and the payment of the funds into the registry to determine the claims and distribute the proceeds to all those who can show a vested interest, no matter how their claims originated. The court proceeds on the general principles of equity in such cases.7 The claim or interest of the intervenor must however not only be vested, but it must be in the nature of a lien either legal or equitable. And it must be specific and not general.10 So where the contract is merely personal, as a debt of the owner, no specific lien or claim can be asserted.11 A mere personal claim for damages gives no right to intervene against a fund.12 Proof of the right of the party to any part of the fund may be required by the court.13 Although the claim is enforceable under the rule whether it is a maritime or nonmaritime lien, nevertheless the former are given precedence over the latter16 and some cases have held that non-maritime liens cannot be enforced at all under the rule without the consent of the vessel owner.17 In a collision case when the vessel was libeled and sold, the owners were held estopped from denying the right of the representatives of the parties killed to share in the proceeds of the fund, although no lien existed, the owner having by petition enjoined such representatives from suing elsewhere, thus admitting their right to sue.18 The above Admiralty rule does not authorize a summary hearing of claims against the fund, prior to the taking of proceedings for distribution by the clerk or commissioner under Admiralty Rules 57 and 58.19

[b] Priorities.

By the maritime law the creditor first filing the libel and arresting the vessel does not thereby acquire the right to have his debt paid in full to the exclusion of the other creditors whose debts are of the same rank and equal merit provided they intervene and prove their debts before or at the time of the final decree.2 Where however the defendant is in default, but decree has not been entered on account of absence of the judge any

6The Lotta wana, 21 Wall. 558, 22 L. ed. 654; Schuchardt v. Babbidge, 19 How. 239, 15 L. ed. 625; The Albert Schultz, 12 Fed. 156; The Templar, 59 Fed. 208; The Katie O'Neil, 65 Fed. 113; The Advance, 63 Fed. 706; The Elmbank, 72 Fed. 611; The E. V. Mundy, 22 Fed. 173; Petrie v. The Coal Bluff No. 2, 3 Fed. 531; The Illinois, 2 Flipp, 432, Fed. Cas. No. 7,005; The Ship Panama, Olc. 343, Fed. Cas. No. 10,703; Furness v. Magoun, Olc. 55, Fed. Cas. No. 5,163. The Guiding Star, 18 Fed. 263; The Willamette Valley, 76 Fed. 842. 8The Albert Schultz. 12 Fed. 156; The Edith, 94 U. S. 523, 24 L. ed. 168. 10 The Lottowanna, 21 Wall. 558, 22 L. ed. 654; The Peerless, 45 493.

Fed.

11Sheldrake v. The Chatfield, 52 Fed. 495; Brackett v. Hercules, Gilp. 184, Fed. Cas. No. 1,762. See also, The Balize, 52 Fed. 414. 12 Miller v. The Peerless, 45 Fed. 491.

13 Dent v. Radmann, 1 Fed. 882.

16The Guiding Star, 18 Fed. 267, The City of Tawas, 3 Fed. 170; The Allianca, 65 Fed. 245.

17The Lottawanna, 20 Wall. 220, 22 L. ed. 259; The Lydia A. Harvey, 84 Fed. 1001. See also, The Wyoming, 37 Fed. 544.

18. Jones v. St. Nicholas, 49 Fed.

671.

19 The Chief, 142 Fed. 352. 2The Arcturas. 18 Fed. 743; The Lady Boone, 21 Fed. 731; The J. W. Tucker, 20 Fed. 129.

maritime claimant who comes in afterward by petition does so subject to the libel and cannot be paid until libelant is paid in full.3 Claims of the same merit are classified according to the years in which they accrue and those of a later year are paid in preference to those of a former. A claim of an inferior class is not entitled to payment in preference to a claim of a superior class because the former happens to be in decree before the latter is filed. A claim not filed until after the report of the clerk classifying claims is made, should be postponed until after all other claims are paid. And when final order of distribution is made all claims not then in decree should be disregarded. In general, claims against the proceeds of sales in cases arising upon the lakes are usually paid in the following order; (1) costs of sale and those incident to the custody of the vessel; (2) seaman's wages unless there be subsequent salvage; (3) claim for towage and necessaries furnished in a foreign port; (4) claims for supplies and materials furnished in the home port, for which a lien is given by the State law; (5) mortgages.7

The Sea Lark, 34 Fed. 52.
The City of Tawas, 3 Fed. 170.
The City of Tawas, 3 Fed. 170.

