THE JULIA.
233
and giving ample room for leeway. This was her position and direction just before the accident, for when the pilot observed her immediately before this he saw her over the starboard quarter of the tug. When he took down his glasses and looked at her he found that she was bearing off the port quarter, on the north side or beyond the north side of the channel, and then she got aground. How this occurred can only be conjectured. It may have been owing to the fact that by the raising of the foresail the schooner got improper leeway, or perhaps the rising sail obscured the vision of the master at the wheel, and so prevented him from keeping the schooner well up. Whatever may have been the cause, one thing seems most probable: that obedience to the order of the pilot did not cause it. It does not appear that the pilot is responsible in d3Jlllages for the accident. 2. The conclusion ,reached on this first point renders any discussion of the liability of the Charleston Pilots' Association un· necessary. No opinion is expressed upon the nature of this association, whether it be a copartnership or not. 3. Did the tug contribute to the disaster? She was under the control and direction of the pilot, and obeyed all orders which he gave. Up to the moment of the disaster she had pulled the schooner suocessfully against a flood tide, and they had attained a speed of four miles an hour over the' ground, both being completely under control. There could not have been displayed any want of power, as she was aided by the schooner under sail, in a breeze which could have carried her to sea without any aid of steam power. It must be noted that the schooner did not merely touch bottom 'in the channel, as vessels often dO,and pass on. She struck a shoal outside of the channel. From the configuration of the bottom at that point this shoal descended abruptly to the channel, forming so· to speak a bluff under water. When the schooner stranded on this shoal, the tug could not pull her off. And if she could have done so under ordinary circumstances, the master of the schooner made it impossible by hauling down his mainsail. The towage services ended at this juncture. If the tug had rendered any other service it would have been in the nature of salvage. No fault can be imputed to the tug. The libel is dismissed. THE JULIA. BUTLER et a1 v. THE JULIA. SIX OTHER LIBELS v. SAMlll. (DIstrict Court, E. D. South Carolina. -July 12, 1893.) 1. MARITIME LIENS-PRIORITy-ORDER OF BRINGING SUIT IMMATERIAL.
The priority of maritime liens Is determined according to their nature, and not according to the order in which suits are brought to enforce them. When a vessel libeled by a material man has been taken possession of by the court, and advertisement has been made, other material men Dlr,y
2. ADMIRALTY-PRACTICE-INTERVENING LIBELS-ADVERTISEMENT.
234
57.
intervene by. libel praying warrRl\.bI· of ·arrest in order to detain the property in case security be given for ibl release, but in such cllsefurther ad· vertisement is unnecessary. 8., MARITIME LIENS - UNDER GEN. ST. S. C. § 2389 - DISTRlliUTION - SPECIAL Under Gen. St. S. c. § 2389, etc., providing that, where the proceeds of .a sale are insufficient to satisfy the claims of certain l.en creditors, labor shall have a percentage one-third greater than material men, only laborers are entitled to such increased percentage. The privilege does not extend to money paid by a material man for labor in putting in materials. .. ADMIRAI.Ty-PROCTORS' COSTS. PRIVILEGE TO LABORERS.
Where a vessel is libeled by, material, men, and thereafter other mat(lrlal men file libels In the nature of to be perfected if the vessel is released, otherwise to operate on'the balance of the proceeds of the ,sale, proctors' costs should not be allOWed' on such subsequent suits.
