The Spaulding , 22 F. Cas. 888 ( 1871 )

LONGYEAR, District Judge.

It was conceded on the argument, and such is undoubtedly the law, that the lien for salvage takes precedence of the lien for general average. The libel of the insurance companies in this ■case is in terms for general average, and I can see nothing in the circumstances of the case to warrant the court in holding it to be anything else, even if the libel had been otherwise. Without the salvage services the whole was a loss. With the salvage services the loss is reduced to a part only. In the former •case there would have been nothing left upon which a lien for general average could attach. In the latter case it has something upon which It may attach, solely because of the salvage services; and it would be not only contrary to the general rule of law above stated, but unjust and inequitable to place such lien as to the part thus saved, upon the same footing, as to precedence, as the lien for the salvage services.

It was also claimed as to one of the libels, that of Campbell and Owen, that the libellants had the promise of one Dorr, that he would pay them for the repairs done by them if they could not realize the same out of the vessel, and that their claim being thus otherwise secured, the court will not enforce their lien upon the vessel to the detriment of other lien hold ers. Dorr’s promise was conditional, and it is not operative until Campbell and Owen have first exhausted their remedy against the vessel, which by their libel they are now seeking to do. The rule contended for therefore, although a correct one, does not apply to this case.

I hold, therefore, that the respective claims of the several libellants, Wolverton, Campbell and Owen, and Desotell and Hutton, in whole, and the claim of Keith and Co., in part (as to which adjudication has been heretofore made), together with the costs of each, must be first paid before the claims of the Security and Buffalo Insurance Companies, and that those claims must be paid pro rata, share and share alike, in case there is not sufficient to pay the whole. In view of the disposition which has been made of the first proposition on behalf of the insurance companies, consideration of their other two propositions has become unnecessary. Ordered accordingly.