48 F. 839 | S.D.N.Y. | 1892
In July, 1890, the libelant furnished materials to the value of $70.4.4 for the repair of the steam-tug Lyndhurst, at Athens, Green county, within this state, on which $24.44 were paid on account, leaving a balance of $50, to recover which the above libel was filed. On the 18th of August following a notice was filed in the county clerk’s office of Green county, pursuant to law, claiming a lien under the state statute. The owner of the tug resided in New Jersey, and the tug belonged at Hoboken. The evidence shows that the libelant had notice of these facts when the materials were furnished. In November, 1890, the owner not being able to pay a mortgage which had become due upon the vessel, the mortgagee, who was also a resident of New Jersey, took possession of her. In December she was arrested under numerous claims for liens, which the mortgagee got released by filing bonds therefor; and on the 24th of January, 1891, he sold her to F. and J, Russell, bona fide purchasers, without notice of the present claim, for $6,500, her full value, which was paid in cash. On the 28th of March following she was sold and conveyed bjr them bona fide and for a full consideration to the New-town Creek Towing Company, which is the claimant defendant, and of which the Messrs. Russell were then and are now managing officers. Before the sale to Messrs. Russell was consummated, searches and careful inquiries were made for any outstanding liens. None were heard of except those which had been bonded. The libelant’s lien was not among those claims, and no notice of it was discovered by the purchasers or their attorneys, nor was there anything to put them upon inquiry in Greene county. This libel -was filed on July 18, 1891. The tug was engaged in the ordinary towing business of this port, and was amenable to process daily from the time when the repairs were made.
The lien in this case was a maritime lien. As against a bona fide purchaser who makes all reasonable efforts to discover incumbrances, and fails to find any, such a lien, after a delay of nearly a year to take any steps to enforce it, where the vessel has been all the time within easy reach of process, and the vendor, meantime, as in this case, has become insolvent, is lost through laches. After such ample opportunity to enforce the lien, the loss should fall upon the lienor, and not on the bona fide vendee. The period of limitation of liens in admiralty, as against a bona fide purchaser, is “a reasonable opportunity to enforce them.” The Chusan, 2 Story, 455; The Utility, Bl. & H. 218; The Eliza Jane, 1 Spr. 152; The Lillie Mills, Id. 307; The Bristol, 11 Fed. Rep. 156, 163. In affirming the decision of this court in the case last cited, Wallace, J., says, (20 Fed. Rep. 800:) “Admiralty denies the privilege of enforcing a lien which has been suffered to lie dormant without excuse until the rights of innocent third persons would be prejudiced if it should be recognized.” In the present case there was no good reason for the long delay.
In the ease of The Guiding Star, 18 Fed. Rep. 263, 268, Mr. Justice Matthews says:
“In enforcing the statutory lien in maritime causes, admiralty courts do not adopt the statute itself, or the construction placed upon it by the courts of common law or of equity, when they apply it. Everything required by the statute as a condition on which the lien arises and vests must, of course, be regarded by courts of admiralty; for they can only act in enforcing a lien when the statute has, according to its terms, conferred.it; but beyond that the statute, as such, does not furnish the rule for governing the decision of the cause in admiralty, as between conflicting claims and liens. The maritime law treats the lien, because conferred upon a maritime contract by the*842 statute, as if it had been conferreil by itself, arid consequently upon the same footing as all maritime liens; t]ie order of payment between them being determinable upon its own prii~cip1es."
And in the case of The Madrid, 40 Fed. Rep. 677, 681, Mr. Justice LAMAR observes that "this lien given by the local statute * * * itself in the nature of a maritime lien;" that is, as the context shows, as respects its status and scope. See, also, The Wyoming, 35 Fed. Rep. 548, 550; The Menominie, 36 Fed. Rep. 197, 204; The North Cambria, 40 Fed. Rep. 656.
By an exceptional practice stated by Mr. Justice BR~DL1iY in The Lottawanna, 21 Wall. 558, 580, to be anomalous, but founded upon colonial usage, the authority of state legislation to establish a lien in rem for the satisfaction of maritime contracts, or maritime torts, is recognized, (The J. F. Warner, 22 Fed. Rep. 342, 345, and cases there cited;) and see Manchester v. Massachusetts, 139 U. S. 240, 11 Sup. Ct. Rep. 559. But this ~icceptiona1 and anomalous authority is not to be extended beyond the mere allowance of a lion, when confbrrecl. The Sylvan Glen, 9 Fed. Rep. 336. Amid somewhat conflicting decisions, the weight of authority Is, I think, to treat state liens, in respect to their ~statn.s, scope, and efibet, the same as strictly maritime liens, (The iliadrid, supra;) and in effect, as Mr. Justice LAMAR observes, "in the nature of a maritime lien itself." While having, therefore, similar attributes and privileges, they must be subjected to the same limitations as regards laches and the rights of other lienors or born fide pui~chasers, as those maritime liens which they most resemble, without reference to any superior qualities or attributes sought to be imparted to them by state legislation. See cases above cited. On both grounds the libel must be dismissed, ivith costs.