three and one-third per cent., and the insurer must pay, not onethird of the price of the sound goods at the port of destination, but one-third of the value at which the goods were insured.1 6. Excepted by the Terms of the Policy.-In many policies the insurers except liability for particular average or partial loss. This is usually done by inserting in the policy such expressions as "free from average unless general," or "free from particular average. $30,000, and a loss heppened; held, that they were entitled to recover the whole sum insured, and not merely five-sixths thereof. Pacific Ins. Co. v. Catlett, 4 Wend. (N. Y.) 75. 1. Under a policy of marine insurance which fixes the value of the goods at the sum insured, in case of a partial loss; and where the property insured was grain, a portion of which reached the port of destination in a damaged condition, the standard of the liability of the insurer is the value so fixed, and not the value in the market. Thus, when the proportion of loss is ascertained by the difference between the selling price of the sound and damaged grain, that difference gives the aliquot part of the original value which may be considered as destroyed by the perils insured against and by applying this liquidated proportion of the loss to the standard of value as fixed in the policy, the proportion of loss, whatever it may be, is ascertained in terms of money. Lamar Ins. Co. v. McGlashen, 54 IIl. 513; Lewis v. Rucker, 2 Burr. 1167; Johnson v. Sheddon, 2 East 581; Hurry v. Royal Exch. Ass. Co., 3 Bos. & P. 308; Usher 7. Noble, 12 East 630; Dick v. Allen, Park Ins. 167; Lawrence v. New York Ins. Co., 3 Johns. (N. Y.) 217; Evans v. Commercial Ins. Co., 6 R. I. 47; Henderson v. Maid of Orleans, 12 La. An. 352. 2. A cargo of potatoes was insured against a total loss, "free from average, unless general;" "free from particular average." After the canal boat, on which the potatoes were, had reached her destination, and after 100 barrels out of 1,600 had been landed, the boat sank. Held, that the insurers were liable for nothing. Chadsey v. Guion, 48 N. Y. Super. Ct. 267. Under a policy of insurance containing the clause "free from particular average less than fifty per cent.," there can be no recovery from the insurer, of salvage and agent's expenses, when there are other insurers, and the pro portion of loss payable by the respondent is less than fifty per cent. of the amount of the policy. Buzby v. Phoenix Ins. Co., 31 Fed. Rep. 422. Where a cargo is insured "free from particular average," a constructive total loss is sufficient; that is, a destruction of all value to the owner, and hence a total loss to him. total loss to him. Chadsey v. Guion, 46 N. Y. Super. Ct. 118. A marine insurance policy covered all shipments from "ports and places . in Europe, generally to New York, and to Atlantic ports in the United States, direct or by port or ports, with privilege of transshipment per steamer, sailing vessels, and other conveyances, including all risks of lighterage, one-half interest in dried fruits or other merchandise. Each kind of goods separately. Dried fruits and other merchandise by steamer to be insured free from particular average, unless the vessel be stranded, sunk, burned or in collision." Held, that "all risks of lighterage" meant any loss, partial or total, by lighterage, while the loss by steamer was limited, and to be free from particular average. Hills 7. Rhenish Westphalian etc. Ins. Co., 39 Hun (N. Y.) 552. Authorities. The authorities used in the preparation of this article have been Arnould Mar. Ins. (6th ed.) by Maclachlan, the leading authoritative work upon this subject for the English law; Phillips Law of Ins. (5th ed.); Parsons Mar. Ins., and Lowndes Law of Ins. (2nd ed.) The careful digests of the Law of Insurance by Sansum and by Berryman, and Pritchard's Digest of Admiralty and Maritime Law (3rd ed.), will prove of great assistance to lawyers looking into the subject. There is no recent American text book upon the subject, the latest edition of Phillips' Law of Insurance being in 1867, while Parsons's Marine Insurance was published in 1868. Much use has been made of the ad MARINER (See also SEAMEN).-A person employed on a merchant ship or a ship of war. The term includes common sailors, a cook, porter, steward, purser, clerk, engineer, surgeon, captain, admiral; in fact, whoever has to do with the equipment and preservation of the vessel, or the welfare of the crew.1 MARITAL RIGHTS.-See HUSBAND AND WIFE, Am. & Eng. Encyc. of Law, vol. 9, p. 789; CONTRACTS, Am. & Eng. Encyc. of Law, vol. 3, p. 872. MARITIME (See also MARINER).-Pertaining to navigation or commercial intercourse upon the seas, great lakes and rivers.2 mirable work of Arnould edited by 4 Maclachlan. 