548
FEDERAL REPORTER.
11. Atthe time when the said contract was made, and at the time when the said coal was delivered to said steamship Solis, the claimant herein, the Steam-ship City of Lincoln Company, Limited, a corporation organized and existing under the laws of the United Kingdom of Great Britain and Ireland, was the mortgagee of the said steam-shi p Solis, 4er engines, etc., by virtue of a mortgage for £16,500 British sterling, which mortgage was given to it by said Pelegrin Parnes y Bordas for part of the purchase price of said steam-ship, sold to him by said clahn,ant; but said steamship was in the possession of said, Compania de Transportes Maritimos with the assent of said Pelegrin Pomes yBordas l and of said claimant. 12. The said draft for £1,541.4.5 was, on the trial of this action in the district court, tendered tQ the proctor for the claimant, and filed in that court. ,, 13. The facts stipulated as existing facts in the stipulation in the record dated May 11, 1888, signed llY the proctors for the respective parties, are existing facts. 14. Nothing occurred in regard to the giving or taking of said draft 'for £1,541.4.5 in payment for said coal, except what is contained in said Exhibit A, and in said receipt at the foot of said invoice. 15. As a fact deducible from the foregoing facts, the libelant furnished said coal to said steam-ship Solis on the credit of Said steam-ship. On the foregoing facts I find the following conclusions of law: 1. 'l'he claim of the libelant constituted a maritime lien on said steamship Solis. 2. The libelant is entitled toa decree for the sum of 37,458.44, with interest from January 1,'1884, and for $62.65, his costs in the district , COUl,'t, as taxed, and for his costs in this court to be taxed.
THE WYOMING.
THE DAqOTAII. BOSCHERT 'IJ. THE WYOMING. SAME 'IJ. THE DACOTAH.
(DiBtrict Oourt. B. D. Missouri. lune 16, 1888.) HABITIME LIENS-UNDER STATE LAws-AT HOME PORT-FOB SUPPLIES-VALIDI'l'Y.
Rev. St. Mo. 4225, 4226, providing that vessels shall be subject to a lien (1) tor wages; (2)for debts contracted on account of stores. supplies, labor, or materials furnished; (S) for sums due for wharfage or anchorage; (4) for demands for violation of contract of affreightment or transportation, and for injuries to person or proper'ty; and that liens shall have priority in the foregoing order,-are valid, as creating a lien for 'labor, materials, or supplies furnished in the home port, and such lien is. enforceable in admiralty, and is of equal 1ignity with those for like claims contracted in foreign porta. .
In Admiralty. Libels arid intervening petitions for labor, materials. and supplies furnished. Rev. St. Mo. §§ 4225, 4226, provide as follows: Sec. 4225. "Every boat or vessel ... ... ... used in navigating the waters of this state shall be liable and subject to a lien in the following Cll8es: First; for·all wages due to hands or persons employed on board such boat or vessel work done or services rendered on board the same, except for wages which may be due to the master orclerk thereof; second, for all debts contracted by the master, owner, IIgent, or consignee of such boat, vessel. or other craft on account of stores or supplies furnished for the use thereof, or on account of labor dOlle or materials furnished by mechanics, tradesmen, or others in the . building, repairing, getting out,.furnishing, or equipping thereof ; third, for all sums due for wharfage or anchorage of such boat or vessel within this state; fourth, for all demands or damages accruing from the non-perfoflo. ance or malperformance of any contract of affreightment, or of any touching the transportation of persons Of property, entered into by the mll8ter; owner. agenl.or consignee of such boat or vessel, and for damages for injul'ies done to persons or property by such boat or vessel." . Sec. 4226. "The classes of claims specified in the preceding section shall have priority according to the order In which they are enumerated, and said liensshaU have precedence of all other liens and claims against such boat vessel. " Chas. S. Hayden, Samuel N. Holliday, H. D. Wood, Campbell Ryan, Cochran, Dixon &- Smith, Mills &- Flitcraft, L. Wilcox, and Thomas M. Knapp; for libelants and petitioners. . Dyer, Lee & Ellis and Chas. G. B. Drumnwnd, for excepting petitioners. TIIAYE):EI., J. In these cases, exceptions have been filed to various libels and intervening petitions preferred by the holders of claims for labor, materials, and supplies furnished the steamers in their home port. The intervenors, who have filed the exceptions, are mortgagees of a part interest in the steamers; the mortgages having been given to secure the purchase 1110ney agJ:eed to be paid for an interest sold by the intervenors in the respective steamers aftersome, at least, of the various claims against the steamers had acc;rued. As' the intervenors' mortgages, on account of which they have appeared, are only good as against "remnants and sur.. plus," if there shall be any after all admiralty liens have been discharged J their right to fileexceptions,at this time, as against those who have mands based on maritime contracts, has beeen contested. Waiving. that question, however, I proceed to the main exception taken by the intervenors to the various libels, which is, in substance, that the libelants have no lien, uuder the maritime law, for labor, materials, or supplies furnished in the home port, and that the local law of the state, _which attempts to create such lien, is, in this instance at least, void. The first branch of the proposition is not denied. As administered and interpreted in this .country, it is, of course, conceded that the admiralty law gives no lien. for supplies {)r materials furnished in the home port. The Lottawanna, 21 Wall. 558. The second branch of the proposition,. that no lien exists,under aud by virtue of the local law of the state,' .court canep.tertain or enforce, must be This
1,650
FEDERAL,RERORTER.