Idem; see also, The J. W. Tucker, 20 Fed. 129.

7The City of Tawas, 3 Fed. 170.

Fed. Proc.- 73.

1153

CHAPTER 37.

FORM AND ELECTION OF REMEDIES IN REM AND IN PERSONAM.

§ 1239. In general as to remedy in rem and in personam.

§ 1240. Materialmen may proceed in rem or in personam.

§ 1244.

§ 1245.

Right to implead other persons or vessels in collision cases.
Suits for assault in personam only.

§ 1246.

§ 1247.

Choice of remedies in suits for maritime hypothecation.
Suits on bottomry bonds generally in rem only.

§ 1239. In general as to remedy in rem and in personam.

The admiralty rules contained in this chapter provide the form of remedy whether in personam or in rem, or both, which a party libelant may pursue in certain kinds of admiralty causes. Rule 20 contained in another chapter, in effect prescribes the form of remedy in petitory and possessory suits. These various rules are largely declaratory of general principles previously settled in admiralty jurisprudence. In other cases not covered by the rules, these general principles must still be resorted to.

Author's section.

The rules from 12 to 20 contained in this chapter are "little more than a recognition and formulation of the previous practice of courts of Admiralty in this country and in England."2 Since the admiralty rules have the force and effect of law,3 it follows that their enumeration of the form of remedy in the various cases set forth in this chapter, with the option of proceeding in rem or in personam or both, must operate in such cases, as a denial of any other than the enumerated remedies or of any option as to the form of remedy save where such election is given.

4 See The Sabine, 101 U. S. 388. 25

1 Ante, § 1213. 2The Corsair. 145 U. S. 342, 36 L. L. ed. 982; Newell v. Norton, 3 Wall. ed. 729. 12 Sup. Ct. Rep. 949.

266, 18 L. ed. 273: The Richard Doane. 2 Ben. 112. Fed. Cas. No. 11.765; The Ethel. 66 Fed. 341. 342, 13 C C. A. 504; Morris v Bartlett, 105 Fed. 677. 47 C. C. A. 578.

Actions in rem and in personam may not be joined where the admiralty rules provide for either form but not the joining of both.5 But in other cases not covered by the rules, the question whether libels both in rem and in personam will lie, depends upon the general principles of admiralty and upon the local rules of a particular district as sanctioned by the 46th Admiralty rule. A libel both in rem and in personam has been permitted in cases of charter parties and contracts of affreightment as to which the Supreme Court's Admiralty Rules are silent; 9 though such joint libel will not lie if the contract of affreightment or the charter party is wholly executory because no lien exists in such a case.11 It is also true that no lien exists and therefore no right to proceed in rem in cases of executory contracts of towage, 12

§ 1240. Material men may proceed in rem or in presonam.

In all suits by materialmen for supplies or repairs, or other necessaries, the libelant may proceed against the ship and freight in rem, or against the master or owner alone in personam.

Twelfth Admiralty Rule, as amended May 6, 1872.

