Page:Federal Reporter, 1st Series, Volume 8.djvu/346

 332 FEDERAL REPORTER. �Carpenter de Mosher, for libellants, Conway and others. �W. Mynderse, for libellant, the Phœnix Insurance Company. �Choate, D. J. In both of these cases the steam-tug Frank G-. Fowler has been condemned to satisfy the claims of the libellants. They are both cases of tort, or damage caused to the tow by faults of navigation on the part ol the tug. In the case of Conway the cause of action grew out of the negligence and improper navigation of the tug on the sixth of November, 1880. In the case of the Phœnix Insur- ance Company it grew out of similar act of negligence on the twenty- fifth of November, 1880. The Phœnix Insurance Company filed its libel December 23, 1880. Conway and others filed theirs December 24, 1880. Processes of attachment were issued upon the same, dated as of the dates of the libel, respectively, and they were served by the marshal on the twenty-fourth of December. There is nothing in the marshal's returns or in evidence aliunde to show that either process was in fact served bef ore the other. The tug has been released on an appraisement, and the deposit in court in the two cases of her appraised value — $4,500. The Phœnix Insurance Company has obtained a re- port of the commissioner in its favor for |6,383.33 damages. This report has been confirmed nisi and no exceptions have been filed. The libellant now applies for a final decree. The libellants Conway et al. having an interlocutory deoree in their favor, and a reference to oom- pute their damage, have not yet obtained a report of the commissioner, but their libel claims damages to the amount of $2,266.91, and they now resist the entering of a final decree in favor of the Phœnix In- surance Company which would absorb the whole fund in court, claim- ing that they are entitled to a priority of payment, and that the final decree in the case of the Phœnix Insurance Company should be only for such part of the fund as will remain after satisfaction of their damages. The Phœnix Insurance Company, on the other hand, claim that they are entitled to a priority in payment over the libellants Conway and others. �The question of the proper order of payment of claims of the same class which constitute maritime liens against vessels has been the subject of much discussion, and there is considerable diversity in the practice in different districts. The case which seems to have settled the rule in this district, as between material men, is the case of The Triumph, decided by Judge Betts in 1841, (reported in 2 Blatchf. 433, note.) He there held that where the fund was insufScient to pay all the claims the libellants were entitled to be paid in the order in ��� �