22 F. 123 | S.D.N.Y. | 1884
The tug-boat Grapeshot, having been libeled upon various claims for wages, for repairs and supplies, and for damages, has been sold, and the net proceeds, amounting to $1,058, have been paid into the registry of the court. She was first seized under a libel filed by James Coffey and others for wages. Four other libels, filed shortly afterwards, were all for repairs and supplies furnished to the tug, each consisting of various items furnished at different times. They all overlap one another, and cover a period extending from about March 1 to July 16, 1884. The libel of Bichard Coffin was filed to recover damages sustained by the schooner Yelma, which was in tow of the Grapeshot, and is alleged to have been run aground on July 5, 1884, through the negligence of the tug. This was the earliest libel filed, though not the first under which the Grapeshot was arrested. The liability of the tug for these damages is denied, and the suit has not yet been brought to trial. In all the other cases judgments have been recovered. The last libel filed was for coal supplied by the Com-munipaw Coal Company to the amount of $34.38, between July 18- and July 22, 1884, after the arrest of the vessel by the marshal, and while she was in his custody and was apparently permitted by him to be run by the owners. The amount in the registry being insufficient to pay all the various claims, the parties have submitted to the court'the question of their respective priorities, as well as their right to costs.
I do not find upon the facts any such laches in regard to any of the claims as should debar them from their proper order of privilege. The claims for wages must, therefore, be paid in full, and the proctors in that ease should be allowed one full bill of costs, as the vessel was seized and sold in their suit. The Samuel J. Christian, 16 Fed. Rep. 796; The J. W. Tucker, 20 Fed. Rep. 134.
The lien claimed by the C'ommunipaw Coal Company for coal supplied to the vessel while she was in the lawful custody of the marshal must be postponed to all other claims. The company had already libeled the vessel for previous supplies to a considerable amount. It
The lour other libels for repairs and supplies embrace, as I have said, numerous items extending over a period of about four months, and overlapping one another. They are, each of them, brought upon running bills of account with the steam-tug, which was employed entirely about the harbor in making short trips daily, or several trips a day. It is impracticable to regard each of such trips by this tag as a separate voyage, or to base any priorities upon the order of such trips. It would be almost equally impracticable to adjust the priorities of these various overlapping items of supplies in the inverse order of their dates; and such a mode of distribution, if practicable, can hardly be supposed to accord with the intention or the expectation, as to security, of those who furnished the supplies upon such running bills of account. I am satisfied that, in these cases of harbor navigation, where the accounts are of the same rank, and are partly contemporaneous and overlapping, or, if not overlapping, are nearly contemporaneous, and consist of only the ordinary repairs and supplies incident to the usual course of navigation, the rule most equitable in itself, and that which will effectuate most nearly the understanding and expectation of the various parties that furnish such supplies, will be that of & pro rata distribution, as in the cases referred to in 'The J. W. Tucker, 20 Fed. Rep. 134. The divisions of time cannot, indeed, here be made by open seasons of navigation, because navigation here is open the year round. But I think the same considerations there stated apply equally within the period of a reasonable diligence for the enforcement of the earliest of the liens presented. Those which exceed that period should be postponed; those that do not should share pro rata. Where the repairs are of an extraordinary or exceptional character, such as might be consequent upon extensive damage by collision, for instance, they might not, perhaps, be properly brought under this pro rata distribution. At present, I decide only as to ordinary repairs and supplies.
The damage claim in the suit of Richard Coffin arose out of a contract of towage. If the libelants substantiate their claim, inasmuch as their libel was filed very shortly after the injury to the Yelma, and no laches are imputable to them, they would seem to be entitled to the benefit of the security of the vessel for the performance of her maritime obligation according to the condition in which slie stood at the time when the towage services were undertaken by her, and contracted for by the libelants, namely, on the fifth day of July; i. e., subject to all liens on her then existing, and to none subsequently arising. Upon the principle of the decision of the recent case of The Frank G. Fowler, 17 Fed. Rep. 653, and that of The Samuel J. Chris
The claims for wages, with the costs of that suit, should, therefore, be first paid in full. Upon the other claims of the same rank, the costs of all necessary libels are to be added to the claims, respectively, and each claim up to July 5th, with its costs, is to be paid pro rata, except the claim of the Oommunipaw Coal Company for $34.38. If, after the above payments, there shall be any residue, it must remain in the registry and be applied upon whatever is recovered in the suit of the Velma, in preference to the claims for supplies furnished after the damage.