such evidence furnishes the test of the character of the boat as foreign or domestic.28 A ship whose legal owner is foreign, and whose flag is foreign, is a foreign ship, so far as material men are concerned, though the equitable owner lives in the state in which the material men furnish the ship with repairs and supplies.29 So far as maritime liens are concerned, the different states of the Union are foreign one to another. A vessel lying in any port of a different state from that to which she belongs is in a foreign port.30 In a case where a vessel was built for a resident of Buffalo by shipbuilders at Cleveland, who employed a man to paint her in the latter port, it was held that Cleveland was her home port until after her voyage to Buffalo and delivery, and that consequently the painter acquired no lien.31 Where repairs were made in New Jersey on a vessel one of whose owners resided in New Jersey, but the other two in New York, and in the application for license at the customhouse all of her owners were stated to be of New York, and the material man had no knowledge to the contrary, and dealt on the credit of the vessel, it was held that a suit in rem would lie to recover the price of the repairs.32 The home port of a steamboat plying the Missouri river is not necessarily the port of entry. It may be any port where a steamboat may land with safety, and lie moored to the shore.3 A maritime lien for necessary repairs and supplies furnished in the port of enrollment may be enforced against a vessel owned by a corporation created by another state.31

28 McAllister v. The Sam Kirkman, Fed. Cas. No. 8.658, 1 Bond, 369. 29 The George T. Kemp, Fed. Cas. No. 5,341, 2 Lowell, 477.

30 The St. Lawrence, Fed. Cas. No. 12,234, 3 Ware, 211; The Stephen Allen, Fed. Cas. No. 13,361, 1 Blatchf. & H. 175; The John Walls, Jr., Fed. Cas. No. 7,432, 1 Spr. 178; The Chusan, Fed. Cas. No. 2,717, 2 Story, 455; McCarthy v. The Richard S. Garrett, 44 Fed. 379. There is no lien upon a ship lying in Baltimore, whose owners reside in Alexandria, for provisions and repairs, Baltimore and Alexandria not being foreign to each other. Levering v. Bank of Columbia, Fed. Cas. Nos. 8,286, 8,287, 1 Cranch, C. C. 152, 207.

31 Scott v. The Plymouth, Fed. Cas. No. 12,544, 6 McLean, 463.

32 McCarthy v. The Richard S. Garrett, 44 Fed. 379.

33 Rees v. The General Terry, 13 N. W. 533, 3 Dak. 155.

34 The Havana, 12 C. C. A. 361, 64 Fed. 496.

(876)

Who may Have Lien.

§ 853. A mechanic's lien on a ship may be asserted by any one not connected with the ship, who furnishes work or materials directly to the ship. The fact that one who furnishes sails to a vessel which, after a voyage, comes into a foreign port, is a resident of the home port, does not affect the right to claim a lien under the general maritime law.35 And a third person, who, at the owner's request, pays for necessary repairs upon a vessel, is entitled to a lien for repayment.36 But the master of a ship has no lien for repairs made in a foreign port at his order, and paid for by him.37 And a mariner who works as a mechanic on a vessel while she is in port ice bound and idle has no lien therefor.38 Subcontractors and material men in the second degree have no maritime lien.3o An assignee of a note given for repairs on a ship has no lien, since a maritime lien for repairs is not assignable.40 But taking a draft for supplies furnished to a vessel in a foreign port is not a surrender of the right to a lien therefor. The right to the lien is a security, and passes with the draft to the indorsee.*1

For What Services Given.

§ 854. Mechanics' liens on ships exist by virtue of maritime law for work and materials furnished for repairing or altering vessels,*2

36 Moore & Sons Co. v. The Lime Rock, 49 Fed. 383; The Guiding Star, 9 Fed. 525.

37 Hussey v. Christie, 9 East, 433.

38 The Alanson Sumner, 28 Fed. 670.

39 The Whitaker, Fed. Cas. No. 17,524, 1 Spr. 229; The Eledona, Fed. Cas. No. 4.341, 10 Blatchf. 511; Scott v. The Plymouth, Fed. Cas. No. 12,544, 6 McLean, 463, and Newb. 56; Merritt v. The Wandrahm, 62 Fed. 935. As to their right to a statutory lien, see post, § 863.

40 The R. W. Skillinger, Fed. Cas. No. 12,181, 1 Flip. 436. But see post, $ 894.

41 The Chelmsford, 34 Fed. 399. The assignability of maritime liens is a subject on which the decisions are in hopeless conflict. See 17 C. C. A. 107, note by William L. Clark, Jr.

42 The Fortitude, Fed. Cas. No. 4,953, 3 Sumn. 228; The John Richards, Fed. Cas. No. 7,361, 1 Biss. 106.

or for money advanced for such repairs.*3 A contract to furnish nets to a fishing vessel is a maritime contract, although made on land, and the nets delivered on land. If furnished while the vessel is in a foreign port, there is a maritime lien therefor. A barge may be necessary to a steamboat, and, as such, its hire to the boat will be regarded as a material furnished for the equipment of the boat.** There is no lien on a vessel for damages for refusing to accept supplies ordered, nor is there a lien for the service of one employed to care for and clean the machinery and maintain a general supervision of a vessel lying at her home port, out of commission, since such service is not maritime."

46

No Lien for Construction.

§ 855. There is no maritime lien for work done or materials furnished in constructing a vessel. 48 Materials furnished even after the vessel is afloat may be furnished in its construction. Thus, where the hull and spars of a vessel are completed at one port, and sufficient rigging is put on her, and sufficient cargo taken to act as ballast to enable her to go to another port, where materials necessary to her rigging and equipment as a seagoing craft are procured

43 The Guiding Star, 9 Fed. 525; Moore & Sons Co. v. The Lime Rock, 49 Fed. 383. But the fiscal agent of a vessel cannot have a lien for money paid by him to a shipwright who repaired the vessel, where such money is immediately returned to him by the shipwright pursuant to a previous understanding, since the vessel should have the benefit of such rebate. The Alvega, 30 Fed. 694.