In. Admiralty. Libels by S. B. Butler, John F. Riley, William Johnli!ori &00., John Conroy & Co., the Steinmyer Luml:Jer Company, Drews, and others against the steamer Julia for seamen's wages;' and for materials.Tue vessel was sold, and seamen's wagei:Jaqd costs paid.. Heard.?D. exceptions. Butler and Riley to the}uaster's report. ExcepboJ;1s o. :B. 'Northrop, for
The steamer Julia:' was engaged in trading between the city of Charleston and. the adjacent· waters, "carrying freight. She was libeled:8iDd arrested at the suit for wages of certain of her crew. She was illso libeled by two material men, S. B. Butler and John F. Riley, in,separate libels, on each of which a warrant of arrest was issued·.! The same pl'octor represented the crew and these two material men, and, in advertising the warrant of arrest under ad· miraltyrule No.9, he inserted the libels of the latter also. A number of libels were then filed by material men, in each of which warrants of arrest were issued" but in no instance were any of these followed 1'>1 publication. This is the home port of the Julia. The materialmen claim under a statute of the state of South Carolina, Gen. st. § 2389 et seq. This statute gives a lien to any person for labor performed, materials used, or labor and materials furnished in the construction of vessels, or for provisions, stores, or other articles furnished for or on account of any ship or vessel in this state, the lien to be next to seamen1swages. If the claims be held by more than one person, they are marshaled, and the proceeds of sale distributed without preference. If these proceeds be insuffiis pro rata, except that labor shall have a cient, than material men. The .Julia' has been sold under order of this court in the libels for paying the wages and costs, the proceeds are largely insuffiHeht' to pay all the material men." . The master has reported ltUl.J;a'tiqn ,of the costs to be paid, allQwing each material man remainder, he reports, should be distributed
to the report of the special master.-
SIMONTON, District Judge. This case comes 'up on exceptions
235
pro rata. One of the libelants, Riley, is a master mechanic. In his bill for repairs he itemizes and charges so much for labor and so much for materials. Butler and Riley except to the report. Both claim priority over all other material men, because they filed the· :first libels; because, also, they were the only libelants who advertised; and Riley insists that the master was wrong in not recognizing the preference claimed for the labor items in his bill. No question has been made as to the constitutionality of the South Carolina statute. That question has not been considered, and is not now decided. The :first question is, have the material men who :filed the first libels secured thereby priority of payment out of the proceeds in the hands of the court? This,as we have seen, is the home port of the Julia. But for the state statute these libelants would have no lien, (The Young Mechanic, 2 Curt. 405;) and the nature and extent of the lien is measured by the state statute, (The Mary Gratwick,2 Sawy. 344.) It would seem, therefore, that if the state statute which creates the lien gives it to all material men· alike, and puts them on an equal footing, this court, administering the lien, would do likewise. It is insisted, however, that, although the state statute creates the liens, when they come into this court they are treated· and enforced as maritime liens; and that, with regard to maritime liens, the preference is under the rule prior petens,first come, :first served. There is respectable authority for this with regard to maritime liens. Ben. Adm. § 560; Cohen Adm. p. 197. But these writers are overruled by authority, as well as by reason. They do not state the law correctly. The true doctrine is that liens like these have equal rank, are not affected by the order in which the suits were brought, and share pro rata. The J. W. Tucker, 20 Fed. Rep. 129, in which all the cases are quoted and the rule stated; The Arcturus, 18 Fed. Rep. 743; The Grape· shot, 22 Fed. Rep. 123; Vandewater v. Mills, 19 How. 82. And Mr. Henry, in his Admiralty Jurisdiction, shows that this is the true doctrine. Indeed, the rule cannot be otherwise. A maritime lien 'is jus in re; a right in property in the res, enforceable against all the world. The suit in admiralty enforces this lien, which does not owe its origin to, or its existence because of, the suit, and therefore does not take rank from the suit. In this it differs from li created by attachment. "Incumbrances created by at'lls tachment must take rank, in the absence of positive provisions of law to the contrary, according to the dates of such attachments; but incumbrances created by maritime liens are marshaled according to the causes from which such liens spring; that is, they subsist and bind the property, not in virtue of the legal process used to enforce them, but by operation of the law which creates them, and fixes them on the property the moment the debts are incurred." The Young Mechanic, 2 Curt. 413. The next question is, are the other material men in court, none of them having advertised? The reason for the advertisement is
FEDERAL REPOR'l'ER;
vol. 57.
