Page:Federal Reporter, 1st Series, Volume 3.djvu/236

THE GENERAL BURNSIDH. 229 �port of the state irhere the vessel is owned, for whîch a lien is given only by the state law, or -whether they should share alike and be paid pro rata. The gist of the argument con- tained in the very elaborate brief ' of Mr. Speed is to the ef- fect that while there is no lien by the general law maritime as administered in this country, for necessaries furnished in the home port, such lien may be created by the state law, and when so created is not only enforceable in this court, as laid down in the case of The Lotawanna, 21 Wall. 558, but be- comes to ail intents and purposes a maritime lien of equal rank with those existing ia favor of foreign creditors. The last in- ference, however, does not necessarily follow. In determin- ing the relative rank of different liens, courts are constantly in the habit of examining their character, and the time and oircumstances under which they accrued, marshalling them in the order of their merit. I think there is a well-founded distinction between liens created at home and abroad, in the presumed necessity for credit in a foreign port, which does not exist in the domicile of the owner. This necessity of credit is recognized in the law maritime, but not in the state legislation, which confers the lien whenever the supplies are furnished, whether it be necessary to pledge the credit of the vessel or not; at least, suchitf tha general construction given to the state statutes. 2 Pars, on Shipping, 154; The Young Sam, 20 Law Eep. 608. �Now, if foreign and domestic material men are put upon the same footing, the former, who furnish upon the credit of the vessel, really labor under a disadvantage, since the pro- oeeds, which would otherwise be used to pay them, are absorbed by the home creditors, who, in reality, trusted to the credit of the owner; and as it is not every state which confers these liens it would be necessary for the foreign cred- iter, in order to protect himself, not only to inquire where the vessel is owned, but how far the laws of the owner's domicile put him at the mercy of domestic creditors. �This is substantially the line of argument adopted by Judge Leavitt in the case of The Su^erior, (Newberry, 176-184,) where the question at issue here was discusaed. although at that ����