Cornell Law Review

Volume 16
Article 4
Issue 4 June 1931

Proirities Among Maritime Liens

Edward L. Willard

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Edward L. Willard, Proirities Among Maritime Liens, 16 Cornell L. Rev. 522 (1931)
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 PRIORITIES AMONG MARITIME LIENS
EDWARD L. WILLARD*

At a very early date in the development of the Admiralty law cer-

tain special rights were recognized against the ship itself. These rights
were the forbears of our modern maritime liens.1 At least by the 17th
century it was recognized that certain of these liens contained more
merit than .others," particularly in cases where the fund derived
from the sale of the ship was insufficient to fulfill all the demands of
the lien claimants. The purpose of this article is to examine the his-
tory and present status of the law which provides for the preference
of certain maritime lien claims over others.'
I. THE AmERICAN LAW OF PIOITIES
Of primary importance in this discussion is the status of the law in
the American courts. Historically, priorities begin with the famous
case of Dall v. The Betsey,' tried in 1785, which is largely interesting
because of the eminence of counsel rather than its weight as pre-
cedent. Of the Vice-Admiralty courts of Colonial days, we have little
or no record. Such records as there are would seem to show a
pro rata rather than a preferred division of the proceeds of the sale
*Associated with Messrs. Haight, Smith, Griffin and Deming, of New York
City.
'It is not the purpose of this article to dwell at any length on the theory of
maritime liens as such. On the point see Griffin, The Federal Maritime Lien
Act (1923) 37 HARv. L. REv. 1 5 .
"MARINE ORDINANCE, Louis XIV, 1681; Title 4, XIX. The ship and the
freight shall be specially liable for seamen's wages. Title 5, X, provides that
creditors for money formerly due for such things (bottomry bonds) shall not
come in competition with those who have actually lent for the last voyage.
3
This topic has not been a prolific source of academic thought, although a
prolific source of cases before the admiralty bar. The best article is Beach,
Relative Priority of Maritime Liens (1924) 33 YALE L. J. 841. See also Her-
bert, The Origin and Nature of Maritime Liens (1930) 4 TULANE L. REv. 381;
(1909) 23 HARv. L. REv. 60; Ibid. 144.
'Reported in HOUGH, CASES IN VIcE-ADMIRALTY AND ADMIRALTY (1925)
243. The court allowed seamen's wages though earned on earlier voyages to be
preferred over demand for necessaries furnished for a later voyage. The case
was tried before Hon. Lewis Graham, in the Court of Admiralty of the State of
New York, in 1785. Alexander Hamilton was of counsel for Dall, and Brock-
holst (later Associate Justice) Livingstone appeared for certain other claim-
ants. The case is probably the earliest in America in which priorities are al-
lowed.
 PRIORITIES AMONG MARITIME LIENS

of a ship when the total sum was insufficient to satisfy all the lien
claimants!
Coming, then, to a consideration of the present status of the law of
priorities relative to maritime liens, it will be found that the cases
are easily divisible into two general groups, i.e., classifications (i) in
point of time of accrual of the lien, (2) according to the general class
of which the lien is a part.

a. Prioritiesof Liens According to Time of their Accrual

From earliest times it has been recognized that some liens of a later
date should be paid prior to those of an earlier date.' This is in direct
contravention of one of the ordinary principles of the common law.
Presumably the present result was an outgrowth of the application
of the civil law to this situation.' A careful reading of all the cases
shows that much of the difficulty and uncertainty of the law on this
topic is due to an attempt to apply a rigid civil law to situations
arising under the common law. From an early date the civil law pro-
vided that all bottomry bonds written on the last voyage should rank
those of previous voyages.8 Today it is accepted as a general proposi-
tion that claims of the same rank have priority in inverse order of
their accrual,' subject to certain limitations later to be mentioned.
Two reasons have been advanced for the establishment of such a
classification. First, assuming that a maritime lien is a jus in re rather
"'I do therefore Order and Decree that the Court Charges amounting to
Forty Nine pounds thirteen shillings and three pence be first Deducted and paid
out of the Neat Amount of the sales of the said Sloop, and the Remainder be
paid to the severall Parties in proportion to their severall Debts, and that each
of the parties pay their own Lawyers." Executor of Michael Beesley v. Sloop
Flying Fish (N. Y. 175o), reported in HOUGH, bp. cit. supra note 4, at 69.
'The rule is not a rule of laches, there being a further period when such liens
are considered. The Little Charley, 31 F. (2d) i2o (D. Md. i929), I929 Am.
Mar. Cas. 398.
'Many of the American cases discuss the civil law.as though it was an un-
questionable authority. Proceeds of the Gratitude, 42 Fed. 299 (S. D. N. Y.
i8go); Lewis v. Elizabeth and Jane, Fed. Cas. No. 8, 321 (D. Me. 1823);
The Paragon, Fed. Cas. No. 10,708 (D. Me. 1836); The Young Mechanic, Fed.
Cas. No. i8,io (C. C. Me. i855); Vandewater v. Mills, i9 How. 82 (U. S.
i856).
'See supra note 2. The Nissegoque, 280 Fed. 174 (E. D. N. C. 1922), inter-
preting the term "voyage" as that period from the writing of the ship's articles
to the conclusion thereof, and not from port to port.
OThe America, I68 Fed. 424 (D. N. J. i9o9).
 CORNELL LAW QUARTERLY
than a jus ad ren," the lien holder as a result, is presumed to become
a part owner in the adventure, and his lien becomes subject to all
later maritime lienors by his implied consent. The theory, although
expounded in the cases," is a difficult pill for the common lawyer to
swallow, particularly with regard to liens for maritime torts discussed
later. The second reason is that on a basis of pure merit, he who last
administers to the necessities of the ship and puts her on her way
acquires a better right than prior lienors, because in so doing he is
keeping the ship in motion as a vehicle of commerce.' He is the
causa sine qua non of the ship's ability to continue her voyage. As a
practical matter, today this second reason is not wholly true. In the
era prior to international cable and communication by radio, distant
ports heard little of the owners of foreign ships and it was quite true
that a material man or wharfinger was forced to look to the credit
of the vessel, rather than to the distant owner, as time was precious.
Even today the courts pay lip service to the old theory made obsolete
in part by modern invention. Further, such a theory is inapplicable
to certain general classifications of liens. To'be specific, seamen who
contract for wages cannot be said to look to the credit of the vessel
unless by special protection of the admiralty. There can be no ques-
tion, also, that liens arising out of collision or other torts cannot be
said to be acquired on the credit of the vessel.
Until the end of the last century the voyage rule of time priority
was practically unquestioned. Since then various modifications have
arisen caused by changing conditions and a desire to provide a reason-
able credit in specific conditions. Probably the best known rule is
that applying to vessels plying the waters of New York harbor. This
is known as the 40 Day Rule.' It was found impractical, in the cases