1. I Conkl. Adm. 107; Wilkes v. Dinsman, 7 How. (U. S.) 89; Matthews v. Offley, 3 Sumn. (U. S.) 115; Ex parte Thompson, 4 Bradf. (N. Y.) 154; Atkyns v. Burrows, 1 Pet. Adm. (U. S.) 246; Ross v. Walker, 2 Wils. 264; Gwin's Will, 1 Tuck. (N. Y. Surr.) 44. In Spinetti v. Atlas Steamship Co., 80 N. Y. 71-80, RAPALLO, J., observes: "I am of the opinion that the purser does fall within the term 'mariner,' as used in this bill of lading, and that embezzlement by him was barratry. He was permanently attached to the ship as one of its officers, and performed duties which would otherwise devolve upon the master." The authorities cited by the respondent are to the effect that barratry can be committed only by master and mariners, a point which is not disputed, but there is no authority showing that a purser of a ship is not included in the term "mariner." It is not necessary to bring a purser within the definition of mariner that he should be engaged in navigating the ship, provided his employment is on the sea, and he is attached to the ship. The duties of the purser are marine duties. McLachlan on Shipping 146, 148; The Gratitudine, 3 C. Rob. 240, 257. The cook and steward have been held to be mariners, and entitled to sue as such. The Jane and Matilda, 1 Hagg. Adm. 187, 190; Smith v. Sloop Gilpin (U. S.) 505. Mariner in a Statute-A master of a licensed vessel under twenty tons employed as a lighter in a harbor, and not going to sea, is not exempt from duty in the militia as a mariner in the sea service of a citizen of the United States, under the second section of the act of congress, 2nd Cong., 1st sess. ch. 33, passed May 8th, 1792. Pratt v. Hall. Mass. 239; Brush v. Bogardus, 8 Johns. (N. Y.) 157. A master of an enrolled vessel employed in transporting stones, etc., from one part to another of Boston bay, and occasionally making a short trip to sea for the purpose of fishing, was held not to be exempt from militia duty as a mariner in the sea service. Com. v. Newcomb, 14 Mass. 394. Fishermen engaged in the cod fishery on board a vessel of more than twenty tons, duly licensed, and having signed an agreement required by the laws of the United States, are not liable to do duty in the militia, notwithstanding the statute of this commonwealth of 1814, ch. 63. Com. v. Douglas, 17 Mass. 49; Bayley v. Merritt, 2 Pick. (Mass.) 597. 2. Anderson's Law Dict. Maritime.—Primarily, bordering on the sea; as a maritime town, coast, nation; secondarily, belonging to those who border on the sea, as maritime laws, rights, pursuits. Maritime Law. The law of the sea. The body of principles and usages which, by the consent of civilized communities or nations, has been adopted to regulate the affairs of men engaged in navigation and marine commerce. Anderson's Law Dict. In the Lottawanna, 21 Wall. (U. S.) 558, BRADLEY, J., observes, in substance, that whilst the general maritime law is the basis of the maritime law of the United States, as well as of other countries, it is only so far operative in this, or any country, as it is adopted by the laws and usages thereof. It has no inherent force of its own. In particular matters, especially such as approach a merely municipal character, the received maritime law may differ in different countries without affecting the general integrity of the system as a harmonious whole. MARITIME LIENS (See also BOTTOMRY; FREIGHT; LIENS; MASTER OF A VESSEL; SALVAGE; SEAMEN; SHIPPING). (a) Must be Necessary, 412. (c) Must be Furnished in a Foreign and Not in a Home Port, 417. (d) Chartered Vessels, 420. 2. For Construction, 421. 3.. For Advances of Money, 423. 4. For Services, 425. (a) By Seamen, 425. (b) By the Master, 430. (c) By Subordinate Officers, 431. (d) By Other Persons, 432. 5. For Towage, 434. 6. For Pilotage, 434. 7. For Wharfage, 434. 8. For Salvage, 436. 9. For Damages, 436. 10. For Safe Transport, 436. IV. Lien of the Ship on the Cargo, 438. 1. For Freight, 438. 2. For Demurrage, 439. V. Priority of Liens, 439. 1. General Principles, 439. 2. Priority of Various Claims, 442. VI. Waiver, Discharge and Extinguishment of Liens. 4471. By Laches, 447. 2. By Judicial Sale of the 3. By Private Sale, 449. 5. By Taking Collateral Se- 6. By Destruction of the Vessel, 453. 7. By Departure of the Vessel, 453. S. By Assignment of the Claim, I. DEFINITION.