THE COMFORT.
327
tions for thE'· same thing. Considering the long time that often elapses after the release of the vessel from arrest at the time of the commencement of the action until the appeal, a rejustification of the sureties will be ordered as a condition of their acceptance, if reasonably required; but, if the sureties are entirely satisfactory, the existing stipulation, which runs in terms for payment in the appellate court, should be accepted as far as it goes. Bonds given to the marShal under the act of 1847 do not, in terms, provide for the payment of the decree in the appellate court, but only to abide and answer "the decree of the court" in such cause. In such cases it may be necessary to take a new bond for the whole amount. I do not pass upon that question now. In the present case, if the sureties in the existing stipulation are approved, additional security for $7,000 will be sufficient to cover the damages and costs in the circuit. Should an appeal be taken to the supreme court on an affirmance by the circuit court, the additional delay-will be then provided for by the requirement of still another bond. .
THE CoMFORT. Oourt, B. D. New York.
October 26, 1885.)
REUARING-Al'PLICATION AFTER 'fERM;-ENTRY OF DECREE.
An application for rehearing not made during the term when final decree was entered comes too late.
Application for Rehearing. 25 Fell. Rep. 158. Wilcox, Adams &- Macklin, for libelants. R. M. Sherman, for claimant. BLATCHFORD, Justice. In this case, which is a suit in admiralty, there was a decree in the district court in favor of the libelants, from which the claimant appealed to this court. The appeal was heard in June, 1885, and the decision of this court was filed July 8, 1885, directing a deoree in favor of the libelants, to the same effect with that of the district court, with costs in this court. The decree of this court was, on notice to the proctor for the signed by the judge, and filed and entered in this court on the fifteenth of July, 1885. It decreed that the libelants recover against the yacht and her claimant $248.23, with interest from August 13,1884, amounting to and $192.80 costs in the district court, and $58.49 costs in this court; and awarded execution therefor. It also decreed that as there was then in the registry of this court $274, deposited by the claimant to the credit of this action, in lieu of the yacht, and as security for the claim of the libelants, and as security for the costs of the clerk of the district court, to-wit, $15.50, and the marshal's costs,taxed at $100, had been paid by the claimant, the clerk of this court should pay to the libelants, out of the moneys so deposited,
328
FEDERAL REPORTER.
$261.98, ,and that the stipulators for costs on the part of the claimant should cause the engagements of their stipulations to be performed, or show cause why execution shollidnot.issue according to their stipulations. On the sixteenth of July, 1885, pursuant to the decree, the clerk paid to the. proctors for the libelants, the $261. 98, out of the moneys so deposite<:t, A certified copy. of the decree of this court,s entered was ser,ved on the proctor for the claimant on July 16, 1885, and service admitted byhim in writing. The decree being unsatisfied as to oosts, and no cause being shown by the sureties on the bond on appeal why the engagements,oCtheir stipulations should not be performed, and execution issue, a judgment was filed and ent<;>,red in this court, on August 6, 1885, against the two sureties in lIaidbond, for $250, the amount thereof, with a provision for execution. Execution against the sureties was issued. August· 7, 1885, to .;the marshal of the Southern district of New York, anf! was returned by hiPl September 2, 1885, nulla bona. An aliaa execution has.since issued. Np. step was taken by the claimant to obtain a rehearing of the appeal herein, until September 24,1885. Under an application then instituted, a :t;notion has been made for a rehearing on one question involved in the appeal on the merits of the case. Under the rule laid down in Bronson v, Schulten, 104 U. S. 410, this application comes too late, because not made during the term when the final decree of July 15, 1885, was entered. The terms of this court are fixed by statute (Rev, St. § 658, p. 122, 2d Ed.) to be held on the first Wednesday in every month. Besides this, after the decree had been ot! the proctor for the claimant, on July .16, 1885, served there should have been a prompt movement to apply fa,ra rehearing, if desired, before any judgment against the sureties was It is proper to say that I see no ,reason to question the correctness of the decision, made on the point sought tt>.be reargued. As before held, the pleadings are such as not to permit it to be raised, and, if it were open, the decision of the court of appeals of New York, in Gay v. Seibold, 97 :N. Y. 472, 'establishes that the statute invoked does not apply to this c,,"se. The application for a rehearing is denied.
THE OLGA..
329 1
THl1:,OLGA.
REVERE COPPER CO. 'V. THE OLGA.
(DiBtrict Oourt, 8. D. New York;
June 29, 1887.)
1.
MARITIME LIEN-FOREIGN VESSEL-CONFLICT OF LAWS.
