ered in New York, and carried by the purchaser to Massachusetts, and there used by him in building a vessel, there can be no lien therefor under the laws of New York 170 or of Massachusetts.171 In order to create a lien on a vessel in New York, it must appear both that the work was done or materials furnished to the vessel within that state, and also that they were furnished under a contract made within the state.172 It has been said that a state statute cannot give a lien on a vessel in another state, to secure a debt created in that state; but if, afterwards, the vessel comes within the jurisdiction, the creditor may also come, and enforce his claim under the attachment or other laws of that state.173

When Lien Attaches.

§ 872. The time when a mechanic's lien on ships attaches varies in the different states. In Illinois a lien in favor of those engaged in the running and management of a vessel, and those furnishing materials and supplies, attaches the moment the liability is incurred, by force of the statute, and not by virtue of a levy, as in the case of an ordinary attachment.17* But under the Iowa statute providing that, in an action to recover for labor done in, about, or on a boat, "a warrant may issue for the seizure of such boat," plaintiff in such action has no lien before seizure.175 And the same rule prevails in Ohio 176 and California, and apparently in West

170 Moores v. Lunt, 4 Thomp. & Co. (N. Y.) 154, 1 Hun (N. Y.) 650.

171 Tyler v. Currier, 13 Gray (Mass.) 134.

172 Phillips v. Myers, 30 How. Prac. (N. Y.) 184.

173 Stedman v. Patchin, 34 Barb. (N. Y.) 218; Thorsen v. The J. B. Martin, 26 Wis. 488. The laws of Ohio do not authorize an action against a water craft by name, when the cause of action arises out of the territorial limits of the state, and the boat has undergone a change of ownership, without fraud on the part of the purchaser, before she becomes amenable to the process of the courts of Ohio, both parties being nonresidents at the time when the boat changed owners. Young v. The Virginia, 2 Handy (Ohio) 137.

174 Germain v. The Indiana, 11 Ill. 535.

175 Seippel v. Blake, 52 N. W. 476, 86 Iowa, 51.

176 Jones v. The Commerce, 14 Ohio, 408.

177 Price v. Frankel, 1 Wash. T. 43. The lien considered in this case depended on a California statute.

Virginia.178 The lien for labor, supplies, etc., furnished to vessels, given by the New York Revised Statutes, takes effect from the time when the benefit is actually conferred, not from the date when it is engaged or contracted for.179

Duration of Lien,

182

§ 873. The duration of statutory liens on ships also varies in the different states. In Louisiana the extreme term for the duration of privileges on steamers running between the ports of Louisiana and those of other states was formerly only 60 days; 180 but by the Louisiana act of March 18, 1858, which was in force from its date, the prescription for privileges on vessels was extended to six months,181 and the lien also exists for six months in Mississippi.1 In Maine a lien for work and labor on a vessel in the water, whose identity remains the same as before the repair, is continued four days after the labor is completed.18 In Missouri an open running account against a steamboat continues to be a lien upon the boat for six months from the date of the last item.184 The builders and repairers of vessels, under the Pennsylvania act of March 27, 1784, have a lien on the vessel until she goes to sea; 185 and in New York a lien for repairs exists at least for the 12 days allowed by the stat

178 Hobbs v. The Interchange, 1 W. Va. 57.

Where there is a con

179 The Alida, Fed. Cas. No. 200, 1 Abb. Adm. 173. tinuous contract to furnish lumber for the construction of a vessel, the presumption is that the debt becomes due on delivery of the last lot of lumber. Ehlers v. Elder, 51 Miss. 495.

180 Wickham v. Levistones, 11 La. Ann. 702.

181 Converse v. The Lucy Robinson, 15 La. Ann. 433.

182 Archibald v. Bank, 1 South. 739, 64 Miss. 523.

183 The Lady of the Ocean, 70 Me. 350. To enforce the statutory lien for work and materials furnished in repairing vessels does not require an attachment to be laid upon the vessel within four days after the plaintiff's work is done or his materials are furnished. It must be within four days after the whole work of repairing is completed, the repairs to be considered as completed when the work upon the vessel has been discontinued and has wholly ceased, although additional repairs might be necessary to fit the vessel for sea. Hayford v. Cunningham, 72 Me. 128.

