9 F. 521 | S.D. Ohio | 1881
This case has been ably and elaborately presented to the court by counsel, both by oral arguments and in briefs. It involves the distribution of a fund amounting to nearly $10,000, now in the registry of the court, being the proceeds of the sale of the steamer Guiding Star. About 70 libels and intervenors have been filed, embracing such a variety of claims as to cover almost the entire domain of admiralty, so far as the question of liens and their priorities is concerned.
As to what are the facts in the case there is but little if any doubt, excepting on one point, and that is, the circumstances under which the various loans to Capt. Miller, the owner and master of the boat, were made. Aside from the loans obtained for the building of the boat, the other advances consist of two classes; namely, those obtained at the home port here in Cincinnati, and those obtained in ports outside of this state. It is well established that where money is advanced to meet such claims as in themselves have liens according, to the rules of admiralty, a lien also exists for such money. But before a lien exists for money advanced, it must be clearly shown that the purposes for which it is advanced are entitled to a lien. If advanced for the purpose of paying seamen’s wages, necessary supplies and repairs, or anything else to which a lien in admiralty attaches, in that case a lien also attaches to such money, but not otherwise.
Now let us see what are the facts in this case so far as the borrowed money is concerned. With but one exception, and that is the loan made by Mr. Menge, of New Orleans, the money was obtained' for what Capt. Miller calls “the general purposes of the boat,” and he is careful to say that such general purposes include supplies, repairs, interest, take-up notes, etc. Now, some of these purposes have a lien attached to them and some have not, and if it could be definitely shown what portion of each loan was borrowed for such purposes as have liens, then the court would place such portions on the same footing with supplies. The Grapeshot, 9 Wall. 144. The testimony, however, shows very clearly that this cannot be done. In" the case of Menge’s loan, however, notwithstanding one or two general expressions on Capt. Miller’s part, I am inclined to think that the advance of $1,000 was made for the express purpose of paying the running expenses of the boat, strictly so called, and therefore decide that a lien attaches to that loan.
Upon the disputed questions which the order of payment determines,
2. Whether the claim for materials and labor in the building of a boat is a maritime contract. That such a claim is not a maritime contract is also settled by the decision of the supreme court in Edwards v. Elliot, 21 Wall. 532, and the authorities there cited.
3. The mortgage must be postponed to the lien given by the general admiralty law for supplies and repairs. The Emily Souder, 17 Wall. 666. Now, if the lien created by the statute of the state for these claims, when furnished in the home port, is of equal dignity with liens given by the general admiralty law, it follows that the mortgage must be postponed to them also. Aside from this reasoning the weight of authority would seem in favor of the priority of liens for home supplies to that of a mortgage. . The William T. Graves, 8 Ben. 568; The Favorite, 3 Sawy. 405; The St. Joseph, Brown, Adm. 202; The Bradish Johnson, 10 Chi. Leg. N. 353; The Kiarsage, 2 Cur. 421; The Granite State, 1 Spr. 277.
4. The mortgage must be postponed to the lien given by the state statute for materials and labor in the building of the boat. This lien existed when the mortgage was given, and the latter must therefore be subject to it. Jones v. The Commerce, 14 Ohio, 409; Provost v. Wilcox; 17 Ohio, 359; Johnson v. Ward, 27 Ohio St. 520; Steamer Monarch v. Marine Ry. Co. 7 Ohio St. 478.
5. The mortgage not being an admiralty contract, nor having an admiralty lien, can only be treated as a legal lien. Bogart v. Steamboat John Jay, 17 How. 399; The Emily Souder, 17 Wall. 666; The Lottawanna, 21 Wall. 558.
6. The claim on the part of the owner of the boat for an allowance of $500 in lieu of a homestead cannot prevail against liens which exist by virtue of the general admiralty law, nor against those created by the state statute. Johnson v. Ward, 27 Ohio St. 520.
7. The lien given by section 5880 of the Laws of Ohio is a lien created by the express terms of the statute, and requires for its perfection none of the proceedings as provided for in the mechanics’ lien law of the state. Johnson v. Ward, supra.
8. In reply to the proposition that as the state statute, which creates liens, makes no distinction between liens upon contracts which
9. As already referred to at the commencement of this decision, by the general admiralty law a lien exists in favor of one who advances money for the payment of supplies and repairs. The Grapeshot, 9 Wall. 130; The Lulu, 10 Wall. 192; The Emily Souder, 17 Wall. 666; Ins. Co. v. Baring, 20 Wall. 159. If the evidence in this ease reasonably satisfied my mind that the claims for money in this ease, in the foreign and home ports, were advances made for the payment of supplies and repairs, I would certainly declare a lien in favor of such advances, or, if it were shown that any definite part of it was for that purpose, then a lien would be declared to the extent of such part. The Grapeshot, 9 Wall. 129. But, in my opinion, after a careful examination, the testimony fails to show that any definite portion of the money loaned was advanced for the payment of supplies and repairs. None of those who loaned money in the home port have been examined as witnesses, and the only testimony we have upon their claims is that of Capt. Miller.
Without entering into a further discussion of the principles involved in this case, or of the rules as established by the courts of admiralty, we will merely state, in conclusion, the classes into which the claims should be divided in the order of their priority of rank:
(1) Seamen’s wages. (2) All claims which, by the general admiralty law have a lien, as for supplies (including fuel) and repairs in a foreign port. (3) Such claims as are maritime in their nature and subject-matter, for which the state law lias given a lien, including supplies, repairs, and insurance. These having, by the decision of the circuit judge of this circuit in the case of The General Burnside, 3 Fed. Rep. 232, been held to be of equal dignity*526 with, liens created by the general admiralty law, must be treated as composing a part of the second class of claims. (4) Claims for materials and labor in the building of the boat. (5) Mortgage claims. (6) Claims for borrowed money for those purposes to which no liens attach in admiralty.
See The Schooner Marion, 1 Story, 73 ; Read v. Hull of New Brig. Id. 246; The Ship Norway, 3 Ben. 165. — [Rep.