When liens are enfor<led against an Italian vessel. the provisions of t"\le Italian Cod!! should be observed, by comity, in respect to the claims of those on board, as among'themselves.
2.
SAME-LEX LOCI CONTRACTUB-LEX FORI.
.
8.
As respects liens arising on contracts made within thisjul'isdiction by the master of a foreign vessel, and th,e priorities of such liens in respect to alI .the cla.ims on the ship, our law, as the law of the place of contract, as well as Of the forum, should prevail. In this case, held, that there was no confiict"be,tween the Italian code and the provisions of the gene"a,l maritime law, as applied in tp.is cjluntry, in regard to the liens under consideration. . A classification of liens against a foreign vessel for port dues, pilotage, provisions. for crew, :wages, towage, l!tevedore's charges,botto.mry, for wages, !ltc., , . . ' . .
f'AME-4'lUORITY..
The barlt Olga,hailing from Castellamare, Italy, contracted :to the libelant company above named, at New York;in August; 1886;,a for copper-sheeting. For the unpaid balance of that bill the master gave a bottomry draft, by which he bound his vessel and freight for repayment upon return of the bark to New York, and provided that any other draft he might draw upon his consignees should be secondary to the lien of this obligation. The vessel, on her return voyage, borrowed necessary funds at Cette arid at Marseilles on i bottomry; and at Almeria, her. port for loading her return cargo. she obtained, advances from, the freighters which exceeded ' by $24 the amount of her freight found due on delivery at :New York. Upon her arrival at·Perth Amboy, New Jersey, her cargo was discharged, and she was soon after liheled and sold upon the claim of the Revete Copper Company. Libels for the other bottomry claims, and libels by the master and crew for wages, were file<il; and petitions were afterwards presented for payment of the ship's obligations for pilotage, towage, austom-house, and port expenses, and provisions for crew while in port upon her last voyage. The proceeds -of the vessel, less marshal's fees, were $2,531.24. The amount of the aggregate liens proved on the above claims was about double that sum, Alexander &; Green, for libelants, F. Mannberguer and others·. Olin, Rives &; Montgomery,for libelants, Tod and others. . Iiobbs &; Gifford, for American Ballast Log Co. .Wing, $houdy& Putnam, for Revere.CopperCo., and wages, claims, etc. BROWN, J. The proceeds of the vessel sold being insuffiCient to pay all the liens upon her, and the liens being diverse in character, they must be paid in the order of their relative rank under the maritime'14W.
IReported by Edward G. Benedict, Esq., of the New York bar.
330
The vessel is Italian, and the provisions of the Italian Code should, therefore, be observed by comity as respects the claims of those on board the vessel, as among themselves, including the claim of the master. The Brantford City, 29.fEld. Rel{. 373, 384, the liens arising upon the contracts made by the master withiri this jurisdiction, and the priorities of such liens in. respect to all the claims on the ship, our own law, as the law of the place of the contract as well as of the forum, should, I think, prevail. < There is no conflict of laws, however, in this c8.Sj:}j sippe the Italian Code l expresses, I think, the general maritime law, as understood and applied in the courts of this country, as to the relative rank of all the liens in this case. will therefore be distributed in the following order: (1) of the Revere Copper Compatly, upon whose libel the vessel was sold. (2) The port,dues, as established by law. (3) The claims Of the pilots f?r pilotage; also towage, if taken necessarily, and as part of a pilota:ge service, but not otherwise. The Mystic, 30 Fed. Rep. 73. (4), Claims for necessary provisions furnished .for the support of the crew shioo the vessel's arrival in port, and up to the completion of the voyage and the discharge of the cargo. (5) Wages of seamen. As the fundisD;lorj:} than sufficientfor the above claims, they will be paid in full. (6) with each other, to be paid ratably, since, the residue of wm insufficient to pay all, (a) bills for towage into port <;lther t4aii above stated incJltss 3; (b) expenses of uriloading cargo after applying the freight' thereupon, which in this case is nothing; (c), other 'Jiens necessarily contracted by the vesa'el since her arrival in " q: I o