is but a l'enawal of an oldoqntvoversy whioh must. be regarded as detel'mined by The Lottawanna ('Me, 21 Wall. 579, 580, and by theconstructiou that has since been placed ,on that decision by various admiralty courts. In the case of The Guiding Star, 18 Fed. Rep. 264, Mr. JUfltice MATTHEWS held that a lien given by a local statute of Ohio for materials and supplies furnished in a home port was of equal diKnity with the lien given by the maritime law forlike materials and supplies when furnished in a foreign port, and that the'lien might be enforced in an admiralty court. Speaking of this subject, and predicating his views on what was decided in The Lottawanna Case, .he says: "The claims [that is, for supplies furnished in a home and foreign port] are intheir <iharaeter, both classes being maritime, alike, and of equal merit. The hen is given by the law; and although the aource of one is the law, and thatof the other a local statute, nevertheless they are both so distinctively of a maritime nature that they are exclusively cognizable in the admiralty courts. '" '" '" In both cases the lien is given by the law administered in admiralty courts, and there is no circumstance '" '" ... that takes from the local law its equal force and effect with that of the general maritime law. It is because the latter, by virtue of its own principles, recognizes the efficacy of the local statutes to confer a lien, that courts of admiralty acquire jurisdiction to enforce it at all. In doing so, they are in fact enforcing the general maritime law; and that law, in adopting and enforcing the lien given by the local law, incorporates it into its own system, and puts it on the same footing as if it had been given by the maritime law originally." This view of the subject was adopted by Judge BROWN, of the Southern district of New York, in the cases. of The J. W. Tucker and The Arctic, 20 Fed. Rep. 134, and 22 Fed. Rep. 128. To the same effect, see the case of The Burnside, 3 Fed Rep. 228, and 9 Fed. Rep. 521. There is no substantial difference between the Ohio statute which creates a lien for supplies furnished in a home port and the Missouri statute on the same subject. Any attempt, as it appears to me, to distinguish between the statutes of the two states, and to say that the Missouri stat,ute is void" and ought not to be recognized by an admiralty court, while the Ohio statute it> valid, must end in failure. It is of no importance that the statute of Missouri classifies the various liens created, and gives them a certain priority. Although, in a general way, the Missouri statute follows the classification of the maritime law, yet, if that were not the case, this court would not be bound to adopt the classification prescribed by the local statute as to those claims that grow out of maritime contracts. With reference to all that class of demands that are founded on maritime contracts, an admiralty court, while recognizing the efficacy of the local statute to create a liell, will apply its own rules in determining questions of priority. The Guiding Star, 8'Upra, 267,268. The Missouri statute creates a lien, in clear and unmistakable language, in favor of the demands described in the several libels, and all the essential steps have been taken to secure the llens. In so far, therefore, as the exceptions filed proceed on the theory that the local statute is inoperative to create a lien for materials, labor, or supplies furnished in the home ,port thaL will be recognized iIi this court,they must be over-
THE ISAAC H·.TILLYER 11. THE. T. J. SCHUYLER.
551
ruled. Liens of that sort will be recognized as of equal dignity with liens for like claims contracted in foreign ports. As above explained, such is the tendency of the later decisions on the subject, and this court will adopt that view.
THE
IsAAC
H.
TlLLn::R fl.
THE T. J. SCHUYLER. I
(District Court, B. D. PennB1/l'f)ania. June 22, 1888.) TOWAGE-NEGLIGENCE OF TUG-DEGREE OF CARE REQUIRED.
The Tillyer, a three-masted schooner. 140 feet and 85 feet Wide, Wall being towed up the Schuylkill river to Pine street wliarf, by the respondent. In order to get there it was necessary to pass through the draw of the B. & O. R. R. bridge. The channel required a change of course two or three hundredrards below the bridge. .The water was low at the time. and between tbe pIers was an obstruction. The tug passed so close to the eastward pier that the schooner, following upon, or nearly upon, her course, ran upon the ,. obstruction, and was damaged. The tug claImed that the accident would not have occurred had the schooner been properly handled. The schooner's master lisserted that the low state of the water prevented her obeying her wheel. Held, that the course of the channel, the state of the water and the obstruction called for more than ordinary care in passing throug-h the draw; and that the tug, having failed to exercise that degree of care, was responsible in damages. .
In Admiralty. Flanders & Pugh, for libelant. Driver & Coulston, for respondent.
BUTLER, J. The Tillyer, a three-masted schooner, 140 feet long, &" feet wide, having a cargo of 869 tons of ice, anchored off the Schuylkill July 2, 1886, about 1 o'clock A. M., consigned to the Knickerbocker Ice COmpany, of this city. About 9 o'clock of the same morning she was taken in tow by the tug Schuyler, to be conveyed up the Schuylkill to Pine street wharf. She was towed astern by cross-hawsers of 25 to 30 fathoms length. . A few hundred yards below the Baltimore & Ohio niHroad bridge the channel requires a change of course, first to the east, and then to the west, before entering the draw of that bridge. While there is no serious difficulty in entering and passing through the draw with safety, the character of the channel, the set of the tide, and an obstruction between· the piers, call for more than the usual care ordinarily required in towing on this river. The obstruction is at the eastern side of the draw, and extends out six or seven feet from the pier, and is invisible. The tug passed this obstruction safely. How far westward of it she ran is uncertain. The respondent's witnesses disagree respecting it. The schooner approached the draw some feet eastward of the tug's course, encountered the obstruction, and sustained serious injury. The libelant charges the tug with 'negligently when the water was ·JBeported by C. Berkeley Taylor, Esq., ofthePb.iladelphia bar.