i,'28
,::. >:
FEDERAL
60.
",would not lie ,an but in this ease there has been . Do,;appeai; Qn behalf of the officers and crew from the, decree fixing QIQ.ounte,: and, although we consider a larger 'proportion might well given them, we do not desire to increase' the amount :them by the court below. The sum of '5,275 (the same amount: gtven in, the former ,deeree) will be awarded' to the officers andcJ'ew.:oftbe steamship Engineer in the sattl.e proportions aa . were therein, and the sum of '13,441 to the Charente Limited,owners of the stea:rnship Engineer. In the llu1tter of the intervening libel of Rousseau, Latour & Co. et al., 'we ,e«>neider the 'reasoning' «>f 'the learned judge in the case of The Persian Monarch,'23 Fedl $20, which we cordially approve, is conchlldve.",:'Tbeproperty of the interveners in DO way assisted in rendering the service, nor received any damage or injury from it. It strongly against public policy, upon which salvage is founded,' to permit the owner Of every shipment in a cargo to claJm a. POrtion of any salvage award earned by .the efforts of the officers aad crew, and the use of the machinery and power of the ship in, ,which it was carriecLThe accepting a bill of lading in which ;was,spe<:ially reserved the right to rendet aid to vessels in distress was no such consent on their part to the rendering of such serviceuicould entitle them to a portion of what was so earned. The PerSian Monarch, 23 Fed. 820; The· Nathaniel Hooper, 3 Sumn. 542, Fed. Cas. No. 10,032; The Waterloo, 1 Blatchf. & H. 114, Fed. Cas. No. 17,251;, The Colon, 10 Ben. 6{}, Fed. Cas. No. 3,024; The Brixham, 54 Fed. 540. The decree dismissing the intervening libel is so far aftlrmeQ. . It is ordered that the decree upon the libel below be reversed, and the cause be remanded with directions to enter a decree for the libelants for the sum of '18,716; with costs, and of said amount '5,275 be awarded to the' officers and crew of the steamship in the proportion of.their rank and pay, as before decreed, and the sum of '13,4:41 tathe Charente Steamship Company, owners of the steam· ship Engineer; and that appellees pay the costs of the appeaL
. TmD ALFRED 1'. MURRAY: AJ,[ERIOA:N TOWING & LIGHTERING CO. v. THE ALFRED 1., MURRA.Y.
(.District Court, ,. D. Maryland. L
March 9, 1894.)
..
One, \Yh9 takes a ba,J."ge In payment of a debt Is not an Innocent purchaser, so as, to entitle him to the be.\lefit of the rule that, when the business tn' which a vessel is engaged Is divided Into distinct seasons of activity; old claims must be enforced before the debts growing out of the ne;x:t ,are Incurred. SAME-EXTJNGUJSHMEN'l'-TAXING NOTE. The taking of a note does not extinguish the lieD, unleu such waa the undentanding' of the parties. .
MARITDt:B LtENll-INNOCENT PURCHASERS-TAKING VESSEL I'OR DBBT.
THE AL.FRED J. MURRAY.
927
the barge Alfred J. Murray.
Libel by the American Towing & Lightering Company against Robert H. Smith, for libelant. B. M. McSherry and Alan McSherry, for respondent.
