SAME-SEAMEN'S WAGES

178. It is a favorite principle of the admiralty that seamen's wages are of the highest rank and dignity, adher

ing to the last plank of a ship, and ranking all other contract liens of the same relative dates.

In the Virgo, District Judge Benedict, in passing upon their rank as compared to salvage and other supplies, held them to rank even supplies furnished after the vessel was brought into port and after the wages had accrued, as the supplies were of a nature that did not add anything to the value of the vessel, and as the time was so short that the seamen could hardly have been responsible for not proceeding more promptly. In the opinion he says:

"I am of the opinion, therefore, that the wages of the seamen, which are nailed to the last plank of the ship, and which under no circumstances contributed to the general average, as well as the salvage demand, are entitled to priority in payment over the demands of the other libelants, no one of whom, it will be observed, in any degree added by their services to the value of the vessel, or in the slightest degree increased the fund realized from her sale. It is a case of some hardship to the materialmen, no doubt, but no greater than in the ordinary case where the vessel proves insufficient in value to pay her bills. The hardship in this case arises, not from any fault on the part of the salvors or the seamen, but from the fact that the materialmen furnished what they did to a vessel so largely incumbered by liens superior in grade to their demands."

In the Paragon,* Judge Ware said:

"Among privileged debts against a vessel, after the expenses of justice necessary to procure a condemnation and

§ 178. 3 (D. C.) 46 Fed. 294.

41 Ware, 326, Fed. Cas. No. 10,708.

sale, and such charges as accrue for the preservation of the vessel after she is brought into port (1 Valin, Comm. 362; Code Commer. No. 191), the wages of the crew hold the first rank, and are to be first paid. And so sacred is this privilege held that the old ordinances say that the savings of the wreck, are to the last nail, pledged for their payment. Consulat de la Mer, c. 138; Cleirac sur Jugemens d'Oleron, art. 8, note 31. And this preference is allowed the seamen for their wages independently of the commercial policy of rewarding their exertions in saving the ship, and thus giving them an interest in its preservation. The priority of their privilege stands upon a general principle affecting all privileged debts; that is, among these creditors he shall be preferred who has contributed most immediately to the preservation of the thing. 2 Valin, Comm. 12, liv. 3, tit. 5, art. 10. It is upon this principle that the last bottomry bond is preferred to those of older date, and that repairs and supplies furnished a vessel in her last voyage take precedence of those furnished in a prior voyage, and that the wages of the crew are preferred to all other claims, because it is by their labors that the common pledge of all these debts has been preserved, and brought to a place of safety. To all the creditors they may say, 'Salvam fecimus totius pignoris causam.' The French law (Ord. de la Mer. liv. 1, tit. 14, art. 16; Code Commer. 191) confines the priority of the seamen for their wages to those due for the last voyage, in conformity with the general rule applicable to privileged debts; that is, that the last services which contribute to the preservation of the thing shall be first paid. But this restriction is inapplicable to the engagements of seamen in short coasting voyages, which are not entered into for any determinate voyage, but are either indefinite as to the terms of the engagement, and are determined by the pleasure of the parties, or are for some limited period of time."

Wages for a voyage have been also held to rank a bottomry bond executed for the necessities of that very voyage,

because, but for the efforts of the seamen, the vessel would not have reached port, and the bottomry bondholder would have had nothing to hold for his claim."

If they rank subsequent materials under the circumstances just explained, a fortiori they rank materials and supplies practically concurrent with them.®

They also rank salvage, and damage claims incurred on a previous voyage, under the principle, which we have seen running through the admiralty law, that the prior lienholders have a jus in re or a proprietary interest in the ship itself, and that efforts tending to the preservation of the res are incurred for their benefit."

SAME-SALVAGE

179. Salvage may rank any prior lien for which it saves the res.

It may not be entirely accurate to put salvage behind even seamen's wages when we consider its nature.

