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laxed, and the time extended, where the vessel has been absent from the district for long periods.

SAME-AMONG LIENS OF DIFFERENT
CHARACTER

185. A later service immediately contributing to the preservation of the res may, on that account, be preferred to liens which otherwise would rank it.

The last may sometimes be preferred on that account though, if the dates were the same, the one so preferred would be an inferior claim. For instance, in the FORT WAYNE,35 a claim for repairs to the vessel rendered when salvors had taken charge of her after a disaster (the repairs being of a character almost necessary to enable her to reach port) was preferred to prior wages, and was made to rank next to the salvage. On this point the court says:

"I can have no hesitation, therefore, in holding that the claim of the Eureka Insurance Company is established by the evidence, and is a lien on the boat, ranking in privilege next to the salvage claim of the Missouri Wrecking Company. This lien rests on the footing of money loaned or advanced for repairs to the boat, without which it would have been of little value, and could not possibly have prosecuted its business. The money so advanced and applied may be supposed, therefore, to have inured to the benefit of prior lienholders. And, according to the doctrine distinctly asserted by Dr. Lushington in the case of the Aline, 1 W. Rob. Adm. 119, 120, the persons making such advances have a priority, to the extent of the repairs made, over all other lienholders. But the case before me does not call for a more extended exposition of this principle."

§ 185. 351 Bond, 476, Fed. Cas. No. 3,012. See, also, Veritas, [1901] P. 304; Sea Spray, [1907] P. 133.

For similar reasons a materialman's claim has been preferred to a prior towage claim.36

SAME BETWEEN CONTRACT AND TORT LIENS

186. On this account a later contract lien may rank a prior tort lien.

An interesting illustration of this was the Jeremiah." There salvors rescued a vessel which had been in collision, and was so hung to the other vessel that it required some force to get them apart. The court held, that the salvage claim had priority over the collision claim.

So, too, in the ALINE,38 Dr. Lushington, while preferring, as we have heretofore seen, the tort claims to a prior bottomry bond, held also that a bottomry bond for supplies subsequently furnished ranked the tort claim, for the reason that the tort claim could only go against the vessel as it was at the time of the collision, and had no right to subject a subsequent increment to the vessel like this.

SAME AS BETWEEN TORT LIENS

187. Among tort liens, the last should rank; but this is not settled.

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An interesting case on this subject was the FRANK G. FOWLER. In that case there were two successive collisions so close together that no question of laches could arise between the two. Under such circumstances District Judge Choate held that the last was entitled to priority, as

36 Dan Brown, 9 Ben. 309, Fed. Cas. No. 3,556.

§ 186. 37 10 Ben. 338, Fed. Cas. No. 7,290. So as to subsequent liens for necessaries. Glen Island (D. C.) 194 Fed. 741.

38 1 W. Rob. Ad. 112.

§ 187. 39 (D. C.) 8 Fed. 331; Id. (C. C.) 17 Fed. 653.

the first collision claim had a jus in re, or a proprietary interest, in the vessel, and therefore was somewhat in the position of an owner. In his opinion he says:

"A party who has already suffered such a damage has such a lien or hypothecation of the vessel. He is to that extent in the position of an owner-he has a quasi proprietary interest in the vessel. It is true, he cannot, as an owner, control her employment, or prevent her departure on another voyage, except by the exercise of his right or power to arrest her for the injury to himself; and in some cases the second injury may be done before he has an opportunity to arrest her. Yet, if her continued employment is not his own voluntary act, nor with his own consent, it is his misfortune that the vessel in which he has an interest is used in a manner to subject herself to all the perils of navigation. This use, unless he intervenes to libel and arrest her, is perfectly lawful as against him. If she is lost by shipwreck, of course his lien becomes valueless, and I think his interest is not exempted from this other peril to which the vessel is liable, namely, that she may become bound to any party injured through the torts of the master and mariners. The principle as to marine torts is that the ship is regarded as the offending party. She is liable in solido for the wrong done. The interests of all parties in her are equally bound by this lien or hypothecation, whether the master and mariners are their agents or not. In the case of the Aline, 1 W. Rob. Adm. 118, Dr. Lushington says: 'I am also of opinion that neither the mortgagee nor bottomry bondholder could be a competitor with the successful suitor in a cause of damage, and for this reason that the mortgage or bottomry bond might, and often does, extend to the whole value of the ship. If, therefore, the ship was not first liable for the damage she had occasioned, the person receiving the injury might be wholly without a remedy; more especially where, as in this case, the damage is done by a foreigner, and the only redress is by a proceed

