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covered into the Treasury, regardless of the amount necessary to reimburse the United States. This is so, because the present case, as will hereafter appear, does not seem to require any such action. I may say, however, that I have no doubt on the subject. The power of Congress, in view of its paramount authority over the navigable waters of the United States, to authorize the removal of a sunken vessel from any such waters, in the case of an emergency, as provided in that section, would seem to be unquestionable. This being so, its power to make the expense of removing any such obstruction a charge against the craft and cargo, and upon failure or refusal of the owners to reimburse the United States for such expense, within a reasonable time after notice, to direct that the vessel or cargo, or any part thereof not destroyed in removal, be sold and the proceeds of such sale covered into the Treasury, would seem to be equally clear. Under such conditions, the vessel may well be regarded as having been abandoned by the owners and forfeited to the United States.

Your second question-whether the Secretary of War has power to waive the claim of $18,000 against the vesselbeing based upon the hypothesis that the charge imposed by section 20 is to be regarded as unconstitutional, requires no answer.

Your third question can not be answered categorically. The fact that the Reed Wrecking Company has removed the vessel from the jurisdiction of the United States and has refused to turn it over to your department, thus, as you say, putting it beyond the power of the United States

force its lien, and in effect destroying the security of the United States, while it may not relieve the Government of responsibility to that company for the expense incurred by it, at the request of the Government, in removing the vessel from the channel, would seem to justify the Government in refusing to pay such claim unless the vessel is brought within our jurisdiction, so that it may be attached and sold for the benefit of all claimants according to their respective rights and priorities.

It seems clear that the liens acquired by the wrecking company upon the vessel, by virtue of the services rendered

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by it in raising the vessel and towing it into port, are superior to that which the United States would have if it paid the company for removing the vessel from the channel.

As stated in The Thomas Morgan (123 Fed. 781, 787), referring to the relative rank of maritime liens:

The rule as to priority which prevails in courts of law, and which is expressed in the maxim, 'Qui prior est tempore, portior est jure,' has no application. The converse is often the rule, for liens which are in the nature of rewards for benefits done, generally rank against the fund in the inverse order of their attachment on the res, for the thing which is the subject of all the liens ought to pay first those who in the highest degree have contributed to its safety and preservation."

So it is held that "bottomry bonds take priority in the inverse order of their execution." (36 Cyc. 201, and authorities cited.)

In The J. E. Rumbell (148 U. S. 1, 9), it was said:

"By the admiralty law, maritime liens or privileges for necessary advances made, or supplies furnished, to keep a vessel fit for sea, take precedence of all prior claims upon her, unless for seamen's wages or salvage. It is upon this ground, that such advances or supplies, made or furnished in good faith to the master in a foreign port, are preferred to a prior mortgage or to a forfeiture to the United States for a precedent violation of the navigation laws.(The St. Jago de Cuba, 9 Wheat. 409, 416; The Emily Souder, 17 Wall. 666, 672.)

In the present case if the Government, instead of turning the vessel over to the owners after it had been swung out of the channel, had continued to employ the wrecking company to raise the vessel and tow it into port, it is manifest that the Government would have been liable to the company for the entire expense incurred in that regard. The fact that, instead of doing this, the Government, after the vessel had been swung out of the channel, permitted the owners to take possession and have it raised and towed into port, can not deprive the wrecking company of its liens upon the vessel for all the charges so incurred or

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enable the Government to assert any priority in the matter.

But while this may be so, I think, as above stated, that the Government is entitled, before paying any such claims, to demand that the vessel be brought within our jurisdiction, so that it may be attached and sold for the benefit of all claimants, including the Government, according to their respective rights and priorities.

I come now to your fourth question, “Whether or not, in view of the other claims against the vessel, the department has authority to pay the claims of the Reed Wrecking Company and thus secure the boat, so that suit can be brought against the vessel to enforce the lien for the amounts so paid.”

In addition to the charge of $18,000 for removing the vessel from the channel and $12,000 for subsequently raising the vessel and towing it to Port Iluron, Mich., you state that an estimate of cost of $14,000 for repairing the vessel has been submitted. It does not appear that such repairs have in fact been made. If made, however, the liens upon the vessel for the expense thereof would probably be superior to that of the Government for the expense of removing the vessel from the channel, for the reasons above stated.