The salvor ranks seamen's wages incurred prior to the salvage services, upon this same principle that it tends to the preservation of the res, without which the seamen themselves might lose their security.8

In the leading case of the FORT WAYNE, the court, discussing this question, and deciding that salvage was ahead of prior seamen's wages, says:

"It may be remarked here that it does not admit of doubt, nor is it controverted in this case, that, if there had been a salvage service rendered by the wrecking company within

DORA (C. C.) 34 Fed. 348; Irma, 6 Ben. 1, Fed. Cas. No. 7,064. Saylor v. Taylor, 23 C. C. A. 343, 77 Fed. 476.

7 Lillie Laurie (C. C.) 50 Fed, 219.

§ 179. 8 Selina, 2 Notes Cas. Ad. & Ec. 18; Athenian (D. C.) 3 Fed. 248.

1 Bond, 476, Fed. Cas. No. 3,012.

the meaning of the maritime law, it imports a lien in their favor which has priority over claims for wages earned, or supplies furnished, before the sinking of the boat. This is well-established law, and has its basis in obvious principles of justice and reason. Meritorious salvors stand in the front rank of privilege, and the rights of those having liens before the salvage service must be secondary to those having a salvage claim. This principle is well stated in Coote's Admiralty Practice. The author says (page 116): "The suitor in salvage is highly favored in law, on the assumption that, without his assistance, the res might have been wholly lost. The service is, therefore, beneficial to all parties having either an interest in or a claim to the ship and her freight and cargo.' And again (page 117), it is laid down that 'salvage is privileged before the original or prior wages of the ship's crew, on the ground that they are saved to them as much as, or eadem ratione qua, the ship is saved to the owners.' This doctrine is so well settled, both by the English and American authorities, that it is useless to multiply citations."

For the same reason salvage is superior in dignity to materials and supplies.10

It is also ahead of the cargo's claim for general average arising out of a jettison on the voyage when the vessel was subsequently wrecked, since the salvor saved the only property against which the claim for general average could be asserted.11

Judge Longyear, in delivering the opinion, says:

"It was conceded on the argument, and such is undoubtedly the law, that the lien for salvage takes precedence of the lien for general average. The libel of the insurance companies in this case is in terms for general average, and I can see nothing in the circumstances of the case to war

10 M. Vandercook (D. C.) 24 Fed. 472; Virgo (D. C.) 46 Fed. 294; Lillie Laurie (C. C.) 50 Fed. 219.

11 Spaulding, 1 Brown, Ad. 310, Fed. Cas. No. 13,215.

rant the court in holding it to be anything else, even if the libel had been otherwise. Without the salvage services, the whole was a loss. With the salvage services, the loss is reduced to a part only. In the former case there would have been nothing left upon which a lien for general average could attach. In the latter case it has something upon which it may attach, solely because of the salvage services; and it would be not only contrary to the general rule of law above stated, but unjust and inequitable, to place such lien as to the part thus saved upon the same footing, as to precedence, as the lien for the salvage services."

SAME-MATERIALS, SUPPLIES, ADVANCES, TOWAGE, PILOTAGE, AND GEN

ERAL AVERAGE

180. Materials, supplies, advances, towage, pilotage, and general average are, in the absence of special cir

cumstances, equal in dignity. Wharfage?

These may be considered as of the same relative rank, in the absence of special circumstances or equities.

For some time there was quite a conflict in the decisions on the question whether the liens of materialmen arising out of a state statute were equal in dignity to those arising under the general admiralty law. On principle there is no sound reason for any such distinction. The only reason why these state statutes are given force at all is that the subject-matter is maritime in its nature, and that the statutes merely superadd the remedy in rem. If marine in its nature, it ought to be marine in its rights. ute adds nothing to its dignity or to ly changes a presumption of credit. ities have settled that foreign and rial men rank alike.1

12

The state statits character. It mereHence the later authordomestic liens of mate

$ 180. 12 Guiding Star (D. C.) 9 Fed. 521; Id. (C. C.) 18 Fed. 264; Wyoming (D. C.) 35 Fed. 548. This question is unimportant