THE G<UIDING STAR.
proposed to pay them, and, undoubtedly, under an implied if not an express promise that he would pay them full wages. There was no treaty or contract with Thorson in regard to the amount of his wages for this special voyage, and I mUr>t, therefore, assume that he can only claim the rate of wages of his former voyages, which was $3.50 per day. The proof would satisfy me"thut Oleson's wages were fairly worth $3.50 per day also, but the commissioner, after a review of all the testimony, has come to the,col1to elusion that his wages should be $3.33, and I am not disturb that finding, as it seems to have been arrived at after a very careful analysis of all the testimony in the case bearing Ulloa the question. . There will, therefore, be a decree in favor of Thorson at $3.50 per day from the seventeenth of November to the first day of December, and for Oleson at $3.38 per day from the nineteenth of November to the first of December. The master also found that, under the promise to do what was right with Oleson, the captain was bound to pay his fare, which amounted to $7 from Pentwater to Chicago, and with t.his finding I can find no fault under the facts in the case. I do not see, however, from the proof that Thorson was entitled to be Itlturned to Chicago ai the expense of the vessel.
THE GUIDING STAR.·
(District Oourt, 8. D. Ohio, W. D
MARITIME CoNTRACTS-INSURANCE-MORTGAGE-CONSTRUCTION CLAIMS-PRIORITY OF LIENS-BORROWED MONEy-LIENS UNDER STATE LAW-HOMESTEAD.
Whl!re a boat was seized on a libel for home supplies, and claims against her were filed for foreign and home supplies and repairs, for insurance ums, for material and labor furnished in t1J.e construction of the boat, for It mortgage, and for borrowed mone)', and the boat was sold; on distribution of the proceedsHeld, (1) That a contract to pay premiums on marine insurance is a maritime contract. (2) That a mortgage on a boat is not a maritime contract, and must be post(0) poned to (a) claims for seamen's wages, and foreign supplies and claims for supplies, repairs, and insurance furnished in the home part of the boat, for which the state law gives a lien, whether the same be furnished before or after the recording of the mortg'age; (e). construction claims for which, by the state law, a lien existed prior to the recording of the mortgage.
*Reported by 1. C. Harper, Esq., of the Cincinnati bar.
(3) That construction clailM are not maritime contracts, and thc liens given therefor by the state law must oe postponed to liens on maritime contracts, which attach oy either the gencral admiralty Jawor by the law of the state. A state law cannot confer jurisdiction on a court of admiralty by attach ing a lien to a non-maritime contract. Admiralty will enforce only such state liens as are given on maritime contracts, (4) That the claim of the owner,.of the boat, for an allowance in lieu of a homestead, cannot prevail against liens by either the admiralty law 01' state statute, (5) That the lien given by section 5580, Rev. St. of Ohio, is a lien crcated bv the express terms of the statute, and requires its perfection none of the proceedings provided in case of mechanics' liens. (6) That borrowed money is to be placed on the same footing as the purpose for which it was borrowed. Where the latter is of a maritime character and has a lien attached thereto, whether by the general or the local law, the advanced to meet it has a lien of equal dignity. (7) That in the distribution of the fund now in court such claims as are maritime in their nature and subj!lct-matter, and for which the state law gives a lieD,)ncluding insurance, supplies and repairs furnished in the home port are placed on an equality with the liens given by the general admiralty law for ' foreign supplies and repairs. FollOWing Baxter, C. J., in Tho General Burnside, 3 FED. REP. 232. (8) That' after paying the costs in this case the fund shall bedistriIiuted as follows: (1) Seamen's wages; (2) foreign and home supplies, repairs, inRuran-<;;e; (31 building (4) mOltgage claims; (5) claims for borrowed mOliey to whiclJ: no lienll attach.
The facts in this case, briefly stated, are as follows: The steamboat ing Star was built in the sumlller of 1878 at the port of Cincinnati, entirely on credit, by Capt. B. Miller, who continued to be her solo owner and master up to the date of her seizure, in June, 1881. The claims filed against her are as follows: For supplies and repairs, $17,393.33; for home supplies and repairs, $14,113.63; for insurance premiums, $3,080; for construction claims, $14,684.95; mortgage, $5,000; borrowed money, $22,380.64; allowance in lieu of a homestead, $500. The borrowed monoy is classifiable as follows: $229 to pay seamen's wages; $11,029.71 advanced towards building the boat; and $11,051.93 to meet the general indebtedness of the boat as the same accrued, including supplies, wages, insurance premiums, and payments on notes given for the building of the boat. All the notes, inCluding those given on construction claims, were drawn up in the name of the boat and her owner. No dispute whatever existed as to the correctness of any of the claims. The total indebtedness of the boat at the time of her seizure was $76,652.52. The sum realized on her sale was $38,310, and the real question for the court to decide was, how shoulrl the fund be distributed?
