CLYDE
v.
STEAM TRANSP. CO.
501
ship. Under the decisions, I, should have upheld the lien, had there been no adverse circumstances save the previous negotiation for the repairs by the libelant with the owner's representative in New York; for the repairs were in fact made ill another state, while the master there was in charge of the boat, and hence they were received by the master for the use of the vessel. The Solis, 35 Fed. Rep. 545; The Hiram R. Dixon, 33 Fed. Rep. 297; The Chelmsford, 34 Fed. Rep. 399, and cases there cited; The Huron, 29 Fed. Rep. 183; The Aeronrmt, ante, 497; The Christopher North, 6 Biss. 414. The mere fact that the original negotiations were made with the owner in his own state may not afford a presumption that an exclusive personal credit was intended; or that the material-man in furnishing the repairs or supplies to the vessel, and to the master in another state, intended to waive the security of the maritime lien that the lex loci ordinarily affords for such benefits to the ship. See, however, the observations of Judge BUTLER in the case of The Chelmsford, supra. Here the further circumstances that the,work was sought by the libelant at the office of the owner's representative in New Y;ork; that the bill was renderf!d that a note was there twice taken for payment; that the vessel was frequently present and subject to suit; and that, nevertheless, no libel was filed, nor any lien upon the ship claimed, til between eight and nine months after the work was done, and after the vessel had virtually passed into bona fide hands, --':"seem to me to require that the work should be held intended to be done on personal credit only, and not on the credit of the boat. The Camilla, Taney, 400; The Norman, 28 Fed. Rep. 383, The Transit, 4 Ben. 138; The Sea Flower, 1 Blatchf. 361; The Suliote, (affirmed on appeal,}23 Fed. Rep. 919, 924927; The Mary Morgan, 28 Fed. Rep. 196; The Glenmont, 34 Fed. Rep. 402. On this ground the libel is dismissed, but without costa.
CI,YDE et 01.
11. STEAM: TRANSP.
Co.
{(J{rcuie Court, E. D. North Carolina. August 18, 1888.) 1 MARITIME LIENS-UNDER STATE STATUTES-GENERAL NATURE.
The claim of a material-man for supplies and repairs furnished to a vessel in a home port is, if a lien be given therefor by a state statute, a. maritime lien, and is entitled to the same precedence that a like claim for supplies and repairs furnished in a foreign ;;lort has by the law of nations. .
The lien of a material-man for supplies and repairs furnished in a 'home port, given bya state statute,ls entitleJ to priority over a mortgage on the vessel repaired, although such mortgage had been duly recorded before $uch .. .. supplies and repa.irs were furnished.' -<Syllabus by tM Court.)
t.
SAME-PRIORITy-,MoRTGAGE.
In Equity.
502
l>'EDERAL REPORTER.
Simmons.<!c Manly and W. W. Olark, for petitioners. F. II. ..Busbee, for mortgagee·. , SEYMOUll" J. This is a contest between material-men. who have furnished repairs to the stealil-boat .Elm City' a her home port, and who have a lien under the North Carolina statute, and the owners of a prior recorded mortgage for the proceeds Of the sale of the boat. The fund will not, in case the petitioners are first paid, be enough to d;scharge in full the amount of the mortgage. , There' is nq decision of the question which is of ccntrolling force here, us the point has not been decided by the supreme court, nor by any circuit court ofthe Fourth circuit. In the Fifth circuit, (The De Smet, 10 Fed. Rep. 483., and The Josephine Spangler. 11 Fed. Rep. 440,) and in the Seventh, lThe Kate Hinchman, 7 Biss. 23.8,) priority has been given to the mortgage; but the opinion of the circuit judge of the Fifth circuit is in favor of the lien of the material-man, and his decision for the mortgagee is based upon his unwillingness to reverse thatof his predecessor, in the absence of any adjudication upon the point by the supreme court. 'l'he opinion of DRUMMOND, C. J., 'in the The Kl.tte Hinchman, rests upon a misconception of what is said in The Lottawanna, 21 Wall. 558, and not upon that jurist's own opinion of the law. On the other hand,- priority has been given to the lien, under state statutes, of the material-men, in the Second circuit, (The John j ihrl'OrL, 14 Blatchf. 24;) in the Third circuit, (The King.gf,cm,23. Fed. Rep. 200, and The Venture, 26 Fed. Rep. 285;) and in the Sixth circuit. (The General Burnside, 3. Fed. Rep. 223, and The Gwir):ing Star, 18 Fed; Rep. 263..) Thedecisions cited, with others which have not been cited, but which are referred to in the above cases. will, if examined, show that the opinion which at first seemed to be, perhups, the prevuilillg one, viz., that the lien given by statutes to material-men in the home ports did not rank with maritime liens, which seems to have been founded upon English authorities, has gradually yielded to an op:nion based upon the general principles of maritime law, and in part upon the justice of the pc-sition, in la\'or of the priority of the lien. Independently of any legislatjon, by both the civil law and the law of nations, material-men.. hove a lien not only on prqceeds, but on the ship itself; but by the common law of England, which is held to be binding on her admiralty courts, material-men have no lien upon an English ship in for the costs of materials supplied in .EngJu ld. Such is the rule, and such its limitations, as given in the case of The Neptune, Cumberlege, 3 Hagg. 13.6, 139. The general rule pf lien on the ship for supplies is recognized. The exception is that it does not apply to an English ship for supplles furnished ,in England. 'fhe lien, as established by the civil law, was originally followed to its full extent in the courts of that nation; and it was Olllyafter a long contest that the exception in favor of English shl.'ps was introduced by decisions of the courts of common law and the house of lords in the reign of Charles II. Abb. Shipp. *149n; Pritch. Adm. Dig. *226, note 1. Although the continental practice would have suited better the condition of busi·
,
CLYDE V. 8'J'EAM TRANSP. CO.
