Merritt v. Mer

precedence of the claims of the Government for duties. chandise, 30 F. R., 195. Salvage outranks general average. The Spaulding, Brown Ad., 310.

Sec. 15. SUPPLIES AND REPAIRS.

And the lien for wages, or for supplies and repairs which are furnished to a vessel after a bottomry bond has been given or a salvage service performed, takes precedence of the bottomry or the salvage. The America, 16 Law. Rep., 264; The Jerusalem, 2 Gall., 345; The Felice B., 40 F. R., 653; The Aina, id., 269; The Fort Wayne, 1 Bond, 476; The Olga, 32 id., 329; The Dora, 34 F. R., 348; The Selina, 2 Notes of Cases, 18; The E. M. Davidson, 1 F. R., 259; See the Virgo, 46 F. R., 294. In the Rodney, Blatch. & How., 226, the lien of material men who furnished supplies at quarantine was preferred to the claim of a consignee who paid duties on the cargo.

And those who furnish materials at a later stage of the voyage have priority over those who furnish them at an earlier stage of the voyage. The Omer, 2 Hughes, 96; The America, 16 Law Rep., 264, 274.

Sec. 16. LIENS PAID PRO KATA.

But where liens arise for supplies, advances, services, pilotage, towage, wharfage, etc., which are all for the preservation or improvement of the vessel, and are all in preparation for the same voyage, or are all furnished contemporaneously, then such liens are regarded as concurrent and of equal rank. None has priority and all are to be paid pro rata. The Fanny, 2 Low., 508; The J. W. Tucker, 20 F. R., 129, 133, and cases cited; The City of Tawas, 3 F. R., 170; The Athenian, 3 F. R., 248; The Guiding Star, 18 F. R., 263; The America, 16 Law Rep., 264, 283; The Superior, Newb., 176; The Paragon, 1 Ware, 322; The Constancia, 4 Notes of Cases, 285; The Desdemona, Swab., 158; The Exeter, 1 C. Rob., 173, 177; Contra, The Wm. Gates, 18 F. R., 835. Liens for supplies and repairs created by the law of the State of the vessel's home port and by the statute of another State are equal. The Nebraska, 61 F. R., 514.

But a court may, on peculiar circumstances, disregard the rule of equality of distribution among claimants of the same class and pay the last furnisher before the first. The Rapid Transit, 11. F. R., 322.

Sec. 17. LIENS PAID ACCORDING TO DATE OF ACCRUING.

Liens which arise not from any service or benefit to the ship, but out of negligence-as the lien for collision-if such liens are not contemporaneous, and there is no equitable reason for preferring the lien later in time to

the former lien, will be paid off according to the dates at which they accrued, the elder in time being paid prior to those which accrued later. The J. W. Tucker, 20 F., 129, 133. Thus, in the Frank G. Fowler, 17 F. R., 653, it was held that of two claiming damages for different collisions, the elder lienor had preference.

But this must not be confused with priorities between liens arising out of contracts and out of torts, as to which see infra, Sec. 20.

Sec. 18. LIENS FOR TOWAGE, PILOTAGE, &C.

The above rules, and the rule that maritime liens and liens arising out of a State statute are equal, enable oue immediately to rank such liens as those for towage, pilotage, wharfage, breach of charter, port dues, damage to goods, quarantine commissioners and hospital charges for care of sick seamen (Platt v. The Georgia, 34 F. R., 769; The Aina, 40 F. R., 269), surveys, consulage and entering vessel (The Aina, 40 F. R., 26:9), some of which liens are maritime and some given by State statute. All those which go toward

the preservation or improvement of the ship and accrue on the same voyage are equal, and share pro rata (The Emily Souder, 17 Wall., 666); on different voyages, those on the later voyage have priority (Porter v. The Sea Witch, 3 Woods, 75).

And as between a lien for materials, or towage, or pilotage, &c., and a lien for breach of charter or damage to goods, it is clear that the lien of the former class should be preferred. For if it accrued after the damage to goods, it would be preferred as tending to preserve to the one claiming a lien for breach of contract his security; if it accrued before the damage to goods, it would still be preferred because it would be prior in time, with the later lien not being for the preservation or improvement of the ship.*

Pilotage, at least pilotage inward, ranks very high, as being one of the last services rendered to the ship. In The Constancia, 4 Notes of Cases, 681, the Court says that by the admiralty law, "wages only, and some small demands of equal urgency, can take priority of bottomry bonds." By this the Court apparently refers to towage, pilotage, &c.