plain. In order to give the court complete jurisdiction, so that a decree for· sale will secure clear title, the notice is given to all the world. In the present case the court took possession of the res,and this advertisement was necessary. Having been made, the jurisdiction was complete. No further advertisement was neeessary,-indeed, we may say, would have been proper,-unless the claiIllant had under the first libels given security, and released the vessel. The libels filed after her arrest and the advertisement wereinteryentions. They do not demand the redelivery of the vessel".and seek only the payment of a claim in the ultimate disposition of the case. The Two Marys, 12 Fed. Rep. 152. They were properly in the form of a libel, and properly prayed warrant of arrest, and, as properly the warrants were in the hands of the marshal" not, however, to be acted upon immediately, but "for the puvpose .of, securing the further detention of the property in case for its release, under Act March 3, 1847, c. 55; security be; or, itt tqe' event of its discharge from arrest in the mean time for the purpose:of having it again arrested to answer this new demand." 2 Con.k. Adm. 540. The : question is as tp the claim set up by Riley for increase4. for his items of labor. Riley iaa' contractor, and in. makiI!.g out his bill,an.d in ascertaining its total, he charges in paid by him for the labor in· putting in the: materials. statute gives the lien to any person, for labor performed, The for mate:riw,s used, or for labor and materials furnished. This clea:rly 'distinguishes the three classes,-the laoorer, the party furnish'ing the materials to. beused,and fue person furnishing labor and materials. The increased percentage is given to those having liens in the first class, for labor; that is to say, the laborer. The exceptions are overruled. The special master has allowed costs of proctors in all the cases. With the exception ot the claims of Butler and Riley, the subsequent proceedings were all interventions, inchoate suits, to be perfected in case the Julia, was released, and if she be not released, but sold, then to operate upon the balance of the proceeds of sale. The parties themselves show their own constructi<m of their action. No decree by default was taken in any case. They went at once into marshaling the remainder of the proceeds. No· proctors' costs are allowed in the cases reported, except in the Butler and Riley claims. Let thecll:l!le go back to the special master, for the purpose of restating the division in accordance with this opinion. MILBURN v. THIRTY-FIVE THOUSAND BOXES OF ORANGES AND LEMONS et aI. (Oircult Court ot Appeals, Second Circuit. August 1, 18981. DEMURRAGE-DELAY BY CONSIUNEE-CUSTOM OF PORT-COMMERCIAL USAGE. In, a charter party the words "to discharge with customary dispatch, -, · - cargo to be - · · discharged according to the custom of the
MILBURN V. THIRTY-FIVE THOUSAND BOXES ORANGES AND LEMONS.
237
port," do not include a custom whereby' all cargoes of fruit are sold at auction by one firm, not more than one cargo being sold in one day, and no cargo being discharged until it has been thus sold, since such custom manifestly has its origin in the sale, and not in the discharging, of cargoes; and for dem'urrage caused by such a custom the cargo is liable. 2. SAME-LIQUIDATED DAMAGES.
Where a charter party provides for demurrage at a stipulated rate per day, payable day by day, and the master makes daily demand for the amount due, interest from the time of such demand should be included in an allowance for demurra/te.
