580
FEDERAL REFORTER,
voL 48.
THE
D · .B.
(District Court, E. D. Virginw. November 8, 1880.)
1.
YARITIl\{E LIENS-VESSEL OWNED, BY WIFE-FURNISHINGS BY HUSBAND.
Wben a balf Interest In a vessel Is owned by a married woman residing In the District of Columbia, where' she Is permitted by law to hold property In her separate right, free from the control and obligations of her husband, the husband Is entitled to a lien on the vessel for funds' and supplies furniShed,' and e,xpenses incurred upon her" when, his claim is proved in the usual way.
,
I.
SAMJ;;.-.-PARTIAL PAYMENTS-APPLICATION.
When advances are made and lambet', etc.· furnished to a vessel at various times durll1g a penod of about two moll'ths, but all during one stay in port, and as part of one transaction, and tbe 6CC\Ount embrace!! some items which have the force of maritime liens,' and others whicb do not, a callb payment will be applied in disoharge of the latter, and the lien of the former will be preserved.
8.
SAME-WAIVER OF LIEN-TAKING NOTES.
The taking of notes payable' in two, three, and four months, for advances made and materials furnished 'to a vessel, does not of itself operate as a waiver of tbe maritime lien. ' '
,: SAME-TAKIKG MORTGAGE.
Nor is the maritime lien waived by taking a sach notes. The ..inn C. 1 Curt. 340. and' The tinguished.' . II. SUm..:...LIENS UNDER STATUTE.
on the vessel tc secure 1 Bond, 189, dis-
Revised Cone Md. art. 67, 44-48, giving a lien on vessels used on Chesapeake bay,on filing in the county court a verified statemeIjt of the claim. and providing that the act shall not entitle the' claimant to preference ovel' creditors seoured by prior mortgage, abrogates the mal'itime lien fOl· materials furnished in Maryland; a lien secured under its provisions is subordinate to a claim secured by a prior mortgage on the vessel;
In Admiralty. Libel in rem for wages. for libelants and claimants. Walke« Old, for mortgagee· .ShaTJ?&- Hughes, &,Tllorn, and White&- Garnett, for petitionerS!. ,
.
The schooIlflr D. B. Steelman, of Baltimore, Md., has been ItQeledinthis courthyof herseamenj sundry materialmen petitions setting out claims the i generlj.l cOllsent the vessel has been sold, and the pro. ceeds. pli,id .in.to.the reg.is.tr.y ii.or dis.tribution. These are insufficient to ll?eet all the claims. Of course the first chll;rge against the fund is the of this Next in order of priority are thEl claims of the seaw:ere hired by .the month in. Baltimore; and, as the vessel laid up hi this port without finishing voyage, theY must be paid their wages for the time claimed, and $1.50 each for their passage back to Baltimore. The vessel waR owned by J. Rexter and his sister, Mrs. Silverberg. Under the laws of the District of Columbia, where Mrs. Silverberg lives, married women may acquire and hold personal and real property in separate right, free from the control or obligations of their husbands. Her half of this vessel is thus held and owned by Mrs. Silverberg, as is shown by the schooner's custom-house papers, issued by the collector of Baltimore. One of the claimants by petition in this case is Silverberg, HU<iHES,
J.
n.
B. STEELMAN.
581
who claims expenses incurred in repairs upon this vessel, and in funds and supplies furnished her. I see no reason why this claim should be denied. It is proved in the usual way, and is admitted to be just and correct by the other half-owner, Mr. Hexter. It cannot therefore be invalidated by the mere fact that the claimant is the husband of n halfowner. It must be paid pari passu with other claims of like dignity. It seems that the petitioner McCullough, in March and Aprillast l furnished lumber and money for repairs upon the vessel to the amount of about $635, of which he received $300 in cash, and took notes at 60 days, 90 days, and 4 months for the balance. The items making up the total of the account which he tiles with his petition bear date from February 10, 1880, to April 5; and it is claimed by adverse counsel that the payment of $300 made to him by Hexter, an owner, should be applied to the discharge of the earliest of those items. This would leave among the items of later date some which have not the force of maritime liens. There was but one refitting and repairing and supplying of this vessel by McCullough, which was dnring a single stay of the vessel in this port, and his advances to her were made with reference to the total charges incurred on that occasion. The cash payment which he received must therefore be presumed to have been paid and received in liquidation pro tanto, first, of the items which had not the force of maritime liens, and then of those which had. Any other rule of application would be contrary to reason, and be grossly inequitable. Besides executing three notes for the balance of $335 due upon Mc" Cullough's advance, Hexter 'executed a mortgage upon his half of the vessel to secure the amount of the notes. The principal question arisingin the present case is whe'ther McCullough, by tak,ing the notes, and especially by also taking this mortgage, waived his maritime lien upon the vessel, and thus falls behind the other material-men in the order of payment. I think it may be assumed as settled law that the taking of a note by a material-man in evidence of his claim for supplies, for such a short time as 60, 90, or 120 days does not of itself amount to a waiver of his maritime lien upon the vessel supplied. The Nestor, 1 Sum. 73; The only open question is whether the taking of a mortgage on the vessel securing this note is a waiver. !tis settled law that a mortgage is to be treated, not as the debt, but as a mere incident of it; not as the princi" pal thing, but as the mere accessory. 1 Jones, Mortg. § 11; Carpenter v. Lougan, 16 Wall. 271; and see 22 Alb. Law J. 377. If a mortgage be thus but an accessory and incident of the note, and the note itself does not displace the maritime lien upon the vessel, then the mere fact of taking a mortgage does not operate as a waiver of the maritime lien. If, however, the taking oUhe mortgage be attended by acts inconsistent with the lien, or prejudicial to other maritime creditors, (for instance, if the credit given by it be so long as to make the claim it is intended to secure stale, in the sense of the maritime law,) or if the execution of the mortgage be in manner such as to make it conflict with the rights of maritime creditors whose claims are of equal dignity with that secured by the mortgage, then it would be inequitable to allow to the mortgagee
.P82
FEDERAL" :RJ;PORTER.
