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Claims of this nature also rank a prior bottomry. In the Jerusalem, Mr. Justice Story gives the reason for this. He

says:

"If, then, the repairs in this case were a lien on the ship, it remains to consider whether they constitute a privileged lien, entitled to a preference over a bottomry interest; for the proceeds now in court are insufficient to answer both claims. In point of time the bottomry interest first attached, and the right became absolute by a completion of the voyage before the repairs were made. Upon general principles, then, the rule would seem to apply, ‘Qui prior est tempore, potior est jure.' But it is to be considered that the repairs were indispensable for the security of the ship, and actually increased her value. They are, therefore, not like a dry lien by way of mortgage, or other collateral title. The case is more analogous to that of a second bottomry bond, or the lien of seamen's wages, which have always been held to have a priority of claim, although posterior in time, to the first bottomry bond. Let a decree be entered for payment of the sum claimed by the petitioner out of the proceeds of the sale."

In the Felice B.,14 Judge Benedict gave preference, under similar circumstances, because the repairs went into the ship, and tended to increase her value, and to enhance to that extent the price which she brought at auction; and he therefore thought it inequitable that the bottomry bondholder should claim this increment, which was not in existence when he loaned his money.

As to the relative rank of claims for unpaid towage and claims of materialmen, there is no reason for any distinc

now, as the liens both of foreign and domestic materialmen are regulated by the act of Congress of June 23, 1910 (36 Stat. 604, U. S. Comp. St. §§ 7783-7787).

18 2 Gall. 345, Fed. Cas. No. 7,294.

14 (D. C.) 40 Fed. 653. See, also, Aina (D. C.) 40 Fed. 269.

tion between them, in the absence of special equities, and the courts put them upon the same basis.15

But in the Mystic,10 Judge Blodgett seemed to look upon tugboat men with special favor. The case arose in the city of Chicago, where the ordinances required vessels to use tugs, and where, on account of the narrow and crowded channels, it is a physical impossibility for sail vessels to reach their destination without tugs. Under these special circumstances he held that the value of the towage service was about equal to that of the seamen, as the tug was doing seamen's work, and he placed the tow bills immediately after the seamen's wages, and ahead of domestic supply claims.

In England claims for necessaries on domestic ships do not rank as maritime liens, their act of Parliament being held to give a mere right of arrest.1

SAME-BOTTOMRY

181. Bottomry ranks low among maritime liens, as the lender is paid for the risk he runs by a high rate of interest.

Among bottomry bonds on the same voyage, though the dates may be slightly different, there is no priority.18 But the bottomry bondholder is relegated to the background when he comes in competition with seamen's wages, salvage, materials, or a claim for general average arising on

15 Saylor v. Taylor, 23 C. C. A. 343, 77 Fed. 476; Sea Witch, 3 Woods, 75, Fed. Cas. No. 11,289.

16 (D. C.) 30 Fed. 73. In the Olga (D. C.) 32 Fed. 329, Judge Brown, of New York, classified towage service taken necessarily and as part of a pilotage service in the same way; but he carefully distinguished this from ordinary towage.

17 Mayer's Admiralty Jur. & Pr. 25, 47, 51; Sara, 14 A. C. 209. § 181. 18 DORA (D. C.) 34 Fed. 343.

the same voyage. 19 The reason is that he stands in the shoes of the owner, and has, as heretofore explained, a proprietary interest in the ship, which estops him from questioning the priority of maritime liens to supply her, or to render her more valuable. In addition, he can charge a premium on the ship at a high rate of interest. He therefore becomes practically an insurer against perils of the sea, and, when they arise, he cannot be heard to complain that those who labored to rescue the vessel from them should be preferred in the distribution. Accordingly, these claims for general average arising on the voyage, and the claims of the agents at the port of destination for putting the ship in better shape, are preferred to a bottomry bond. On this point Judge Billings says in the Dora:

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"Whoever lends money upon a bottomry obligation for the ordinary transactions of her voyage has a lien upon the

vessel which outranks all lien holders save the montre-Salvage?