The rule was first promulgated in 1844,15 and has been twice amended. Originally it authorized a suit by material men for repairs or supplies rendered to a foreign ship or a ship in a foreign port and the procedure was either in rem or in personam. It also provided that proceeding in rem could be brought in cases of domestic ships where a lien was given by local law.16 Prior cases on the subject are in accord with the rule thus laid down and probably led to its adoption.17 The interpretation of the local laws regarding liens however caused the courts much embarrassment and the rule was amended in 1859,18 whereby proceedings in personam

5See The Corsair, 145 U. S. 335, 36 L. ed. 727, 12 Sup. Ct. Rep. 949: The Alida, 12 Fed. 343: The Ethel 66 Fed. 340, Morris v. Bartlett, 108 Fed. 677, 47 C. C. A. 578.

7Ante, § 1197.

The Zenobia, 1 Abb. Adm. 48, Fed. Cas. No. 18,208; Vaughan v. 630 Casks, 7 Ben. 506; Fed. Cas. No. 16,900; The J. F. Warner, 22 Fed. 343; The Hudson, 15 Fed. 162, 176; Heney v. Josie, 59 Fed. 782; The Monte A. 12 Fed. 331. See The Corsair, 145 U. S. 335, 342, 36 L. ed. 726, 729, 12 Sup. Ct. Rep. 949, where it is said that joint libel in rem and in personam may perhaps lie in cases not falling within the rules.

Director. 26 Fed. 710; The Clatsop Chief, 8 Fed. 164, 7 Sawy. 274; Dumois v. The Baracoa, 14 Fed. 102 and cases cited. But see The Thos. P. Sheldon, 113 Fed. 779; Citizens Bank v. Nantucket, etc. Co. 2 Story, 57, Fed. Cas. No. 2,730; The Alida, 12 Fed. 343.

11 Vandewater v. Mills, 19 How. 91, 15 L. ed. 557.

12The Monte A. 12 Fed. 331. See Jacoby v. The Eugene, 83 Fed. 222; also The Director, 26 Fed. 708. 15 See How. 3.

16 See The Madrid, 40 Fed. 677. 17The General Smith, 4 Wheat. 443, 4 L. ed. 609; Peyroux v. Howard, 7 Pet. 324, 8 L. ed. 701.

18 See Maguire v. Card, 21 How. 251, 16 L. ed. 118; The Steamer St.

The Monte A. 12 Fed. 336; The

instead of in rem were allowed in all cases under the rule against domestic ships. A second amendment was made in 1872 and as the rule now stands the material men have in all cases their option to proceed either in rem or in personam.19 So where a lien exists no matter by what law, the rule removes all obstacles to a proceeding in rem. 20 And where no lien exists, suit may be brought in personam.1 A libel in rem based on a State's statute and commenced prior to the amendment of 1859 was held maintainable.2 The remedy of the material men is always threefold; against the ship and freight in rem, or against the master or against the owner in personam.3

§ 1241. Choice of remedies in suits for mariner's wages.

In all suits for mariners' wages, the libelant may proceed against the ship, freight, and master, or against the ship and freight, or against the owner or the master alone in personam.

Thirteenth Admiralty Rule, promulgated December term, 1844.

The claims for mariners wages have priority over all others, and the lien attaches to the ship and freight, and follows them wherever they go.7 Seamen have triple security, however under the rule, in the vessel, the owner, and the master. The owner is liable personally though his name is not mentioned in the shipping articles; 9 and even though he let the ship to the master, unless the seaman had knowledge of that fact at the time.10 But a vessel and her owner cannot be joined in the same libel under the rule,11 since it is well settled that a suit in rem and in personam cannot be joined in any of the cases covered by the rules, unless specially permitted.12

In all suits for pilotage the libelant may proceed against the ship and master, or against t he ship, or against the owner alone or the and master, or against the ship, or against the owner alone or the Fourteenth Admiralty Rule, promulgated December term, 1844.

3 North v. Brig Eagle, Bee. 78, Fed. 12The Corsair, 145 U. S. 335. 36 Cas. No. 10,309; The Chusan, 2 L. ed. 727, 12 Sup. Ct. Rep. 949. See Story, 455, Fed. Cas. No. 2,717; The ante, § 1239, note.