IThe the pl'(wi-jlipnsof the Italian Code of Co.mmerce, relating to liens uppn vessels: . . .. ' . ' . . '. "Art: 674. Ships. and shares therein, are bound,even when'in the possession ofa third party, for;the payment of debts which the law declares privileged. ill the measure and within the limits stated below. " A"t; 675. '·The following claims are privileged upon the ship, and rank against its proceeds in the order prescribed in this article. (1) Law costs incurred in the commou interest of tpll creditors, iu and enforcing rights against the ship. (2) Expenses, indemnities, and rewarqs for salvage services during the last voyage, 111 conform.ity with the provisions of the Mercantile Marine Code.(S) Navigation dues established bylaw. Cilfcustody,and charges of watching the ship since its ar· rival In port. (5) Expenses of storage for deposit of ship's tackle and apparel. (6) Expense of maintaining (manuttn.rione) the ship and its al>parel' and furniture subsequent to its last voyage ll.nu arrival in port. (7) Wages, emoIUll,1ents, and compensation due (according to provlsjons of title third of this book) to the master and any other person of the crew,(alcapitano ed aile a/tre persone dell' equipagiJio,) for the last voyage, as well as the repayments due .tOthe mercantile marine sick fund for the last voyage. (8) Contributions dueJorgeneral average. (9) Principal and interlJSt due on obligations entered into by toe for the Ileeds qf the ship in the cases provided by article 509, (relating to bottomry;) and executed wlthtbe prescribed, formalities. (10) Premiums for insuring ship and appurtenances for the last voyage, if the ship is Insured for the voyage, or by a time policy, (a tempo,) and for steam-ships in regular.trips, and insured by titue policies,. the premiums corresponding to the' last six months: and, moreover, in mutual associations, the assessments and contributions for the last six months. (11) ,Compensation due to affreighters for default in delivering cargo, or for damage to cargo by: fault of the master or crew during the last voyage. (12) T:Tnpaid purchase price due the vendor. ,(l3) Pebts under No. above, when not reg;istered and recorded with dilievery other maritime security (cambio marittimo) gence, (trascritti ed annotati on the vessel, and the claims for which the ship have been pledged. In the concourse ofseveral claims mentioned in No. 13, the priority is fixed by the date of registration and entry in the ship's register.".
TH1!:ALAMEDA V.Nll:AL.
331
port, in completion of her obligations on the last voyage. ('7) The bottomry and supply claims before the arrival of the vessel, in the inverse order of their several dates; the claims being independent, and not concurrent. (8) The maflter's lien for wages is recognized, as given by the Italian law; but it must be postponed, in case of a deficiency, to those liens which the master hashimseIf contracted, and upon which he is personally responsible. As between him and the lienors to whom he is answerable, he cannot be allowed to withdraw the fund from the registry to their prejudice. The Selah, 4 Sawy. 40; The Velax, 21 Fed. Rep. 479. 'fhe bills being more than sufficient to absorb the residue, there ",ill be nothing left for the master. . necessary disbursements upon each libel or petition, in enforcing the above claims, will be added to each lien, and paid with it in the same order of priority.
THE
ALAMEDA,
etc.,
fl.
NEAL. August 1, 1887.) .
(Oircuit Oourt. No D. Oalifornia.
PILOTS-HALF PILOTAGE-DIBClWolIlilATION-STATUTE8.
Section 2466, Pol. Code CaL, providing rates for pilotage and half pilotage to be char/!;ed vessels entering the port of San Francis·co. is.not so affected by the joint operation of section 2468, Pol. Code Cal., exempting vessels sailing between Ban Francisco and .ports in Oregon. Washington, and Alaska from half pilotage, and Rev. St. U. S. § 4237 forbidding, discrimination in rates for pilotage and half pilotage, as to exempt vessels sailing from a foreign port to Ban Francisco from liability for half pilotage, but s.ection 2466 will prevail. and section 2468 fail. so faras its provisions come within the United States statute forbidding discrimination in pilotage rates. .
Appeal from District Court, N. D. California. See 31 Fed. Rep. 366. Milton Andros and Page & Eel8, for appellant. P. D. Wigginton and Lloyd & Wood, for appellee. FIELD, J 11stice.. The libelant is a licensed pilot for the harbor ot San Francisco, under the laws of California and of the United States, and on the nineteenth of March, 1887, within the cruising grounds of pilots, and outside of the bar of the harbor, he spoke the steam-ship Alameda, an American vessel, coming from the Hawaiian islands to San Francisco,· and tendered to the master of the vessel his services as pilot. The services were declined, and the steam-ship entered the harbor without having on board any licensed pilot. The pilot thereupon demanded of the master half pilotage, under the laws of the state. Its payment being refused, he filed his libel against the vessel in the district court of the United States for the amount, namely, $83.78. 'rhe Oceanic Steam-ship Company appeared as claimant, and ,tiled a peremptory exception to the libel, on the ground that the laws of the state allowing half pilotage. were, by the proVisions of section 4237, Rev. St. U. S., rendered inoperative and