vol. 48.
the ben:efit 'Qf.two remediesagainsHhe ship,and his taking the mortgage would be held as waiving the maritime lien.. .1 see nothil1lginconflictwith this view in the cases ofTMAnn a. Pratt, 1 Curt. 340, and PM SwaUow, 1 Bond, 189,cited by adverse counsel. In the case of The Ann a. PraU, whichbelpnged to Frankfort, Me., there was a loan of money on a bottomry bond while the vessel was at St. Thomas, during a voyage to the West I1idies. It was in proof that the lender was to furnish funds except on a bottomry bond, or to deal upon any other footing than Ii contract of bottomry, and that both parties contracted solely with reference to such a bond; The lender of money upon a bottomry bond takes a very different risk from that of a material-man who furnishes supplies, and he charges for this risk a very high remuneration, so that the lien of a bottomry bond is in terms and in its character so inconsistent with the ordinary maritime lien as to operate as a waiver and .displacement of the maritime lien. The decision of Justice CuRTIS in the case of The Ann a. Pratt is based on this differ.ence, and exclusively on this difference under the express contract of tho parties in the case; and.it is to be remarked that, in rendering this decision on special grounds, Mr. Justice CURTIS reversed Judge WARE, one of the soundest maritime jurists known to the AmeriCll,n admiralty judicature. The case of The Swallow, 1 Bond, 189, was decided in Ohio, where the statute law of the state gave to material-men a remedy by attachment in the state courts against vessels which they credited. The state law provided a different order of priorities in these suits from that of the admiralty law for claims against vessels. In the case of The Swallow, several creditors had pursued their remedy against the vessel in the state court to judgment, and had obtained by that means all that could be awarded them' under the state law by the state court. ThE:re was afterwards a libel in admiralty brought by different claimants against the same vessel. The fund arising from the sale of the vessel under the admiralty decree was sufficiE'nt to payoff the claims of the libelants, and to leave a surplus for distribution among claimants, some of whom claimed, and some of whom could not claim, maritime liens. Among those who asserted claims oy maritime liens to the surplus were some who had originally valid maritime liens for supplies and repairs, but who, instead of enforcing their claims in the admiralty court, and insisting on their maritime liens, had proceeded in the state court under the law of the state of Ohio, and obtained judgment in that forum. It was held that the pursuit of a maritime claim in a state court was a,waiver .of the maritime lien; that this lien, having passed into the judgment of the state court, had been thereby waived and lost, it being clearly consonant with' reason and the analogies of the law that, if a party .baving an undisputed maritime lien voluntarily waives it by seeking another remedy incompatible with it, he cannot be reinstated in his original right. The Superior, Newb. Adm. 176, which was cited by the court. The case at bar is quite diflerent in character from that of The Ann a. Pratt and The SwaUow.· It is not the case of libel ona bottomry bond.
THE D. B. STEELMAN.
