The John J. Freitus

• Decision Date: 03 September 1918
• Docket Number: 1121.
• Citation: 252 F. 876
• Parties: THE JOHN J. FREITUS.
• Court: U.S. District Court — Western District of New York

252 F. 876

THE JOHN J. FREITUS.

No. 1121.

United States District Court, W.D. New York.

September 3, 1918

Thomas C. Burke, Roland Crangle, R. E. Babcock, Ellis H. Gidley Lawrence Coffey, and C. H. Baldy, all of Buffalo, N.Y., for claimants.

Brown Ely & Richards, of Buffalo, N.Y., for respondent.

HAZEL District Judge.

The libelant in a proceeding in rem against the tugboat John J Freitus claims priority for repairs, under the 40-day rule applicable to harbor tugs prevailing in the port of New York and also under an asserted possessory lien, In re Samuel Little, 221 F. 308, 137 C.C.A. 136. The season of navigation in lake ports is generally about seven months in length, but it appears that the tugboat in question was engaged in harbor towing at Buffalo during the entire year of 1916 and the fore part of 1917. On January 2, 1917, while thus engaged, she negligently caused the stranding of the steamer Alleghany, damaging her to the extent of approximately $14,081.44. The fund in the registry of the court is insufficient to pay such damage, or to pay in full the various claims for repairs and supplies accruing after the disaster. Claims were presented and allowed for repairs and supplies furnished both before and after the accident. The tugboat remained in libelant's possession after the repairs in question until October 23, 1917, when she was seized by the marshal in this proceeding. She was subsequently sold for $4,550.

The commissioner in his report stated that seamen's wages should be paid first, and after that claims for supplies and repairs furnished the tug after the disaster to the Alleghany; all such claims being of equal rank. To this finding libelant objects, contending that its repairs to the tug in June and July, 1917, should be paid prior to other claims for repairs and supplies furnished prior to the expiration of 40 days from October 23, 1917, when this proceeding was begun, and in any event that its possessory lien for repairs is superior to all other claims save claims for seamen's wages and claims accruing, if any, after June 29, 1917, when the tug was taken to the dry dock. In considering the latter contentions of libelant, the commissioner, George Clinton, Jr., in his report states:

'The Buffalo Dry Dock Company claims priority over the other repair and supply liens which accrued during the season of 1917, inasmuch as it held possession of the Freitus while those repairs were being made, and continued in possession until the seizure by the marshal, holding the Freitus as security for its claim. Counsel for the Dry Dock Company contends, therefore, that the Dry Dock Company has a common-law possessory lien in addition to its maritime lien, which gives it priority over other maritime liens which would otherwise be of equal rank with it. If the possessory lien does entitle the Dry Dock Company to priority, it is not deprived thereof by the marshal's seizure of the vessel. In my opinion, however, the possessory lien adds nothing to the maritime lien. The question does not seem to

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