Moulton, Johnson rf: Levy and W. Ii. Jones, for libellants and snndry intervenors. Lincoln, Stevens Slattery, Perry Jenny, C. K. Shunk, Follett, Heyman rf: Dawson, and Yaple, Moos rf: Pattison, for other intervenors.
THE GUIDING STAR.
SWING, D. J. This case has been ably and elaborately presented to the court by counsel, both by oral arguments and in briefs. It involves the distribution of a fund amounting to nearly $4.0,000,' now in the registry of the court, being the proceeds of the sale of the steamer Guiding Star. About 70 libels and intervenors have been filed, embracing such a variety of claims as to cover almost the entire domain of admiralty, so far as the question of liens and their priorities is concerned. As to what are the facts in the case there is but little if any doubt, excepting on one point, and that is, the circumstances under which Capt. Miller, the owner and master of the boat, the various loans were made. Aside from the loans obtained for the building of the boat, the other advances consisb of two classes;. namely, thoso obtained at the home port here in Cincinnati, and those obtained in ports outside of this state. It is well established that where money is advanced to meet such claims as in themselves have liens according to the rules of admiralty, a lien also exists for such money. Bd before a lien exists for money advanced, it must be clearly shown that the purposes for which it is advanced are entitled to 'a lien. If advanced for the purpose of paying seamen's wages, necessary supplies and. repairs, or anything else to which a lien in admiralty attaches, in that case a lien also attaches to such money, but not otherwise. Now let us see what are the facts in this case so far as the borrowed money is concerned. With but one exception, and that is the loan made by Mr. Menge, of New Orleans, the money was obtained for what Capt. Miller calls "the general purposes of the boat," and he is careful to say that such general purposes include supplies, repairs, interest, take-up notes, etc. Now, some of these purposes have a lien attached to them and some have not, and if it could be definitely shown what portion of each loan was borrowed for such purposes as have liens, then the court would place such portions on the same footing with supplies,. The Grapeshot, 9 Wall. 144. The testimony, however, shows very clearly that this cannot be done. In the case of Menge's loan, however,notwithstanding one or two general expressions on Capt. Miller's part, I am inclined to think that the advance of $1,000 was made for the express purpose of paying the running expenses of the boat, strictly so called, and therefore decide that a lien attaches. to that loan. Upon the disputed questions which the order of payment determines,
they first arise upon the question whether the claims for insurance should be included as one of the contracts of a maritime character .for which state law gives a lien. That the contract of insurance is a maritime contract is settled by the decision of the supreme court in the case of Ins. 00. v. Dunhnm, 11 Wall. 1. 2. Whether the claim for materials and labor in the building of a boat is a maritime contract. That such a claim is not a maritime contract is also settled by the decision of the snpreme court in Edwards v. Elliot, 21 Wall. 532, and the authorities there cited. 3. The mortgage must be postponed to the lien given by the general admiralty law for supplies and repairs. The Emily Souder, 17 Wall. 666. Now, if the lien created by the statute of the state for these claims,when furnished in the home port, is of equal dignity with liens given by the general admiralty law, it follows that the mortgage must be postponed to them also. Aside from this reasoning the weight of authority would seem in favor of the priority of liens for home supplies to that of a mortgage. The Willinm T. Gmves, 8 Ben. 568; The Fnvot'it,e, 3 Sawy. 405; The St. Joseph, Brown, Adm. 202; The Bradish Johnson, 10 Chi. Leg. N. 353; The Kiarsage, 2 Cur. 421; The Granite State, 1 Spr. 277. 4. The mortgage must be postponed to the lien given by the state statute for materials and labor in the building of the boat. This lien existed when the mortgage was given, and the latter must therefore be subject to it. Jone8 v. The Oommerce, 14 Ohio, 409; Provost v. Wilcox, 17 Ohio, 359; Johnson v. Ward, 27 Ohio St. 520; Steamer Monarch v. Marine By. 00. 7 Ohio St. 478. 5. The mortgage not being an admiralty contract, nor having an admiralty lien, can only be treated as a legal lien. Bogart v. Steamboat John Jay, 17 How. 399; The Emily Souder, 17 Wall. 666; The LotialVanna, 21 Wall. 558. 6. The claim on the part of the owner of the boat for an allowance of $500 in lieu of a homestead cannot prevail against liens which exist by virtue of the general admiralty law, nor against those created by the state statute. v. rVI11'tl, 27 Ohio St. 520. 7. The lien given by section 5880 of the Laws of Ohio is a lien created by the express terms of the statute, and requires for its perfection none of the proceedings as provided for in the mechanics' lien law of the state. Johnson v. Ward, supra. 8. In reply to the proposition that as the state statute. which creates liens, makes no distinction between liens upon contracts which
THE GUIDING STAB.
