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THE NEBRASKA. HOFFMAN v. THE NEBRASKA.

(District Court, N. D. Illinois.

April 30, 1894.)

1. Maritime Liens—Repairs and Supplies—State Statutes.

Where an Illinois vessel is taken to a Wisconsin port to he altered and refitted, there being no necessity for doing the work at that particular port, no maritime lien arises therefor, sinc.e such liens are founded on necessity; hut the contractor has a lien under the Wisconsin statute, which gives liens to the builders and repairers of water craft.

2. Same—Waiver—Mortgage.

A lien for repairs created by state law is not lost by taking a note and mortgage on the vessel, where the note expressly states that it is not given or accepted in lieu or as a waiver of the lien.

3. Samev-Priorities.

Liens for repairs and for supplies, one created by the statute of the home port, and the other by that of another state, are entitled to equal rank.

4. Same—Supplies Furnished to Marshal.

A lien for fuel furnished to a steamboat while in the custody of the marshal should be allowed.only in case the net earnings of the boat add to the funds in his hands for distribution, and only to the extent of his proportionate share in such distribution.

Libel by Frank Hoffman against tbe steam propeller Nebraska.

W. H. Condon and George E. Cramer, for libelant.

GROSSCUP, District Judge.

Tbe propeller Nebraska bas been sold by tbe action of tbis court, and tbe money is now waiting in court for distribution. There is no claim for seamen’s wages, unless it be that of tbe master, and tbe fund is to be distributed among tbe different parties wbo are otherwise entitled to liens thereon. Unfortunately, it is insufficient to pay all tbe claimants in full; hence tbe contest respecting tbe rank and dignity of tbe claims. Tbe evidence shows that in view of tbe World’s Fair, and tbe probability of a large passenger traffic between Chicago and Jackson Park, tbe owner of the steamer, one Cummings, then residing in Chicago, took her to Milwaukee, and put her in tbe dry docks of tbe Milwaukee Dry-Dock Company, under a contract with that company to refit her, in such a way as would make her temporarily adapted to tbe carriage of passengers. Tbe cost of tbe refitting amounted to upwards of $14,000, which alone shows that it must have been very extensive and thorough. It consisted of tbe taking out of her old engines, and their replacement, and such readjustment and reconstruction of tbe decks as would adapt them to passenger traffic. Tbe statutes of Wisconsin, like those of Illinois, provide that tbe builder or repairer of water craft shall have, under certain conditions, liens for tbe material furnished and sendees rendered thereon, and I think tbe understanding and dealings between tbe owner and tbe dry-dock company were such as, against tbe owner, would give tbe dry-dock company a lien under that statute. Subsequently, notes for tbe amount owing to tbe company were executed by tbe owner, with a mortgage upon tbe vessel securing them, which was duly filed in *515the proper register; hut i hose notes on their Cace provide that they are not given or accepted in lieu, or as a waiver, of the lien. Thei*e can he no question that, as between the owner and the dry-dock company, this latter transaction would not defeat the company’s lien. After being refitted, the vessel navigated the water of the lakes, and obtained credit for supplies, the claims for which are now before the court for adjudication.

The principal and most important question relates to the character of the dry-dock company’s lien. Maritime liens proper are the creation of the law to make navigation possible. They rose in a day when the high seas were the pathway for vessels, and when 1he nations in whose ports the vessels anchored were much more strangers to each other than they are to-day. The craft of a nation in a foreign port had no (¡redil, except itself, upon which to obtain the repairs or supplies that were necessary to take it home. The necessity of maintaining that credit inviolate caused the courts of the home port to enforce the pledge of the vessel, even to the point of discrimination against the other claimants, except, salvage and seamen. It was the only method by which, vessels away from home could obtain wings to ily the seas. On this necessity grew up the doctrine of maritime liens proper. The considerations of necessity upon which the lien is based do not exist in favor of the claimants of the dry-dock company. The refitting was not made to give the steamer wings or legs with which to reach her home port. There is no element of stress or necessity in the repairs it provided. The owner could have had the repairs made at any other port as well, as at Milwaukee, and he chose that port, not under the stress of an emergency, or to enable his vessel to get home, but simply because, for some reason, it suited his purpose better to have the repairs made there than elsewhere. No reason has been shown—no reason can he thought of—why the old maritime lien, brought into existence for an emergency, should he applied to this case. I am of the opinion, however, that the Milwaukee Dry-Dock Company had, under the statutes of Wisconsin, a lien upon the vessel for the value of such repail's, and that this lien was not waived or set aside bv the subsequent transactions between the parties. It is evident that, as between themselves, it was not waived, for every precaution was taken to prevent such inference. The notes and mortgages, subsequently taken, expressly incorporated the intention of the parties that the lien should continue to subsist, and the fact of the lien itself, and of the intentions of the parties respectively thereto, have always been open to the inspection of those asked for supplies, upon the proper records of the port. This lien, however, under the doctrine of the RumbeU Case, 148 U. S. 1, 18 Sup. Ct. 498, comes from the same parentage as the lien of the claimants in the home port, namely, the sta,tutes of the respective states, and is therefore, in the absence of any maritime reason for preferment or subordination, of equal rank therewith. 1 see no reason in this case why the claimants of the home port or of the Milwaukee Dry-Dock Company should outrank each other. They both contributed to the money-earning capacity of the craft. They *516both were necessary to put, and keep, the vessel afloat, and neither would have existence as liens except for the legislation of the respective states. In the distribution, therefore, they will be regarded as of equal rank.

I am not prepared to change, ex post facto, the rule that has formerly governed the courts of this district in the recognition of liens. All supplies that have been furnished from the home port within the last two seasons will he regarded as of equal rank. Neither will I, in its application to this case, change the rule respecting the rank of home and foreign liens. I have, however, submitted these two matters to the consideration of Judges Seaman, Jenkins, and Bunn, within whose jurisdiction the ports of the lake lie, and will make some announcement thereon within a short period.

I can see no reason why an exception should he made in favor of the master in this case, and his claim for services will therefore he disallowed. The claim of the fuel company for fuel, supplied while the boat was in the custody of the marshal, will be allowed only in case the net earnings of the boat added something to the fund now in his hands for distribution, and only to the extent of his proportionate share in such distribution.

The question of how far separate libels were required to properly protect the interests of claimants whose claims were in the hands of one proctor will he submitted to the master for a finding, with instructions, to the master that it is the duty of the party representing many claims to so reasonably consolidate them as will fully protect the interest of each claim. Under the foregoing directions the cause will he referred to the master for such further proceedings as are necessary to determine the pro rata amount of each claimant.

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