503
ness here, with respect to s1: i pSllpplies, our courts felt themselves bound by the English In. the English courts it was held that in admiralty Irish and Scotch were foreign vessels, and, following that authority, and also for reasons growing out of the nature of our government, the United States courts held the states to be foreign as to one an· other for purposes of admiralty jmisdiction. Yet it is difficult to sustain.on reason a decision that,. with respect to a boat running between Newbern and Norfolk, a material-man in Newbern shall not have, and a material-man in Norfolk shall have, a lien for 8upplirs and repairs furnished. to the. vessel. T3e result might be to compel the owners of a boat belonging to the former place, if they happen to be as insolvent as City, to have all their repairs done was the corporation owning the in the latter place. To remedy the evils resulting from this state of the law, many of the sea-board and lake states, and, among the former, North Carolina, gave by statute liens to material-men on vessels repaired in a home port. It was held, after some conflict and hesitation, that, while the state courts. could not 'enforce such liens by proceedings in rem, the federal courts might. The only question which remained unsettled was as to the nature of the lien. If it be a maritime one it must stand on an equality with other maritime liens of the same class, and be preferred to a 'mortgage, even of earlier date; the illtter ndt being maritime in its nature. Evidently the character of the lien depends on the nature of the contract. A contract to supply or repair a vessel, wher· made, was by the law of nations a; maritime contract. The limita.tion put by the English courts upou the of the lien did not aft' the nature of the contract, but oJ11y the remedy. When the lien ct is restored by statute it takes the same position it had before it was abrogated by judicial decisions. The lien of the material-man for supplies and repairsiQ 8 foreign port has precedence over a mortgage becausA it is a maritime lien. .When by statute a ren is given for repairs in a home port, the subject of the contract being the same, and the remedy being maqe the saIlle., it must have the same precedence. . It is said in behalf of the mortgagees in this case that they did not authorize the repairs put on the Elm City, and that the work was done pendingnn aotion by them as stockholders in the defendant corporation to dissolve the corporation, and 'as mortgagees to foreclose. I am assuming, what is not material to the decision, that both suits are by substantially the same parties. I know of no principle upon which it can ,be held that these facts affect the lien. If the plaintiffs had been succesful in procuring the appointment of a receiver pendente lite, they would doubtless have temporarily stopped the progress of the repairs. But they have since purchased,at the price of about the face of their mortthan what the Elm City either cost or was valued at · gage, .J;r:tpch · .inany,of the aflidav:itsread oothe hearing of this case; and they have .the benefit of the repairs. I know of no reason to suppose them not to be worth t4eir cost to the present owners of the boat. It would, under ,be. a hardsllip if the la,w dill the materialmen to be first paid. .. . ,. '..
504
FEDERAL REPORTER.
The fact that the lien of petitioners is a maritime one answers the contention that the material-men lost their lien by surrendering possession of the boat; and I therefore am not called upon to investigate the question made on the argument, of whether they surrendered the Elm City or it was taken from them. The decision is not put upon anything peculiar to the case, but upon a general rule of admiralty law, viz.: The claim of a material-man. for supplies and repairs furnished to a ship in a home port is, if a lien is given therefor by a state statute, a maritime lien, and has the same priority that a similar claim for supplies furnished in a foreign port has under the law of nations.
EVANS
THE BELGENLAND.
(District Oourt, S. D. New York. October 4, 1888.) 1. COLLISION-'-DWGES-Loss OF CHARTER-SUBSEQUENT CHARTER AT LOWER RATES-WAGES OF CREW.'
1f an existing charter is lost in consequence of a collision, and a charter at lower rates is necessarily taken for the residue of the charter period, tne shipowner is entitled to recover, as an item of his damage. the difference in value of the two charters up to the time of the expiration of the original charter, also for the crew, who are necessarily under pay on contract u.Jring the detention. .
2,
SAME-ADJUSTMENT OF COMPASSES.
The readjustment of compasses, rendered necessary by putting new plates in an iron shlp to repair injnry done by collision, is an allowable item of the ship-owner's damage. The expense of a new rating of a vessel at Lloyd's is a proper item of the damage.
S. &.
SAME-Smp's RATING AT LLOYD'S.
SAME-MASTER'S PROTEST.
The expense of a master's protest. when made in a foreign port, is allowable as an item of the caused by collision.
In Admiralty.
On exceptions to commissioner's report.
Butle:r, Stillman & Hubbard, (W. ftlynderse, of counsel,) for libelant. Biddle &- Ward, for claimants. BROWN, J. Upon the commissioner's report assessing the damages by collision, the chief exception is to the allowanceof $1,540.97 for the loss of a charter, in addition to $4,815.65, allowed for 35 days' detention, while the vessel was undergoing repairs. The collision occurred while th dibelant's'steamer, the Hartlc,pool, was on a voyage from England to Perth Amboy, N. J. She was then under charter, agreeing, after de-