-A maritime lien is a right of property in a vessel which may be enforced directly against the vessel by a libel in rem, and it is immaterial in whose possession the vessel may be, or to whom the title may have been transferred.1 The general system of maritime law which was familiar to the lawyers and statesmen of this country when the constitution was adopted, was intended, and referred to, when it was declared in that instrument that the judicial power of the United States shall extend to all cases of admiralty and maritime jurisdiction. Thus adopted, it became the maritime law of the United States, operating uniformly in the whole country. The question as to the true limits of maritime law and admiralty jurisdiction is exclusively a judicial question, and no state law or act of congress can make it broader or narrower than the judicial power may determine those limits to be. But what the law is within those limits, assuming the general maritime law to be the basis of the system, depends upon what has been received as law in the maritime usages of this country, and on such legislation as may have been competent to affect it. The decisions of this court illustrative of these sources, and giving construction to the laws and constitution, are especially to be considered; and when these fail us, we must resort to the principles by which they have been governed. 1. The Young Mechanic, 3 Ware (U. S.) 58. In Verderwater v. Mills, 19 How. (U. S.) 82, the libel set forth a contract between the owners of certain steam ships to convey freight and passengers between New York and California. The owner of one of the ships refused to employ his vessel according to this agreement, and sent her to the Pacific The term is also applied to the mutual liens which the ship has upon the cargo for freight, and the for freight, and the cargo upon the ship for safe transport. II. WHAT ARE SUBJECT TO MARITIME LIENS.-A maritime lien can only exist upon such movable things as are used in navigation, or upon things which are the subjects of commerce on the high seas, or on navigable waters. on navigable waters. Thus, vessels, dredges and SCOWS are subject to such liens, but not wharves, bridges, drydocks, or real estate of any kind.1 under a contract with other persons. For this breach of contract libellant demanded damages, assuming that the vessel was subject under the maritime law to a lien which might be enforced in rem in a court of admiralty. The circuit court dismissed the bill. On writ of error to the Supreme Court of the United States the judgment of the lower court was affirmed. In delivering the opinion of the court Mr. JusTICE GRIER described a maritime lien as follows: "The maritime 'privilege' or lien is adopted from the civil law, and imports a tacit hypothecation of the subject of it. It is a jus in re, without actual possession or any right of possession. It accompanies the property into the hands of a bona fide purchaser. It can be executed and divested only by a proceeding in rem. This sort of proceeding against personal property is unknown to the common law, and is peculiar to the process of courts of admiralty. The foreign and other attachments of property in the state courts, though by analogy loosely termed proceedings in rem, are evidently not within the category. But this privilege or lien, though adhering to the vessel, is a secret one; it may operate to the prejudice of general creditors and purchasers without notice; it is therefore 'stricti juris, and cannot be extended by construction, analogy or inference." In the case of The Lottawanna, 21 Wall. (U. S.) 558, 579, the Supreme Court of the United States said: "A lien is a right of property, and not a mere matter of procedure.' See also The J. W. Tucker, 20 Fed. Rep. 129; The Fanny, 2 Law Rep. (U. S.) 508; The Arcuturus, 18 Fed. Rep. (U. S.) 748; Ward v. Chamberlain, 2 Black (U. S.) 430. The more recent cases overrule the principle laid down in The Triumph, 2 Blatchf. (U. S.) 433 (note), and The Globe, 2 Blatchf. (U. S.) 427, 433 (1852), where it was held that a maritime lien "is, in reality, only a privilege to arrest the vessel for a debt which, of itself, constitutes no encumbrance on the vessel, and becomes such only by virtue of an actual attachment." 1. "It may arise with reference to vessels, steamers and rafts, and upon goods and merchandise carried by them. It cannot arise upon anything which is fixed and immovable, like a wharf, a bridge, or real estate of any kind. Though bridges and wharves may aid commerce by facilitating intercourse on land, or the discharge of cargoes, they are not in any sense the subjects of maritime lien." The Rock Island Bridge, 6 Wall. (U. S.) 213. Dredges and Scows.-Dredges and scows, though never used in the transfer of passengers or freight, and furnished with no motive power of their own, are vessels, and subject as such to maritime liens for service rendered and supplies furnished. The Alabama, 19 Fed. Rep. 544. See also Endner v. Greco, 3 Fed. Rep. 411. A light boat built and adapted to be used as a floating light is a vessel upon which a lien for materials furnished may attach. Briggs 7. A Light Boat, 7 Allen (Mass.) 287. A Steam Dredge, being within the definition of a vessel in the United States Revised Statutes (tit. 1, ch. 1), is subject to a maritime lien for supplies. Pioneer, 30 Fed. Rep. 206. Dry Docks.