THE DAISY DAY. MARINE INS. Co. v. THE DAISY DAY. (Circuit Court, W. D. Michigan, S. D. September 23, 1889.) 1. MARITIME LIENS-INSURANCE PREMIUMS. Admiralty law gives no maritime lien on a vessel for unpaid premiums on insurance thereon. 2. SAME. Though a state law confers a lien on a vessel for unpaid premiums on insurance thereon, such lien is subordinate to maritime liens for supplies and repairs, and for damages from negligent towage. In Admiralty. Application for distribution of proceeds. On appeal from district court, ante, 538. M. C. & A. A. Krause, for original libelants. Fletcher & Wanty, for Marine Insurance Company. Peter Doran, for other intervenors. JACKSON, J. The decree of the district court, directing the distribution of the proceeds arising from the sale of the propeller Daisy Day, is only appealed from by the intervening libelant, the Marine Insurance Company. The decree below ordered the fund to be distributed as follows, viz.: First, in payment of seamen's wages, with costs; second, in payment of damages awarded G. F. Gunderson for injuries sustained by his schooner G. Barber from negligent towage by the Daisy Day, with costs; third, in payment of claims for supplies and repairs, (foreign and domestic claims of this class being placed upon the same footing, under the authority of The General Burnside, 3 Fed. Rep. 228, and The Guiding Star, 18 Fed. Rep. 263-269,) with costs; and, lastly, in payment of the Marine Insurance Company's claim for unpaid premiums on insurance upon said propeller Daisy Day, said insurance having been taken out by and for the benefit of the owners of said propeller. The fund will be almost, if not altogether, exhausted before reaching the claim of the Marine Insurance Company, which alone appeals from said order of distribution. This appeal of the insurance company does not bring up or make it necessary to consider the correctness of the order of distribution as between the seamen and Gunderson and the material-men. Those parties all acquiesce in the decree. But the Marine Insurance Company complains of the position assigned it in the distribution. It contends that its debt for unpaid premiums should rank and be paid equally with the claims for supplies and repairs, and should have priority or precedence over the claim of said Gunderson for damages sustained by him from negligent towage of his schooner G. Barber by the Daisy Day. In support of these claims on behalf of the insurance company it is urgedFirst, that by the general admiralty law of the United States, said insurance company had a maritime lien on the Daisy Day for unpaid premiums on the policy of marine insurance, which the owners of said pro peller procured from libelant; and, second, that, if no such maritime lien existed by the general admiralty law, the statutes of Michigan confer such a lien, and the contract of insurance being maritime in its character, and being supplemented by the lien conferred by state law, this court should place the claim of the insurance company upon an equal footing with material-men, presenting claims for supplies and repairs, and should give it priority over the claim of Gunderson for damages resulting from negligent towage. The first position is supported by the case of The Dolphin, 1 Flip. 580, but the weight of authority and of reason is against the correctness of that decision, and this court, in the fall of 1888, at Detroit, declined to follow the ruling announced in The Dolphin, and held in conformity with the decision in Re Insurance Co., 22 Fed. Rep. 109, and other cases holding the same doctrine, that no maritime lien existed by the admiralty law for unpaid premiums of insurance. This court adheres to this view of the law. As to the second position, while it is true that the admiralty court will enforce the lien given by the state law for unpaid premiums, as was done in the case of The Guiding Star, 18 Fed. Rep. 264, still it does not follow, nor was the question either made or decided in The Guiding Star, that claims under insurance contracts or for unpaid premiums should rank and be placed upon the same footing as strictly maritime claims and liens in the distribution of funds insufficient for the payment of all claims When we consider that insurance is effected for the personal indemnity of the owner or owners, and in no way aids the vessel or promotes its security, or the better prepares it for undertaking and conducting the business of commerce, and then reflect that the supplies and repairs which material-men furnish are directly for the benefit of the vessel itself, and enable it the better to perform the duties and responsibilities of navigation and carrying, we think it is perfectly just and proper