are admiralty and maritime in their nature andsubject"matter, and those which are not, therefore we, in taking jurisdiction of them, cannot do sO,we have this to say: Our jurisdiction, by the constitution and laws of congress, extends to those cases only which are maritime in their character, and it is not in the power of a state legislature to enlarge this jurisdiction. The proceeding in this case is a proceeding in rem in admiralty, and by the twelfth rule the right to such proceeding or process is limited to "material-men, for supplies or repairs, or other necessaries;" and we can enforce in this court such statte liens only as are given upon contracts which are maritime in their nature and subject-matter.- Besides, we are not disposed to extend the decision of the circuit judge so as to include liens by state statutes upon contracts which are non-maritime in their character. The Lottawanna, 21 Wall. 558. 9. As already referred to at the commencement of this decision, by the general admiralty law a lien exists in favor of one who advances money for the payment of supplies and repairs. The Gmpeshbt, 9 Wall. 130; The Lulu, 10 Wall. 192; The Emily Souder, 17 Wall. 666; Ins. Co. v. Baring, 20 Wall. 159. If the evidence in this case reasonably satisfied my mind that the claims for money in this case, in the foreign and home ports, were advances made for the payment of supplies and repairs, I would certainly declare a lien in favor of such advances, or, if it were shown that any definite part of it was for that purpose, then a lien would be declared.to the extent of such part. The Grapeshot, 9 Wall. 129. But, in my opinion, after a careful examination, the testimony fails to show that any definite portion. of for the payment of supplies and the money loaned was repairs. None of those who loaned moneyin the home port have been examined as witnesses, and the only testimony we have upon their claims is that of Capt. Miller. Without entering into a further discussion olthe principles involvel1 in this case, or of the rules as by the courts of admiralty, we will merely state, in conclusion, the classes into which the claims should be divided in the order of their priority of rank:
(1) Seamen's wages. (2) All clainis which by the general admiralty law have a Uen, as for supplies (including fuel) and repairs in a foreign port. (3) Such claims as are maritime in their nature and subject-matter, for which the state law has given a lien, including supplies, repairs, and insurance. These having, by the decision of the circuit judge of this circuit in the case of The GeneraZ Burnside, 3 FED. REP. 232, been held to be of elJual dignity
*800 'I'M SchOOMr Marlon, 1 Story,73; Rea" Y. HuIIO! New Brig.tll. 246; Ben. 16S.-[REl'. Shl.Norway, 3
'with liens created by tlie general admiralty law, must be treated as composing a part of the second class of claims. (4) Claims for materials and labor in the building of the boat. (5) Mortgage claims. (6) Cll1;ims for borrowed money for those purposes to which no liens attach in admiralty.
THE MECHANW." THE FREE STATE.-
(District Court, E. D. PennsyZfJania. November 9, 1881.)
ADMIRALTY-TuG AND Tow-TEMPORARY ABSENCE OF TUG··-MoORING OF Tow -EXTRAORDINARY STORM.
A tow of canal barges was left by the tugs having them in charge in an apparently safe harbor, moored to a wharf and floating platform"the tugs proceeding , in search of another tow whose arrival was expected. During the absence of the tugs an extraordinary storm arose, and the barges were swept away. Their owners claimed that the loss was due to the absence of the tugs, and the de, fective condition of the platform to which the tow was moored. Ileld, that the' temporary absence of the tugs, in of uniform custom, did not constitute negligence. Ileld, further, that the evidimce failed to sustain the 'allegation that the loss was due to defects in the platform.
'Libel in personam by the owners of two canal barges against the ,owners of two tugs, to recover damages for injuries to the barges alleged to have been caused by the negligence of the tugs. The facts were as follows:
On Octolwr 4, 1877, the barges Mechanic and l'ree State, loaded with coal, ,were, with other barges, taken in tow by the tugs Sherman and Sawtelle, 'belonging to respondents, at Fairmount dam, on the river Schuylkill, for a voyage to Bordentown, New Jersey. About 6 o'clock P. M. they reached a point on the Schuylkill below Gray'a ferry bridge, and were there moored to a .wharf and floating platform of logs, leased by respondents, and used for moor'ing boats. '.rhe platform consisted of logs running from the wharf up the river parallel with the ,Qank, joined together by transverse hoards, and fa:>telled to the wharf and to trees' on the bank. On the inner log were cleats used for "fastening boats by their hawsers. The tow, consisting' of five tiers of four barges each, and one tier of barges, was made fast to this platform' by lines from the inside boats to these cleats. The two tugs left the tow after it had been moored and proceeded down the river to meet an expected incom. ing tow. Not meeting this tow, the tugs turned back, but before reaching their own, tow put in and moored at anothflr landing. ,During the evening an extraordinary storm arose, accompanied, by a freshet;., the tow, w.as swept from its moorings, and the :Mechanic and Free state About the time the barges: were set adrift the tugs came to their ltdsistancc, but were unable to save them, and were themselves driven ashore. Libellants'testimony \\:as
'*Reporte,l by Frank P. Prichard, Esq, ot the Philadelphia bar.