The Frank G. Fowler, 17 F. 653

The Frank G. Fowler

17 F. 653 | U.S. Circuit Court for the District of Southern New York | 1883

Blatchford, Justice.

The district court awarded priority of claim and lien to the Phenix Insurance Company, and directed that the §34,500 and all accumulations of interest thereon be paid to it. The Conways appeal from such award and direction. The view of the district court was that the interest or lien of the Conways in tho tug, growing out of the damage suffered by the canal-boat and cargo at the earlier date, was liable to respond for the damage to the barge at the later date. I cannot concur in this view. This is a case where there was no priority of attachment or seizure of the vessel, although the libel for the second damage was first filed, and it is not a ease where either claim can be considered as other than one sounding in damages for a tort. The contention on the part of the Phenix Insurance Company is that the claims arising out of the two torts are *656to be paid, in the inverse order of their creation, on the view that ' though they are, claims of the same class they arp not claims of the game- rank, of privilege. It- may very well be that among creditors he is to be preferred “who has contributed most immediately to the preservation of the thing;” that “the last bottomry bond is preferred t'o those of older date;” and “that repairs and supplies furnished a vessel in her last voyage take precedence of those furnished in a prior voyage.” But the principle governing such cases is that “the services performed a't the latest hour are most efficacious in bringing the vessel and her freightage safely to-their final destination;” and that “each foregoing incumbrance, therefore, is actually benefited by reason.'of the succeeding incumbrance.” ' This principle can have no place except where services are rendered, such as loaning money, furnishing supplies, máking repairs, salvage, and claims arising out Of contract generally. Such services benefit the vessel, make her better, preserve her, contribute to save ner ‘or improve her or keep her in running or going order for the benefit of all who have prior liens or claims on her. But a second tort or collision can have no such effect in reference to a party injured by a prior tort or collision. The second tort or collision does not benefit the vessel or add to her value or preserve her. It only tends to injure her, and the sufferer by the first tort or, collision, in having recourse against the vessel after the second tort or collision, must take her as he finds her, damaged, perhaps, by a second collision. He ought not to lose the benefit of his lien arising out of the first tort or collision, unless the circumstances are such that in judgment of law he may fairly be held to, have waived his lien, or postponed it, as regards the lien arising out of the second tort or collision. In the present ease there was no waiver or postponement. No case cited declares any doctrine which sanctions the giving of priority in the present case to the Phenix Insurance Company, except what is found in the case of The America, 6 Monthly Law Rep. (N. S.) 261. That case is not sustained by authority, nor is it sustainable on principle. There was nothing in the mere fact of the second tort to extinguish the lien arising out of the ■first tort, and, when both torts were of the same character, each arising out of negligence towards a tow in fulfilling a contract of towage, and each claimant arrests the vessel at the same time, to respond, there is no principle of the maritime law, and no interest of commerce or navigation, which requires that the elder lienor, not guilty of laches, and not having committed any waiver or abandonment, should have his claim postponed to that of the younger lienor.'

The decree of the district court must be reversed, as to the matters appealed from, with costs of the appeal, and priority of lien and of payment out. of the fund be awarded to the Conways, and both cases be remanded to the district court, with directions to that court to proceed with the reference in the suit brought by the Conways, and to take such further proceedings thereafter as may not be inconsistent with the findings and opinion of this court.