2 F. 712 (E.D.Pa. 1880), The E. A Barnard

Citation:2 F. 712
Party Name:THE BRIG E. A. BARNARD. [1]
Case Date:June 04, 1880
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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Page 712

2 F. 712 (E.D.Pa. 1880)

THE BRIG E. A. BARNARD. 1

United States Circuit Court, E.D. Pennsylvania.

June 4, 1880

Edward F. Pugh and James B. Roney, for Thurlow & Sons.

Henry G. Ward and Henry Flanders, for Merchant & Co.

Edward F. Pugh, for Robert M. Wilson.

John A. Toomey, for Grace & Linderman.

Henry R. Edmunds, for Baring Bros. & Co.

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In Admiralty.

Exceptions to report of commissioner appointed to report as to the distribution of the proceeds of the sale of a vessel under admiralty process. The brig E. A. Barnard was registered at St. Andrews, New Brunswick, and sailed under the British flag, but was owned by her master, S. P. Willeby, who resided at Philadelphia. In the spring of 1879, upon the return of the vessel from a voyage to the Mediterranean, she had extensive repairs made to her at Philadelphia. In May, 1879, while she was still at Philadelphia, and loading for Oporto, a libel was filed against her by Thurlow & Sons, for supplies furnished in New York in July, 1878. Before any decree was obtained various libels of intervention were filed, as follows:

By Merchant & Co., and by various other parties, claiming liens for repairs furnished at Philadelphia, in the spring of 1879.

By Robert M. Wilson for wages as watchman and ship keeper at Philadelphia.

By Grace & Linderman for services as stevedores in loading the vessel, at Philadelphia.

By Baring Bros. & Co. for money advanced to the master under the following circumstances: Stetson & Co., the agents for the vessel at Philadelphia, had from time to time made disbursements on account of the vessel, many of which were for wages, and other objects that were maritime liens. Baring Bros. & Co. subsequently authorized the master to draw upon them for L430, for the vessel's disbursements at Philadelphia. The master drew for this sum in favor of Stetson & Co., who applied the money to their account for the previous advances. Accompanying the draft was the following instrument:

'Philadelphia, May 16, 1879.

'Messrs. Baring Brothers & Co.

'GENTLEMEN: The British brig E. A. Barnard, under my command, will sail May 24th for Oporto, having on board a cargo of corn in bags. Freight amounting to L650. To

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provide necessary funds to pay ship's disbursements here, for which ship and owners are liable, I have valued upon you this day for L430, at sixty days' sight, in favor of D. S. Stetson & Co., which please accept, for amount of which draft please insure the freight, loss payable to you, debiting premium, as well as amount of draft and your commissions, to account of said ship and owners; it being understood that for all such amounts you have, besides the responsibility of the owners, a lien on the ship and freight, and the same are hypothecated to you accordingly, with power to you to collect freight if you choose. I shall make you a remittance from Oporto of the whole amount of my freight, less expenses, to be placed to the credit of my ship-owners as soon as I realize from my freight. The recourse to owners, and lien on ship and freight, given as above to Baring Bros. & Co., after acceptance, are to operate in favor of the holder of the bill before acceptance.

'Respectfully, your obedient servant, S. P. WILLEBY.

'P.S. My vessel is owned as follows: S. P. Willeby.'

The vessel was sold under a decree of the court, and the distribution of the proceeds referred to a commissioner, (Morton P. Henry, Esq.,) who reported that as between the lien for supplies furnished in New York in 1878, and the liens for repairs in Philadelphia in 1879, the latter should have priority, under the principle established by the authorities that the last service advanced for the vessel's necessities takes precedence, and that liens of the same class should therefore be paid in the inverse order of the dates of their creation, except as to claims of material men, who concurrently gave credit to the vessel in fitting her for a voyage, and who were, therefore, entitled to distribution pro rata. As between the various lien claimants for repairs made at Philadelphia in 1879, he reported that in accordance with the above principle they would be entitled to share pro rata, but that he felt himself bound by the decision in The Pathfinder, 4 Weekly Notes, 528, to award them priority in the order of the dates at which their respective libels were filed. The

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commissioner refused to allow the claims of Robert M. Wilson and Grace & Linderman, on the ground that their services gave them no maritime lien.

With regard to the claim of Baring Bros. & Co., he reported that the instrument given to them was not...

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