The Daisy Day

• Decision Date: 26 February 1889
• Citation: The Daisy Day, 40 F. 538 (W.D. Mich. 1889)
• Parties: THE DAISY DAY.
• Court: U.S. District Court — Western District of Michigan

40 F. 538

THE DAISY DAY.

United States District Court, W.D. Michigan, Southern Division.

February 26, 1889

M. C. &amp A. A. Krause, for Gunderson.

Peter Doran, for intervening libelants for supplies and repairs.

Fletcher & Wanty, for Marine Insurance Co.

SEVERENS J.

On the 17th day of September, 1888, Charles G. Alley and others composing the firm of C. G. Alley & Co., filed their libel in this court against the propeller Daisy Day, for the purpose of enforcing an alleged lien for supplies furnished the vessel during the season of navigation for that year. The owners having made default, a decree was entered pursuant to the claim of the libelants on the 21st day of November following, and the vessel ordered sold. Meantime a number of additional libels had been filed, some for sailors' wages, some for supplies, some for material and repairs, some for repairs, and one (that of G. F. Gunderson) for damages arising from the negligent towage by the propeller of the schooner G. Barber, belonging to the libelant. The vessel was sold under the decree upon the original libel, and the proceeds brought into the registry of the court. Supplemental decrees have since been passed, establishing the claims of the other libelants, in whole or in part, and upon the intervention of the Marine Insurance Company an order has been made admitting its claim for an unpaid premium for an insurance effected by the owners upon the vessel in May, 1888. Hitherto the proceedings in the case have run on under the direction of the proctors for the parties interested, without seriously attracting the attention of the court. But it now appearing that the several sums allowed for seamen's wages, damages for negligence, insurance, supplies, materials, and repairs together with the costs of the suit, amount to more than the proceeds of the vessel, it becomes necessary to determine the rank in which the several claims are entitled to stand in the order for distribution. And here serious questions arise; for the decisions on almost every one of them are in conflict, and the only resource left to the court is to follow such adjudications as should have here the force of authority, and, where such adjudications are wanting, to follow the lights which seem fed with the better reasons.

1. And first, with regard to the seamen's wages. The Gunderson claim for damages in tort contests with that class the priority of lien. It is not contended that any other claims could do this. Notwithstanding what is said in Norwich Co. v. Wright, 13 Wall., at page 122, namely, 'Liens for reparation for wrong done are superior to any prior liens for money borrowed, wages, pilotage, etc., but they stand on an equality with regard to each other, if they arise from the same cause,' I am satisfied that the rule in the admiralty law of this country is to prefer the claims of seamen for wages to claims for such torts as negligence in towage, provided the seamen whose claim is in question was free from fault. It would most generally happen that the subordination of common seamen in the marine service would render them guiltless in such occasions as collisions, and accidents from negligent towage; but if it appeared (as it does not here) that the seaman was in fact in fault, his claim should be postponed to the damages to which he had contributed. If I were satisfied that this question was present to the mind of the supreme court in Norwich Co. v. Wright, and intended to be adjudged, I should, of course, unhesitatingly follow what was there held; but I do not understand that it was so presented and adjudged. The line of reasoning in which the court was employed did not involve it. The lien for seamen's wages is a highly favored one, and, with the proviso above stated, I am of opinion that the rule declared and acted upon in The Orient, 10 Ben. 620, and The Samuel J. Christian, 16 F. 796, that this claim should be preferred to claims against the offending vessel for torts of such a character as the one in question, is correct.

2. The next question arises upon the relative rank of the claim for damages, as compared with the claims for supplies and repairs and insurance. And here I feel compelled to adopt the rule affirmed by Judge NIXON in the case of The M. Vandercook, 24 F. 478, and which I think the supreme court by necessary implication did adopt and hold in Norwich Co. v. Wright supra, namely, that such claims in damages outrank the claims arising ex contractu, above enumerated. It is true the district judges in the eastern and southern districts of New York held otherwise in The Samuel J. Christian, 16 F. 796; The Grapeshot, 22 F. 123; and The Young America, 30 F. 789; and freedom of action, as against the case of Norwich Co. v. Wright, is sought to be vindicated by the suggestion that in the quotation made from Maclachlan (and heretofore quoted) Mr. Justice BRADLEY was thinking only of the ranking together of claims arising from the same cause, and I have no doubt this was so. But it cannot be doubted that the supreme court did adjudge in that case that the claim for the loss of the cargo laden upon the offending vessel under a contract of affreightment was entitled to the same rank and to share equally with the claims for the injury to the wronged vessel and its cargo. It was necessary for the court to decide that question, because the damages of the libelants did not extend to the amount at which the liability of the ship-owner was limited by the act of congress, and unless the value of the cargo upon the libeled vessel would share with the claim of the libelants (which was for the value...