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lege in the vessel herself, was, as was said in the Bold Buccleugh, before cited, of the holder of an earlier bottomry bond, under the law of England, 'so to speak, a part owner in interest at the date of the collision, and the ship in which he and others were interested was liable to its value at that date for the injury done, without reference to his claim.' 1 Moore, P. C. 285."

This reasoning is a necessary deduction from the doctrine, that an admiralty claimant has not merely a right to arrest a vessel, but a proprietary interest in the vessel itself-a jus in re. Consequently, any contract claimant who permits the vessel against which he has a claim to be navigated, assumes the risks of navigation to that extent, and holds her out to the world as liable to those with whom she is brought into relations even involuntarily on their part. The only question directly decided in this case was that a claim for damages from negligent towage ranked a prior claim for materials and supplies. The questions as to all other contracts were carefully reserved by the court, but the line of reasoning which the court follows is equally applicable to any other contract claim.

On this question the earlier decisions in the New York circuit, which are usually of such high authority that the admiralty lawyer instinctively turns to them first, cannot now be relied on. The JOHN G. STEVENS cites a number of them for the purpose of deciding adversely to the doctrine which they had promulgated. It had been the preponderance of authority in that circuit that contract claims ranked tort claims. The principal reason given for this was that these tort claims were perils of the sea, against which the owner could insure. In arriving at that decision the New York judges had discussed the English cases on which the contrary doctrine had been based, and concluded that they had not passed upon the question at all, but were governed by peculiar circumstances arising out of the fact that the vessels in the English cases had

nearly always been foreign vessels. The New York judges also had attempted to draw a distinction between claims of pure tort and claims of quasi tort arising out of contract. This was to meet the suggestion of Dr. Lushington in the ALINE,25 in which he had said that the contract creditor had his option whether to deal with the ship or not, but the tort creditor had not. Accordingly, the New York courts argued that this principle could only apply to torts like collision, in any event, and could not apply to cases arising out of negligent towage, or other such cases arising out of contract, though torts in form, where there had been such negligence. This distinction, also, is overruled by the JOHN G. STEVENS,20 which was a case of negligent towage, and in which the Supreme Court, after considering the question fully, decided that cases of tort, whether arising out of contract or not, all stood on the same basis.

The JOHN G. STEVENS reserves the question whether the claim for tort should be preferred to a prior claim for seamen's wages, but the reasoning of that case applies with equal force to claims of as high merit as seamen's wages, and it is believed that, when the question is fairly presented, a preference will be given to tort claims even over claims for prior wages.27

The ELIN 28 decides that preference should be given even to subsequent wages on the same voyage. On this point Sir Robert Phillimore quoted approvingly from an opinion of Dr. Lushington, as follows:

"I adhere to this opinion, and I do so especially for the

251 W. Rob. Ad. 112.

26 170 U. S. 113, 18 Sup. Ct. 544, 42 L. Ed. 969.

27 Rusk v. Freestone, 2 Bond, 234, Fed. Cas. No. 12.143; F. H. Stanwood, 49 Fed. 577, 1 C. C. A. 379; Nettie Woodward (D. C.) 50 Fed. 224; Evolution (D. C.) 199 Fed. 514. But in the New York district the John G. Stevens decision is still applied strictly, and seamen not in fault are preferred to collision liens. C. J. Saxe (D. C.) 145 Fed. 749.

28 8 P. D. 39.

following reasons: That by the maritime law of all the principal maritime states the mariner has a lien on the ship for his wages against the owner of that ship. That he has also a right of suing the owner for wages due to him. That some uncertainty may exist as to the mariner's lien when in competition with other liens or claims, and amongst these I might instance the case of a ship in the yard of a shipwright. In such a case I should have no difficulty in saying that the lien of the shipwright would be superior to the lien of the mariner. That, in the case of a foreign ship doing damage and proceeded against in a foreign court, the injured party has no means of obtaining relief save by proceeding against the ship itself; and that, I apprehend, is one of the most cogent reasons for all our proceedings in rem. That, in a case where the proceeds of a ship are insufficient to compensate for damages done, to allow the mariner to take precedence of those who have suffered damage would be to exonerate so far the owner of the ship, to whom the damage is imputed, at the expense of the injured party-the wrongdoer at the expense of him to whom wrong has been done. Then, as to the mariner, what is the hardship to which he is exposed? It is true, he is debarred from proceeding against the ship, but his right to sue the owner remains unaffected. It is, however, not to be forgotten that in all these cases of damage, or nearly all, the cause of the damage is the misconduct of some of the persons composing the crew. This is not the case of a bankrupt owner. It will be time to consider such case when it arises."

