porary or contingent ownership of some kind, or to some Whatever the extent or character of his ownership might be that is to say, whatever his interest in the ship might be the amount or value of that interest was to be the measure of his liability.

"This view is corroborated by reference to a rule of law which we suppose to be perfectly well settled, namely, that the insurance which a person has on property is not an interest in the property itself, but is a collateral contract, personal to the insured, guarantying him against loss of the property by fire or other specified casualty, but not conferring upon him any interest in the property. That interest he has already, by virtue of his ownership. If it were not for a rule of public policy against wagers, requiring insurance to be for indemnity merely, he could just as well take out insurance on another's property as on his own; and it is manifest that this would give him no interest in the property. He would have an interest in the event of its destruction or nondestruction, but no interest in the property. A man's interest in property insured is so distinct from the insurance that, unless he has such an interest independent of the insurance, his policy will be void."

PROCEDURE-TIME FOR TAKING ADVANTAGE OF STATUTE

172. The owner may take advantage of the statute at any time before he is actually compelled to pay the money.

Under the American practice, he may contest his liability for any damages at all, fight that through all the courts, and, if finally defeated, take advantage of the statute,65

§ 172. 65 BENEFACTOR, 103 U. S. 239, 26 L. Ed. 351; S. A. McCaulley (D. C.) 99 Fed. 302.

He does not lose his right by giving bond in the original suit, either in the trial court or the appellate court, or by failure to have an appraisal or otherwise follow strictly the procedure prescribed."

SAME-DEFENSE TO SUIT AGAINST OWNER, OR INDEPENDENT PROCEEDING

173. The statute may be set up either by defense to a suit brought against the owner, or by an independent proceeding under the federal admiralty rules.

If it is desired to defend against one claim, the simplest method is by answer or plea in the suit asserting that claim against the owner. Hence it is settled that this is a proper mode of taking advantage of the statute, and it may be invoked either in the federal or state courts.67

Where the claims are many, and it is desired to convene them all in one proceeding, the usual method is by petition in the federal court. The procedure on these petitions is regulated by admiralty rules 54-58.68

Such a petition may be filed, though but one claim is being asserted against the ship or owner.

69

It may be filed before any suit is brought at all against the owner.70

66 Rochester (D. C.) 230 Fed. 519; T. W. Wellington (D. C.) 235 Fed. 728; Ethelstan (D. C.) 246 Fed. 187.

§ 173. 67 SCOTLAND, 105 U. S. 24, 26 L. Ed. 1001; Great Western, 118 U. S. 520, 6 Sup. Ct. 1172, 30 L. Ed. 156; Loughin v. McCaulley, 186 Pa. 517, 40 Atl. 1020, 48 L. R. A. 33, 65 Am. St. Rep. 872.

68 As this treatise is on admiralty jurisdiction, and can only cursorily allude to procedure, the discussion of procedure on this act will necessarily be very brief. The reader is referred to the excellent treatise of Mr. Benedict on Admiralty for further details of procedure.

69 White v. Island Transp. Co., 233 U. S. 346, 34 Sup. Ct. 589, 58 L. Ed. 993; Strong v. Holmes, 238 Fed. 554, 151 C. C. A. 490.

70 Ex parte Slayton, 105 U. S. 451, 26 L. Ed. 1066.

If suits are pending against the owner in other jurisdictions, the proceeding in the admiralty court is exclusive; and litigants in the other courts may be enjoined from litigating further in those courts, and may be compelled to come into the admiralty court. This is one of the cases in which injunctions to proceedings in state courts are not forbidden by section 720 of the Revised Statutes."1

METHOD OF DISTRIBUTION

174. Under the express provisions of the statute, all claims filed, whether they have an admiralty lien attached or are mere personal claims against the owner, are paid pro rata.72

This pro rata rule applies simply to the claims on the voyage, which, as seen above, is taken as the unit. Questions of priority as between those claims and claims on other voyages cannot well arise in the proceeding; for it has been seen that, when the owner seeks the benefit of the statute, he must surrender the res clear of all prior liens or claims against it. Hence, under this procedure, the court has in its possession an unincumbered res, and divides that pro rata among those who have suffered on that special voyage, regardless of the marshaling of other claims which would take place if no proceeding for limitation of liability was pending.