184 Carson v. The Daniel Hillman, 16 Mo. 256. 185 Shoemaker v. Norris, 3 Yeates (Pa.) 392.

MECH.LIENS-57

(897)

ute for filing specifications of the lien, even though the vessel has in the meantime secretly departed from the state.186 Where no time is expressed in the statute, the lien exists for a reasonable length of time, not later than the departure of the vessel from the state.187 Any statutory lien on vessels, however limited in point of time, may be enforced by proceedings commenced within that period in any proper tribunal having cognizance thereof.198

Priorities.

§ 874. The question of the relative rank of different liens on a vessel is one of some difficulty. Sometimes the statute creating such liens attempt to declare their rank, and sometimes they leave the matter to be determined by general law. It is the rule, however, in the United States courts, that a state cannot by legislation control the rule to be followed by the courts of admiralty in distributing the proceeds of boats and vessels sold under admiralty process; but, when liens are created by a state statute, admiralty will recognize such liens, and assign them to the class to which they belong under the maritime law of priority, where they will share equally with other liens of the same class, whether arising by statute or by the law maritime.189 Where creditors have no maritime liens, but claim under a state statute that gives a lien for building and also for repairing a vessel, without distinction, those who claim for repairs have no priority over those who claim for building, on the ground that a contract for building a vessel is not a maritime contract.190 The lien of a material man for repairs.

186 Onderdonk v. Voorhis, 2 Rob. (N. Y.) 24.

187 Herrington v. The Hugh Chisholm, 8 Jones (N. C.) 4.

188 Read v. Hull of a New Brig, Fed. Cas. No. 11,609, 1 Story, 244.

189 The Menominie, 36 Fed. 197; Goble v. The Delos De Wolf, 3 Fed. 236; The Wyoming, 35 Fed. 548. The present rules and the decisions of the United States supreme court create no distinction between the liens on a domestic vessel given by the local law, and liens under the general maritime law. The Dan Brown, Fed. Cas. No. 3,556, 9 Ben. 309. Claims which are maritime in their nature, such as repairs furnished in the home port, for which the state law gives a lien, are of equal dignity with liens for similar claims created by the general admiralty law. The Guiding Star, 18 Fed. 263. See post, § 909. 190 Petrie v. The Coal Bluff No. 2, 3 Fed. 531.

191

arising under the law of the state of New York, has been held entitled to priority of payment out of the proceeds of the sale of a vessel. under order of court, over a claim for towage services.1 A statute giving liens on vessels for "work done or materials supplied, and for the wages of the officers, laborers, and crew, in preference to other debts," does not give the officers and crew any preference over the material men.192

§ 875. In the United States courts, liens for repairs and for supplies, arising under laws of different states, are of equal rank; 193 and material men of a home port, where a state law gives a lien, and those of a foreign port, stand on an equal footing. Neither class has priority over the other.194 But state courts give a preference to the lien arising under the laws of their own states.195 The possession of a vessel by a sheriff, under state process, cannot divest a lien in admiralty, or affect process in the hands of a marshal.196 A further discussion of this subject will be found in a later part of this chapter.197

DIVISION III. Loss AND DISCHARGE OF LIEN.

Waiver.

