THE VIGILARCIA..

733

of Huntington and Pratt & Co. as respects the proceeds of the four vessels must, therefore, be also dismissed. The Atlantic Trust Company, as mortgagee, having a vested intereatin the vessels under the mortgage for $1,250,000, and its legal title having become absolute by the default in the mortgage before the receiver's appointment, is exclusively entitled, as I find, to the surplus proceeds of these vessels, as against the other claims set forth in the above libels and petitions; but subject to the payment of any other maritime liens already decreed, or which may be hereafter decreed in pending actions.

THE VIGILANCIA. THE SEGURANCA. HUNTINGTON et 0.1. v. FREIGHTS OF THE VIGILANCIA et 0.1. SAME v. THE SEGURANCA et 0.1. BROWN et 0.1. v. FREIGHTS 'rHE SEGURANCA et ai. ATLANTIC TRUST CO. v. SAME. GRAY, Receiver, v. SAME. (District Court, S. D. New York. October 16, 1894.) 1.
MARITIME LIEN-FREIGHTS-STATE COURT DEPOSITARy-CONFLICT--ATTACHMENT IN ADMIRALTY.

Where maritime freights were proceeded against In the state court in equity without jurisdiction, and were in the hands of a depositary: Held. that a· subsequent attachment in admiralty to enforce a maritime lien thereon was valid.

2.

Ht'POTHECATION OF FREIGHTS-LETTERS OF CREDIT-MORTGAGEE-RECEIVER.

Upon facts and claims of the same general nature as in the caSe of Freights of the Kate, 63 Fed. 707, the same rules applied.

Brown and others. Carter & Ledyard, Mr. Baylies, and Mr. Goodrich, for petitioner Atlantic Trust mortgagee. Stetson, Tracy, Jennings & Russell and Mr. Van Sinderen, forpetitioner Henry Winthr-op Gray, receiver of U. S. & Brazil Mail S. S. Co. BROWN, District Judge. The libel first above named was filed on April 13, 1894, to enforce an alleged maritime lien upon the sum of about $30,000, on deposit in the Central Trust Company of this city, being the net freights earned by the steamships Advance, Allianca and Vigilancia on their last voyages respectively from Brazil to this port, all arriving on the same day, February 21, 1893. The steamers all belonged to the United States & Brazil Mail Steamship Company, and run in their sen-ice. That company failed on February 23, 1893. On March 18, 1893, the petitioner Gray was appointed receiver by the state court, and that appointment was made permanent on March 6, 1894.

In Admiralty. Liens upon freights. Benedict & Benedict, for libellant C. P. Huntington. Cary "& Whitridge and W. P. Butler, for petitioners John Crosby

734

'vol. 63.

by the petitioner, John Orosby grown and others in: to etifOl'Ce''tmdri 6Iaim.'to'a lien -upon these upon an alleged expresl!l thereof: aa'e()llateralsecurity' f0i' letters of 'credit eompanY,tbe'ifreights were deposited'( the OentraITNstX:Jompany,' as depositaI'Y,'t(}ilibide,therdecision oHhat action, to which afterwards the receiv-er Wael·made a party-. ' .' ,,' Upon general term of the supreme court from an interlocutory ordel" it was held by the general term that that court had not jurisdiction of the cause, as its object was to etif6rcealien that was maritime, by a suit in equity, contrary to tb,.e"JH·o:'(isi()ns of the United States constitution, and the ninth ·sectioil. of the judiciary act (Rev. St. U. S. § 711), by which the federal 'courts alone have cognizance of such v.Gray, 70 Hun, 261, N, 61. ;'ffas wade behalt. to the service of , the libel first above named, and the jUl'lsdictlOn of this court was denied, on the ground that the fund is subjl1dice and in control of the state supreme court under the stipulation iibOve referred to. · The objection was overruled on two grounds: ,First, that, ;the objection is valid ,only when the ha,s the and is competent .v.Sturges, 154 U; 256, 274, 284, ,14' Sup. Gt: '1019, I In reSchuyler's Ellteam Towboat Co., 136 N. Y. 169, 32 N. E. 623), which is not the case here, as the ,state has itsekf, the fundbeIng'1U,'tlte harl,ds'of a deposItary only, who Iswithm the jurisdiction, itlscompeteh'ttbrthis court, whicih can aloneadjudiand without cate and enforce maritime Uens, to proceed at delay, in the Interests, of jU8tic,e, to adjudicate the'maritime ques,tiona upon. ,due notice to the depositary and all others' i'nterested, and to render an appropriate decree, which, eState court would. be bound to respect upon finalapjtj.dicatioQ, 'and to enforce; even if the fund was lawfUlly in its' own custody .,as il0W-,e 'part thElre,of not affected by.m.,a;ritimeclaims; and ;pecause the decree' court would be bmding upon any mere ! depositary, as respects the wount subject to maritime claims. The practice in all such: cases has been to proceed with the cause. See 'rhe Oaroline, 1 Lowell, 173, Fed. Oas. and The Sailor l)rince, :C:een. 234, Fed.' 08;s. NO. 12;218, Where this subject is fully discl1$sed; intolerable e:onfusion, and delays equivale'nt'tj) 'a denial ofjnstice, could 'result from a contrary practice. ....' ... , .' . ".'. . TheSeguranca, On her arrival, was pr(}Cess issued f out Qf this C6urt before 't'.t,(e,delivery of her cargo. "The net freights , collected' "deposited bndt:r the order of, this court. with a 'depositary,'ati'lolmting toab(mt $8,500, without ;prejudice to any and all liens thereon. A few days afterwards, 'on April 13, 1893, the libel of M'r. Huntington, against the Seguranca and her freights, was filed. . i'

: '/{rptin '8/ suit'inrequftY:brougM 'iB .tJbe supretiuS'courtof:thisstate

-THE VIGILANCIA.