to postpone the claim for unpaid premiums to those for supplies and repairs. In the case of Insurance Co. v. Proceeds, 24 Fed. Rep. 560, Judge WALLACE has well expressed the true character of such insurance claims, and their relative value to maritime claims. We concur in the distinction he there draws between the two classes of claims. The claim of Gunderson was clearly maritime. It is not material to determine whether his claim for damages be considered as arising out of a maritime tort, or for a breach of contract implied from the undertaking of the Daisy Day to tow his schooner carefully and without negligence. Whether a tort or a breach of contract, the negligent towage causing injury to his schooner gave hin a valid maritime lien for damages, which under the authorities entitles him to priority of payment over the Marine Insurance Company. In the judgment of this court there is no error in the decree of the district court of which the Marine Insurance Company can properly complain, and the same is accordingly affirmed, as against said insurance company, with costs of the appeal. RILEY V. A CARGO OF IRON PIPES. (District Court, S. D. New York. November 2, 1889.) 1. DEMURRAGE-ABSENCE OF STIPULATION-BURDEN OF PROOF. When the contract is silent on the subject of demurrage, the burden is on the libelant to show some negligence in the consignee of the cargo, or that he exceeded some customary period which, by implication, is a part of the contract. 2. SAME-NOTICE OF CLAIM-ACTION IN REM. When no notice of any claim or lien for demurrage is made at the time of delivery of the cargo, nor before the commencement of a suit to recover demurrage, no action in rem against the cargo can be sustained. 8. SAME-UNREASONABLE CONDUCT OF VESSEL Owner. Though the cargo has not been discharged within a reasonable time, the vessel cannot recover demurrage, if it appears that the unreasonable conduct of libelant has induced the delay. In Admiralty. Action for demurrage. Alexander & Ash, for claimant. BROWN, J. The contract being silent on the subject of demurrage, the burden of proof, in order to recover for demurrage, is upon the libelant to show that the consignee is chargeable with some negligence in unloading the vessel, or that he exceeded some customary period which, by implication, is a part of the contract. A Cargo of Lumber, 23 Fed. Rep. 301; The Z. L. Adams, 26 Fed. Rep. 655; The John Cottrell, 34 Fed. Rep. 907; Railroad Ties, 38 Fed. Rep. 254. No customary period is proved in the present case, and the testimony is conflicting as to the precise time necessary to unload the cargo. If it was improper that more than one boat should be sent at a time to Dobb's Ferry, the libelant who took them there is as much chargeable with blame as the respondent. His own acts preclude him from claiming damages on that account. His objections to unloading at the steam-boat wharf prevent any account of the delay in going to the upper wharf. The weight of evidence is that six days were a reasonable time for unloading two boats like those in which cross-beams created some delay. There would remain one day's demurrage, to which the libelant might have been entitled; but his unreasonable conduct in interrupting the delivery for a considerable period, to the loss of the respondent, before the delivery was completed, more than balances the one day's demurrage; so that nothing is equitably due him; and as the weight of evidence against the libelant's testimony is that no notice of any claim or lien for demurrage was made at the time of the delivery of the cargo, nor before the commencement of this suit, some time after, no action in rem against the cargo can be sustained. Bags of Linseed, 1 Black, 108; The Giulio, 34 Fed. Rep. 909, 912. The libel is therefore dismissed, but without costs. 1 1 Reported by Edward G. Benedict, Esq., of the New York bar. JORGENSEN V. THREE THOUSAND ONE HUNDRED AND SEVENTY-THREE CASKS OF CEMENT.1 (District Court, E. D. New York. November 27, 1889.) UNITED STATES MARSHAL-FEES-ATTACHMENT-CUSTODY OF GOODS. A deputy-marshal, by permission of the collector of the port, entered a warehouse in which goods were stored in the custody of the collector, and made service of process, and affixed a notice of seizure to the property, and thereafter a keeper visited the store-house three times a day, though without entering it. Held, that the marshal had effected an attachment, and was entitled to tax as custody fees such amount as he had actually paid a keeper for that service. In Admiralty. On appeal from taxation of marshal's fees. Certain casks of cement, brought into the port of New York on the bark Dictator, were taken into custody by the collector of the port for