THE l'ROCEEDS' OF THE GRATITUDE. THE PROCEEDS BOURDON v. THE PROCEEDS
THE GRATITUDE. I
THE GRATITUDE and nine other cases..
(Di.8trict Court, S. D. New York.
Liens for supplies furnished to vessels making short trips about the harbor allowed tbeir priority for 40 days. Liens for supplies, by the long-prevailing maritime law, take precedence of a lien for damage 'to· cargo, on the same voyage, and similarly to damage arising from negligent towage on the same voyage.
SAME-DAMAGES FOR NEGLIGENT TOWAGE-PRIORITY.
In Admiralty. The steam-tng Gratitude, belonging to this port, was libeled fo1' supplies by the Communipaw Coal Coinpany, and by the Hoboken Coal Company, on August 26, 1889. She was arrested by the marshal on August 29th, and sold on the 3d of October, 1889. The net proceeds, after defraying the expenses of sale and the marshal's fees, were paid into the registry of the court, amounting to $3,343.72. In all, 10 libels were filed against the tug, or her proceeds. The claims, as allowed, amount to $4,171.95. Upon the libel of Bourdon there was found due $452.32, including costs. His claim was for damages incurred through the negligence of the tug in towing his vessel on August 28, 1889, two days after the first libels were filed. Two libels were for wages; the reat were for materials, repairs, supplies, and labor furnished to the tug. More than of the amounts of those items were over a year old, Carpenter &:Mosher, for libelant. Alexander « for lienors· . BROWN, J. Tpe final reason given for the decision in the case of The R. S. Carter, 38 Fed. Rep. 515, affirmed, 40 Fed. Rep. 331, a tug which made daily trins about this harbor, is that "the rule extends [qpdulYl the duration liens of material-men," so as to destroy the security the supply liens amounted to $1,072. All of the damage a,rose on previous voyages or .trips from nearly two to seven months before the trip. which the collision lien accrued, except the small sum of. $26; and, if allowed priority, they would have absorbed the whole furid, and they were postponed to a lien for collision with an independent on the tug's The present case is not like that, which was one of damage done in invitum to an. independent vessel. This is a. Case of arising by negligence under a voluntary contract of towage.: Towage damage I as respects the lien for negligence, is like cargo It. is manifestly .immaterial Wihether the case is one of cargo talWn. (:>0 board, or towed or ona hawser. The other reasons given for the decision in the Clj,Se above cited have no application to liens for dam. ageto cargoes or ?'f"nk of alien, does
Reported by Edward G. Benedict, Esq., of the New York bar.
on the form of pleading to enforce it. It is a part of its character and quality at its inception, and depends on the facts out of which it arises. But the reason above quoted for shortening the duration of the priorities of. supply liens as affecting the security of all damage liens arising on 8ub8equent voyages or trips is a sound one, and is applicable by analogy to this case. though a case of voluntary relation between the parties. The general maritime law adjusts all liens by the voyage. By this law, as applied everywhere and without exception since the ordinance of Louis XIV., more than two centuries ago, supply liens have beE'n held to be superior in rank to liens for damage to cargo on the same voyage, whereever such liens have been recognized at all. By similitude they are therefore superior to towage damage. The anomalous law of England on the subject of liens has little or no application. No damage liens are there ;ecognized except for collision, and no lien in favor of material Qfsupply' men except by bottomry. The statements of recent English text-books, as to priorities, are not warranted by the English adjudicatil:>ns, and are contrary to the universal continental authorities, and to the priorities of all other maritime nations. The Young' America, 30 Fed. ' ,By the genetalrule, however, the priority of liens continues only till the next voyage.. The liens connected with every new voyage start with a priority over all former ones after the ship has sailed, if there has previously been: o,pportunity to enforce them. A further continuance of the original priority of supply liens diminishes the security of liens for damage to catgoes or to tows accruing on subsequent voyages. The principle ofthe decision first above cited requires, therefore, that the long continuanceof such priority beyond the voyage to the extent heretofore allowed since the case of TheJ. W. Tucker, 20 Fed. Rep. 129, decided in part with a view to harmonize with decisions in other districts, should be ml,lch reduced, so as not to violate the general intent and provision of the maritime law as to the protection it is designed to afford to damage claims as they arise on successive voyages. If the general maritime rule, however, were applied literally to the daily or hourly trips of harbot tugs, treating such trips as voyages, liens on them would bepracdcally disallowed altogether, since business could not be carried on with daily libels. In harbor cases, therefore, unless liens for supplies are to be' practically abolished altogether, the letter of the general maritime rule cannot be followed, but its general spirit and purpose only. This plainly i$ to give the ship a short credit, to enable her to earn her freight, to coHect it, and pay her bills. The Rettled practice in this country has sustained these liens in harbor cases for a time. In The Frank G. Fowler,' 17' Fed. Rep. 653, the priority for a damage lien on towage Was continued' for 19 days, during a period of daily voyages. But it is an atiomaly that a European steamer, which is here but a short time, should shift these priorities with every voyage, i. every 5 or 6 weeks, while the original priority on a tug-boat, which remains here, and is amenable 10 process practically all the time, should continue for as many months or longer.
I think the time allowed for retaining priority in these harbor cases may be justly reduced to 40 days. That will give the short credit incident to the usual rendering of monthly bills, and 10 days more for settlement, or libeling the boat in case of non-payment. It accords in some degree with the period of modern Atlantic voyages; it does not exceed the time ordinarily enjoyed by the ship in the ante-steam period; and it is short enough not to imperil, as a rule, the security, or the partial security, afforded to damage claims, which the maritime law designs also to protect, though subordinately to contract liens on the same voyage, according to the universal practice (except under peculiar circumstances) of at least the last 200 years. The long extension of time heretofore given has led to evils and abuses here, which observation satisfies me ought to be corrected by a nearer approach to the general maritime rule; and the time limit of 40 days, after which such liens will be held to lose their priority as regards any liens arising on a subsequent voyage, or trip, will, I think, subserve all that necessity and that encouragement of commerce for which maritime liens have been created, and for which they are preserved; and that time will not ordinarily or substantially prejudice damage liens, which are of a lower rank, beyond that inferiority which for centuries has been assigned to them as liens. The time limit is, indeed, an arbitrary limit; and so is the seaharbor tugs consistson limit, or any other limit, that can be adopted -enUy with the existence of such liens at all for any practical use. Any other rule than the voyage rule must be arbitrary, and that rule would leave no practical security whatever. In the above cases there will be paid (1) seamen's wages; next, (2,) supply liens arising within 40 days before August 28, 1889, on which day the lien for damage accrued; next, (3,) the lien for damage in towing; next, (4,) the residue to be divided pro rata among there-. maining claims for supplies. The costs are allowed with the claims.
(ctreuit Court, D. Massachusetts. AprU 28, 1800.) ·
Between 8 and 9 o'clock on a foggy night the schooner M. and the brig 'E.colltded on an exposed and frequented part of the ocean. sinking the M. Neither vessel had a proper fog-horn sounded by mechanical means. The wind was southerly, and the M. was sailing close-hauled on the starboard tack, S. S. E. The E. was'sailing on the port tack, N. N. W., six knots an hour. No horn was heard on the M., but on the E. a horn was heard just as the green llght of the M. showed on the starboard bow, and the wheel was starboarded. The M., though the right of way, lutted across the bows of the E. On the M. the skipper and nlne men were below; the only men on deck being the man at the wheel, who had had but little experience, and the lookout, who also had charge of the ilavigation and the duty of sounding the horn. Held., that the damages should be divided.