for their wages. But where maritime services or sacrifices or expenditures are rendered necessary which carry with them maritime liens, the holder of the bottomry bond, like any other mortgagee or pledgee, has his conditional interest burdened precisely as if he were to that extent an owner. Indeed, the bottomry holder can be no more than absolute owner, so far as third persons are concerned. To hold any more restricted doctrine would prejudice the interests of the bottomry holder himself. It is for his interest, as well as for that of all other absolute or conditional owners, that the whole should be saved by a sacrifice of a part, and that the whole thus saved should contribute to make good the sacrifice, and that salvors and all others who render benefits which save or render available the bottom pledged to him should have a lien upon that bottom, even against him. See Williams & B. Adm. Jur. 64, 65, and Macl. Shipp. 702-705. I think that, upon reason and authority, the general average

19 Id.

20 See, also, ALINE, 1 W. Rob. Ad. 112.

HUGHES, ADM. (2D ED.)-25

should be paid before the bottomry bonds. The transactions out of which the general average arose were subsequent to these bonds, and aided in providing and making available the bottom which these bonds contingently represented."

SAME-NONMARITIME LIENS AND TITLES

182. Nonmaritime liens and titles rank below maritime liens.

The mortgagee is worse off than any, for his claim is not marine. He claims through the owner, from whom he is only one step removed, and accordingly all marine claims. are preferred to his debt; and recording it under section 4192 of the Revised Statutes (U. S. Comp. St. § 7778) does not affect this principle.21

A maritime lien is not displaced by a sale to an innocent purchaser, in the absence of laches in its enforcement, nor by a common-law reservation of title.22

The possessory lien of a shipwright will be recognized when a ship is seized under admiralty process. If the work is of a nature that would create a maritime lien, it will be treated as such. If not, it will be classified as a commonlaw lien, and protected in the distribution of the remnants. after the satisfaction of maritime liens,23

§ 182. 21 J. E. RUMBELL, 148 U. S. 1, 13 Sup. Ct. 498, 37 L. Ed. 345. The mortgagee has the same right as the owner through whom he claims to intervene and defend against liens asserted to be prior, and to claim the remnants after the maritime liens are satisfied. Conveyor (D. C.) 147 Fed. 586; Rupert City (D. C.) 213 Fed. 263.

22 San Raphael, 141 Fed. 270, 72 C. C. A. 388; Hope (D. C.) 191 Fed. 243.

23 Ulrica (D. C.) 224 Fed. 140; John J. Freitus (D. C.) 252 Fed.

SAME TORT LIENS

183. These claims, whether for pure torts or torts where there are also contract relations, rank prior contract liens, and probably subsequent contract liens, where the contract claimant has an additional remedy against the owner.

These claims, as a general rule, rank prior contract claims. The leading case on this subject is the JOHN G. STEVENS. Mr. Justice Gray, in delivering the opinion of the court in that case, says:

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"The collision, as soon as it takes place, creates, as security for the damages, a maritime lien or privilege—jus in re a proprietary interest in the offending ship, and which, when enforced by admiralty process in rem, relates back to the time of the collision. The offending ship is considered as herself the wrongdoer, and as herself bound to make compensation for the wrong done. The owner of the injured vessel is entitled to proceed in rem against the offender, without regard to the question who may be her owners, or to the division, the nature, or the extent of their interests in her. With the relations of the owners of those interests, as among themselves, the owner of the injured vessel has no concern. All the interests existing at the time of the collision in the offending vessel, whether by way of part ownership, of mortgage, of bottomry bond, or of other maritime lien for repairs or supplies, arising out of contract with the owners or agents of the vessel, are parts of the vessel herself, and as such are bound by and responsible for her wrongful acts. Any one who had furnished necessary supplies to the vessel before the collision, and had thereby acquired, under our law, a maritime lien or privi

§ 183. 24 170 U. S. 113, 18 Sup. Ct. 544, 42 L. Ed. 969. See, also, Escanaba (D. C.) 96 Fed. 252; Veritas, [1901] P. 304.

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