. The bark Felice B., an Italian vessel, sailed from the port of Pensacola, Fla., bound for a port in England, with a cargo of lumber. While pursuing her voyage she met with disaster, and was compelleclto put into the port of New York in distress, being then SUbject to bottomry for the sumof $1,170.80 placed on her in Pensacola. Upon arriving in New York she was surveyed, and then repaired un;'; der the direction of the master. In some way not explained the cargo ahipped in Pensacola wasgotten rid of in New York. The voyage to'England was then abandoned, and at the time of commencing these pr'oceed" ings the vessel was about to load for Australia. Thereupon she Was libeled by Bertschmann, the holder of the bottomry. No person intervening in her behalf, 'a decree by default was entered in favor of Bertsohmann. and the vessel was sold by the marshal. The proceedsof.the saleamdunted to $8,000; Subsequently t&e material"men who had repaired'll.l1dsupplied the vessel after Mr arrival in New York; also the agent, who had attended to her business, and made oerta.in advances for·herin New York; also her orew. :for wages; also the for his 'Wages and advMOO8',and the master, for his wages and advances.....fi.led petitions to 'be "paidout
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of the proceeds. Proof having been made of the respective claims, each libel and petition being considered as an an§wer to all the other libels and petitions, all the claims are now before the court for a determination as to the rights of the partieSIin the fund in court. The claims in all, including costs, amount to about $10,869. I first consider the claim of the master of the vessel. This claim consists of two parts,-one for the master's wages; the other for sums adva1'loed try: him for. the necessities of. the, vessel while under his command. As against thisclaim the bottomry holder contends that the maseither for his .:wages or for his advances. ,But the bark wasa.n Italian bark, and under the Italian law, which has been put in m.aster a for wages;. a?d, .not personally lIable for the bottomry hond, IS entlted to prIOrIty m payment over the bottomry.,Jn regard tq the other part of the master's claim, viz., for by him ,towards the necessities of ship while under hisoolfimanu, this, also, is covered by the Italian law. The language of that law is, "wages and compensation" due the master, etc. Class 7, art. 675, Italian Code,cited in The Olga, 32 Fed. Rep. 829. The word "compe:t"1slttion" must bEfintlmded to cover such claims as the master's advances; otherwise there is no provision in the Italial'l Code for this most common claim against a vessel by the master. My conclusion in regard\to.tbedemand tif the master is that hei£! entitled to be paid his wages and advances out of the proceeds of the sale of the vessel, and that as between him and tbebottomry bond he is entitled to priority in payment. . 1 , As against the debts.due lIlaterial-men incurred by the master in New York, the master cannot claim priorlt;ll'in paymentbecause.ofthe fact that he is personally liable for the same debts. It ha!'l-been insisted upon balllalfof that the twelfth admiralty compels a materialnlan to elect, between a proceeding in'l'I"Imt against. the vessel, and a proagainst the master; and 'that inasmuch as, in this ceeding ease the against the vessel; no personallia., bility of the:ma.ster for the demand ,remains. No authority is cited which of the twelfth admiralty rule, Iupports t,his un:derstanliing<>f. the andi;Jdio iIlot so understand the rule. Notwithstanding the rule, it is a,tlll:open io my :opinion to,the matenal"men to brulgan action at law: w'P,ilmit inadmiraltyagainst.the master fOI::the debts here in questi(i>)i}.:'. FOli this; tM master cannot here claim priority in payment Q'er tbe·m$;tedaJ-men·. Olga, 32 Fed. Rep.,S8l; . . .LJl'heclairooHhe.Jnate haS not been objected to.' lIe will therefore be paid,prior bottomry bpnd. .' .( ,As :tQJthedemtmd of. tbEl material-men, objection is ,made in' behalf of the, that. hE!< .is entitled to .priority in:payment over any fo'! :repairs an<lsuppliea, and for' services to the breaking , In legatdtl.> consist ofaQtualr.epaiirs putuIXll1 the vessel, and which tended to increase her value, equity requires that such demands should be paid ,prior to the 'bottomry, for<the reason that these
WELSIi V. TUB ]SOllTH CAMBRIA..
repairs have gone to enhance ,by so much the proceeds or the salebfthe vess'el. now.in court,andcan110t with justice be applied to the payment of the bottomry. As tothe demands whi¢h consist of 'advances made by the ship's agent and the interpreter, the bottomry holder cannot claim preference, bec!j.usa his delay to enforce the bond tended to induce the incurring of thesee!l\:penses. His bond became due, by its terms, on the arrival of the vElssel in New York. He took no steps to enforce it until aU the debts in. qllestion had been incurred. He should not be permitted to lie back in this way and allow expenses to be incurred, and then contend ,that his bond should, be paid in preference to such expenses. As betWeen 'the men,. the. agent, and the interpreter, the question ofpriority must therefore be decided arlverselyto the bottomry b6nd. Thifdeaves a deficiency greater than the sums in these respective bills which the bottomry ho1<ler has insisted, carried no lien, and it becomes unnecessary, therefor"hJo decide the question of lien wbich ,bas :boon raised on this occasiOIl. ' Reference bas been made on the argllment to tbe case of The Aina, '269, lately decided in thiBeourt, and the point takep. that theqllestion of lien was not open to be: ;contested by the bpHhe ,practieepurslied in this Case is different purslled in the case of. The AiM. Ip. this no interlocutory; decree, h!lS ,been enterj:l<l,in favor 'of any <party except Bertschmann, the bottoJ;nry holder, a.u<l,all other demands are before the :court as upon final hearing uponplead,ipgs 'and proofs. It -is open to the bottomry holder"therefore, to raise the .question of lien as against' any of thepetitibnerSj but as already the disposition made of the question of priority renders a ,decision of the question onien umiecessaryat this stage of the case. If ,$U bseqUiElptly a decision' upon tbose points should bedesired,my. Mtention can 'be called to it 'by parties interested. " .,
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(D18W'Lct Qou,re. E. D. Pennsywan14.1une 25, 1869.)
L L.&.ws. .· .' . . . ", .,, ., The admlraltysylltem of laws'ill within the exoluaivre colitrol of congressanll' the states have no 'power to legiS14',te in regard to it. '
In some few instances the 'states may exeroise powersV8sted in the federalgovernment·.but this dootrineis.not to be extended beyond the. subjeotBtl>whlchithas , been,applied..., · 8. MARITuriLIliNll-DJiATH ByWRONGII'UL Ac'l'., , . The-·RO ..'t8bf'a8ileriiblY Of, pe.n.PSYIVania,ap , APrU15,.185.1, cP,',L.ll7:.4,). and A,prU 1855dP: L. :809,) do 'not, by .their tef"!Ils. a lien for death . gence UpOll t.he hIgh seall, and as there is no JurllJchotioll of· statut017 pte"vision'Dol1eOli.nbetlustained., : : ' · ;', " ," ·..·· ';;j"
(SyZl.abus by the:CO'lII'Ilt.) ,
Hearing on libel and answer.