Appeal from the District Court of the United States for the Eastern District of New York. In Admiralty. Libel by John D. Milburn, owner of the steamship Tiverton, against 35,000 boxes of oranges and lemons, Phelps Bros. & Co., claimants, for demurrage. 'fhe district court rendered a decree for libelant, but disallowed a claim for interest. Both parties appeal. Reversed. Statement by Circuit Judge: The 1.'iverton, a British steamship, was chartered to the claimant's Liver· pool firm, to carry a cargo of gTeen fruit and other lawful merchandise frolfi }\{editeITanean ports to New York, by a charter party dated October 16, 1890. The followingprOYisions of the charter are relevant: "To discharge at charterers' covered wharf, .. .. .. and there. deliver the same, agreeably to bills of L'lding, :lI.d so end the voyage." "To discharge with customary dispatch." "The cargo .. .. .. to be stowed and discharged according to the customs of the ports." "And shall pay demurrage at the rate of thirty pounUs sterling per day, to be paid nay by day, for each and every day said steamer Is detaIned over the said time, as hereinbefore stated." "To be consigne(l at port of discharge to )'Iessl"S. Phelps Brothers & Co." A cargo consisting almost entirely of oranges and lemons was loaded aboard at Mediterranean ports, and bills of lading therefor, whareby, among other things, it was agreed: "Sill111ltanellusly with the ship being ready to unload, .. .. .. the consignee of flaid goods is hereby bound to be ready to receiv{" the same from the ship's side, .. .. .. and, in default thereof, the master or agent of the ship .. .. .. are hereby auth(,rized to enter the said goods, .. .. .. Hnd land, warehouse, or place them in lighter, witJhout notice to, and at the risk and of, the said consignee," etc. The TIverton arrived at New York on December 29th and notified Phelps Bros: & Co. the next day of her readiness to discharge. She was duly entered at the customhQuse, and p,errnits for discharge issued. The charterers thereupon ordered her to their Mediterranean piers, Brooklyn, where she was duly berthed at R P. 1\1., December 30, 1890, on tihe south side of the northerly cne of the two covered piers owned by the charterers, and was un()bstmcted. There was no other vesf'iel on the opposite or side of the pier where the Tiverton lay, but the steamer Thomas Melville lay at the southerly side of the charterers' southerly pier. The charterers assigned t!heir regular stevedore to the discharge of the fruit, and he was present when the steamer was docked. Both of these piers were covered, and steamers lying at either had equal advantages for discharge, simultaneously, and without interfering with each other. By the custom of the port, January 1st was' a holiday. The temperature was proper for the discharge of green fruit on January 2d and 3d, and the steamer Thomas Melville was discharged on those days. Although 11he Tiverton had equal facilities, and was in all respects ready to discharge, her cargo was left aboard, and received no attention. The weather after Saturday, January 3d, became cold, and the {\iseharge of the 'TIverton was not completed until Januvry 13th, or nine days after the discharge of the Thomas Melville. During the winter fruit cargoes are discharged only when the thermometer indicates 28 degrees F., or over. Proof was made upon the trial of a custom in the fruit trade at this port,
',238
1'EDERAJ<, :lUJPORTER,
:wblc:h has existed for many years; .All such cargoes are sold anction, and by 1I.J'm ,soon as the steameranive5 l/-t Sandy HQPj{,· repol·ts4eJ; at the auctioneer's it list is and they put down .the 1J.ou): minute.. of arrival. the summer vesselli discharge irrespective ot ilie Ust. In the winter, however;' a day is set for each vessel in turn, It when that day comes the thermoUleter indicates the auctioneers sell cargo of the vessel which that day was assigJiell·. the sale beginning at Mon. Discharge commences In the morning of the sale, and pJ;oceeds, weather till completed. No other cargo is sold on that day. If the next day is favorable, the cargo of the next vessel is sold, whether the discharge of the one sold the day before is completed or not. No sales, however, are made on Saturday. By this method the conSignee of the fruit turns 'It over from the ship to the buyer, without himself warehousing it. TIle ship holds it till a purchaser isfotlUd, lI.ctlng as a tempomry warehouse nwanwhne, ;ind the purchaser is ,not found, or even 8011ght for,-till the day comes, .when the auctioneers, at their convenIence sold a.UearUer cargoes, one a day, are prepared to offet this one on t11(, open market: . The only reason wfir discharge of the Tiverton 'was not begun on JanlUlry 2d was becau:sEj the cargo of the Melvllle,which had arrivecl earlier, was offered for sale on that day. The only reason why discharge was not begun January 3d was because fruit cargoes are not sold on SaturdaYR. 'rhe I1belallt filed his libel tor delllurrage at the charter rate of $150 pel' day ft)t' det;entlon, making' in all the sum ot$l,350. Interest 1Jhereon wa..<; disallowed by the district court, and a partialappeal against 'such disallowance wastakim by the libelant. Theclaimant'has appealed from the In favor oit'the'libelant. .