"It is suggested that the whole jus it re theory of maritime liens may be laid
at the door of Pothier. I BENEDIcT, ADMIRALTY (5th ed. 1925): 17. The Young
Mechanic, supra note 7; The J. E. Rumbel, 148 U. S. I, 13 Sup. Ct. 498 (1892);
The John G. Stevens, 170 U. S. 113, IS Sup. Ct 544 (1897).
"Vandewater v. Mills, supra note 7; The Arcturus, I8 Fed. 743 (N. D. Ohio
1883).
"The Alcalde, 132 Fed. 576 (W. D. Wash. 19o4); The St. Jago de Cuba, 22
U. S. 409 (1824); The Samuel J. Christian, 16 Fed. 796 (E. D. N. Y. 1883);
The St. Paul, 277 Fed. g (S. D. N. Y. 1921); The Frank G. Fowler, 17 Fed.
653 (C. C. S. D. N. Y. 1883).
"Many cases have applied and interpreted the rule so that it is undoubtedly
law in -the Southern and Eastern Districts of New York and in the District of
New Jersey. Proceeds of the Gratitude, supra note 7; The Samuel Morris, 63
Fed. 736 (E. D. N. Y. 1894); The Glen Island, 194 Fed. 744 (S. D. N. Y.
 PRIORITIES AMONG MARITIME LIENS
of small harbor craft, where any given trip is of short duration, to
apply the voyage rule, else tugs would be eternally tied up with libels
for each voyage to avoid losing preference. The courts then decided
that amongst liens of the same general class, no priority in time would
be given effect during the customary harbor period of credit, which
was thirty days, plus a ten day period of grace. The result is the
Forty Day rule."
Questions have arisen as to the interpretation of the application of
the Forty Day rule. Three possible views may be presented: (i) All
liens rank pro rata prior to the forty day period before the first
libel ;" (2) that there are successive forty day periods which do not
overlap each other and in which all liens will be paid pro rata;" (3)
from the filing of each libel there is a forty day period which runs
without prejudice to libels filed at a prior time. The second view,
while perhaps not the leading one, is probably the most logical. The
Forty Day rule is not a rule of laches by which action is barred.
A similar rule for like reasons is in force for navigation on the
Great Lakes. There the period of credit is for a season of naviga-
tion and liens of the same class rank equally in that period.' Like-

1912); The Samuel Little, 221 Fed. 308 (C. C A. 2nd, 1915) ; The Interstate
No. i, 290 Fed. 926, (C. C. A. 2nd, 1923), 1923 Am. Mar. Cas. 1118; The
Interstate No. 2, 290 Fed. 1115 (D. N. J. 1923), 1923 Am. Mar. Cas. 1128;
Baker Bros., 28 F. (2d) 92o (E. D. N. Y. 1928), 1928 Am. Mar. Cas. 16oo. In
The Leonard F. Richards, 231 Fed. lOO2 (E. D. N. Y. I916), mention is made
of a "rule of court" with reference to the 4o Day Rule in the Eastern District
of New York. The Deputy Clerk and the officials of that cou'rt, however, deny
all knowledge of there having been such a rule. Perhaps a rule of the common
law is meant
""I think the time allowed for retaining priority in these harbor cases may be
justly reduced to 4o days. That will give the short credit incident to the usual
rendering of monthly bills, and IO days more for settlement, or libeling the boat
in case of non-payment." Proceeds of the Gratitude, supra note 7, at 301.
"The Interstate No. I, supra note 13, at 93o. See also Proceeds of the Grati-
tude, supra note 7; The Samuel Morris, supr'a note 13; The Oregon, 6 F. (2d)
968 (C. C. A. 2nd, 1925), 1925 Am. Mar. Cas. 1271. i
"It re New England Transportation Co., =2oFed. 2o3, 2o8 (D. Conn. 1914);
The Leonard F. Richards, supra note 13.
'Stillman v. Buckeye State, Fed. Cas. No. 13,445 (D. Mich. 1856); The
Arcturus, supra note ii; The Nebraska, 69 Fed. lOO9 (C. C. A. 7th, 1895).
The rule is generally cited as applying solely to the Great Lakes. But see The Alfred
J. Murray; 6o Fed. 926 (D. Md. 1894); The Cimbria, 156 Fed. 378 (D. Mass.
1907); The Bethulia, 20o Fed. 876 (D. Mass. 1912). The rule is not invariable
and may be modified where conditions justify. The John J. Frietus, 252 Fed.
876 (W. D. N. Y. I918).
 CORNELL LAW QUARTERLY

wise, United .States Courts of the Western District of Washington

have applied a rule for navigation in Puget Sound which limits
priorities accruing within a period of 90 days.' It is questionable how
much further the application of this principle can be carried and to
what jurisdictions it extends.' It is interesting to note that even where
the longer voyages of ocean steamers are concerned, the courts have
ceased to apply a technical interpretation of the term "voyage" and
talk in terms of years. The year is considered representative of the
voyage.' This, it is suggested, shows a tendency, even in the case of
larger vessels, to apply a timq equal to a reasonable period of credit.
Fast passenger liners today make the trans-atlantic run in less than
a week and all steamers of any size in less than three weeks, so that
the larger steamship companies in a certain measure, are beset with
the same problem which faced harbor craft at an earlier date.

b. PrioritiesAccording to Characterof Lien

i. PrioritiesAccording to General Class: The more difficult ques-
tions of priority arise as regards class rank rather than as to time.
Speaking of the former, Judge Brown said:
"The subject of marshalling liens in admiralty is one which,
unfortunately, is left in great obscurity by the authorities. Many
of the rules deduced from the English cases seem inapplicable
here. So, also, the principles applied where the contest is be-
tween two or three libellants would result in great confusion in
cases where 50 or 6o libels are filed against the same vessel.
The American authorities, too, are by no means harmonious,
and it isa scarcely too much to say that each court is a law unto
itself.2
'
The Edith, 217 Fed. 3oo (W. D. Wash. 1914); The Sea Foam, 243 Fed.
929 (W. D. Wash. 1917). But the rule applies only to Seattle Harbor (Elliott
Bay), and does not extend to trips as far as to Vancouver. The Morning Star,
i F. (2d) 410 (W. D. Wash. 1924), 1924 Am. Mar. Cas. 1571.
"'There is some authority for the proposition. In the District Court of South
Carolina all liens within a year of the same class will be paid pro rata. The
Thomas Morgan, 123 Fed. 781 (D.S. C. 19o3). The point is'discussed in The
Nebraska, supra note 17, and in The Edith, supra note 18.
'The Fort Gaines, 24 F. (2d) 438 (D. Md. i928), I928 Am. Mar. Cas. 459;
The Annette Rolph, 3o F. (2d) 191 (N. D. Cal. I929), 1929 Am. Mar. Cas.
212; The Little Charley, supra note 6. There may be some question as to the
meaning of "year"; cf. The Jack-O-Lantern, 282 Fed. 899 (D. Mass. 1922) in
which the words "calendari year" are used.
'The point was considered at an early date. Proceeds of the Gratitude, supra
note 7, at 3O.
"aThe City of Tawas, 3 Fed. 170, 172 (E. D. Mich. i88n
 PRIORITIES AMONG MARITIME LIENS