See as to rank of towage,t pilotage, &c., The Dan Brown, 9 Ben., 309; The Mystic, 30 F. R., 73; The Olga, 32 F. R., 327; The Director, 34 id., 57, 67; The Sea Witch, 3 Woods, 75; as to rank of lien for breach of contract

* But where a master, in a port of distress, sold cargo to enable him to proceed, it was held that the lien of the cargo owner was superior to a lien for prior supplies. Proceeds of the Grapeshot, 2 Ben.. 525. This, however, could hardly be considered as damage to cargo, but the cargo owner was in much the same position as the holder of a respondentia bond.

+ In the Director, 13 Sawy., 172, 187, the Court said that the coming up and going down a river of a vessel when there is only the usual delay in getting and taking on cargo, ought, so far as towage is concerned, to be considered one voyage. But quære as to this. It would usually seem to be the ending of one and the beginning of a subsequent voyage.

of affreightment, The Melita, 3 Hughes, 494, 502, and Pon v. Proceeds of the Brig Arbustci, 6 Am. Law Reg., 511, a decision of Judge Betts, S. D. of N. Y., holding that a shipper's lien for damages, on a bill of lading for specie received on board the vessel and never delivered, outranked a mortgage.

Sec. 19. DURATION OF LIEN-THE VOYAGE-HARBOR VESSELS.

There is no fixed time within which a maritime lien must be enforced; the only care of the lienor being to see to it that his claim does not become stale. (Ante Sec. 2.) But the law has usually fixed a certain time within which a lien must be enforced under penalty of losing its priority over other liens. In the case of ocean vessels that time limit, from very early days, has been the voyage. The Carter, 4 Cranch, 332; The Royal Arch, Swab., 269, 284; The Rapid Transit, 11 F. R., 322; The Utility, Blatch. & How., 218, 225; The Boston, id., 309, 327. Liens accruing for wages or supplies or bottomry furnished to help a ship on a certain voyage must be enforced before supplies or materials are furnished to aid her on a subsequent voyage, or the liens for the first voyage are postponed to those arising out of the later voyages, unless some unusual circumstance renders the two equal. (Ante Sec. 11.) The Paragon, 1 Ware, 326; Surplus of the Ship Trimountain, 5 Ben., 246; The Sea Witch, 3 Woods, 75; The Hope, 1 Asp. M. L. C., 563.

But that rule was found impossible of practical application in the case of vessels which make very short voyages. Thus river vessel may make a voyage a day, but a material man could hardly be expected to enforce his lien after one such voyage, or have it postponed to a lien arising on the following day.

And on that subject the courts in the United States have adopted different rules. The rule of the courts of the Districts on the Lakes and western rivers is, to make a division of the claims by the successive seasons of navigation, instead of by the voyage, and to pay claims of equal rank arising during such season pro rata, without regard to the particular voyage on which the lien accrued. The Buckeye State, Newb., 111; The Dubuque, 2 Abb. U. S., 20, 32; The Hercules, 1 Brown, Ad., 560; The Detroit, id., 141; The Fort Wayne, 1 Bond, 476; The Delos De Wolf, 3 F. R., 236, 239; The Athenian, 3 F. R., 248; The City of Tawas, id., 170.

This same rule was adopted, for the purpose of harmony with decisions of other districts, in the southern district of New York as to canal boats and other similar craft which make short and frequent trips during the season and are laid up during the winter (The J. W. Tucker, 20 F. R., 129); liens on such vessels being allowed to hold their rank during an entire

season.

But, thereafter, the question arose in the case of a tug, employed about

New York harbor, where there is no closed season of navigation, but the waters are open the year around. The Grapeshot, 22 F. R., 123. The Court of that District said that in cases of harbor navigation, where the vessel's accounts are of the same rank, and are partly contemporaneous and overlapping, and consist only of the ordinary supplies and repairs incident to the usual course of navigation, the rule of a pro rata distribution would be the most equitable one; but that reasonable diligence must be used in the enforcement of the liens, and those whose enforcement was unreasonably delayed, should be postponed to those diligently enforced-the latter to share pro rata. But the Court carefully limited this rule to the case of ordinary repairs and supplies, and said that a different rule might be applicable to repairs of an exceptional character, such as might be occasioned by collision. And see The Amos D. Carver, 35 F. R., 665, and cases there cited.

