it is sufficient to say that the evidence does not show it to be bona fide, nor
could it in any event avail Buckley. As to Buckley, his interest in the vessel is by "iay of a mortgage that attached to the lighter long prior to the claim of Jones. The case, therefore, is the same as if a prior owner of t.he vessel were defending upon the ground of laches. In such a case a lien will not be held lost by laches simply by reason of a delay of between two and three years in enforcing it. A decree must be entered for the libelant, with costs.
THE MANHATTAN. LAKE
June 22, 1891.)
(District Court. D. Washington. N. D.
Contracts for work to be performed and materials to be furnished in completing and equipping a new vessel, left uncompleted by her builders, where such contracLS are entered into and have their inception after the vessel has been launched and named, and become capable of being identified as a vessel, are maritime contracts.
SAME-LIEN -ADMIRALTY JURISDICTION.
Where, by a lo,'al statute, a lien is given for wurk done and materials furnished in the construction of a suit in rem against the vessel upon such a contract, as above described, and to enforce such a lien, can be maintained, and is within the acimiraliy jUI'isdletion of the United States courts.
(Syllabus by the Conrt.)
In Admiralty. F. H. Peterson, for libelant. Carr & PreSion, Weisihng & Weistling, W. A. Peters, and C. D. Emery,
for intervening libelants. J. B. Metcalfe, for claiman to
HANFORD, J. The Manhattan is an uncompleted vessel. The lihelant built her in this state, and launched her upon Lake Washington, for persons who intended to own and run her upon said lake, but failed to pay the libelant for her construction according to their contract. For this failure to pay him, the libelant sold the vessel to other parties in the condition in which she then waSj that is to say, a mere hull, without masts, sails, machinery, or other propf'lling power. The purchasers caused her to be floated or towed upon the waters of Lake Washington, Black river, and Duwamish river to the harbor of the city of Seattle, and thence tG a ship-yard owned and managed by the libelant; and alterwards, under a new contract with them, the libelant performed work and furnished materials towards completing and cLanging the vessel from a side-wheel steamer into a propeller, and there is now due to him the sum of $1,367.96 for said work and materials, and he has a statutory lien therefor by virtue of the laws of this stale in force during the time of the performance of the contract. To enforce said lien this suit in rem
FEDERAL .REPORTER ,
against said vessel was brought. Her machinery has not been placed in said vessel, and she has not been surveyed, enrolled, or documented at the custom-house, and she has never been used. Several intervening libels have been filed by parties claiming to have statutory Hens for materials furnished and labor performed, and one wherein the intervening libelant claims to have a maritime lien for towing the vesstl from the libelant's yard to the place at which she was to have received her machinery. The claimant alleges that he has purchased the vessel from the parties who purchased her from the libelant and contracted the debts in suit. The evidence has been taken by a commissioner, who has certified the same to the court with his findings, which findings the court adopts as the facts in the case. The ground upon which the claimant defends is that the contracts sued on are not and not cognizable in, admiralty, and that therefore the case is not one of which this court Can have jurisdiction. The question here presented is not new. Thfl right to ",ue in the court of admiralty upoh contracts of this dass isn subject of discussion which our ancestors brought with them from England before the first courts ....ere established in the American colonies, and the debate upon it has -continued through all the changes which have transpired in the judiciary -of the country. The lawyers and litigants continue to contend for the right in the face of decisions of the courts, and they seem to be determined to not accept the decisions, or regard them as being decisive, and the decisions have not been uniform nor harmonious. According to the earliest reported cases, all contracts for building, repairing, and equipping vessels were held to be maritime contracts, and cognizable in the admiralty courts. In the case of Cunninghurn v. Hall, 1 Cliff. 43, decided by Mr. Justice CLU'FORD very soon lliter the decision of the supreme court in the case of Ferry Co. v. Beers, 20 How. 393, thatleaJ'l1ed justice, in his opinion, reported in 1 Cliff. 53, cites the earlier decisions, and in the same connection makes this clear statement: "Contracts for the building of ships, where a lien is given under the local law, have heretofore been regardpd as maritime, and in repeated instauces the lien su created has bpen enfurced by a proct'edi IIg in 1'em, and the practice appears tu be fully sanctioned by the twelfth admiralty rule." The twelfth admiralty rule, adopted by the supreme court in 1844, which was thus referred to by the justice, reads as follows: "In all suits by material-men for snpplies, rflpairs, or other necessaries for a foreign ship, or for a Ship in a foreign port, the libelant may proceed against the ship ant! freight in 1'em, OF against the master or owner alon!' in personam. and the likf proceeding in 1'em shall apply to cases of donwstic ships, wllere by the lo(:al law a lien is given to material-men for supplies, repairs, and ot:ler necessaries." This rule was amended by the court in 1859, and again in 1872. The decision of the supreme court of the United States in the case of The General Smith, 4 Wheat. 438, (in 1819,) was the beginning of a departure; and from that time until the Cnse, 21 Wall. 558, was decided, in 1874, the tendency of the decisions was very strongly against
