had not been made the home port at that time. It is true that it was afterwards made the home port with the approval of the Commissioner. Was this a compliance with the act?
We have had cited to us the case of The Fort Orange (D.C.) reported in 5 F. Supp. 833, in which the opinion was delivered by Judge Knox. This case was among many cited to us on the first argument. We made no reference to the opinion. This calls for a word of explanation. It is needless to say that we share the high esteem in which Judge Knox is held by all as a jurist. We did not refer to his opinion for the simple reason that it escaped our attention. This was again because the point upon which we ruled the case was not made at the first argument. It was casually mentioned by the proctors for the mortgagees but merely as one of the features of the act, with all of which they claimed to have complied. The opinion of Judge Knox is necessarily a very lengthy one. The report of the case takes up fifteen closely printed pages. This is because the case before Judge Knox was very complex requiring him to deal with a number of controverted questions. His discussion, as is true of all his opinions, is exceptionally lucid and thorough going.
The same point raised in the instant case was raised in The Fort Orange Case. Judge Knox ruled in that case that the filing of the formal approval of the Commissioner need not precede the recording of the mortgage, if this was done, as in his case it was, within three days after the recording. His opinion, however, contains this significant language: "In this case the Commissioner had orally approved the choice of a home port for the vessels prior to the recordation of the papers. His written approval was forthcoming within three days thereafter." He had previously discussed a similar point made respecting the documentation of the vessel there concerned in order to make it "capable of being denominated 'a vessel of the United States.'" There the papers had all been filed the same day with an interval of minutes only between them. There was no requirement that the time of filing be noted. The case was in consequence within the doctrine that the law, unless there is a reason for holding otherwise, regards a day as a unit of time, and that a paper filed on the last minute is filed as soon as one on the first minute. The act of Congress does not require the approval of the Commissioner to be in any prescribed form, written or otherwise. There had in his case been such approval, in fact, before the recording of the mortgage, and Judge Knox held that to be sufficient. Here there was no such approval in fact until after the recording. We can appreciate the advantage to mortgagees of the rule contended for that the approval is a "condition subsequent" and may be procured at any time. The truth remains, however, that we are dealing with constructive notice as a substitute for actual notice. The law is well settled, as Judge Knox himself shows, and as the cases cited in our former opinion abundantly establish that there can be no constructive notice except such as the law prescribes. The Ship Mortgage Act (46 USCA § 921) requires that the mortgage shall be recorded in the home port of the vessel, and the place of record here was not such home port. The complaint of the mortgagee is that if the recording of the mortgage awaited the designation of the home port that supply or repair libelants might secure a lien which would have priority to the recorded mortgage. So indeed they might. The remedy is to have the home port first fixed and then mortgage the vessel. Assume a claim which acquired a lien in the interval between the recording of the mortgage and the approval of the designation of the home port. Would such a libelant have constructive notice of such a mortgage? It is difficult to understand that he would. We would then have a mortgage which was a preferred mortgage as against some libelants but not as against others.
The motion for a reargument is denied.
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