44 The Hiram R. Dixon, 33 Fed. 297.

45 Gleim v. The Belmont, 11 Mo. 112.

46 The Cabarga, Fed. Cas. No. 2.276, 3 Blatchf. 75, and 29 Hunt, Mer. Mag. 716.

47 Williams v. The Sirius, 65 Fed. 226.

48 The Pacific, 9 Fed. 120, 3 Hughes, 257; The Antelope, Fed. Cas. No. 482, 2 Ben. 405; Lewis v. The Orpheus, Fed. Cas. No. 8,330, 3 Ware, 143; McAllister v. The Sam Kirkman, Fed. Cas. No. 8,658, 1 Bond, 369; Young v. The Orpheus, Fed. Cas. No. 18,169, 2 Cliff. 29; The Guiding Star, 9 Fed. 524; The Count De Lesseps, 17 Fed. 460; In re Glenmont, 32 Fed. 703; Scott v. The J. C. Rich, 46 Fed. 136; Rees v. The General Terry, 13 N. W. 533, 3 Dak. 155; Carman v. Scribner, 3 Houst. (Del.) 554; Coryell v. Perine, 6 Rob. (N. Y.) 40; Price v. Frankel, 1 Wash. Ter. 43; Waddell v. The Daisy, 3 Pac. 616, 2 Wash. Ter. 76.

and put on her, such materials, are furnished in the construction of the vessel.49 The mere launching of a steamboat hull cannot give to the builder, afterwards engaged in the construction of the steamboat, a maritime lien.50 Thus in one case it appeared that a month after the hull of the steamboat was built, and the propelling power put in, the libelant furnished her with stores, fuel, tiller line, check line, copper wire, packing for machinery, pails for roof, beds and bedding, etc. On the day this outfit was received the boat made her first trip. It did not appear that the original contract included these materials. On these facts it was held that the original construction of the boat contemplated all the materials furnished to make the vessel serviceable from the beginning, and that no maritime lien existed.51 Where a floating scow was built in New Jersey, and towed to Pennsylvania, where it was furnished with machinery by the builders, it was held that there was no maritime lien for such machinery, since it was in fact furnished in the construction of the vessel. 52 It has, however, been held in one case that a contract to equip a floating vessel with its machinery is a maritime one, which creates a maritime lien.53

Property Subject to Lien.

An

§ 856. The lien for repairs adheres to the ship and all its parts, wherever found, and whoever may be the owner. It attaches to the parts of a dismantled vessel, the same as to the entire ship.54 old steamboat from which the boilers, wheel, engines, and machinery had been removed, and which had been changed into a pleasure barge, having no independent means of propulsion, but intended to be towed by a towboat, and to be used in the transportation of excursion parties in the neighborhood of a city, and having her cabins fitted up and used as dancing halls by those who engaged her, is a vessel within the meaning of the maritime law. 55 And a canal-boat

49 McDonald v. The Nimbus, 137 Mass. 360.

50 Rees v. The General Terry, 13 N. W. 533, 3 Dak. 155.

51 In re Glenmont, 32 Fed. 703.

52 The Count De Lesseps, 17 Fed. 460.

53 The Eliza Ladd, Fed. Cas. No. 4,364, 3 Sawy. 519.

54 Bruce v. The America, Fed. Cas. No. 2,046, Newb. 195.

55 Mosser v. The City of Pittsburgh, 45 Fed. 699.

56

hull, on which a floating elevator has been erected, and which is intended to be moved about the harbor, is also a vessel. But the lien of a material man does not attach to a wrecking outfit leased by the owner of a tug, not as a part of its general equipment, but for a special purpose, although a part of such outfit is attached to the hull and deck by timbers and bolts, and the lien claimant supposed it belonged to the tug, and had never heard that a third person owned it.57

Priorities of Maritime Liens.

§ 857. The lien of material men is superior to the lien of a bottomry bond when the services of the material men have tended to make the ship more valuable, or when delay in enforcing the bottomry bond has tended to induce the services of the material men.5 But a lien for damages from negligent towage has priority over a lien for supplies and repairs, 59 and a lien for damages arising out of a negligent collision takes precedence over the lien of a material man for repairs to the negligent vessel made prior to such collision."" Claims for wages, salvage, and supplies, incurred upon the same voyage, at the port where the salvage service terminated, where the seamen's right of action accrued, and where the supplies were furnished, are concurrent, and the liens for wages and salvage take precedence over the lien of the material men, where there has been no such laches on the part of the salvors as to deprive them of their right to priority.61 But the lien of material men for the value of whose services the master is personally liable is superior to a lien for the master's wages." A further discussion of this subject will

62

be found in a subsequent part of this chapter. 63

56 The Hezekiah Baldwin. Fed. Cas. No. 6,449, S Ben. 556.

57 The Mildred, 43 Fed. 393.

8 The Felice B., 40 Fed. 653.

59 The Daisy Day, 40 Fed. 538.

60 The R. S. Carter, 38 Fed. 515; The John G. Stevens, 40 Fed. 331.

61 Dabinovich v. The Virgo, 46 Fed. 294. Legal charges and the wages of the captain and crew outrank claims for repairs. Fields v. Creditors, 11 La. Ann. 545.

62 The Felice B., 40 Fed. 653.

63 See post, §§ 909, 910.