Wm. 'lit, Cochran, for appellant. E. B. 06nvers, for appellee. BefqreW;ALLACE, andSlIlPMAN, Circuit Judges.
LA90M:UE, Circuit (atter stating the facts.) . There is no in this <1ase. 'The existence of the custom set up in defense ·isconceded, and the only .point to be decided is whether it is into the contract between the parties by the language they ased. The district judge did not discuss this point iIi the brief memoi'andumhe filed with his' deciSion. He had predsely the same custom before him, however, in the case of Steam Co "v. Snitter, 17 Fed. Rep. 698, and there held that the existence of such usage .c>f trade did not affect the right 'of tlieshipowner to insist upon reasonable promptness in that it was "unreasonable, and contrary to public policy, to permit the time of discharging a ship of her cargo to depend upon the'ability of a single auction house, in the accumulation of business and of other engagements, toefl;ect a sale of such cargo for the owners thereof!' The question whether a clause in the charter party.providing for "discharge With! customary dispatch" was affected by a substantially similarcb,stotn at the port of New Orleans, where it was the practice of f1'llitdealers to rC(ceive their fruit from the vessels no faster than they,could,lilell it at the wharves, was also carefully considered by the district and circuit courts in district of Louisiana. Lindsay' Cusimano, 10 Fed. Rep. 302, 12 Fed. Rep. 503, 505. It was therein held as follows: .' . "The obligations of the owners and charterers, where the charter party is ,silent to time to be occupied in discharging, are reciprocal; each shall
MILBURN V. THIRTY-ll'IVETHOUSAND BOXES ORANGES AND LEMONS.
239
use 'reasonable dispatch.' This obligation is here qualified by changing 'reasonable' into 'customary' dispatch. This enlarges the source of delay, and makes it include all those usages at the port of delivery which the carrier eannot control,-such as, the working hours, the order in which vessels must come up to the wharf, the observance of holidays, the allowance of three .lays to obtain a berth, provided one cannot be sooner obtained; but here their force stops. They cannot be held to include any delay which is purely voluntary on the part of the charterers, although such delay is customary in the fruit trade. The phrase must be confined in its meaning to excuse the parties for want of opportunity by reason of tlle custom prevailing at the port. This is the substance of the decision in Kearon v. Pearson, 7 Hurl. & N. 386. There the question was as to the meaning of the words 'usual dispatch' as applied to loading. Martin, R, before whom the case was tried, whose ruling was affirmed by all the judges, says, page 387: 'They meant that the vessel filhould be loaded with the usual dispatch of persons Who have a cargo ready at Liverpool for loading.' Here these words 'oustomary dispatch' meant the usual dispatch of persOiIlS who are ready to receive a cargo, and exclude all customs in accordance witJh which these charterers might claim the right to decline to receive, simply because it was more advantageous to postpone. · · · Delivery should' take place with dispatch, limited or qUalified by the customs prevailing at the port of delivery, which created barriers not under the control of the party who here urges them." 10 Fed. Rep. 303.