§ 876. A lien on a vessel, whether created by statute or by maritime law, may be waived by the lienor,198 as by expressly agreeing to assert no lien,199 or by relying on the personal credit of the owner,200 or by assigning the lien in jurisdictions where such liens

191 The Dan Brown, Fed. Cas. No. 3,556, 9 Ben. 309. 192 McClure v. The James Dellett, 38 Ala. 336.

193 Hoffman v. The Nebraska, 61 Fed. 514.

194 The General Burnside, 3 Fed. 228, 2 Flip. 144, overruling The Superior, Fed. Cas. No. 4,115, 1 Newb. Adm. 176.

195 Donald v. Hewitt, 33 Ala. 534; Merrick v. Avery, 14 Ark. 370.

196 The John Richards, Fed. Cas. No. 11,827, 1 Newb. Adm. 73.

197 See post, §§ 909, 910.

198 Pritchard v. Muir, 2 Brev. (S. C.) 371.

199 Pulis v. Sanborn, 52 Pa. St. 368.

200 Moll v. The George, 1 Hawaii, 274; Phelps v. The Camilla, Fed. Cas. No. 11,073, Taney, 400. In a recent case it appeared that repairs made upon a foreign vessel were admittedly necessary to enable her to prosecute her voyage. The owner was not a resident of the state, and in making the contract stated

are held not assignable.201 A lien claimant who has unequivocally waived his lien cannot recall such waiver and assert his lien.202 Giving up possession of the vessel is not a waiver of a maritime or a statutory mechanic's lien.203 Nor is the lien waived by giving credit which expires before the lien is lost by lapse of time.20+ But, where the state law declares that the lien ceases on departure of the vessel, a provision for credit for part of the debt for repairs for 30 days after the vessel was afloat waives the lien as to that part of the debt, since in all probability the vessel would leave before that time.205

Taking Negotiable Paper.

§ 877. Taking note or draft for the amount of the lien debt is not necessarily a waiver of a mechanic's lien on a vessel, whether created by maritime or statute law,206 though there is one decision

that he was then without funds to pay for the repairs. The vessel was to be delivered to him on completion, and he was to pay half the bill 30 days thereafter, and the remainder as the vessel earned the money. The vessel was delivered, but no part of the bill was paid at the expiration of the 30 days. On these facts it was held that, although the evidence indicated that the repairs were made partly upon the credit of the owner, there was nothing to show an intention to waive the lien. Samuel L. Moore & Sons Co. v. The Lime Rock, 49 Fed. 383.

201 The R. W. Skillinger, Fed. Cas. No. 12,181, 1 Flip. 436; Pearsons v. Tincker, 36 Me. 384. See 17 C. C. A. 107, note by William L. Clark, Jr.

202 Leland v. The Medora, Fed. Cas. No. 8,237, 2 Woodb. & M. 92.

203 The Charlotte v. Hammond, 9 Mo. 59; Mott v. Lansing, 57 N. Y. 112; Samuel L. Moore & Sons Co. v. The Lime Rock, 49 Fed. 383.

204 The Antarctic. Fed. Cas. No. 479, 1 Spr. 206; The John Walls, Jr., Fed. Cas. No. 7,432, 1 Spr. 178; Mehan v. Thompson, 71 Me. 492; Young v. The Orpheus, 119 Mass. 179; Mott v. Lansing, 57 N. Y. 112.

205 Peyroux v. Howard, 7 Pet. 324.

206 Carter v. The Byzantium, Fed. Cas. No. 2,473, 1 Cliff. 1; Moore v. Newbury, Fed. Cas. No. 9,772, 1 Newb. Adm. 49; The Chusan, Fed. Cas. No. 2,717, 2 Story, 455; The Napoleon, Fed. Cas. No. 10,011, 7 Biss. 393; The D. B. Steelman, 48 Fed. 580, 5 Hughes 210; The Sarah J. Weed, Fed. Cas. No. 12,350, 2 Lowell, 555; Raymond v. The Ellen Stewart, Fed. Cas. No. 11,594, 5 McLean, 269; Sutton v. The Albatross, Fed. Cas. No. 13,645, 2 Wall. Jr. 327, and 1 Phila. 423; Page v. Hubbard, Fed. Cas. No. 10,663, 1 Spr. 335; The Agnes Barton, 26 Fed. 542; The Queen of St. Johns, 31 Fed. 24; The Chelmsford, 34 Fed. 399; McNeil v. The Pioneer, 53 Fed. 279; American Towing & Lightering