735

To the first-named libel of Mr. Huntington, aU the other petitioners above named have made answer, and have filed claims to the same freights. All of these opposing claims are of the same kind, and are based upon the same grounds, as set forth in the decision of the cases of Gray and others against the freights of the steamship Kate and four other chartered vessels, tried at the same time herewith. The owners of the chartered vessels have no interest in the present cases; as regards the other claims, the rules of decision applied in those cases are to .be applied here. The evidence indicates that a part of the moneys raised at Rio by tpe dr.:dts drawn upon the letters of credit guarantied by Messrs. Huntington and Pratt & 00., were applied to pay some of the necessary disbursements for all the steamships above named upon their last trips from Brazil by which these freights were earned; and that they have consequently a specific lien to some extent upon these freights, under the agreement by which the guaranty was procured. The Vigilancia, on her voyage out, arrived at Rio de Janeiro on January 4, 1893, left for Santos January 6th, arrived there January 7th, and left on .January 27th for Rio, where she arrived on the 28th, and sailed thence for New York on February 2d. The Advance arrived at Santos January 21,1893; left there on the 23d for Rio, where she arrived January 24, and sailed thence for New York on January 28th. The Allianca arrived at Rio January 19, 1893; left on the 21st for Santos, where she arrived on the 22d; left there on the 24th, reached Rio on the 25th, and sailed thence for New York on January 29. The Seguranca arrived at Rio on February 11, 1893; left on the 14th; arrived at Santos on the 15th of February, and left on the 17th for Rio, which she reached on the 18th, and sailed thence for New York on February 26th. None of the disbursements testified to as made in November or December for these vessels at Rio or Santos could, therefore, have been made on account of the last voyages; but other disbursements testified to as made for them in January and February, were in part at least for the last voyages. During these months large amounts were obtained from the drafts drawn upon the letters of credit guarantied by Huntington and Pratt & Co.; and during January, £4,000 were also obtained upon drafts drawn upon Brown Bros. & Co. This was exhausted, as the evidence shows, by the end of January, so that no part of Brown Bros. & Oo.'s drafts went specifically to disburse the Seguranca on her last voyage. Each, however, have a specific lien for so much of the necessary disbursements for either of these vessels as upon a reference they can trace as paid for the last voyages· by the proceeds of their own drafts; and for such further necessary disbursements for those voyages as were paid by the commingled and concurrent funds supplied to both, they should share pro rata as specific lienors. The specific liens, as thus ascertained, should be paid from the freights of each vesseL next aftcr satisfJ;ing any claims for neces-

J'EDERAL REPORTER,

vol. 63.

sarles' arising during the voyage after the vesselleft Brazil, .as well as the port expenses here and th'e charges attending delivery of

and collecting the freights; the seamen's wages, as 1 under· stand, having already been paid. Should there be any residue· remaining after the above claims are paid, the general liens in fa'\Tor of Brown Bros. & Co. and of Hunting· ton and· Pratt &, Co., under the express contract and the understanding of the paFtie$, take precedence of the claims of the mortgagee and;reeeiver, according to' the decision in the cases against the freights of the Kate, etc..'. These liens will be more than sufficient to exhaust the rl>sidue of the fund; and they will divide the residue pro· rata, according to the whole amounts remaining unpaid upon' each. An order of reference may· be taken to adjust the amounts, if not agreed on.
THIll S,.A.MUEL MORRIS. PElJLY et al. v. THE SAMUEL MORRIS. THREEOTI:IER CASES v. SAME.

(DIstrict Court, E. D. New York.

MARITIME LIENS-PRIORITY.

September 11, 1894.)

Claims having accrued within 40 days held to take priority In payment over older claims, In the apportionment of the proceeds of a vessel The Proceeds of the Gratitude, 42.Fed. 299, followed.

Apportionment of the Proceeds of the Sale of the Vessel. Peter S. Carter, for Pelly and Stanwood. Alexander & Ash, for Greason and others. Benedict & Benedict, for Palmer. BENEDICT, District Judge. These cases come before the court on the questioI) of apportionIDent of the proceeds of the sale of the vessel. The amQunt in court is $848.26. The claims amount to $1,848. The first libel was.filed on July 2,1894. Of the claims, the claim of Greason, for $125.80, and that of· Palmer, $54.40, accrued within 40 days frOID the time of the filing of the libel. All the other claims arose between July, 1893, alild May 1,1894. The question is whether the rule applied by Judge Brown in the case of The Proceeds of The Gratitude, 42 Fed. 299, shall be applied in a case like this, according to which rule claims having accrued within 40 days take priority in payment over older claims. The rule laid down in the case of the Gratitude seems to be a very- proper rule, and I see no reason why it should not be applied in a case like this. Accord· ingly the order will be that Greason and Palmer be paid first in the distribution of the proceeds.