That was in i88o. Much water has passed under the bridge since
that time, and in some measure the difficulties pictured by Judge
Brown have been overcome. Much, however, remains to be done.
In general, liens have been said to be divided into two classes-
maritime claims and non-maritime claims.' The distinction is well
taken because by definition, maritime liens arise only out of necessity,
and he who supplies that necessity must be given highest protection
in the interest of commerce. Such priority is generally accepted
under both the common and the civil law systems.
A second general classification is also commonly adverted to. Mari-
time liens arising ex delicto are said to rank those arising ex con-
tractuY The rule is probably based on the idea that priorities are
only interesting where insufficient funds prevent full payment, in
which event there is a visceral reaction in favor of the poor fellow
who was hit in the face over the man who sold goods for which he
was not paid. The rule, at best, is weak in theory, and it has had
practical disadvantages. It can be regarded only as a -basic rule sub-
ject to change when conditions justify. Probably the most prominent
instance of variance from the rule is that arising from seamen's
wages. A clearer case of contract claim is difficult to find, yet any
court would allow the seamen their wages prior to a collision claim
which arose without any fault on their part.'
2. PrioritiesAmong the Specific Liens: Many have been the at-
tempts to lay down a given order by which specific liens shall be paid
only to fail in one particular or another. It is respectfully suggested
that any attempted classification is impossible under the theory and
system of the common law. The probable origin of the idea was in
the civil law. There are merits in a hard and fast order of priority,
the chief being that of predictability, but the rank of any class of liens
varies so greatly with the case before the court, that any classification
in this country is out of the question. With that in mind, specific
liens will be considered.
(a) Seamen's Wages: At first blush, there could seem to be little
or no difficulty with the question of seamen's wages. The courts of

""In determining the order of priority among the several claimants, the first
classification, therefore, is into liens, maritime and non-maritime, the latter being
postponed until after satisfaction of the former." The Guiding Star, 18 Fed.
263, 265 (S. D. Ohio 1883). See also the Liberty No. 4, 7 Fed. 226 (S. D.
Ohio I881); The William Leishear, 21 F. (2d) 862 (D. Md. 1927), 1927 Am.
Mar. Cas. 177o. 'The M. Vandercook. 24 Fed. 472 (D. N. J. I885).
"'The America, Fed. Cas. No. 288 (N. D. N. Y. 1853).
528 CORNELL LAW QUARTERLY

the Admiralty have from time immemorial favored and protected the
men who have dared to venture forth on the "sea of darkness". Their
rights have frequently been said to be nailed to the last plank of the
ship,' but how far is such a rule to be carried? In Saylor v. Taylor,"a
the court said:
"Hence it is that in all times and in all countries those who are
employed upon a vessel in any capacity, however humble, and
whose labor contributes in any degree, however slight to the ac-
complishment of the main object in which the vessel is engaged,
are clothed by law with the legal rights of mariners, 'no matter
what may be their sex, character, station, or profession.'"
Under this decision a bartender or a musician would have a prior
claim to the most important material man's lien or the most meritori-
ous collision lien. It is suggested that the invariable rule should be
modified as has been done in some districts. An example of modifica-
tion is seen in the case of a tort lien where, if the collision was due
to the negligence of the seamen, their wage claim loses its priority.
There is also considerable law to the effect that a salvage lien takes
precedence over a claim for wages earned prior to the date of the
salving of the ship. Here we have a conflict between a desire for a
well ordered priority and an attempt to follow logically the theory
of priorities. Seamen's wages are said to come first in order, of rank,
yet the salvors have been instrumental in saving the ship for the bene-
fit of the wage claimants. Perhaps time priority is being confused
with rank so that an equitable result may be reached.
It is to be noted that where seamen are entitled to penalty wages '
'the question of priority as to that sum is not settled.
'Sheppard v. Taylor, 5 Pet 675 (U. S. 1831); The Samuel Little, supra note
13; The John G. Stevens, supra note IO, at 119; Butler v. Ellis, 45 F. (2d)
951 (C. C. A. 4th, i93o).
2a77 Fed. 476, 479 (C. C. A. 4th, i896). 0

'The J. S. Warden, 175 Fed. 314 (S. D. N. Y. Ig1o).

"38 STAT. 1164 (1915), 45 U. S. C. § 596 (1928) provides for the payment
of wages within specified times and "every master or owner who refuses or
neglects to make payment in manner hereinbefore mentioned without sufficient
cause shall pay to the seamen a sum equal to two days' pay for each and every
day during which payment is delayed..."
"Recent cases seem to rank penalty wages in the lowest class of maritime
liens. The Nika, 287 Fed. 717 (W. D. Wash. 1923), 1923 Am. Mar. Cas. 4o9;
The Washington, 296 Fed. 158 (E. D. N. Y. 1924), 1924 Am. Mar. Cas. 394.
But see Covert v. British Brig Wexford, 3 Fed. 577 (S. D. N. Y. i88o) (In-
terpreting the corresponding English statute, 17 & 18 Vice. c .JO4,§ 187 (1854));
Gerber v. Spencer, 278 Fed. 886 (C. C. A. 9th, 1922).
 PRIORITIES AMONG MARITIME LIENS

In the older American cases there was no lien for the master for
his wages because of the close contact between the master and the
owners. The master was considered to have looked to the credit of
the owner, rather than that of the vessel, but there may be some
limitations on the rule.'
(b) Salvage: Salvage is one of the larger and more important
liens. Many cases deal with the requisite acts which constitute the
salvage service. Such discussion, however, is without the scope of
this article.'
Perhaps the one important incident of the lien for salvage is that
it is one of the few liens which may take priority over seamen's
wages. This lien is generally held superior to wages earned prior
to the salvage service.'
Probably because of the interest of the cormnunity in the conserva-
tion of property, salvage has been preferred to all other liens.' It
would seem that the salvage lien should attach to the ship and all her
tackle, although, there may be some question where the acts of sal-
vage are separate."
(c) Repairs and Supplies: Perhaps the largest percentage of cases
involving maritime liens concern liens for materials and supplies. It
is a popular misconception of the Admiralty Bar today that priorities
affecting material and supply liens were "settled" by the Federal
Maritime Lien Act,' or the Ship Mortgage Act,' or both. As a mat-

