decree rendered in the cause, and to pay all such costs and expenses and damages as shall be awarded against him by the court on the final decree, whether it is rendered in the original or appellate court, not to exceed however in any event the agreed or appraised value of the property so claimed by him, it, or them, with interest at six per cent per annum and costs." 3

§ 589. Petition against proceeds of sale. The proceeds of a sale when paid into the registry take the place of the res, and may be proceeded against in the same way as the res itself. It is not necessary to issue process; any person having an interest in the fund may file a petition against the proceeds, in which he should set forth his cause of action, and allege the sale and payment into court of the proceeds.

3 Adm. Rule 34.

In

§ 589. 1 Admiralty Rule 43; Schuchardt v. Babridge, 19 How. 239, 15 L. ed. 625; Petrie v. The Coal Bluff, 3 Fed. 531; Adm. Rule 48, S. D. N. Y.: "In proceedings in rem, after a sale of the property under a final decree, claims upon the proceeds of sale, except for seamen's wages, will not be admitted in behalf of lienors filing libels or petitions after the sale, to the prejudice of lienors under libels filed before the sale, but shall be limited to the remnants and surplus." The Ethelwold, 165 Fed. 806, it was held that a libelant, who had brought a suit in rem and in personam, and after intervening libels asserting liens had been filed, without opposing them, proved his claim and took a decree only in personam against the owner, thereby waived his right to assert a lien upon the fund, and that such election bound his insurer who claimed the right of subrogation. Admiralty Rule 41. It has been said that conceding the jurisdiction of a court of admiralty, in a suit in rem to enforce liens against a vessel, to direct the pay

"Any person having an in

ment from the remnants remaining in the registry of the court after all liens have been satisfied, of maritime creditors, who have proved their claims but have been adjudged without lien, still such jurisdiction should not be exercised where the owner is an insolvent corporation, represented by a receiver appointed by a State court in insolvency proceedings to wind up the affairs of the corporation; but in such case the remnants should be paid over to the receiver, to be distributed between the maritime and other creditors in accordance with the laws of the state. The admiralty court may, however, if the pleadings are sufficient to support judg ments in personam against the owner, determine the amount due each of such maritime claimants, and enter judgment therefor. "It may be well enough to remark that the case is not of that kind where a court having obtained jurisdiction for one purpose, will keep it for all purposes to avoid further litigation and a multiplicity of suits. If that principle ever applies to a court of admiralty so

terest in any proceeds in the registry of the court shall have a right, by petition and summary proceedings, to intervene pro interesse suo for delivery thereof to him, and on due notice to the adverse parties, if any, the court shall and may proceed summarily to hear and decide thereon, and to decree therein according to law and justice. And if such petition or claim shall be deserted, or on a hearing, be dismissed, the court may, in its discretion, award costs against the petitioner in favor of the adverse party." After the claims against a res and its proceeds have been paid or otherwise disposed of by the court, the person entitled to the remnants and surplus thereof may file a petition setting forth his interest and obtain thereon an order of reference to determine his right to the fund. The court has power to distribute the surplus proceeds to all those who can show a vested interest therein, in the order of their several priorities, no matter how their claims originated. Where the salvor of derelict property, who claimed the whole, was awarded only half of its proceeds and the remainder deposited in the registry of the court; after ten years had elapsed without any claimants for the same, it was held that he was entitled to the balance.⭑

The Revised Statutes provide: "All moneys paid into any court of the United States or received by the officers thereof in

as to authorize it to exercise common-law or equitable jurisdiction, it surely does not authorize the incongruous jurisdiction which would be found in operation if a court of admiralty should undertake to wind up an insolvent corporation under the statute of a state, either wholly or only as to a part of the assets of the corporation which happens to be found in the court of admiralty as remnants. The case of The Edith, 5 Ben. 432, Fed. Cas. No. 4,282, affirmed 11 Blatchf. 451, Fed. Cas. No. 4,283, and again af firmed by the supreme court, 94 U. S. 518, 24 L. ed. 167, fully sustains the ruling we here make, if it does not go further, and deny

the right of any one to be paid out of the remnants in admiralty, even against the owner, unless he has a lien." The Liberty, 119 Fed 539, 541.

2 Adm. Rule 42.

3 The Lottawanna, 21 Wall. 558, 582, 22 L. ed. 654, 664; The E. V. Mundy, 22 Fed. 173; The Guiding Star, 18 Fed. 263, infra, § 590.

4 Re Moneys in Registry of District Court, 170 Fed. 470. Motions to allow a bond to be substituted for a fund deposited in the registry of the court are not usualy granted in the Eastern District of Pennsylvania. The R. C. Veit, 131 Fed.

400.

*

5

any case pending or adjudicated in such court shall be forthwith deposited with the Treasurer or Assistant Treasurer or a designated depositary of the United States in the name and to the credit of such court, provided that nothing herein shall be construed to prevent the delivery of any such money upon security according to agreement of parties under the direction of the court." "No money deposited as aforesaid shall be withdrawn except by order of the judge or judges of said courts, respectively, in term time or in vacation to be signed by such judge or judges and to be entered and certified of record by the clerk, and every such order shall state the cause in or on account of which it is drawn, and it shall be the duty of the judge or judges of said courts, respectively, to cause any moneys deposited as aforesaid which have remained in the registry of the court unclaimed for ten years or longer to be deposited in a designated depository of the United States to the credit of the United States." By the Admiralty Rules, "All moneys paid into the registry of the court shall be deposited in some bank designated by the court, and shall be so deposited in the name of the court, and shall not be drawn out, except by a check or checks signed by a judge of the court and countersigned by the clerk, stating on whose account and for whose use it is drawn, and in what suit and out of what fund in particular it is paid. The clerk shall keep a regular book, containing a memorandum and copy of all of the checks so drawn and the date thereof."7