ing against the ship.' Commenting on this decision in the case of the Bold Buccleugh, ut supra, the court says: 'In that case there was a bottomry bond before and after the collision, and the court held that the claim for damage in a proceeding in rem must be preferred to the first bondholder, but was not entitled, against the second bondholder, to the increased value of the vessel by reason of repairs effected at his cost. The interest of the first bondholder taking effect from the period when his lien attached, he was, so to speak, a part owner in interest at the date of the collision, and the ship in which he or others were interested was liable to its value at that date for the injury done, without reference to his claim.' I think the same principle is applicable to a prior lienholder, who, by the tort of the master and mariners, had become, so to speak, a part owner in the vessel. His property-the vessel-though not by his own voluntary act, has been used in commerce. That use was not tortious as to him. It is subject in that use to all ordinary marine perils. One of those marine perils is that it may become liable to respond to another party injured by the negligence of the master and mariners. No exception to the liability of the vessel, exempting the interests of parties interested in the ship, has been established by authority."

On appeal to Circuit Judge Blatchford this decision was reversed, the judge holding that the doctrine of the last being paid first only applied to such liens as were for the benefit of the vessel, and tend to the preservation of the res, and did not apply to torts, which tend rather to destroy than to benefit.

If the principles laid down by the Supreme Court in the JOHN G. STEVENS are the guide, the District Judge was the one who should be followed. When we once settle the doctrine that a maritime lien is a jus in re, or a proprietary interest in the ship, it follows necessarily that the owner of that interest, though not guilty of laches, and having no control over the master in charge, impliedly takes the risks

of subsequent accidents, and holds the ship out to the world as a thing of life, liable to make contracts and to commit torts, and that he should not be heard to dispute the claims of others who have been brought into relations with her upon this basis.40

RELATIVE RANK AS AFFECTED BY SUIT OR DECREE

188. The earlier decisions held that among claims of otherwise equal dignity the party first libeling was entitled to be first paid, on the theory that an admiralty lien was a mere right of arrest; but the later decisions, establishing it as a proprietary right or interest in the thing itself, have deduced from that principle that a prior petens has no advantage, and that the institution of suit does not affect the relative rank of liens.11

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In fact, in many districts, obtaining a decree does not give an inferior claim a priority which it would not otherwise have, but merely entitles the claimant to assert his claim without further proof, and debars others from contesting it on its merits, leaving open simply the question of priority.*2

In England a lienor who secures an admiralty decree for his claim is held to have obtained the highest rank that the law can give, and to be entitled to priority over all others.43

This is a question largely affected by local practice and local rules. In many districts independent libels are filed

40 America (D. C.) 168 Fed. 424.

§ 188. 41 CITY OF TAWAS (D. C.) 3 Fed. 170; J. W. Tucker (D. C.) 20 Fed. 129; Saylor v. Taylor, 77 Fed. 476, 23 C. C. A. 343. 42 CITY OF TAWAS (D. C.) 3 Fed. 170; Aina (D. C.) 40 Fed. 269. 43 Abbott's Law of Merchant Ships, pt. 6, c. 4, § 2; Bernard v. Hyne, 6 Moore, P. C. 56; 4 Notes of Cases, 498; 2 W. Rob. 451; 13 Eng. Rep. 604.

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