'The Wexford, 7 Fed. 674 (S. D. N. Y. 188i); The Wyoming, 35 Fed. 548
(E. D. Mo. 1888); The Nebraska, supra note 7; The Bethulia, supra note i7.
'The Cimbria, supra note 17. See also The Fort Gaines, supa note 2o, where,
however, the lien was created by Norwegian law; The Olga, 30 Fed. 329 (S.
D. N. Y. 1887) (Italian law). In some districts a lien is created by statute. See
The Edith, supra note i8.
'The Athenian, 3 Fed. 248 (E. D. Mich. 1877) ; Great Lakes Towing Co. v. St
Joseph-Chicago S. S. Co., 253 Fed. 635 (C. C. A. 7th, igiB).
"The Athenian, supra note 31; The Nettie Woodward, 5o Fed. 224 (E. D.
Mich. 1892) ; The Conveyor, z47 Fed. 586, 593 (D. Ind. i9o6). Some cases seem
to hold that seamen's wages come after salvage even though they accrue after
the salvage lien; cf. Dalstrom v. E. M. Davidson, i Fed. 259 (D. Wis. I88O)
(wages earned during salvage). Contra: The Little Laurie, So Fed. 219 (E. D.
Tex. ig8o).
'The Athenian, supra note 31; The Conveyor, supra note 32; The Andree,
41 F. (2d) 812 (S. D. N. Y. 193o).
'4The Nissegoque, 28o Fed. 174 (E. D. N. C. 1922) (salving anchor after
raising the ship).
'*36 STAT. 6o4 (I91o), as amended 41 STAf. 005 (i92o), 46 U. S. C. § 97r
(1928). '4i STAT. 1000 (1920), 46 U. S. C. § 911 (1928).
 CORNELL LAW QUARTERLY
ter of fact, the Federal Maritime Lien Act expressly denies any such
application," and the Ship Mortgage Act denies priorities only in
their relation to preferred mortgages under that Act. It is true that
prior to 19IO the courts made a distinction between supplies fur-
nished in the home port and a foreign port. A lien was not allowed
in the home port because it was considered that there the material
man looked to the credit of the owner, and not the ship. A lien then
not being a necessity, no maritime lien was permitted. This argu-
ment, though theoretically and historically correct, was not found
practical, and was abolished bythe Act of 191o. Questions are fre-
quently, raised as to what is to be included in a lien for material and
supplies; and many things have been found fit subjects. Indeed, the
lien is frequently supposed to include other liens such as towage. In
some cases, where the assets are sufficient to pay all, these liens are
so grouped. Care should be taken, however, not to consider them
as precedents when the funds are insufficient to pay all.
(d) Preferred Mortgage: A fairly large number of cases have
arisen since the Ship Mortgage Act of 192o" interpreting the appli-
cation of that Act. Prior to 192o, a mortgage, being a non-maritime
claim, was ranked by all maritime liens." But under the provisions of
the Act, mortgages, complying with certain definite provisions, are
given a status prior to all but certain preferred maritime liens.' Most
cases have arisen because of failure to comply with the provisions of
the Act." In such case the preferred mortgage loses the status con-
'Subsection S of the Federal Maritime Lien Act, supra note 35, 46 U. S. C.,
§ 974 provides: "Nothing in this section ... shall be construed to affect the rules
of law now existing in regard to... (4) the rank of preferred maritime liens
among themselves, or (5) priorities between maritime liens and mortgages,
other than preferred mortgages, upon vessels of the United States."
"36 STAT 604 (igio), 46 U. S. C. § 971 n. (i928).
'See supra note 36.
'The City of Tawas, supra note 2ia,; The De Smet, 1O Fed. 483 (E. D. La.
i881); The Guiding Star, A8 Fed. 263 (S.D: Ohio 1883); The Little Charley,
4upra note 6.
'The Acropolis, 8 F. (2d) io (E. D. N. Y. 192.4), 1924 Am. Mar. Cas. 15io.
"'Morse D. D. & R. R. v. North Star, 271 U. S. 552, 46 Sup. Ct 589 (1926),
1926 Am. Mar. Cas. 977; The Northern Wave, 298 Fed. 188 (E. D. Pa. 1924);
The Minnesota, 2o F. (2d) 926 (E. D. La. 1927), 1927 Am. Mar. Cas. 1355;
The Ocean View, 21 F. (2d) 875 (D. Md. 1928), 1928 Am. Mar. Cas. 24o.
In the following cases the preference created by statute was upheld:- The Melissa
Trask, 285 Fed. 78i (D. Mass. 1923), i923 Am. Mar. Cas. 193; (1925 38 Huv.
L. Rnv. io6o; The General Lincoln, 24 F. (2d) 441 (D. Md. 1928), 1928 Am. Mar.
Cas. 432.
 PRIORITIES AMONG MARITIME LIENS
ferred upon it and returns to its former rank. It has also been held
recently, that where there is a contract to furnish supplies and a sub-
sequent preferred mortgage accrues, that supplies furnished under the
contract after the preferred mortgage went into effect, creates a
lien superior to the mortgage."
(e) Wharfage: The lien for wharfage seems to rank equally in
all cases with that for materials and supplies, though no case has
arisen to try its priority over the latter. The wharfage lien, however,
under the definition of a maritime lien, is allowable only when such
wharfage is obtained in the ordinary course of navigation, for only
then is it a necessity." When vessels are not actively engaged, as in
the off season on the Great Lakes,' it ranks in the lowest group with
non-maritime claims. ' If, however, a vessel has been actively en-
gaged and the lien for wharfage accrues while in the hands of the
marshal, there is still priority, although it is doubtful whether the
basis for the lien is not that of an ordinary cost of court."
(f) Watchman: Similar to the reasoning behind the lien for
wharfage, there may be sufficient necessity to permit a lien with some
priority in the case of a watchman, although to what extent is not
yet known.'
(g) Towage: There is a lien for towage against the ship towed,
but this should be distinguished from a lien for negligent towage
against the tug. Loose use of language sometimes makes it difficult
to tell which lien is meant. A lien for towage generally is considered
of equal dignity with liens for repairs and supplies.' In the case of
negligent towage there is little unanimity of opinion as to rank.'