-In Cope v. Vallette Dry Dock Co., 10 Fed. Rep. 142, and Cope 7'. Vallette Dry Dock Co., 16 Fed. Rep. 924, the court, in deciding that a maritime lien could not exist on a dry dock, said: "The structure (a dry dock) to which they (the services) were rendered was not designed for navigation, and, being practically incapable of navigation, it had no more connection with trade or commerce than a wharf, a shipyard or a fixed dry dock, into which water crafts are introduced by being The ordinary tackle, sails, boats, and appliances of a vessel are of course subject to any lien which may exist upon the vessel itself. In addition to the ordinary furniture of a ship, any special apparatus, or appliances on board a vessel, engaged in a particular vocation, such as whaling or wrecking, which are indispensable to the prosecution of such business, are also subject to the lien.1 III. FOR WHAT A LIEN MAY EXIST-1. For Supplies and Repairs.(a) Must be Necessary.—In order to create a maritime lien for supplies it must appear that there was a reasonable necessity for the supplies themselves, and that they could only be obtained upon the credit of the vessel.2 drawn up on the ways. As shown by the findings, it had remained securely and permanently moored to the bank for a period of more than fourteen years; it partook more of the nature of a fixture attached to the realty than of a boat or ship." Bridges. In the Rock Island Bridge Case, 6 Wall. (U. S.) 213, it was held that a maritime lien could not exist upon a bridge. A seine boat attached to a schooner engaged in the mackerel fishery, which had previously belonged to the owner of the schooner, but had been sold by him, and subsequently owned by the schooner, in prosecuting its business under a contract of hiring with the purchaser, is not subject, as appurtenant to the schooner, to a lien for supplies furnished the schooner. Merrimac, 29 Fed. Rep. 157. So also services rendered to two barges which had become disabled and were left behind from a tug, give no lien on the tug. James Dalzell's Sons & Co. v. Daniel Kaine, 31 Fed. Rep. 746. Compressing Cotton. No maritime lien for the compressing of cotton, when the compressing was performed inland, and before any contract of affreightment binding the ship was made. The Paola R., 32 Fed. Rep. 174. Where a steamboat and canal-boat, owned by the same person, were always employed together, it was held that a lien would not accrue as against the steamboat for work done on the canalboat. The Ida Meyer, 31 Fed. Rep. 89. A maritime contract may have for its subject a canal-boat, Hipple . The Fashion, 3 Grant (Pa.) Cas. 40; a pile driver, Kearney v. Pile Driver, 3 Fed. Rep. 246; a scow, Endner v. Greco, 3 Fed. Rep. 411; a floating elevator, placed on a canalboat, The Hezekiah Baldwin, 8 Ben. (U. S.) 556; a floating derrick, Maltby v. A Steam Derrick-boat, 3 Hughes (U. S.) 477; where the res is or has been afloat, Gregg v. Sloop Clarissa Ann, 2 Hughes (U. S.) 89; a floating scow, The Count De Lesseps, 17 Fed. Rep. 460. Scow Platform.-But a libel in admiralty for wharfage is not maintainable where the thing charged with the wharfage was a scow platform, designed to be moored at a wharf so that refuse carts could be driven over it for the purpose of dumping their contents into boats, the platform being mainly stationary and rarely moved, although capable of being towed. Such a structure is not a vessel, within the meaning of the maritime law. Ruddiman v. Scow Platform, 38 Fed. Rep. 158. 1. Special Apparatus.-In The Witch Queen, 3 Sawyer (U. S.) 301, a vessel fitted out for a pearl fishing voyage was furnished with a diving bell, air pump and other apparatus, not contributing to navigation, but required and provided for the fishery intended, and belonging to her owners. It was held that these, as well as the tackle and furniture proper, were subject to the lien of material men for general supplies. The fact that the ownership of the vessel and of such apparatus is separate will not be sufficient to exempt such apparatus from liability if in fact it was on board the vessel by the consent of its owners at the time the supplies were furnished. The Edwin Post, 11 Fed. Rep. 602. 2. "The authority of the master in contracting for repairs and supplies is not confined to such as are absolutely or indispensably necessary, but includes also such as are reasonably fit and proper for the ship and voyage. Where |