583
It is not the case of a voluntary abandonment of the remedy in admiralty fora resort to the inconsistent and different remedy of attachment and personal judgment in a state court. Nor in this case has there been a sleeping by the claiIll8Jlt upon his mortgage so long as to allow his claim to grow stale, to the prejudice of the rights of maritime lien creditors whose claims are fresh. I hold that the mere of a mortgage is not of itself a waiver of the maritime lien, and that there is nothing in this mortgage, or the conduct of the mortgagee, to displace or waive the maritime lien of McCullough for advances and materials furnished to the vessel. As the schooner belongs to Maryland, the claim of Joseph H. JohnSOl1, a citizen there, for repairs done in that state, is not a lien, except under the terms of the law of Maryland relating to that subject, which is as follows, (Rev. Code Md. 67, § 44; Act 1865, p. 119:) ..All boats or vessels of any kind whatsoever belonging in this state, or used or inttlnded to be used on the waters of the Chesapeake bay or its tributaries, the Chesapeake and Ohio canal, and other wat.ers of this state, shall be SUbject to aHen; and bound for the payment thereof as preferred debts, for all debts du.e to boat-builders, mechanics, merchants, farmers, or other persons, from the owner, master, or captains, orother agents, of·such boats or vessels, for materials furnished or work done in the building. repail'ing, or equipplng the,sll.lIle." Section person shall be entitled to a lien unless he shall, within six montns..from the commencement of the building, repairing, equipping, or refitting of such boat or vessel, deliver to the clerk of the circuit court of the county where such building, repairing, etc., was done. or the superior court, if done intheelty of Baltimore. an account or statement, certified by the oath of the claimant, * * * setting forth the names of the claimant and debtor, and. if tile debt was not contracted by the owner, but by his agent. the name of such agent, the name 01' other certain description of the boat or vessel, and the place where built, repaired, etc., and the particulars or items of the claim or debt." Se<'tion 47. "Sucb boat or vessel, against which an account or statement shall be filed nnder this article, shall be SUbject to a lien for the debt and costs justly chargeable against it for two years from the day on which the account or statement sball be filed, and DO longer." . Section 48. "The lien given by this article shall not entitle the claimant to preference over creditors or claimants secured by mortgage or bill of sale properly executed and recorded before the claim to be secured by such lien shall have accrued." . The claim of Johnson, as to the half interest in the vessel upon which McCullough has a mortgage, ranks under this law after or behind the mortgage; but, as to the half interest in the vessel on there is no mortgage it must be paid pari pa88U with the claims of other materialmen, including McCullough. This difference in the manner in whioh the Maryland claim ranks, as to the different half interests in the schooner, makes it neceSSary that the commissioner shall divide each of the claims of the materilil-tnem into twopatts. As to the first half of these several claims, (the first half of the Maryland claim being wholly displaced by the mortgage,) they must be paid the percentage which half the fund Bubject to distribution will permit; I believe, about 95 per cent. As to
584
FEDERAL REPORTER, vol.
48.
of these several claims, including half of the Maryland claim, they and it are to be paid in the percentage which the half fund iordistribution bears to the aggregate amount of them; I believe, about 74 per cent. I will sign a decree allowing the amounts indicated.
THE To:MORM. CSAMBERLAIN
v.
THE TORGORM.
(Dl.strict Court, D. South OaroZina. September 25, 1891.)
SIlIPPING-llILL OF LADING-NoTICE.
'mit
Certain cotton wae delivered to a railroad company under a through bill of ladto Germany, the bill stating that it was to be delivered at Charleston, "to the ship 'f.,{)r to same other steam-ship company or line, or vessels chartered thereby." He(d, that this, bill did not constitute, notice to the owner or the ra,ilroad that the ';1'. was under a charter.party, and, in the absence of actualnotice,'the railroad COmpany was not bonnd to accept from'her a bill of lading with the additional quali:llcation, "Other oonditions as per charter"party. II ' ThA cotton having been placed on board the T. immediately on its arrival, ,,"coord.ingto the usage of the port, the railrolldcompany, by virtue of its right to possession 88 bailee, could maintain a libel against the vessel to recover the goods upon the master's refusal to sign the bill of lading except with the additional qualification. '
2.
SAME-POSSl!:SBIONQF OA.RRIER-RIGHT TO SUE.
In Admiralty. Libel by Daniel H. Chamberlain, as receiver of the Sc:>Uth Carolina Railway Company, against the British steam-ship gotpl, to recover possession of 52' bales of cotton. Decree for libelant. I. N. Nathan18, Mitchell &: Smith,and,Brawley Barnwell, for libelant. L P. K. Bryan, for claimant. SIM:ONTON, J. In April last, B. B. Ford & Co. shipped from Atlanta to Bremen, in bales of cotton, marked "B.A.S. A." The was delivered to the Georgia Railroad Company, and was carried' a through bill orIading. The words of this bill bearing upon the issues of this case are: "To be transported by the Georgia Railroad Company to its station at Augusta, Ga., and there to be delivered to the next. connecting rail or water carrier, being lightered, ferried, 01' carted at owner's own risk, if necessary; and thence to be transported by sll'ch connecting carrier or carriers via the port of Charleston, South Carolina, to the port of - - - , and there to be delivered, being lightered. ferried. or carted at owner's risk, to the ship Torgorm. or some other steam-ship company or line, or to vessels chartered thereby; to be transported by such steam-ship company. or by steamer or steamers of such company or line or charterer to the port of Bremen, Germany. thera to be delivered unto order, or to his or her assigns." The cotton reached Augusta, and came into the possession, under the terms of the bill of lading, of the South Carolina Railway Company, of which libelant is receiver. It was brought to Charleston, and was deliv-