'The Transford, 1929 Am. Mar. Cas. 727 (E. D, N. Y. I929), which would
seem to indicate that a maritime lien attaches at the date of the making of the
contract and priorities rank front that time.
"The Advance, 6o Fed. 766 (S. D. N. Y. 1894); The Shrewsbury, 69 Fed.
1017 (N. D. Ohio) 1895). See also 40 CYc. 911.
'Murphy Tugs, 28 Fed. 429 (E. D. Mich. 1886).
"The C. Vanderbilt, 86 Fed. 785 (E. D. N. Y. 1898); The Estrada Palma,
8 F. (2d) 1O3 (E. D. La. I923), 1923 Am. Mar. Cas. io4o; The General Lin-
coln, supra note 4.
'7The Poznan, 274 U. S. 117, 47 Sup. Ct. 482 (1927), 1927 Am. Mar. Cas. 723.
'The Erinagh, 7 Fed. 231 (S. D. N. Y. 188I), which was from its facts most
interesting. But cf. The Estrada Palma, supra note 46; The General Lincoln,
supra note 42,
"The G. F. Brown, 24 Fed. 399 (D. Conn. 1885); Saylor v. Taylor, supra
note 25a; The William Leishear, supra note 22. But see The Director, 34 Fed.
57 (D.Ore. 1888).
'Claims for negligent towage have been held to rank claims for repairs and
supplies. The M. Vandercook, 24 Fed. 472 (D. N. J. 1885). In some cases they
 CORNELL LAW QUARTERLY

(h) Collision: There is considerable divergence in view as to the

rank of liens arising out of collision. Probably, on the theory that
liens ex delicto rank liens ex contractu, collision liens,' if rank is to
be given, should take precedence over liensj for repairs and supplies.'
Where successive collisions occur, the one later in time is allowed
priority.'

(i) Pilotage: The lien for pilotage services, which is in the nature
of a wage, should rank general contract claims. Its position as re-
gards collision claims is probably not as advantageous."
(j) Liens more infrequently occurring: Therej must be considered
also several lesser liens, some of which are more or less obvious.
There is a lien for the costs of court which takes priority over all

were held to rank wages. The Daisy Day, 4o Fed. 538 (W. D. Mich. 1889).
More recently, however, towage has given place to repairs and supplies. The
Wyoming, supra note 29; The Glenn Island, supra note 13; The John J. Frietus,
supra note 17; The Interstate No. i, supra note 13; The Anna J. Brooks, 1927
Am. Mar. Cas. 1307 (S. D. N. Y. 1927).
'The Glenn Island, supra note x3.
'The William Leishear, supra note 22; The Baker Bros., supra note 13.
Contra: The Amos D, Carver, 35 Fed. 665 (S. D. N. Y. 1888); The Anna J.
Brooks, supra note 5o. An interesting case is The Augusta, 15 F. (2d) 727
(E. D. La. 192o) in which very sweeping language is used. The court says,
"In a suit for damages resulting from a collision the ship is considered as the
offending thing, the actual wrongdoer, and the lien for damages arising from
the collision is superior to all other pre-existing liens, those for supplies, re-
pairs, bottomry borids, etc., with the possible exception of sailor's wages, al-
though there are cases subordinating this lien also." On the priority of the
lien for wages over collision claims, see The C. J. Saxe, i45 Fed. 749 (S. D.
N. Y. i9o6). Contra: The F. H. Stanwood, 4g Fed. 577 (C. C. A. 7th, 1892).
'The America, supra note 9, commenting upon the case of the Frank G.
Fowler, supra note 12, and approving the lower court opinion in that case,
The Frank G. Fowler, 8 Fed. 331 (S. D. N. Y. 188I). The court is in error,
however, in the last paragraph at p. 426; sea The J. W. Tucker, 2o Fed. 129
(S. D. N. Y. 1884). The whole doctrine is a growth from the implications of
The John G. Stevens, supra note io, a decision by Gray, J., who attempted to
base his opinion on the English cases. The decision is probably the most unfortunate
in the law of priorities of maritime liens. See also HUGHES, HANDBOOK OF
ADMIRALTY LAw (2d ed. 1920) § 187.
"The Estrada Palma, supra note 46; The Wexford, supra note 29; cf. The
William Leishear, supra note 22; Porter v. The Sea Witch, 3 Woods 75, Fed.
Cas. No. II,289 (C. C. La. 1877) ; see 48 C. J. igg. Negligent towage ranks
below pilotage. The Alexander Barkley, 83 Fed. 846 - (E. D. N. Y. 1894).
Contra: The Emily Souder, 17 Wall. 666 (U. S. 1873). There is no lien
where the pilot is acting in the capacity of a watchman. The Morning Star,
supra note 18.
 PRIORITIES AMONG MARITIME LIENS
other liensY There is a very similar lien for taxes of various sorts
which enjoys a high priority.' Much has been said about the ancient
lien under a bottomry bond. Because of changing conditions, per-
haps, it is seldom the subject of decision today."' There is authority
for granting a lien in general average which is subordinate to sal-
vage claims, but relative to other liens its priority is thus far un-
known.' An insurer probably has no lien for unpaid premiums.'
Stevedores have a lien which is superior to those for materials and
supplies and towage, but probably is ranked by seamen's wages and
'Goble v. The Delos De Wolf, 3 Fed. 236 (N. D. Ohio i88o) ; The D. B. Steel-
man, 48 Fed. 58o (E. D. Va. 188o); The Lillie Laurie, 5o Fed. 219 (E. D.
Tex. i88o); The G. F. Brown, 24 Fed. 399 (D. Conn. 1885) (lien for costs
taxed); The Olga, supra note 3o; The John Gully, 2o F. (2d) 211 (E.
D. N. Y. I927), i927 Am. Mar. Cas. Hi75 (any fees due to the clerk or other
officers of the court). There seems to be a slight question as to whether
all the claims of the United States Marshal will be given priority. The
Poznan, supra note 47, allows a marshal's bill for wharfage, not as a lien, but
as a necessity to the fair administration of justice. See The Cimbria, supra
note 17. But see The William Leishear, supra note 22, where a claim for the
service of a watchman was disallowed as not a necessity. In The Commack,
8 F. (2d) I51 (S. D. Fla. 1925), 1925 Am. Mar. Cas. i64O, the Court says
that a maritime lien may not be had for supplies furnished at the request of a
master or owner of a ship while the ship is in.the custody of the marshal; cf.
The Esteban de Antuano, 31 Fed. 92o (E. D. La. 1887); The Bethulia, supra
note 17; The Nissegoque, supra note 8;.The Anna J. Brooks, supra note 5o.
'Goble v. The Delos DeWolf, supra note 55 (tonnage tax due United States
prior to wages but subsequent to costs); The Melissa Trask,. 285 Fed. 781 (D.
Mass. 1923), 1923 Am. Mar. Cas. 193 (head tax due the government held to be
subordinate to a preferred mortgage) ; The River Queen, 8 F. (2d) 426 (E. D.
Va. 1926), 1926 Am. Mar. Cas. 79 (income tax lien held subordinate to a
supply lien); The A. Brooke Taylor, 14 F. (:2d) 267 (C. C. A. 4th, 1926), 1926
Am. Mar. Cas. 941 (state taxes held to be prior to all maritime liens).
"'Bottomry bonds have never attained the importance in America that they
enjoy in England. This is so, perhaps, because in England a material man being
without an implied lien could protect his priority only by taking such a bond,
which unfortunately was given a very low ranking even then, because of the
high rate of interest required. Such American decisions as there are, continue
to give bottomry bonds a very low rank. The Olga, supra note 30; The Aina, 4o
Fed. 269 (E. D. N. Y. 1889); The Dora, 34 Fed. 348 (E. D. La. 1889).
r'Provost v. Selkirk, Fed. Cas. No. 11,455 (N. D. Ohio 1878); The Dora,
supra note 57; The Andree, .supra note 33.
'In re Insurance Co. of Pa., 22 Fed. 1O9 (N. D. N. Y. 1884); The Mame,
184 Fed. 968 (D. Conn. 1911). Contra: The Guiding Star, i8 Fed. 263 (S. D.
Ohio 1883). But cf. Provost v. Selkirk, supra note 58; The Minnie V., 24 F.
(2d) 604 (D. Mass. 1928), 1928 Am. Mar. Cas. 238.
534 CORNELL LAW, QUARTERLY
salvage.' There are still other liens which occur infrequently in de-
cisions involving questions of priority.'