The distinction thus pointed out is a sound one. The custom' here set up to sell only one fruit cargo a day, and none on Saturdays, is not an outgrowth of the business of discharging ships, but rather of the business of selling their cargoes. It is manifestly intended to prevent a glut in the market, to keep up prices by holding back newly-arrived fruit till the earlier arrivals have been absorbed by the' consumer. It does not interfere with a discharge of the ship, as did the customs as to hours and times of labor, as to routine of access to a single elevator, as to a second change of berth,which have been held applicable in the cases cited by the appellant. The consignee could have discharged this cargo in seasonable weather On January 2d and 3d, removed it from the dock and ware· housed it ; and; 'when the only excuse he gives for not doing so is that, by the custom of his trade, he could not sell it in the ordinary way to consumers until other fruit had been first so sold, he may not turn the ship into a temporary warehouse to hold his goods until he finds a market for them. We do not determine whether the custOpl of selling fruit"by a single firm of auctioneers, and in restricted quantities, which seems to have existed many years, is or is not reasonable, but do hold it is not the kind of custom which the use:dt' the phrase "customary dispatch in discharging" imports into the contract of affreightment between the parties, being concerned, not with the business of discharging, but with the business of selling, and not creating any impediment to a discharge with dispatch, which the. charterer would not have overcome by the use of mere ordinary diligence. Inasmuch as the charter party contains an express agreement to pay demurrage at the rate above named "in case the steamer is detained over the said time, as above stated," and the steamer was detained nine days the time agreed upon for unloading, viz. such time as v{Quld be required for discharge with customary dis·
240
,:;<
....
FEDERALiREPORTER,
vo1..57·
patch, the district court correctly awarded demurrage to the libelant. Such award, however,was without interest, and the refusal to. allow it ie'assigned as errorby the libelant.. Upon this point the decisions of the eastern and of the southern districts of New York are not harmonious. The .AleKandria, 10 Ben. 101; Johanssen v. The Eloina, '4 Fed. Rep. 573; The J. A. Dumont, 34: Fed. Rep. 4:28. It is to add anYthing to':the discussion of the subject contained in those opinions. The amount of the demurrage is liquidated by the contract. Claimants stipulated to pay it day by day, in case the vessel beyond the stipulated time. It was their duty to pay it when they so detained her, and to pay it day by day fo;r,each day of suchdetention,as they contracted to do. The master of the Tiverton demanded daily the -amount due. In similar follows recovery, and there lsno adequate reasOn why.demurrage sh()Ulq:. be subject'to. any rule. The decrlreof the wstdct, <lourt is reversed, and cause remanded, 'With instructions'to decree in favor of the libelant for demurrage, as found 'bySaid Murt, with interest thereon from date of demand, and costs of the district court and of this court.
In: re MYERS EXdb'ItSION &NAVIGATIONOO. (District Court.lil.. D. New York. 1. SHIPPING':"'LIMI'l'ATION
July 7. 1898.)
OF LtABILITY-Exo"tJRS!ON BARGE.' A b!J..rge without motive power, which is used for transporting excursion parties on New Yo;rk ,llarbor and adjacent waters, Is within the Umited liabiUtyJICu; of the Unite!! States. .' 2. SAME-BARGE WITJIOUT MOTIVE POWER MAy BE SURRENDERED WITHOUT TUG.' . " '.' ,
A barge without motive power,. wlJichisused for carryingexcurslon parties al1outNe1V York barbor and a4jacent waters, may Qe, surrendered by her owners. lwder the limited liability acts of the United States, without the s,urrender. of the tug towing the barge at the time of the loss. though the titgbelongs to the Slime owners. . S. SAME-UNSEAwoRTntNEss VIOLENCE. . CAPACITY TO WITHSTAND STORMS OF ORDINARY
A barge Psed to carry excursion parties on New York harbor and neighboring waters is, unseaworthy when not in, aconditlon to withstand without serious illjury to her passengers the violent thunderstorms which are of frequent eccurrence in that locality. Where the Ullileaworthy condition of an excursion barge would be shown by a proper examination, her owners are charged with knowledge thereof, and any injUry 'to passengers resulting therefrom Is not without the "privity or of the owners so as to entitle them to the benefit of the limited liabillty :acts of the United States. .
4iSAME:-'OWNERS' CB:ARGED wn'H KNOWLEDGE-LIMITATION OF LIABILITY.
In Admiralty. In the mitter of the petition of the Myers Exc).lI'sion & Na,rigatiop. Company for limitation of liability as owners Qf the barge R¢Pll1,llic. Petition d1smissed. Wing, Shondy & Putnam, for petitioner. Raphael J. Moses,: Jr., Fernando Solinger, and George W. Cottrell, for respondents.