Page:Federal Reporter, 1st Series, Volume 8.djvu/348

 S3e FEDERJIL BKPOBTEB. �giving credit to her under those circumstances which, by the mari- time law, create a lien. It is a singular circumstance that, in the case of The Globe, Judge Nelson apparently makes this very consider- ation a reason for giving priority to the material man making the first attachment, although it would not seem to be a reason for adopt- ing such a rule of procedure. Thus he says : �"It has been argued that this maiitime lien for supplies and material fur- nished at a foreign port is an abiding claim and adheres to the vessel, and may be enforced over all claims of a like nature subsequently accruing in the course of her employaient., I cannot assent to this position.. On the con- trary, I am satisfled that the true rule upon the subject is that, in respect to maritime liens of this description, the party first instituting legal proceed- ings, for the pupose of enforeing his claim against the vessel, is entitled to satisfaction out of the proceeds of her sale. Upon any other view the vessel would afford no reasonable security to the merchant in making the advances or furnishing the necessary supplies, as, for aught he could know, the exist- ing claims against her might exceed her value. It is apparent that ,to give this maritime lien the efficacy claimed would greatly embarrass and obstruct the commerce and navigation of the country. It would deprive the master in distant ports of the means bf meetingthe exigencies of the service, because the vessel would furnish no adequate security for the necessary supplies or repairs." �The learned judge then cites with approval Judge Betts' definition of a maritime lien, as an additional grOund for giving the preference to the first attachment. I think* therpfore, it must be conceded that at least one of the grounds upon which Judge Nelson approved this rule of priority in the case of material men has no application what- everto cases of successive claims founded in tort; as, for instance, claims for damages by collision or negligence. In these cases the .creditors acquiring a lien are such ininvitum. There is no credit given to the vessel. There is no consideration of the necessities of com- merce requiring the security of the whole value of the vessel as a pledge for a henefit canferred upon the faith of it, to influence the deter- mination of the question of priority. As to the other ground on which this rule of priority is based, — the nature of a maritime lien,— in fact the sole ground on which the case of The Triumph appears to proceed, it must also be conceded that later cases of the highest au- thority in this country and in England have held "the meaning and efficacy of a maritime lien" to be something. very different from a "privilege to arrest the vessel for the debt which, of itself, constitutes no, encumbranee on the vessel, and beconxes such only by virtue of an actual attachment" as it is defiued in the case of TIic Triumph. ��� �