C. Allied Questions Affecting Priority

Several allied questions which affect the relative rank of maritime
liens must be considered. Probably the most important and the most
frequently occurring in the books is the rule granting equal rank to
one who pays a maritime lien claimant with that of the lien paid,
provided that payment was made for the purpose of satisfying the
lien and was actually used for that purpose.' There seems to be some
question, however, whether there must be a "necessity" for the pay-
ment," and the lienholder who himself accepts a note and mortgage
is, in some jurisdictions, considered to have waived his lien.4 Simi-
larly an officer in a corporation owning ships can have no lien on those
ships as he is presumed to look to the credit of the corporation.'
There is a quasi lien for state taxes which is accorded a high prior-
ity.0

'The Canada, 7 Fed. 1ig (D. Ore. 1881); The Director, 34 Fed. 57 (D. Ore.
x888). Contra: The Olga, supra note 30.
'The Emily Souder, supra note 54 (custom house fees, consular fees, medical
attendance on sailors) ; Provost v. Selkirk, supra note 58 (demurrage, brokerage
services) ; The Olga, supra note 30 (port dues and pilot towage) ; The Aina,
supra note 57 (hospitalization of crew, lien for survey, cost of cable, consulage) ;
The f. B. Ketcham, 286 Fed. 56 (C. C. A. 6th, 1923), 1923 Am. Mar. Cas. 994
(lien for services in removing a vessel as a menace to navigation) ; The Lan-
castrian, 29o Fed. 397 (E. D. N. Y. 1923), 1923 Am. Mar. Gas. 840 (repatria-
tion expenses, wages due deserters); The Eugenia Emilia, 298 Fed. 340 (D.
Mass. z924), 1924 Am. Mar. Cas. 538 (use of chronometer).
"'Money advanced upon the credit 'of the boat, to pay off claims of a mari-
time nature, entitled to liens in admiralty, and actually used for that purpose,
are entitled to the same rank in the distribution as the claims which were thus
paid off." The City of Camden, 147 Fed. 847, 848 (S. D. Ala. 19o6). See also
The Cimbria, supra note 17; The Little Charley, supra note 6; Nippert v. Wil-
liams, 42 Fed. 533, 542 (D. Ky. i8go).
'The Alcade, supra note 12 (requiring a necessity). Contra: The Minnie and
Emma, 21 F. (2d) 991 (D. Md. i927), 1927 Am. Mar. Cas. 1768.
'Page v. Hubbard, Fed. Cas. No. io, 663 (D. Mass. 1857); Carter v. The
Byzantium, Fed. Cas. No. 2,473 (D. Me. 1858); The Alfred J. Murray, 6o
Fed. 926 (D. Md. 1894); The Yankton, 7 F. (2d) 384 (D. Mass. 1925), 1925
Am. Mar. Cas. 1275. But see The :Motorship Mariner, 1924 Am. Mar. Cas.
1463 (D. Mass. 1924).
'The Murphy Tugs, supra note 45; The City of Camden, supra note 62.
'The A. Brooke Taylor, supra note 56.
 PRIORITIES AMONG MARITIME LIENS

At an early date it was settled that priority, in point of time of

filing the libel, does not affect the priority ofi the lien.' The date of
accrual is the crucial date. Onq of the few strictly procedural points
of importance today is that rule of some districts, notably, the East-
ern District of New YorkO requiring all claims on which priority is
demanded, to be filed before the sale of the vessel, the idea being,
presumably, to protect those who have borne the burden of the suit
from latecomers who would bide the event and then reap the reward
of the labor of others.
In The President Arthura a vessel was libeled under a claim for
repairs and supplies. Certain non-maritime counter claims were set
up by way of cross-libel. The court held that, as there was at the same
time, a note held by the libelant in excess of the counter claims, that
the cross libel should be dismissed without prejudice to an action at
law. The Admiralty jurisdiction is undoubtedly very limited, but if
the court once assumes jurisdiction to determine the validity of the
liens, it would seem an injustice to refuse to allow any possible
counter claims without reference to other coverage.
In The Ulricalb there was a series of liens with the last lienor in
possession, thus having both a maritime and a common law lien. The
Court, seeming to feel a double fortification, decided in favor of the
last lienor.
Where a maritime lien exists either a court of bankruptcy or of
equity will enforce such a lien with effect similar to that of a court
of admiralty;' and the lien is enforced without prior provision for
the costs of the suit in bankruptcy other than those of proof of
claim."'
There is a further question which does not fall strictly within the
bounds of maritime liens but is closely allied thereto. Where there is
a forfeiture to the government for violations of various laws it is
almost universally held that the holders of maritime liens, when not
in paridelicto, rank prior to the claim in forfeiture'
'The Arcturus, supra note ii; The Lady Boone, 21 Fed. 731 (E. D. Ark.
1884) ; The Julia, 57 Fed. 233 (E. D. S. C. 1893) ; Saylor v. Taylor, supranote 25a.
'Rules of the District Court of the United States for the Eastern District of
New York, in Admiralty XI, Miscellaneous No. 40.
8a4. F. (2d) 288 (S. D. N. Y. I93O), 193o Am. Mar. Cas. O79.
l'b 2 2 4 Fed. 140 (D. N. J. I915).

'In re Scott, Fed. Cas. No. 12,517 (N. D. Ohio 1869).