This reasoning, that the seaman has a double remedy against the owner, and that it would be inequitable to allow the owner, to diminish the security of the party injured through his own torts by allowing the seamen to be paid out of the vessel, is certainly a strong one, and receives added strength in America by the fact that the act of June 26, 1884, allowing the vessel owners to plead their limita

tion of liability against contract debts, expressly reserves the rights of seamen; and so it would seem equitable that a party asserting a lien by tort should be preferred to seamen's wages, though the question cannot be considered as settled.

An instance of such torts is an unlawful conversion by the master.29

RELATIVE RANK AS AFFECTED BY DATE OF VESTING AMONG LIENS OF SAME

CHARACTER

184. Among contract liens of the same character, those furnished on the last voyage rank those furnished on a prior voyage; the reason being that they are supposed to contribute more immediately to the preservation of the res, and therefore are for the benefit of the prior liens.30

In the old days, when voyages were measured by long periods of time, this was a just rule; but now, when voyages are comparatively short, it has been found necessary in the interest of justice to introduce considerable modifications. For instance, in litigation arising on the Lakes the relative priorities are determined not by the voyages, but by the seasons of navigation. For several months of the year navigation there is closed by ice, and the courts have settled upon the rule that claims furnished during one season rank those furnished during a previous season; and this rule is applied in New York harbor also as to boats which operate by seasons, like canal boats.31

29 Escanaba (D. C.) 96 Fed. 252.

§ 184. 30 OMER, 2 Hughes, 96, Fed. Cas. No. 10,510; Porter v. Sea Witch, 3 Woods, 75, Fed. Cas. No. 11.289; John T. Williams (D. C.) 107 Fed. 750; Philomena (D. C.) 200 Fed. 873.

31 CITY OF TAWAS (D. C.) 3 Fed. 170; Arcturus (D. C.) 18

But in New York harbor work, as to boats which are being used practically all the year round, the courts have settled upon the rule that claims furnished within forty days are preferred to those furnished prior to that date, the basis of the rule being that it is usual to sell on thirty days' time, the ten days extra being allowed for making demand or proceeding. As among claims of the same general character within the forty days, there is no difference in rank.32 In the Western district of Washington a ninety-day rule has been established as to vessels operating in local harbors and making short trips.33

In the Fourth circuit, where ice does not interrupt navigation, the rule of voyages has been applied when the voyages were of any length; but among harbor tugs or vessels the practice has been that debts of the same general character are put on the same footing if they have been furnished within a year. The question in that district has been considered mainly in reference to the doctrine of staleness. A claim over a year old is considered stale as against other admiralty claims, and all within a year rank alike.34

This rule of considering claims over one year old as stale, however, has only been applied as among marine claims, and must not be confused with the doctrine of staleness as applied in relation to subsequent purchasers. In such case, claims have been held stale as against innocent purchasers in much less time than a year. On the other hand, the oneyear rule as among maritime claims has frequently been re

Fed. 743; J. W. Tucker (D. C.) 20 Fed. 129; Samuel Little, 221 Fed. 308, 311-312, 137 C. C. A. 136.

32 Gratitude (D. C.) 42 Fed. 299; Samuel Morris (D. C.) 63 Fed. 736; Samuel Little, 221 Fed. 308, 137 C. C. A. 136; Leonard F. Richards (D. C.) 231 Fed. 1002. The rule does not apply to tugs and barges engaged, not in harbor, but in outside, work. In re New Fed. 203.

England Transp. Co. (D. C.) 220

33 Edith (D. C.) 217 Fed. 300; Sea Foam (D. C.) 243 Fed. 929. 34 Thomas Morgan (D. C.) 123 Fed. 781; Steam Dredge A, 204 Fed. 262, 122 C. C. A. 527.

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