7 F. 674 | S.D.N.Y. | 1881
The brig Wexford, an English vessel belonging to Nova Scotia, was libelled in this court in a suit for seamen ’s wages. The libel was against vessel and freight, but process issued only against the vessel. She was condemned and sold, and the amount of the proceeds of the vessel in the
The master’s claim for wages was proved at $504.04, including extra wages for 10 days’ double pay on account of delay in payment. Crossman’s claim in his suit in personam, for advances on the coast of Africa, was proved at $77.12. The mortgagee proved a balance of $1,500 due to him. The commissioner inadvertently reported this at $5,000. The mistake is conceded. The commissioner held that the freight should be applied first to the payment of the claim of Cross-man, and that the balance should be paid to the mortgagee, on the ground that the mortgagee had taken possession of the vessel before delivery of the cargo. He also held that the proceeds o.f the vessel, after paying the wages of the seamen, should be applied as follows:
(1) To pay the claim of Germond, pilot.
(2) To pay the claims of Anderson, Wright & Co., Abbott, Warren, and Beilly, material men, in the order in which their libels wore filed.
(3) To pay the master’s wages, including extra wages on account of delay in payment.
(4) To pay the claim of Crocker & Co., material men, this claim being postponed to the claims of the other material men on account of their laches in filing their libel, and to that of the master on account of his superior equitable claim upon the fund.
The claims of the seamen were proved at $360.62.
The master excepts to the report on the ground that his wages should be paid out of the freight either next after payment of Crossman’s claim or next after payment of Crossman and the seamen. Crocker Brothers & Co. except on the ground that their claim should be paid out of the proceeds of the vessel before the claims of the other material men, whose libels were filed after that of Crocker Brothers & Co.; also
The first question to be considered in respect to the claim of Crocker Brothers & Co. is whether they have a lien on the vessel for the copper supplied to her in April, 1877. To the lien claimed by them several objections are made—First, that the vessel was an English vessel, and that, by the law of England, the master has no authority to bind the vessel in a foreign port for supplies and materials, otherwise than by a bottomry bond; secondly, that in this ease the owner of the vessel resided in this port, and that in such case there is no lien, though the vessel be under a foreign flag; thirdly, that in this case credit was not given to the vessel; fourthly, that their lien, if they ever had one, was waived by taking a subsequent mortgage; and, lastly, that it was forfeited by laches.
As to the first objection, formal proof of the English law was not made, as it should have been, since the court does
The laches here have been extraordinary, and such as to disentitle this party to any favor in a court of admiralty. As against the owner, who has admitted his claim, he might be paid out of the proceeds; but as against subsequent lienors, who have not been guilty of laches, and who stand to him in at least as favorable a relation as subsequent bona fide purchasers, the lien is clearly gone. The ruling of the commissioner on this point, postponing the claim of Crocker Brothers & Co. to those of the other material men, was entirely correct. The Artisan, 8 Ben. 538, and cases cited. It is no answer to say that these claimants did not know of the repeated returns of the vessel. I am not satisfied upon the proofs that their agent here had not information of it, but it was their own negligence if they did not know of it. They had ample means of ascertaining the fact, and their failure to collect their debt before she left the first time made it incumbent on them to use increased diligence thereafter, if they would protect their lien against the newly-accruing claims of parties trusting her in ignorance of their claim. As to the first mortgagee, undoubtedly he does not stand in the same favorable position in this respect as the subsequent lienors, but he has a right to insist that these parties waived their lien and took other security, a second mortgage, in lieu
As no exception is taken to the allowance of the claims of the other material men, I am not called upon to decide the question, as to them, whether the fact that the vessel was English prevented their liens from attaching.
The claim of the mortgagee that ho took possession of the vessel before the discharge of the cargo, so as to entitle him to the freight as against the owner, is not sustained by the evidence. The proof is that he came on board the vessel with a man whom he employed to act as a ship-keeper, found the mate and steward on board, the master being absent; that he told the mate that he took possession under his mortgage, reading to the mate as much of his papers as the mate was willing to listen to, and then left; that he told the ship-keeper that he need not remain on the vessel all the time; that the ship-keeper in fact then only remained about an hour, when he left. There is evidence that the ship-keeper subsequently returned and was on the vessel more or less down to the time of the discharge of the cargo. There is no evidence that the mortgagee ever took the actual custody and possession of the vessel. Prior to his going on board, the master and crew were in possession as agents of the owner. The possession of the mortgagee, to avail him at
The lien of the master for his wages, is, by the British Merchant Shipping Act, IT and 18 Vict. 104, the'same as that of the seamen, and he is equally entitled with them to extra pay in case of delay in payment of the wages unless he himself causes the delay. The Princess Helena, Lush. 190. By a subsequent statute, 24 Viet. 10, his lien was extended to cover his disbursements for the ship, and this has been construed to include liabilities incurred. The Feronia, L. R. 2 Ad. 65, and cases cited. It has been already held in the case of this same vessel that the seamen’s lien for wages extends to their extra wages. 8 Fed. Bep. 577. The commissioner was therefore right in reporting the master’s claim with the addition of extra wages.
The mortgagee, having shown no interest in the freight, cannot contest the claim of Crossman, under his attachment in his suit in personam against the master and owners, to have his claim paid out of the freight. Crossman obtained a lien upon it as against the owners by his attachment, subordinate, of course, to the lien of the seamen. It seems also, from the authorities above cited, that, as this was a disbursement of the master for the ship, the master has alien on the freight to secure it.
Courts of admiralty recognize and enforce in proper cases the equitable rule that where one creditor has two funds to resort to, and another has but one, the creditor having two will be compelled to resort first to that which the other creditor is not entitled to resort to, in order that both may be paid. The Sailor Prince, 1 Ben. 234, 461. It is objected in this case that the seamen’s and master’s wages should not in this case be paid out of the freight rather than the vessel Cor the relief of those having claims on the vessel, because the freight was not attached on the libel of the seamen, but was brought into the registry on the suit of Cross-man, in personam, against the master and owners. But I think this is not a sufficient objection. Tho equitable rule is not limited or narrowed by the voluntary acts or omissions of tho creditor having the twu funds to resort to. In this case no. claim is directly made against the freight, that of the mortgagee being excluded, except that of Crossman. This leaves some $630 of the freight money of this vessel in the registry of the court for distribution. It is, in fact, subject to the lien of tho seamen and master. Even if the owner had appeared to claim it, it would be proper, upon the application of the subsequent material men and the mortgagee having claims on the vessel which are in danger of being lost by reason o'f the payment of the wages out of the vessel, to order the seamen and master to file their petitions to be paid out of the freight. Inasmuch, however, as tlieir libel was against both vessel and freight, though only the vessel was in fact attached on the process taken out by them, it seems to bo unnecessary to go through this form. Both funds being in court, and all the parties in interest having been heard, such order for the marshalling of the assets may bo made as equity may require.
I think there is no force in the claim of the mortgagee that he should have priority over the master out of the proceeds
This disposes of all the questions that have been raised. The fees of the commissioner may be paid out of vessel and freight in the proportion of the two funds. Out of the freight will be paid the claim of Crossman and his costs, then the seamen, then the master. Out of the proceeds of the vessel, the amounts found due the pilot and undisputed claims of material men, then the balance due the master, and anything remaining of the proceeds of the vessel to the mortgagee.
Decree accordingly.