7-It re New England Transportation Co., supra note 16.
'The St. Jago de Cuba, supra note 12 (violations of Slave Trade Acts); The
Maria, Fed. Cas. No. 9,075 (D. Ore. 1864); The Ranier, Fed. Cas. No. ir,565
 CORNELL LAW QUARTERLY
II. THE LAw OF PRIORITIES IN EUROPE
Although probably the law of priorities of the various European
states have little value as precedents in actions in our courts today,
still some examination of them is important, for one of the purposes
of this article is to show that much of the difficulty with the law of
priorities of maritime liens was caused by the introduction of the
principles of civil law into the common law courts.

a. France
Considering first, then, the civil law as applied in the courts of
France, there seems to be some question today whether under that
law there can be an action in rem at all, without which there can be
no counterpart of our maritime lien which is probably based on a
right in the res." The French code7' does provide for certain maritime
(D. Ore. 1868) (violation of Steamboat Inspection Laws) ; The Jennie Hayes,
37 Fed. 373 (D. Ia. 1889) (failure to have name painted on bow); North
American Commercial Co. v. United States, 81 Fed. 748 (C. C. A. 9th, 1897)
(killing seals in violation of law); The Melissa Trask, upra note 42 (viola-
tions of rules regarding space on passenger ship); The Winona, 1928 Am. Mar.
Cas. io8 (E. D. S. C. 1928) (sale to an alien contrary to law) ; The Ermis, 33
F. (2d) 763 (S. D..Fla. 1929), 1929 Am. Mar. Cas. 1588 (violations of Tariff
Laws). Several cases have arisen in connection with the prohibition laws. The
Eugenia Emilia, supra note 61; The Pilot, 1925 Am. Mar. Cas. 683 (D. Mass.
1925); The Minnie V., supra note 59; The Thomaston, 26 F. (2d) 279 (D. Md.
1928), 1928 Am. Mar. Cas. 845; The Leona M. Sproul, 193o Am. Mar. Cas.
584 (S. D. N. Y. 193o).
'The John G. Stevens, supra note lO, at 126, "In the argument of this case,
copious references were made to foreign codes and commentaries, which we have
not thought it important to consider, because they differ among themselves as
to the comparative rank of various maritime liens, and because the general
maritime law is in force in this country, or in any other, so far only as ad-
ministered in its courts, or adopted by its own laws and usages." Query:
whether the above could be considered a statement of the modern view of ad-
miralty courts?
"The Kongsli, 252 Fed. 267 (D. Me. 1918) in which the court held that there
was no lien in rem arising out of collision under French law.
7'CODE DE COMMERCE. LIvRE DEUXIkME Du COMMERCE MARITIME. TiTRE
PREMIER DES NAvIRES ET AUTRES BATIMENTS DE MER. ART. 190. Les Navires
et autres bAtiments de mer sont meubles. N~anmoins, ils sont affect~s aux dettes
du vendeur, et specialement h celles que Ia loi d6elare privil6gides.
ART. 191 Sont privil6gides, et dans l'ordre oii elles sont ranges, les dettes
ci-apr~s designdes:
io . Les frais de justice et autres, faits pour parvenir 4 Ia vente eta la distribu-
tion du prix;
 PRIORITIES AMONG MARITIME LIENS
liens, and it also provides a statement of their priority as do other
European codes.'
b. England
As it is understood that the law of the United States is derived
from the civil rather than common law, as a general proposition,"
English law will be discussed only in so far as it is radically different
from the law of the United States.
The best statement of the English law is to be found in the last
chapter of Maclachlan on Merchant Shipping.' This chapter gives
°
2 . (L iI Avril, 19o6). "Les droits de pilotage, remorquage, tonnage, cale,
amarrage et bassin ou avant bassin:
3* . Les gages du gardien et frais de garde du bAtiment depuis son entree dans le
port .jusqu' h la vente:
40 Le loyer des magasins oAi se trouvent d6pos~s les agr~s et les apparaux:
50. Les frais d'entretien du bftiment et de ses agr~s et apparaux, depuis son
dernier voyage et son entree dans le port:
60. Les gages et loyers du capitaine et autre gens de l'dquipage employds au
dernier voyage:
7* . Les sommes prftde au capitaine pour les besoins du batiment pendant le
dernier voyage et le remboursement du prix des marchandise par lui vendues pour
la m~me objet:
8'. Les sommes dues au vendeur, aux fournisseurs et ouvriers employes h la
construction si le navire n'a point encore fait de voyage; et les sommes dues aux
cr~anciers pour fournitures, travaux, main-d'oeuvre, pour radoub, victuailles,
armenent et dquipement, avant le depart du navire s'il a d6ji navigu6:
90. Abrog6 par L io Juillet, 1885.
lO. Le montant des primes d'assurance faites sur le corps, quille, agr~s, ap-
paraux, et sur armenent et dquipement du navire, dues pour le dernier voyage:
ii ° . Les dommages-int6r~ts dus aux affrdteurs pour le d6faut de dalivrance
des marchandises qu'ils ont charg~es ou pour remboursement des avaries souffertes
par les dites marchandises par la faute du capitaine ou de 1'dquipage.
Les crdanciers compris dans chacun des numeros du present article viendront en
concurrence et au*marc le franc, en cas d'insufflsance du prix.
(L IO Juillet 1885). Les cr6anciers hypoth6caires sur le navire viennent dans
leur ordre d'inscription, apr6s les crdanciers privil6gids.
"See The Olga, szpra note 30, where in a footnote at p. 330 the provisions
of the Italian CODE DE COMMERCE are set out in full, which seem to correspond
to the sections of the French CODE DE CoMMERcE, ARTS. 190 and 191. Art. 674
of the Italian Code provides for liens and Art. 675 provides, in essence, the
following priorities: (I) Costs; (2) Salvage; (3) Port dues; (4) Pilotage,
Services of watchman; (5) Wharfage; (6) Supplies; (7) Wages; (8) General
Average; (9) Bottomry; (IO) Insurance premiums; (ii) Cargo liens; (12)
Vendors liens; and (3) Common Law Mortgages.
"The English law also is probably an earlier adoption of the Civil Law.
SAUNDERS, MARiTI E LAW 54, "The Contract of Bottomry has been adopted
from the civil law, for to the common law it was unknown."
77MACLACHLAN, LAW OF MERCHANT SHIPPING, (De Hart & Bucknill, 6th ed.
1923) c. XV., p. 568.
 CORNELL LAW QUARTERLY
what is probably the best general statement of a system of priorities
extant. The author provides two classes of liens, those in the nature
of rewards, i.e., bottomry, wages, masters' disbursements, and sal-
vage, which rank inversely; and liens in the nature of reparation, to
which the rule "qui prior est tempore, potior est jure" is applied.
There are no other special rankings as to time.
The most striking difference between the English and American
law is the lack of maritime lien for repairs and supplies in the English
courts' The theory is that unless possession, is retained and a statu-
tory common law lien acquired, the material man should have re-
quired a bottomry bond, even though at a high rate of interest, to
protect his claim.
It is interesting to note that under English law the master has a
lien for his wages, and for disbursements except where he made him-
self liable. In America the master is considered to have looked to the
credit of the owner, not the vessel, and is not considered to have a
maritime lien.
Otherwise, in general, the English law, though not so voluminous,
is in much the same state as the American." Perhaps the leading case
is The Aline," a in which the well known Dr. Lushington discussed
the fundamental principles of priorities at length. This opinion is
much cited in the American decisions, and it has been the cause of
some difficulty. The court there laid the foundation of the unfortu-
nate doctrine that a lien holder becomes, in fact, a part owner in the
venture.
III. APPLICATION OF THE CONFLICT OF LAWS

