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part “through the South channel;" (3) that she so passed on a "course of about S. E. 1 S.;" (4) which was the “usual channel course;" (5) that "at 5:35 P. M. she had Sandy Hook light bearing abeam;" (6) that "at 5:40 P. M. she had Sandy Hook bearing west;" (7) that when she passed Scotland light-ship at 5:50 P. M. “it bore west;" (8) that at such time it was “about one quarter of a mile distant;" (9) that she took her course of about S. W. "when distant about one quarter of a mile from Scotland light-ship, bearing west." The above-quoted general denial is conjunctive, and does not severally deny these averments. Under the rules and practice, I am satisfied that libelant is entitled to an admission or denial of each distinct and separate averment in its libel, separately and distinctly; and the fifth article of the answer does not thus answer the fourth article of the libel. The exception to it is therefore sustained.
The third article of the answer avers that the persons for whose benefit this action is prosecuted "had full notice and knowledge of and participated in the prosecution” of a former action. To this libelant excepts because it does not state what kind of notice is intended. If, as seems probable, (and which was the view I took of the averment on the original argument,) the word "notice” is used as the equivalent of "knowledge" of the existence of the former suit, the averment is full enough, but as it stands it would warrant proof upon the trial of some specific written notice. The libelant is entitled to be advised by the answer whether anything of that kind is sought to be proved, and for that reason his exception to the third article of the answer is sustained. The answer may be amended either by striking out the word “notice,” if it is used merely as the equivalent of "knowledge,” or by stating what kind of notice is in. tended, if some specific one is relied on.
My opinion as to the sufficiency of the exceptions to the fifth and eighth articles of the answer (except as to the denials of the fifth ar. ticle) remains unchanged. I do not think the pleader who sets forth a detailed narrative of the movements of his own vessel can be required to add thereto averments as to other matters of detail, upon which his adversary may wish to have specific averments, but as to which it does not appear that he has knowledge sufficient to enable him to set them forth, nor that he intends to rely upon them on the trial. Nor do I think the claimant should be required to set forth the details asked for touching the Newport's collision with an un. known schooner. To do so would seem a reversal of the position of the respective parties. It is for the libelant to show that the New. port did collide with the John K. Shaw. The claimant it not called upon to show that she did not, and the details of a collision with some other vessel are irrelevant to this controversy.
The seventh exception, namely to the ninth article, is sustained. The various points as to which express averments are asked for seem material to the sufficiency of the defense set up, and should be pleaded. In all other respects my former opinion remains unchanged. Order accordingly.
THE CERRO GORDO,
TABOR et al. v. THE CERRO GORDO.
MEN'S WAGES-LIEN-WAIVER-MERGER-ACTION IN STATE COURT.
Seamen recovered a judgment at law for wages in a state court against a part owner, and attached and sold his interest in the vessel, subject to a certain mortgage, but did not obtain full satisfaction of their claim. The purchaser bought in this mortgage, and subsequently became sole owner. Ucld, that the proceedings in the state court neither operated as a waiver of their lien nor a merger of their cause of action, and the lien could still be enforced against the vessel to the extent of the mortgage and the interests not before sold.
In Admiralty. Libel by Nelson W. Tabor and others against the schooner Cerro Gordo to enforce a lien for seamen's wages. Decree for libelants.
Arthur L. Shipman, for libelants.
TOWNSEND, District Judge. Libel in rem. There is no dispute as to the facts in this case. The libelants, with three other seamen, originally brought actions at law in the state court against one Henry G. Chapman, then master of the schooner Cerro Gordo, and owner of three eighths thereof, for wages as seamen on board said schooner. In said actions said schooner was attached, judgment was rendered in favor of plaintiffs, and the said interest of said Chapman was sold, under the execution, to the present claimant. The sale was made subject to certain claims, the only one among them which is of any importance in the consideration of this case being a mortgage for $1,200, which was afterwards bought by this claimant. He is now the sole owner of the schooner. The amount received by libelants under the execution sale being insufficient to satisfy their claims for wages, they now seek to recover the balance thereof by a libel in rem against the schooner.
The claimant contends that the libelants, by the sale under the execution, waived the right to again proceed against the vessel for the same cause of action. Counsel for libelants claims that the favor shown by courts of admiralty to the lien of seamen for wages gives them a peculiar right to enforce such lien in this court, and illustrates his claim by the distinction between their lien and the implied lien of the material man.