§ 590. Priorities. When the proceeds of a sale or the amount of a stipulation for value are insufficient to satisfy all the claims against a vessel or other res, it becomes necessary for the court to determine the order in which the claims shall be paid. The court will order payment in accordance with the priorities as settled by the admiralty law, without reference to the time when the libel was filed or the decree entered; but the libelant who files the first libel or in whose suit a sale is made, has ordinarily a priority so far as costs are concerned.1

5 U. S. R. S., § 995, as amended by Act of February 19, 1897, c. 265, §3, 29 St. at L. 575 (U. S. Comp. St. 1901, p. 711).

6 U. S. R. S., § 996, as amended by Act of February 19, 1897, c. 265,

§ 3, 29 St. at L. 575, U. S. Comp. St. 1901, p. 711.

7 Adm. Rule 41.

$590. 1 The Fanny, 2 Low. 508; The Barney Eaton, 1 Biss. 242, Fed. Cas. 1028.

Maritime liens differ from the liens enforced by courts of common law and of equity in that, for the purpose of maintaining the boat's credit so that commerce may be promoted, usually, junior liens take priority to those which previously arose in the inverse order of their creation. The liens of salvors take precedence over all others, previous, concurrent and in some cases subsequent. Next in order are claims for damages caused by. collision and other torts which seem to take precedence over prior liens. Next come the liens of common sailors for wages. These are usually considered sacred, and take precedence over all others, including those for other necessaries, even when the last are protected by possessory liens."

Upon ships that sail the sea, the voyage rule, that liens for supplies, repairs and other necessaries, except wages, furnished upon each voyage shall outrank those which arose during voyages which were previous, is usually applied. The application of the voyage rule to vessels sailing on the inland waters of 'the United States where the voyages are usually short, unduly

2 Collins v. The Fort Wayne, 1 Bond. 476, Fed. Cas. 3012. (Prior seamen's wages and prior claims of materialman); Emerson v. The Pandora, Newb. Adm. 438, Fed. Cas. 4,442; Provost v. The Selkirk, Fed. Cas. 11,455; The Spaulding Brown Adm. 310, Fed. Cas. 13,215; The Athenian, 3 Fed. 248 (Prior seamen's wages); The M. Van der Cook, 24 Fed. 472, materialmen; The Lillie Laurie, 50 Fed. 219, subsequent claims of materialmen. Where the salvage was simple the court gave it no superiority over the concurrent claims of materialmen, The Enright, 12 Fed. 157. See Maritime Liens by Robert M. Hughes, 26 Cyc. 806. The lien for salvage is superior to that of the United States for import duties upon the cargo saved. Albury v. Cargo of the Lugano, 215 Fed. 963. 3 Norwich Co. v. Wright, 13 Wall. Fed. Prac. Vol. III-63

limited the period of credit. The season rule was consequently adopted and under this, such claims which arose during each season were classified together and given precedence over those which in subsequent seasons arose.10 This time was found too long for vessels such as tugs and other boats engaged in harbor navigation which make daily voyages or voyages of less than a day and are always subject to the service of process. For these consequently in the Second Circuit a forty day rule was adopted, to cover the usual period of credit, thirty days, plus ten days for preparation for the litigation. This makes the time for such classification forty days.11 It has been held that the priority of the lien of the sailors' wages is not affected by any of these rules when there has been no laches, 12 unless liens of sailors for services performed upon different voyages are in conflict.13 In Puget Sound the District Court for the western district of Washington has established a ninety day rule for vessels making voyages in Seattle Harbor and Puget Sound.14 In some cases claims have been classified and paid when they arose within the same year; the class of each year outranking that of the prior year preceding.15 Where the surrender of the possession upon the institution of proceedings to enforce a maritime lien for repairs was held to be an abandonment of the possessory lien and an election to rely upon the maritime lien which had no superiority over other liens for supplies and repairs within a

10 The Buckeye State, Newb. 111, 114 Fed. Cas. 13,445; The Dubuque, 2 Abb. U. S. 20, 32, Fed. Cas. 4,110; The Detroit, 1 Brown, Adm. 141, 157, Fed. Cas. 3,882; The Hercules, 1 Brown, Adm. 560, 563; The City of Tawas, 3 Fed. 170; The Athenian, 3 Fed. 248; The J. W. Tucker, 20 Fed. 129, 134, a canal boat; The Nebraska, C. C. A., 69 Fed. 1009, 1014; The Samuel Little, C. C. A., 221 Fed. 308.

11 The Gratitude, 42 Fed. 299; The Samuel Morris, 63 Fed. 736; The Glen Iris, 78 Fed. 511; The Glen Island, 194 Fed. 744. But see The Towanda, 216 Fed. 270;

The Leonard F. Richards, 231 Fed. 1002.

12 The Samuel Little, C. C. A., 221 Fed. 308.

13 The Sea Foam, 243 Fed. 929 (the ninety day rule).

14 The Edith, 217 Fed. 300; The Sea Foam, 243 Fed. 929.

15 The Thomas Morgan, South Carolina, 123 Fed. 781; The John J. Freitus, W. D. N. Y., 252 Fed. 876; a tug engaged in harbor towing for the Great Lakes beyond and for more than a year, about seven months being the season. The Philomena, 200 Fed. 873.