MORRIS, District Judge. If the claimants of the barge were the same,owners who contracted the debts for which maritime liens are asserted by the libelant and petitioners, there would be no doubt of the respective rights of the libelant and petitioners to their liens in rem against the barge. The only ground of defense is that, by laches in allowing their respective claims for towage and supplies to run on, accumulating during the year preceding the sale to the present owners, they have been guilty of such laches as estops them from now asserting the lien against the barge in the hands of her present owners. The present owners obtained title May 9, 1893, from J. A. and C. Griffin, who owned the barge at that date, and who were the owners when the claims of the libelant and petitioners were contracted. They had failed in business in April, and owed the claimants a debt, in payment of which they had nothing to offer except their mterest in the barge, and the claimants, in their effort to secure something, obtained their title to the barge. The claimants were creditors of J . .A. and C. Griffin, just as the libelant and petitioners were, except that they had no lien on the barge for their debt. The claimants were not, therefore, purchasers for value who paid money on the faith of their purchase, but simply unsecured creditors seeking to get what they. could on account of their debt. The rule which applies to the case of a purchaser for value does not apply to them. They knew, from specific information, that there were some small unpaid claims for snpplies, and they took the chances as to there being others. They acquired only the interest of their debtoi"S. The Key City, 14 Wall. 660; The James T. Easton, 49 Fed. 656. Undoubtedly, there are many cases in which so long a delay in enforcing a maritime lien as in this case would properly be held to be laches, but the circumstances which excuse the nonenforcement are always to be considered. With regard to the libelants, they could not conveniently have caused the arrest of the barge, except when she was in the prosecution of a voyage, and as to the petitioners, although she was frequently in her home- port, in New Jersey, where they lived, it was only for a brief interval, when she was discharging or loading, and from December to March she was laid up for the winter at a distance on a remote river of Virginia. Their claims were all small compared to the value of the barge, and were for items of a continuing account. When barges and vessels are used in a business in which the year is divided into distinct seasons of activity, it is a wise rule which requires that, as against purchasers for value or meritorious lien claims, old claims must be enforced before the debts growing out of the next season are incurred; but
928
FEDEnAL
UPOR'l'ER,vol.60.
the 'elaimanfsin'this'case were not 'vlilue, 'and a:re not entitled to the benefit of that rule. ' The taking of a promissory note the not affect their rights to lien. It is established· law that the taking of a .note does not extinguish the lien of the claim for which it was given unless such was the understanding of the partieS.' .' .'. .' , . . ", , The, first Item--f60.Q9-of account is The cla:ixns are allowed, without interest and without costs.
== THESHARPEE SHE. BRALEY v. BELL. (DIstrict Court, S. p. New York-March 24, 1894.) OOLLISION'-:-AlwHORED VESSEIr-BREAKING ADRIFT-INSECURE ANCHORAGE.
WlJen ,.1:ll.e ,owner of an. anchored vessel has reasonable notice of the Insufficiency of his anchorage, and the danger of drifting in a, storm, he takes the risks of such drifting, and a col1lslon caused thereby is due to his negleCt, and cannot be held to be Ineyitable.
Stewarl for libelant. John J,. ROach and Peter S. Carter, for respondent. BROWN, District Judge. During the storm of the night of September 13 to 14,1892, the defendant's yacht Growler;anchored upon the grounds of the Pavonia Yacht Club, at Commu'nipaw, dragged and fouled' the libelant's yacht Sharpee She, causing her some damage. The owners of both yachts were members of. tpe same yacht club. There 'Were no rUles of the club concerning the mode of anchoring;'lUid the sufficiency and responsibility of each must, therefore, be judged by the ordinary rules of law. I must find,upon the evidence, that the anchorage ground was an unsafe one' in storms, by the' usual methods of anchoring, and was known to be so. ' 'The ground was soft mud, beneath which were oyster under which was again mud. Anchors would not take a firm '. hold. Drifting and fouling' in stormS' had been previously frequent ; and the insecurity of the anchors was, I must find, sogenerally':known that reliance upon them in storm was at the risk of the owner that used them. 'Of the yachts were made fast to poles driven from six to eight feet into the mud. The libelant's yacht was made fast in that way, and held both yachts through the remainder of the storm after the Growler had fowed and remained pounding her. The storm in this case was not of any extraordinary severity; and where there is reasonable notice of danger of driftingin storms that are liable to arise, the owner takes the risk of 'reliance on means known to be of doubtful sufficiency. No accident in such cases can 'be held to be "inevitable." Many authorities to this effect are cited in the recent case of The Anerly, 58 Fed. 794. ' Decree for the libelant, with costs.