(after stating the facts as above). The fundamental truth in this case is that both parties have, and had when they submitted their differences to the court below, unassailably established maritime liens. Each of them filed the usual libel, asserting lien under the Merchant Marine Act 1920 (Comp. St. Ann. Supp. 1923, §§ 8146¼-8146¼t). In each case the owner of the Oregon, not only made no defense, but affirmatively declared the truth of the libel. Such proceedings conclusively established both liens. The Ruth E. Merrill (C. C. A.) 286 F. 355, citing and approving The Water Witch (C. C.) 44 F. 95; The Hattie Thomas (C. C. A.) 262 F. 943.
There is also an underlying mistake in this ease, in that both parties thought that laches was something that could be used to the detriment of other lienors in a distribution proceeding between lienors, whose rights rested on final decrees. Laches is a defense, and, if successful, it defeats the claim advanced by plaintiff or libelant. Delaying suit for more than the period of limitation has long been treated as furnishing (in most instances) sufficient evidence of laches. Bailey v. Sundberg, 49 F. 583, 1 C. C. A. 387.
Our reeent decision in The Fort Orange, supra, was no more than an application of this doctrine. But neither that decision nor many others like it, affects this proceeding. Under The Fort -Orange and similar decisions, the claimant of the Oregon could not have successfully defended against the Jarvis Corporation’s libel, because what was in the Fort Orange considered sufficient evidence of laches could not have been shown. But equally it is true that the Oregon’s claimant could not have prevailed against the Jersey City Company on the ground of .laches, be*970cause the New Jersey statute corresponding to the New York one prescribed no period of limitation.
But in fact the owner of the Oregon did none of these things) and each of these libel-ants had and has a final decree, which is conclusive evidence of maritime lien in and upon the lighter, and all that was left for the several decree holders was to establish priorities among themselves, on the assumption that each had a perfect lien. With liens judicially established, there was and is nothing for the doctrine of laches to operate upon. It was too late, after decrees.
If the New York corporation had desired to advance the defense of laches against the New Jersey company, it should have in-' tervened and answered, as has been pointed out very lately in The Cartona (C. C. A.) 297 F. 827. Whether such an intervener could have successfully pleaded laches is a question not now before us.
| Since, therefore, each of these libelants had perfectly good liens, they were obliged to take priorities in accordance with the rule of The Gratitude (D. C.) 42 F. 299, recently and vigorously applied in this court in The Interstate No. 1, 290 F. 926; i. e., those liens accruing within 40 days of libel filed take priority by analogy to the theory of voyages," and all claims of the same class (as these are) beyond the 40-day period must share pro rata.
The order appealed from is modified, to conform with this opinion; i. e., these claims' must share alike. There will be no costs in this court.