It is true that seamen are treated as a privileged class, and that, as their services are presumably necessary for the preservation of the res, their liens for wages are of the highest rank; and the reme. dies allowed them for the enforcement of their claims "ought not to be abridged, except in cases of a clear, common understanding to that effect.” Judge Brown, in Russell v. Rackett, 46 Fed. Rep. 201. But I do not see how these facts can give them any greater rights in the proceedings for the enforcement of their lien. A lien is a jus in re. Once acquired, whether by a seaman, or by a material man, under a state statute, the admiralty will recognize and enforce it, subject only to the rules of priority adopted in its courts. Henry, Adm. Jur. & Proc. pp. 197, 198; The Lottawanna, 21 Wall. 558; The Guiding Star, 18 Fed. Rep. 263; The William T. Graves, 14 Blatchf. 189. The favor shown to the lien of the seaman does not affect the question of the nature or extent of his remedy, but only that of priority of satisfaction.
But the effect of the prior attachment, judgment, and sale on execution presents a novel and difficult question. It seems to be settled that the mere fact that libelants had already brought suit in the state court for the same claim is no bar to this proceeding in admiralty. The Highlander, 1 Spr. 510; The Brothers Apap, 34 Fed. Rep. 352; The Kalorama, 10 Wall. 218. If the two suits were pend. ing at the same time, that might be ground for a stay of proceedings. The Edith, 34 Fed. Rep. 927; The John and Mary, Swab. 473. It would seem from some of the cases that a sale by libelants under the former execution might have operated as a waiver of their lien, provided they had thereby assumed to sell the entire vessel, and all rights and interests therein. The Kalorama, supra; The Mary Morgan, 28 Fed. Rep. 202. And it makes no difference whether such conduct would operate as an estoppel. Under the doctrine of admiralty, applicable to the enforcement of liens, the vendor at the exe cution sale in such a case would be held to have lost his lien by laches. The Seminole, 42 Fed. Rep. 924; The Scow Bolivar, Olcott, 478.
But the attachments and sale under the execution affected only the part interest of the defendant therein. The attachments could not interfere with the interest of the mortgagee, for they were subsequent to it. Furthermore, the execution sale was made expressly subject to this mortgage. The present claimant is not only the purchaser of the execution debtor's interest, but he is also the assignee of the mortgagee. Prior to his purchase of the mortgage, the liens of these libelants had already become vested. He therefore acquired the title of said mortgagee, subject to said liens, (The Guiding Star, 18 Fed. Rep. 263;) nd of course purchase under the execution did not impair said liens in the absence of laches, (The Gazelle, 1 Spr. 378; The Julia Ann, Id. 382; Crosby v. The Lillie, 40 Fed. Rep. 368.) It does not appear that the claimant has been in any way prejudiced by the action of libelants. It does not appear that there have been any laches on their part. The claim accrued between March 9 and April 7, 1892. The attachment was made on said April 7, the execution sale was on May 10, and the libel was filed on June 15, 1892. Nor does it appear that they made any misrepresentations, or failed to make any representations which it was their duty to make. Crosby v. The Lillie, 42 Fed. Rep. 238. They were not called upon to speak at the execution sale, for they assumed to sell only the interest of Chapman in the vessel. Their present claim is not inconsistent with a waiver, by such sale, of all rights to said interest. Crosby v. The Lillie, 40 Fed. Rep. 368.
