The Omer

18 F. Cas. 690, 2 Hughes 96

• Court: District Court, E.D. Virginia
• Decided: July 1, 1868
• Status: Published

Opinion

HUGHES, District Judge.

No objection is made by either libellants or petitioners against the payment of some small seamen’s claims and costs which have been satisfied by special decrees. It may also be stated that the vessel has, by consent, been sold by the marshal at auction for $3,100, Loud, Claridge & Co., being the purchasers. The vessel is alleged by the libellants to have brought only two-thirds of its value, but no exception has been taken to the sale. The petitioners claim to share as material-men pro rata in the fund to be distributed, with Staples, Peed & Co. I am to decide whether they are entitled to do so, or whether the whole fund shall go to Staples, Peed & Co.

It is insisted on the part of the latter that the petitioners in taking a particular lien for their claim by the assignment of the freight,, waived and lost their general lien upon the vessel. I do not think so. The acceptance of an order for the freight suspended their right to resort to their general lien until the freight was paid or was lost. Their general lien remained and is still good. It is further insisted by the libellants that their claim is superior to that of Loud, Claridge & Co., because they contributed “most immediately” to the completion of the voyage. It cannot be questioned that, as a general rule, this latter principle is a good one. It is certainly good in this case. They had possession of the vessel on which they had disbursed the amount for which they libel her. By right of that possession and of the primary lien which they had for the disbursement, they could have enforced the payment to themselves of their claim, before she could have been released under the bottomry bond for which advertisement was made. They brought their libel to enforce the lien which they held by virtue of their possession, and by virtue of having contributed last to fitting the vessel for the voyage. Even if Loud, Claridge & Co. had taken a bottomry bond for their claim when the vessel was in Baltimore, yet Staples, Peed & Co.’s lien for their subsequent disbursements would have been good against such a bond. See The Jerusalem [Case No. 7,294]. The case of The Paragon [Id. 10,708], is to the same effect, Judge Ware expressly holding that among material-men, the one contributing “most immediately,” that is to say, at the latest stage of the voyage, to enable the vessel to complete it, has preference over those who contributed at an earlier stage of the voyage.

Staples, Peed & Co. may have a decree for the whole fund left after satisfying costs and seamen's wages.