95 F. 483 | S.D.N.Y. | 1899
The above libel was filed as in a cause of towage civil and maritime, by which the libelants claim a lien in
The claimant of the Soule is the Knickerbocker Steam Towage Company, which on June 18, 1898, conveyed the Soule, with a number of other vessels, to the Atlantic Transportation Company and took back a mortgage upon the same vessels as security for the payment of a part of the price. The transportation company failed in December and a receiver was appointed of the property. A short time prior thereto the towage company took possession of the Soule and other vessels for default in payment, under the mortgage, and the Soule was subsequently sold pursuant to the provisions of the mortgage and bought in by the company. The present libel was filed on- January 25, 1899.
The case of The Williams, Brown, Adm. 208, Fed. Cas. No. 17,710, was in some respects like the present case, although there the suit was brought nominally for salvage services and the employment was by the master. Longyear, J., dismissed the libel, but on appeal the libel was sustained by Emmons, J., on the broad ground that all contracts for the benefit of a ship are liens upon her. In the subsequent case of The Ira Chaffee, 2 Fed. 401, Mr. Justice Brown, in referring to this case, though stating that the above proposition is too broad, says that he has no doubt of the correctness of the ruling.
The service rendered in this case was not a salvage service, because the vessel was not found. It was merely a salvage enterprise, entered upon by the-Hudson upon the contract of the agent of the owner to pay the Hudson $300 for the endeavor to find the Soule and to tow her into Norfolk, if found. In the case of The Williams, the employment was - substantially the same. The case does not- fall within the provisions of the nineteenth rule' of the supreme court in admiralty for a suit in rem, the language of that rule being
“In all suits for salvage the suit may be in rem against the property saved, or the proceeds thereof.”
This imports a case in which the libelant has saved or contributed towards saving the property, which is not the case here. The remaining branch of the same rule provides for a suit in personam against the party at whose request the service has been performed, which would cover this case.
A contract for the service of a tug to go in search of a vessel in need of salvage assistance is evidently a maritime contract. When made under circumstances importing a pledge of the vessel as security for the payment, I see no reason why a lien for such a service