ethermore, the purchaser of a mortgage on a vessel, or of an int in a vessel, on an execution issuing out of a state court, is imed to know that such purchases are subject to all existing . These libelants, by their execution sale, waived only their t again to proceed against such portion of the vessel, or intertherein, as had been sold by them. It would seem, therefore, that 7 might thereafter enforce their lien in admiralty against the sel, to the extent of the mortgage interest therein, just as they sht have done against the entire vessel in the first instance. In
latter case they would have been entitled, as against the mort. ge, to the whole of the fund arising from a sale, by virtue of the ority of their lien. It may be objected to this conclusion that the lien was waived, d the cause of action merged, by the suit in the state court, and mdgment thereon. No cases were cited by counsel upon this point, xcept The Kalorama, supra, in which the supreme court of the nited States suggests the question, but leaves it undecided. An xamination of the authorities shows the differing opinions enterained as to the effect of such proceedings in a state court upon a subsequent action in rem in the admiralty. In Dudley v. The Superior, and Sexton v. The Troy, (decided in 1855,) 1 Newb. Adm. 176, certain Ohio creditors, having both maritime and nonmaritime liens, proceeded to seize the boats under the state watercraft law, by process from the state courts. Afterwards, the boats having been sold under the order of the court of admiralty, and the proceeds paid into the registry of the court, these creditors claimed liens for the full amount of their claims under the state law, whether originally maritime or not, and, the fund being insufficient for the payment of the claims in full, they insisted upon their right to share pro rata with those parties holding liens originally maritime, who had not made seizures under the state law. The court sug gested that a party who voluntarily waived his admiralty lien, and resorted to the local law for his. indemnity and protection, could not resume it at his pleasure, and thereby be reinstated in his original rights; and held that such liens should be postponed to those of parties claiming under their original admiralty liens only. The ground of this decision, as stated by the court, is that a maritime lien existing under a state law must be subordinated in rank and postponed in payment to an original maritime lien of the same
This view of the law is directly contrary to that expressed in The Guiding Star, supra, where Mr. Justice Matthews holds that a maritime lien for supplies furnished at the home port, “for which a lien is given by the local law, must be placed upon the same footing, in the distribution, with similar claims arising in foreign ports.” In Stapp v. The Swallow, 1 Bond, 190, certain material men, who had obtained judgments under said Ohio water-craft law, filed said judgments in the admiralty court as evidence of their claims, and maintained that said judgments still retained their original character as maritime liens, and that they should have priority of payment over those not importing such lien where seizures had been made under state process. Judge Bond says, (page 190:)
"In the case of Dudley v. The Superior, decided in this court some years since, and reported in 1 Newb. Adm. 176, this question was presented, though not argued; and the court held that a claimant having an original maritime lien, who, instead of asserting and enforcing his claim in the admiralty court, proceeded under the state water-craft law, thereby waived such lien, and occupied in this court a position of equality with those claiming liens solely by virtue of seizures under the state statute. I have no reason to doubt the correctness of the views indicated in the case referred to. It is true I hara found no reported case in which this question has been under consideration in any other court. It is, however, clearly consonant with reason and the analogies of law that, if a party, having an undisputed maritimo lien, yoluutarily waives it by seeking another remedy, he cannot be reinstated in his original right. His claim against the boat has passed into a judgment, pursuant to the state statute, and before a state magistrate or court, thereby losing wholly its original character as a maritime claim. It results, from this view, that this class of claimants can have no preference or priorities, except such as belong in common to all those who have made seizures under the water-craft Jaw."
Without discussing the correctness of these views in the light of the later decisions upon the subject of maritime liens, it seems to me that the cases are not controlling upon the present case. In neither of them were the parties seeking to merely enforce original admiralty liens against the vessel. They were claiming, by virtue of judgments, which, in one case at least, confessedly embraced nonmaritime claims, to obtain a priority over other lienors in the distri. bution of a fund in the registry of the court. The only question before the court was that of priority. The question of merger was not necessarily before the court; it was not argued; and the court, in its dictum, says that it has found no other case in which this question has been considered. It appears that in the original suits under the water-craft law the proceeding was against the entire vessel, and all interests therein.
But, irrespective of these questions, it seems to me that the reason for the above statements by the court, and the distinction between these cases and the one under consideration, are to be found in the provisions of the Ohio water-craft law, then in force. Rev. St. Ohio 1854, pp. 185, 186. Section 1 provides “that steamboats and other water crafts
shall be liable for debts contracted on account thereof by the master, owner, steward, consignee, or other agent for materials, supplies, or labor, in the building, repairing," etc., “of such water craft.” Section 2 provides that “any person hav. ing such demand may proceed against the owner or owners or master of such craft, or against the craft itself.” The act further provides, when the suit is against the craft, for seizure, detention, and sale, and that, “if the proceeds of such sale fall short of satisfying the judgment, the balance shall remain to be collected on execution as upon other judgments.” It will thus be seen that the lien allowed by this law might arise from nonmaritime as well as maritime services, even when the bill was contracted by the owner; that any deficiency after sale of the craft might be collected on execution; and that the proceeding might be either in rem or in personam. The remedy, therefore, was even greater than that allowed in a court of admiralty. And, while such a proceeding in rem might formerly have been enforced in the state courts, it is