*1 distinguished the The Court below CAWLEY, Patrick Appellant, deter- ground Ersa case on mined liens extent UNITED America, STATES of (arising Un- Commonwealth Appellee. employment Compensation Law) must No. Docket 25243. perfected prevail sub- over order to sequent lien of the Federal Government. States Court of Second Circuit. addition, In distin- we observe another guishing case, which Argued feature the Ersa Oct. 1959. competing that of with the lien DecidedNov. 1959. subsequent Commonwealth arose li- recording- the Commonwealth’s en, competing whereas here the lien prior to
that of the Commonwealth arose recording li- Commonwealth’s In whether or
en. the case at bar fieri writ of
the Commonwealth issued a
facias could have made no it obtained true since Bank. recording prior
the lien time of
by the Commonwealth. below, Court Referee correctly
therefore, determined that the inferior to
lien Bank result, it
the Commonwealth and as a priority payment over
was entitled
the Bank. below the Court is aff
The decision of irmed.24 Waterman, Judge, dissented. a first and obtained the debt recorded equipment. superiority restaurant on Manos’ lien Federal law is first- subsequently in-time, first-in-right. Therefore, reduced to a The lien was the lien (in 1952) judgment. being Commonwealth, liens time, first in Thereafter prevailed over the lien the United Federal due taxes agreed Government. Circuit Court the Commonwealth recorded. except with the District Court in one im- judg- facias on the of fieri a writ issued portant respect; e., i. the Circuit Court equipment ment, the restaurant held that the lien of the Commonwealth Commonwealth, §179.87 sold prior was not in time to that of the $1,436.- to Ersa for in turn sold it Government, Federal since the Common- Director of Internal Revenue 68. “perfected” wealth’s lien is levy prop- posted notice of on the then issuance of a of fieri writ facias. Ersa, bought by erty and Ersa levy. to strike the The Dis- action Subject $1,200 to the reallocation of the F.Supp. 627, quashed Court, 134 trict of the Joint Dress claim Board its theory (1) levy, Federal wages” “daim inclusion under to form superiority determines law prorated part of fund and distributed due United States taxes liens the secured creditors. State, (2) the test of due a
taxes *2 foreign corporation whose
owned port” “home show- was Manila. On this ap- the “Naturalization Examiner” pointed purpose, for had held that he 1441(a) (2) himself within § petition be and “recommended” that his Judge Rayfiel accepted “rec- denied. ommendation,” petition, denied granted rehearing in he him a original supplemented his evidence proving that, his addition ship port” whose “home was Manila, he had served on Chant, vessel, motor on an “inbound”' Manila, from Fran- P. I. to San cisco, California, August 5, from October 1941—a of two months day gave and one him an —which years, four four four months and days, left but still deficit of seven twenty-six days. months and shortly ship Fran- before reached San ill, on this he cisco was taken discharge any longer to became unable junior engineer. Upon her his duties as ship he arrival was taken from hospital in sent to a San Francisco he was transferred Mexico, Hospital in States Marine New he dis- where he remained until charged City, George Spector, York L. New on does November City. Spector, New York Sam Sachs & illness, appear what was his counsel, Panish, City, for New York argues tuberculosis, appellee that it was petitioner-appellant. signed already he on at latent when Jr., Wickersham, New Cornelius W. assume, Arguendo Manila. although, shall so we Wolff, City, Asst. Thaddeus York Prances just appeared, as has he Brooklyn, counsel, Atty., Y., of U. N. S. shortly discharge his able to duties appellee. for before the Francisco. reached San HAND, any rate, WATERMAN and Before is no At evidence Judges. FRIENDLY, signed Manila, sup- when he at he
posed would be disabled on or, matter, voyage,” for that “inbound HAND, Circuit help he did not mean to work Cawley, appeals petitioner, Although to Manila. true back it is petition denying his for nat- an order is not entitled to “mainte- 1441(a) (2) uralization, filed cure,” if he knows he nance S. born of the U. Code. He was Title signs per- on that he will not be able to Islands, Philippine but at the time voyage, his duties form filing petition he had served as a physical not warrant soundness. does ships, on six American States, Cir., Ahmed v. United 9, 1949, 1944 and June December 898, 899, years, held we in favor of a sea- of four two F.2d months provocative previously much He had also more man cir- three years upon bar; than those four cumstances for over he had served happiness previously for tuberculosis der and treated been disregarded though “not caution medical Title he were and had shipboard to on period; and then months the same work several only light maintain, no believe, time.” one work for some do that a *3 sick seaman while on board is not “serv up appeal turns therefore ing,” though literally he cannot do so. 1441(a) (2) of Title on whether under § any voyage Does it make if incapacitated 8, if become a seaman has ends completed? before the cure is during voyage by en and is illness privilege origin; ap is of ancient may cure, he titled to maintenance parently goes back to the Twelfth Cen hospitals add time of his detention tury (Norris, Seamen, of Law § years part of five as