The rule of The J. W. Tucker was subsequently still further modified in the later case of The Proceeds of the Gratitude, 42 F. R., 299. In that case the same Court said that in view of the decision of The John G. Stevens, 40 .F. R., 331 (infra Sec. 20) the long continuation of the priority of repair and supply liens diminished the security of liens for damage to cargo or towage accruing on voyages subsequent to the repairs, and hence, that the limit of time for such priority should be reduced. But, on the other hand, the general maritime law could not be applied literally to the daily and hourly trips of harbor tugs, treating such trips as voyages, "since business could not be carried on with daily libels." The Court, therefore, determined to follow not the letter, but the spirit of the general maritime law, which is, "to give the ship a short credit, to enable her to earn freight, to collect it, and pay her bills," and, therefore, fixed the period of 40 days during which the priority of a material man's lien on a harbor vessel would be upheld.

Such a period for the existence of a lien, arbitrarily fixed, but not by statute, strikes the mind as somewhat anomalous, although the necessities of modern river and harbor commerce may require it, and it is believed to work well enough in practice. It was adopted by Judge BENEDICT, in the Eastern District of New York, in the case of the Samuel Morris, 63 F. R., 736. If an appellate court shall, hereafter, settle the vexed question of priority between liens arising out of contracts and liens arising out of subsequent quasi torts (see infra) in favor of the latter, the necessity for such arbitrary limit would be done away with, and the other rule of determining priorities among such vessels by the season as to river boats, and the rule of The Grapeshot (supra) as to harbor boats may be revived.

Edward G. Benedict.

68 Wall St., New York.

[TO BE CONTINUED.]

CONSTITUTIONAL PROVISIONS FOR THE REGULATION OF

THE ENACTMENT OF LAWS IN NEW YORK.

The new provisions in the constitution of New York relating to the mode of legislative procedure in the enactment of laws will give rise to interesting questions already of a practical nature. Art. III., section 15, provides as follows: "No bill shall be passed or become a law unless it shall have been printed and upon the desks of the members in its final form, at least three calendar legislative days prior to its final passage, unless the Governor, or the acting Governor, shall have certified to the necessity of its immediate passage, under his hand and the seal of the State; nor shall any biil be passed or become a law, except by the assent of a majority of the members, elected to each branch of the legislature; and upon the last reading of a bill, no amendment thereof shall be allowed, and the question upon its final pascage shall be taken immediately thereafter, and the yeas and nays entered on the journal." [The italics in this quotation of the section are the present writer's.]

The general effect of the last requirement of this section, viz.: that upon the final passage of a bill, the yeas and nays shall be taken and entered on the journal of the house, has been very thoroughly settled by the adjudinations in this State and elsewhere in the United States. These cases hold that the constitutional provision is mandatory, and an act has not been validly enacted, where the yeas and nays are not taken on the final passage of the bill, or are not entered on the journal of the house. Post v. Supervisors, 105 U. S., 667; Steckert v. City of East Saginaw, 22 Mich., 104; Spangler v. Jacoby, 14 Ill., 297; Supervisors of Schuyler Co. v. People, 25 III., 163; People v. De Wolf, 62 Ill., 253; Ryan v. Lynch, 68 Ill., 160; Nelson v. Haywood Co., 91 Tenn., 596; Jones v. Hutchinson, 43 Ala., 721; Smithee v. Campbell, 41 Ark., 471; State v. Haygood, 13 S. C., 46; People v. Supervisors of Chenango, 8 N. Y., 317.

But where a bill has passed both Houses of the Legislature, and in the second House an amendment or amendments have been made in due form, and the bill is returned to the House in which it originated, in order to secure concurrence in the amendments; if the amendment or amendments are rejected, so that the bill is again returned to the second House, with the first house's disapproval of the amendment, it has been held that the second House's act of receding from the amendment or amendments which have not met with the concurrence of the first House, must be by a yea and nay vote, and the yeas and nays taken, or the amendment must be entered upon the