non-payment of duties, and were stored in a bonded warehouse. A libel was subsequently filed against the property by the master of the Dictator to recover freight, on which libel process was issued. appeared for the property. Butler, Stillman & Hubbard, for libelant. Charles M. Stafford, U. S. Marshal, in pro. per. No claimant BENEDICT, J. This case comes before the court upon an appeal from the taxation of the marshal's fees. The only item in dispute is a charge for necessary expenses of keeping the property proceeded against, which is 3,173 casks of cement. At the time the process was issued the cement was in the custody of the collector of the port, stored in Bonded Store No. 23. Upon receipt of the process application was made to the collector to allow the marshal to seize the property, whereupon the collector gave permission that the warehouse be opened, and that the deputy-marshal enter therein for the purpose of making a seizure of the property. Under that permit the warehouse was opened, and the marshal's deputy allowed to enter and make service of the process, and affix a notice of seizure to the property Thereafter, according to the affidavits, the marshal's keeper visited the store-house three times a day, every day, and the marshal now seeks to tax the sums paid by him to the keeper for the services described. It is impossible, upon these facts, to deny that the marshal effected an attachment upon the property. Notwithstanding the collector had the property in his possession, when he opened the warehouse for the purpose of permitting the property to be seized, and allowed the deputymarshal to enter, levy his attachment upon the cement, and affix thereto notice that the same had been seized by virtue of the process of the court, the marshal's custody of the property was complete, and it was his duty to see that the property was forthcoming to answer the decree. An affidavit by the store-house keeper is submitted on behalf of the objectors, which shows that since the time the attachment was levied the 'Reported by Edward G. Benedict, Esq., of the New York bar. deputy-marshal had at no time asked permission of the store-keeper to enter the store-house; that during at least 30 days of the time in question the bonded store had been locked all day, and no one allowed to enter, and of the remaining time there have been at least 40 days when the stores were only open for a short time, and then only in the presence of the store-keeper, and that during none of those days did the marshal's deputy enter the stores. These facts do not affect the question. The store-keeper was not keeper for the marshal, nor was the collector. When the marshal's keeper found that the cement was in the store-house, it was only necessary for him to see that it was not removed. There was no necessity, in order to maintain the marshal's custody, that the deputy enter the store-house or see the property again. It was the marshal's right to employ a keeper to see that the cement be not removed in case the store-house should be opened. That was accomplished by sending a keeper to visit the warehouse, for the purpose of ascertaining whether goods were being delivered from that warehouse, and in such case whether the cement was being interfered with, and the marshal is entitled to tax what he has actually paid for that service. The taxed bill is not before me, but what has been said will enable the parties to ascertain the amount properly taxable. LEARY V. THE MIRANDA.1 (District Court, E. D. New York. November 29, 1889.) COSTS-DISBURSEMENT FOR TRAVELING EXPENSES OF WITNESSES. Proof that a party disbursed, in traveling expenses and maintenance of his witnesses while attending court, a sum exceeding that sought to be taxed as witness fees, will not enable him to tax such fees. The statute requires proof that the amounts sought to be taxed be amounts actually paid the witnesses as fees. In Admiralty. Appeal from taxation of costs. John Berry, for libelant. Butler, Stillman & Hubbard, for claimant. BENEDICT, J. This case comes before the court on an appeal from the clerk's taxation of the claimant's costs. The items in dispute relate to witness fees. The clerk disallowed various witness fees in the absence of proof that the amounts charged had been paid the witnesses. In regard to these fees, the only proof is that the claimant disbursed, in traveling expenses and maintenance of these witnesses while attending court, in each case, a sum exceeding that now charged for fees of the witness. This proof is not sufficient. The statute requires proof that the amounts sought to be taxed be amounts actually paid the witnesses for witness 'Reported by Edward G. Benedict, Esq., of the New York bar. |