during of the 537); found, and so far as we have such honorably he has “served which part of the “cure” that extend be good It must be owned or with conduct.” yond the end of the has never appears to be an first blush this that at been considered different from that On the the section. untenable precedes it. We can see no reason hand, they explicitly forbid other it, unless exception to make an in the case of nat statutory provision is purpose of a language, uralization. Consider the meaning of the test of the words best example, Story of Justice in Reed v. Can put so far ourselves chosen. We are field, Fed.Cas.No.11,641,pp. 426, 20 428: legisla position as of the we can “The ship must, so far as them, ture decide wheth that uttered concerned, the seamen are be deemed to er the situa or not it would declare that commence, they perform are to tion is within what it arisen board, terminate, service on and to Indeed, wished to cover. at times discharged from further service. purpose may be so manifest as to over “The title” “to [sic] ex cured at the explicit ride used. Mark even words pense is co-extensive with the Cabell, ham 66 v. 326 U.S. S.Ct. ship. service in the The seaman is to be go 90 so 165. We do not have L.Ed. injuries sickness, cured for while he bar, far in case resort but did ship’s is in the service. It is the benefit purpose of this section in United service,* which constitutes the Camean, Cir., States 174 F.2d v. groundwork of the claim.” It is true that term, and decided that the “vessels Story, specifically in this J. does not de 1441(a) (2), clare actually that the part “cure” is of literally meant vessels owned ship’s service; surely that is an corporations, should be con appropriate inference. It does not follow strued include title a vessel whose if the transfers the seaman to foreign corporation was in a all of whose foreign hospital, may count the time shares were owned an American cor spent 1441(a) (2). Ces deciding poration. upon In so we relied legis, sante ipsa lex; ratione cessat purposes the fact that one of the two of “cure,” when the whether in a United Congress was “that the alien’s service hospital, or on board affects expose him to a which is way in the same concerned; the interest equivalent the measurable of actual resi citizenship i. e. appears fitness —it dence.” us that the seaman should be allowed to appears to us that a seaman retained prescribed aggregate. count it in the in a United States is “ex- reversed; petition granted. Order (d)” pose “scrutiny” likely to dis- WATERMAN, person good close whether he “is a character, princi- moral ples attached to the I dissent. would affirm. Section 1441(a) (2) requires Constitution of the that the disposed good States and well or- shall have “served honor- * Italics ours. ably good after the seaman’s term of service or conduct for Tay years any expired. Corp. vessel Calmar S.S. See of five lor, 1938, 525, 529-530, Na- U.S. described in section ” * ** Cawley
tionality Thus, all if We even Act of agree here is were entitled to maintenance the crucial word agree ir hospitalization absent fact is “served.” all And we eligible hospitalization cit year period relevant to the three whether izenship 1441(a) (2), for arid seven months under section would lack clearly twenty-six days requisite five it irrelevant majority whether *4 period constitutes on a vessel. holds that this may ag- the in included say It is all to convales- well that gregate year period of five exposes cence a United States postulating conclusion first is reached scrutiny the to as to convalescent to entitled have been equal opportunity moral to character the owners cure from the maintenance and pre- which would have been longer period a Chant M/V sented had shipboard. Perhaps remained the convalescent twenty-six than seven months and this is true. my Proceeding hypothesis col- statute, only however, provides the leagues is in then assert five have throughout the service of I think service on a vessel. receive thereafter make statute it to needs no cure. maintenance and clear, its intent and that we believe along adopting the I do follow should read it as it stands. Though argument. step of this second course, true, ship” service of “in the to have been cure and entitle him to maintenance Aguilar see, g., shipowner, from the e. 724, Co., 1943, 318 U.S. Oil v. Standard it is not time true that also UNITED INSURANCE COMPANY OF away shipboard, seaman, AMERICA, Corporation, receiving cure maintenance Petitioner, ship.” I believe “in the service reaching colleagues my result NATIONAL LABOR RELATIONS employment confused reached have BOARD,Respondent. necessary to entitle a seaman situation No. 12577. situation cure with the maintenance seaman, here, is unem- where ployed, Court of cure maintenance and the Seventh Circuit. payments continued because 11, 1959. Dec. continuing undisputed ob- shipowner’s ligation maintenance furnish recognized that it is well Indeed cure.1 obligation furnish shipowner’s long may continue cure maintenance injured Canfield, did not if the seaman exist C.C.Mass. Reed v. The case of port. 11,641, was in its home No. 20 Fed.Cas. rejected summarily contention, length primarily time court vrith the dealt my colleagues quote language obligated shipowner to continue the payments reference to this issue. has no bear and cure. maintenance presented Nevertheless, on the issue here. owner also contended right maintenance