An interesting point which has arisen in several cases, is the appli-

cation of the theory of conflicts of laws to priorities among maritime
liens. In illustration of the problem, suppose three liens, created in
three different states; A, B, and C, in each of which by its own law
a giver; lien is superior to all other liens. Suppose State C is the
state of the forum. State C can subordinate a lien created by its

"In the House of Lords. The Sara [1889] 14 A. C. 2O9.

'The Panthea, I Asp. Mar. Cas. (N. S.) 133 (1871).
'The Canadian decisions in so far as reported seem to follow the English
cases. See MAYERS, ADmIALTY LAW AND PRAcTIcE (1916). For further com-
parison of the English law see thei following English cases: The Linda Flor,
Swabey, Ad-. 309 (1857); The Elin, 8 Prob. Div. 129 (1883); The Chioggia,
[1898] Prob. I.
80aI W. Rob. I1 (1839).
 PRIORITIES AMONG MARITIME LIENS
own law, but it can not affect the respective rankings of liens prior by
the law of States A and B, unless by the law of the forum. Unfor-
tunately there is little law on the point. The law creating priorities
should to some extent be affected by the accepted general theory of
liens. As noted earlier in this article' the American courts have in-
terpreted maritime liens bothlas rights in the property and as rights
against the property. Considering a maritime lien as a right in the
property, the ordinary rule of the conflict of laws is that such a right
is governed by the law of the place of creation of the right.' Un-
fortunately such does not seem to be the rule in this situation. The
application of the law of the forum seems to be the best solution.
Although fienors will be forced to submit the rank of their liens to
every jurisdiction in which the ship may be present, and in some
cases to the complete extinction of its maritime nature, the application
of the law of the form would secure a greater uniformity with resultant
predictability.
Yet another view is expressed in The Olgaa where Judge Addison
Brown says:
"The vessel is Italian, and the provision of the Italian Code
should, therefore, be observed by comity, as respects the claims of
those on board the vessel, as among themselves, including the
claim of the master... As respects the liens arising upon the
contracts made by the master within this jurisdiction, and the
priorities of such liens in respect to all the claims on the ship,
our own law, as the law of the place of the contract as well as of
the forum, should, I think, prevail."
The reference to contract would lead to the belief that lienors were not
there considered as part owners in the res.

CONCLUSIONS
Because of the wealth of decisions in the field, any conclusions as
to change in the existing law are given with much trepidation. It is
doubtful Whether such sweeping changes as are contemplated in the
concluding sentences of this article can be accomplished without the
aid of a Congressional act.
'See supra notes io and 12. The jus in re theory would seem to be based on
the civil law and derived directly from it. The theory based on merit in keep-
ing the ship active in commerce may be derived from later common law de-
cisions; cf. the ideas expressed by Herbert, op. cit. supra note 3.
'See GooDRICH,,icT
Co OF LAWs (1927) 348.
'The Secundus, 15 F. (2d) 711 (E. D. N. Y.) i9"7 Am. Mar. Cas. 641.
aSupra note 30, at 330.
 CORNELL LAW QUARTERLY
Judge Beach makes his articles a plea for the payment of all liens
in inverse order of their accrual. Such a theory has the merit of
simplicity and predictability, but it is not in accord with the ordinary
doctrine of the common law. As before noted, it is peculiarly difficult
to apply to tort cases where the basis of priority is said to be implied
ownership. If so radical a change could be made, it is suggested that
all liens be paid according to the date of accrual.
However, certain distinctions as to class seem to be too well recog-
nized to be easily overcome. It is the thought and suggestion of this
article that a system of priority similar to that said to be the English
law,' described in Maclachlan, would'be the solution of priority prob-
lems.
Such a system provides for the priority of certain liens in which
there is said to be some inherent merit (perhaps a visceral reaction),
and for the payment of all other liens according to the time of accrual."
To take care of time priority problems it is suggested that the year, forty
day and season rules be continued, not as hard and fast rules of thumb,
but, as they were originally intended to be, measures of a reasonable
time of priority, subject to the sound discretion of the trial court.
With regard to those liens which have inherent merit sufficient to
create a priority, and which should rank each other in respect of their
inherent merit, the following are suggested: (i) W~ages, including
masters' wages, earned subsequent to salvage; (2) Salvage (limited
to cases in which there is risk, either of life or property to the salvor) ;
(3) Wages; including masters', earned prior to salvage; and (4) Bot-
tomry. These liens should be paid in the order named and in inverse
order of accrual. All' other liens should rank according to date of
accrual except where contemporaneous, in which case pro. rata. It
should always be provided, however, that the taxable costs of court
shall be allowed first claim as a necessity to the administration of
justicef
This system of priority would provide, at least, in a large measure,
much desired predictability. Provision is made for the favoring of
'Beach, op. cit supra note 3.
MSMACLA HLAN, Such an idea is not en-
op. cit. supra note 77, at 568, 569.
tirely foreign to our law. See Norwich v. Wright, 13 Wall. io4, 122 (U. S.
1871).
' 0Such a theory is not wholly inconsistent with the leading cases. The Jefu-
salent, Fed. Cas. No. 7,294, at 566 (D. Mass, 1815), opinion by Story, J., where
the rule "qui prior est tempore, potior est jure" is mentioned, but held not to
apply. The case was one of the priority of a bottomry bond and priority was
given because of inherent merit.
"Supra note 55.
 PRIORITIES AMONG MARITIME LIENS 541

certain liens without becoming involved in an academic discussion

such as the relative merit of the lien for pilotage over wharfage,
which, at best, is a fine-spun distinction. By allowing time priority to
be governed by rule only in so far as it is the measure of a reasonable
period of credit, plus a reasonable period of grace, and subject to the
sound discretion of the Court, questions as to whether the forty day
rule of New York harbor applies to trips to Connecticut, or only as
far as Long Island, will be obviated.'
It is submitted that the present system of priorities among maritime
liens is in need of revision, and that a system similar to that suggested
in the conclusions of this article would satisfy conflicting interests,
be practical, and work a complete justice.
'In re New England Transportation Co., 22o Fed. 203 (D. Conn. 19r4).