I doubt very much your authority to pay any claim of the Reed Wrecking Company other than that for the expense incurred under its contract with the Government to remove the vessel from the channel out of the appropriation made by section 20 of the act of March 3, 1899, which, so far as I am advised, is the only one applicable to any such purpose. That appropriation is for any “such sum of money as may be necessary to execute this section and the preceding section.” Paying off subsequent claims in order to enable the Government to enforce its claim for the expense incurred in removing the vessel from the channel hardly seems to me to come within the terms of this appropriation. That appropriation was to enable the Government to defray the cost of removing an obstruction to navigation, and would of course apply to the expense incurred by the Government in removing the vessel in question from the channel. After the vessel had been removed from the channel by the Reed Wrecking Company the Government could, and perhaps should, have given notice to the owners to pay the charges as provided in the act, and, upon their failure or refusal to do so, it might have disposed of the vessel in its submerged condition and turned the proceeds into the Treasury. This it did not do, however, but turned the vessel over to the owners, thus relinquishing its security. Doubtless, also, the War Department, after having the vessel removed from the channel, might have incurred the additional expense of raising and towing it into port. But as it did not do so, I am inclined to think that it has no authority to use the appropriation in question simply to protect the claims of the Government. The speculative nature of such a proceeding is manifest, as it is entirely problematical whether the vessel would sell for as much or more than the other claims against it.

In my judgment the proper course to pursue is to pay only the claim of the Reed Wrecking Company for the expense of removing the vessel from the channel, provided the company brings the vessel within the jurisdiction of the United States, so that, as above stated, it may be libeled and sold for the benefit of all claimants, according to their respective rights and priorities. Respectfully,




The increase of the permanent naval supply fund beyond the statutory to the purchase of articles not to be used in that year, and the transfer of such articles so purchased to the naval supply fund. The words referred to evidently designate supplies intended for use in the current year for which they were purchased and not used because in unanticipated excess of what were needed, or by some other fortuitous

limit of $2,700,000, by adding to it all the stock technically known as

“common general stock,” is without warrant of law. The expense of handling stores purchased under the naval supply fund,

being specifically provided for in the annual naval appropriation acts,

can not be legally charged to the working appropriations. The words “accumulated naval supplies” in the act of March 2, 1889

(25 Stat. 817, 818), do not mean stores obtained by the application of balances of specific appropriations unused at the end of the fiscal year NOTE.-This opinion was at first regarded as in a measure confidential and its publication, therefore, delayed.

event. The intentional acquisition of supplies for consumption or use in suc

ceeding years, by purchases from appropriations for the current fiscal year, is inconsistent with the provisions of the act of March 2, 1889

(25 Stat. 817). Supplies thus purchased should be utilized in advance of stores regu

larly purchased under the annual appropriation for the current fiscal year, and Congress should be advised of the circumstances of these

accumulations. The provisions in the act of June 30, 1890 (26 Stat. 205), as enlarged by

the act of March 2, 1891 (26 Stat. 807), with regard to “arranging, classifying, consolidating, and cataloguing supplies for the Navy,” is not to be considered as repealing any of the previous acts regarding

the purchase and disposition of naval supplies. The general public system for the appropriation and disbursement of

public moneys is permanent, and unless charges are within the objects for which an appropriation is made they can not be applied to that appropriation.


February 28, 1910. Sir: I have the honor to acknowledge the receipt of your letter of February 11 instant, in which you submit several questions as to the legality of some matters of administration in the Navy Department.

After reciting the facts as to creation and treatment of a permanent naval supply fund, you request my opinion as to whether the increase of such fund, described in your letter $2,700,000, the total of the fund as expressly authorized by Congress, to the sum of $11,728,713.80, as of June 30, 1908, at the expense of the yearly working appropriation, is legal ?

The act of Congress approved March 3, 1893 (27 Stat. 723), provides:

“And the Secretary of the Treasury is hereby authorized and directed to cause general account of advances to be charged with the sum of $200,000, which amount shall be carried to the credit of a permanent naval supply fund to be used under the direction of the Secretary of the Navy

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