Opinion
No. 313.
February 13, 1934.
Appeal from the District Court of the United States for the Eastern District of New York.
Libel by Fred W. Clark against the steam tug Brimstone, her engines, etc., wherein the Tietjen Lang Dry Dock Company intervened as libelant. From a decree disallowing priority to its lien for repairs, the intervening libelant appeals.
Decree reversed.
Crowell Rouse, of New York City (E. Curtis Rouse, of New York City, of counsel), for appellant.
Rogers Whitaker, of New York City, for United Dry Docks, Inc.
Platow Lyon, of New York City (John A. Lyon, of New York City, of counsel), for appellees.
Before MANTON, SWAN, and AUGUSTUS N. HAND, Circuit Judges.
The appellant repaired the tug Brimstone between March 3 and 21, 1932. It was work of preparing the vessel for navigation in the canal for the season of 1932. The canal opened for navigation about April 8, 1932. Appellee Clark's claim is for wages; other libels filed were for repairs and supplies furnished between April 18 and June 1, 1932. The libel of Conley covered supplies furnished in March, 1931, and the libel of Peck covered some supplies furnished in 1931. They were excluded from participation in the fund. The libel for repairs made by Ira Bushey Sons in 1931 was withdrawn.
The vessel was sold and the proceeds were insufficient to pay all liens. The dates and amounts of the liens are stipulated. Priority of payment is the only question presented.
The court held the season rule applied; the date for opening and closing the canal, April to December. It granted priority to liens for repairs and supplies furnished after the date set for the opening of the canal over those furnished just before the gates were opened, even though such repairs were required for the vessel for navigation at the opening of the season. Liens incurred in April and May, 1932, were given priority over that of appellant's for repairs made in March, 1932. Thus the appellant was excluded from participation in the fund.
The court accepted the canal superintendent's statement as to the date of opening. Nothing in the record shows on what date the Brimstone started navigation in 1932. If navigation is the test, all 1932 liens are on a parity. An arbitrary date fixed by the canal superintendent is not the date for this vessel's opening for the season. The season's activity began in the repair of the vessel for the coming navigation — for the voyage. The opening of the canal gates is but an incident. The season is a unit similar to the voyage.
Under the voyage rule, supplies taken on board and repairs furnished before breaking ground, but in preparation for the voyage, have an equality or parity with repairs or supplies had at a port of call on the voyage. The Interstate No. 1, 290 F. 926 (C.C.A. 2); The Steam Dredge A, 204 F. 262 (C.C.A. 4); The John J. Freitus (D.C.) 252 F. 876; The J.W. Tucker (D.C.) 20 F. 129; The America, 1 Fed. Cas. page 607, No. 288.
Decree reversed.