Porter v. The Sea Witch

19 F. Cas. 1072 | U.S. Circuit Court for the District of Louisiana | 1877

WOODS, Circuit Judge.

There can be no serious question that pilotage and towage into port, etc., stand in the same rank with necessary supplies and repairs when furnished for the same voyage: The Emily Souder, 17 Wall. [84 U. S.] 666. But the contention hero is, that as the towage was furnished on the last voyage of the schooner, and the claims of Porter and Lyle were for supplies furnished on previous voyages, the claim for towage is entitled to priority of payment. This claim seems to be sustained by the adjudged cases.

In The Paragon [Case No. 10.708], Judge Ware remarks: “The priority of the privilege for seaman’s wages stands upon a principle affecting all privileged debts, that is, that among these creditors he shall he preferred who has contributed most immediately to the preservation of the thing. 2 Valin. Comm. 12. iiv. 3, tit. 5, art. 10. It is upon this principle that the last bottomry bond is preferred to those of older date, and that repairs and supplies furnished a vessel on her last voyage take precedence of those furnished in a prior voyage, and that the wages of the crew are preferred to all other claims, because it is by their labors that the common pledge of all these debts has been preserved and brought to a place of safety.” The same principle is recognized in The Trimountain [Case No. 14,175].

In the case of The Hope, reported in 1 Asp. 5G3, it was held that maritime liens are entitled to rank against the fund in the inverse order of their attachment upon the res, or that the later in-time is the earlier in payment. In that case, it was also decided that the master's wages, which, by the merchants’ shipping act of 1S54, had been placed on the same footing as seamen's wages, were inferior in rank to a bottomry bond given upon the vessel on a voyage subsequent to that on which the wages were earned.

These and other authorities which might be cited show that wages earned and supplies furnished for the later voyage take rank as to priority of payment over wages and supplies earned or furnished for a former voyage. Whether this rule should apply to the short and frequent trips of river steamers, it is not necessary now to decide. As the pilotage was earned on the last voyage ot the Sea Witch, and the supplies of libelant and intervener were furnished for former voyages, I am of opinion that the Ocean Tow Boat Company should be paid first out of the proceeds of the sale; that the residue of the fund, if any, should be applied first to the payment of the claim of Porter, and then to the payment of the claim of Lyle. Decree accordingly.