maintaining admiralty jurisdiction in cases founded upon contracts of the class under consideration; and for upwards of 30 years past the courts have uniformly held that contracts for the building of ships, and for furnishing materials to be used in the original construction thereof, are not maritime, and that suits founded upon such contracts are not within the admiralty jurisdiction of the courts of the United States. Ferry Co. v. Beers, 20 How. 393; Roach v. Chapman, 22 How. 129; Edwards v. Elliott, 21 Wall. 532; The Orpheus, 2 Cliff. 29. The courts, however, still maintain that contracts for repairing and rebuilding vessels are maritime, and cognizable in admiralty. Peyroux v. Howard, 7 Pet. 324; The Grapeshot, 9 Wall. 129; The Lulu, 10 Wall. 192; The Kalorarna, ld. 204; The Lottawanna, 21 Wall. 558, Hen. Adm. 44. I consider that this court is bound to hold, in deference to the decisions of the supreme court, that contracts for the building of vessels, and for furnishing materials to be used in the original construction thereof, are not subjects of admiralty jurisdiction. Such is the doctrine to which that court seems to be fully committerl. The opinion in the case of Edwards v. EUiott, above cited, was written by Mr. Justice CLIFFORD, who concurred in the decisions of the court in Perry Co. v. Beers, and Roach v. Chapman, and who wrote a dissenting opinion in the case of The Lottawanna, and it contains the fullest discussion of the subject, and statement of the reasons for its decision, which that court has given. I have looked for the reasons in order to learn, if possible, how to reconcile the decisions holding contracts for the building of ships to be not maritime with those holding contracts for the repair and rebuilding of vessels to be maritime, and where to draw the line dividing contracts for doiug mechanical work, and for furnishing building materials and machinery, which are classed as non-maritime, from those contracts for doing precisely the same kind of mechanical work, and iurnishing the same kind of materials and machinery, which are maritime. And my conclusion is that, if there is any reason for the distinction other than the mere fact that it exists because the courts have created it by their arbitral'y decisions, it is to be found in t.his: that a maritime contract is dr-fined to be one having reference to commerce or navigation. The particular el('nl"nt essential to give it a maritime character is direct connection with commercial transactions or navigation; and such connection is lacking in a contract to create a new ship, or, if not lacking entirely, it is remote and contingent, so that it is not perceptible at the time the contract gues into effect as a binding obligation. But whatever is done to or about an existing ship has direct reference to commerce and navigation. A ship in esse as a maritime subject gives a maritime charadeI' to all transacti:m& directly connected with it. The cases are distinguishable thus: One class, founded upon contracts for the repairing and rebuilding of vessels, holds such contracts to be maritime, because they I\lfec1 vessels in esse; and the other class, founded upon contracts for the building of proposed vessels, holds such contracts to be non-maritime, because they touch maritime subjects only by relation to proposed \ e::;sels, the futur6 exist-
ence of which is contingent upon performance of the terms of the contract in each case. The condition of the vessel, whether new or old, whether complete in all respects, and equipped for service, or only a mere hulk. without sails, rigging, or masts, or means of propulsion, is not determinative of the question; and in case of a. vessel in the latter condition it makes no difference in principle whether she may have been once complete, and have been disabled and stripped, or whether the things necessary to render her complete and sea-worthy are lacking simply because they have never been supplied. After 8 new ship has been launched, and embraced by the element upon which she is intE:mded to float, nnd been christened, and become an entity fully capable of being identified, she is as much a subject of admiralty and maritime jurisdiction as she can be at any later ppriod of her history; and contracts then entered into relating to her completion, equipment, or employment are maritime, and cognizable in admiralty. The Eliza Ladd, 3 Sawy. 519; Revenue Cutter No.2. 4 Sawy. 143. In harmony with these views, the contracts under consideration. having originated after the vessel had been launched, are to be regarded as maritime, and the case is within the jurisdiction of this court. It is my opinion, therefore, that the libelant, and each of the intervening libelants except Charles H. Allmond, are entitled to recover the sum due them as per the commissioner's report. As to Mr. Allmond, I hold that he is precluded by the terms of his contract from recovering any sum at the present time, for the reason that he has not completed bis contract, which is in writing, and which contains an express provision to the effect that no money in addition to what bas already been paid to him is to be due or payable until the contract shall be fully completed. A decree wlll be entered in accordance with this opinion.
-----THE REUBEN DOUD.
(District Court, E. D. 3f1.chigan.
SIJIPPTNG-CARRIAGE OF GOODs-DEMURRAGE.
February 16, 1891.)
Goods were shipped UDder an ordinary contract of affreightment, there being no bill of lading, and no special agreement to pay demurrage. On reaching port, the master refused to deliver the goods until he had been paid the freight, and also a charge for demurrage, which, even according to his own figures, was excessive. The after tendering a larger sum than what was due, notified the master that he abandoned the goods to the vessel. that the consignee was entitled to recover from the vessel the value of the goods, less the lawful charges, since the d"lay was caused by the wrongful acts of the master in making an extortionate demand, and in not storiniuthe ioods in iii warehouse instead of keepini them 011 board.