71 U. S. Comp. St. § 1242; PROVIDENCE & N. Y. S. S. CO. v. HILL MFG. CO., 109 U. S. 578, 3 Sup. Ct. 379, 617, 27 L. Ed. 1038; In re Whitelaw (D. C.) 71 Fed. 733, 735; San Pedro, 223 U. S. 365, 32 Sup. Ct. 275, 56 L. Ed. 473, Ann. Cas. 1913D, 1221 (holding also that an injunction is not necessary, and that the proceeding itself has the effect of a statutory injunction).

§ 174. 72 Butler v. Boston & S. S. S. Co., 130 U. S. 527, 9 Sup. Ct. 612, 32 L. Ed. 1017; Maria & Elizabeth (D. C.) 12 Fed. 627; Catskill (D. C.) 95 Fed. 700: St. Johns (D. C.) 101 Fed. 469; Glaholm v. Barker, L. R. 2 Eq. 598; Id., 1 Ch. App. 223; Boston Marine Ins, Co. v. Metropolitan Redwood Lumber Co., 197 Fed. 703, 117 C. C.

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CHAPTER XVII

OF THE RELATIVE PRIORITIES OF MARITIME LIENS AS AMONG EACH OTHER AND ALSO AS BETWEEN THEM

AND NONMARITIME LIENS OR TITLES

Relative Rank as Affected by Nature of Claims.

Contract Liens in General.

Seamen's Wages.

Materials, Supplies, Advances, Towage, Pilotage, and

General Average.

Bottomry.

175.

176-177.

178.

179.

Salvage.

180.

181.

182.

183.

184.

185.

186.

187.

Nonmaritime Liens and Titles.

Tort Liens.

Relative Rank as Affected by Date of Vesting-Among

Liens of Same Character.

Among Liens of Different Character.

Between Contract and Tort Liens.

As between Tort Liens.

188. Relative Rank as Affected by Suit or Decree.

RELATIVE RANK AS AFFECTED BY NATURE OF CLAIMS

175. The order in which liens are paid depends upon four contingencies:

(a) Their relative merit.

(b) The time at which the lien vested.

(c) The date at which proceedings are commenced for its enforcement.

(d) The date of the decree.

The relative rank of maritime liens is the subject of much conflicting decision, from which it is impossible to extract any inflexible general rule. While there are elementary *Modified by Merchant Marine Act approved June 5, 1920, passer too late for discussion.

principles underlying the doctrine, they may be affected at any time by special equities or circumstances superseding the general principles, and forming an exception to them. On this subject, Judge Brown, when District Judge of the Eastern District of Michigan, said in the CITY OF TAWAS:1

"The subject of marshaling liens in admiralty is one which, unfortunately, is left in great obscurity by the authorities. Many of the rules deduced from the English cases seem inapplicable here. So, also, the principles applied where the contest is between two or three libelants would result in great confusion in cases where 50 or 60 libels are filed against the same vessel. The American authorities, too, are by no means harmonious, and it is scarcely too much to say that each court is a law unto itself."

This marshaling of liens, being intended to work justice. among the lienors, should not be so applied as to work injury to third parties.2

SAME-CONTRACT LIENS IN GENERAL

176. These must first be considered in reference to their general nature, as there is supposed to be an inherent merit in certain ones over others, in the absence of special equities arising from the comparative dates of their service and other considerations.

177. Among contract liens in general the order of rank may be stated:

(a) Seamen's wages.

(b) Salvage.

(c) Materials, supplies, advances, towage, pilotage, and general average. wharfage.

(d) Bottomry.

(e) Nonmaritime liens and titles.

$ 175. 1 (D. C.) 3 Fed. 170.

2 Chioggia, [1898] P. 1.