New Bedford Dry Dock Company v. Purdy/Opinion of the Court

Claiming a lien under Act of Congress approved June 23, 1910 (chapter 373, 36 Stat. 604; Comp. St. §§ 7783-7787), and seeking to recover for work done and supplies furnished in pursuance of a contract with the owner of the Jack-O-Lantern, appellant libeled the vessel. The libel was dismissed for lack of jurisdiction. If the agreement between the parties is maritime, there was jurisdiction, otherwise there was none.

The facts are not in dispute. They were stated as follows by the District Court:

'The Jack-O-Lantern was originally a car float of the usual     type, something over 200 feet long, with neither motive power      nor steering gear, and having two lines of track on her      single deck. The claimant bought her and proceeded to convert     her into a steamer to be used for amusement purposes. The     tracks were removed, the deck relaid to make a dancing floor,      a large house, or superstructure, was built, inclosing most      of the deck, and containing a dance hall, rooms, balconies,      etc. Steering apparatus and a steam plant of the propeller      type, for propulsion, were also installed.

'For the purpose of carrying out these changes the contract     now before the court was made between the claimant and the      libelant. It covers, generally speaking, all the woodwork     involved in the changes above outlined. The libelant did not install the power plant, but it did prepare     the vessel for it. The scow was towed to the libelant's yard     for the work to be done. The engine and boilers were there     installed. As they were not yet in working condition when the     vessel left the libelant's yard she was towed away.' 266 Fed. 562.

Upon these facts it held that the contract was not one for repairs or supplies, but for original construction, and therefore nonmaritime within the doctrine of Thames Towboat Co. v. The Francis McDonald, 254 U.S. 242, 41 Sup. Ct. 65, 65 L. Ed. 245:

'In rebuilding operations the test is whether the identity of     the vessel has continued, or has been extinguished.' 'The      matter turns, as I view it, upon a question of fact; and upon      the facts stated I think it clear that the identity of the      car float which was delivered to the libelant was completely      lost by the conversion into an amusement steamer under the      contract in suit. It is true that the hull is substantially     unchanged; but mere identity of hull is not sufficient to      preserve the identity of the vessel.' 'The Jack-O-Lantern,      with her dance hall, rooms, and power plant, self-propelled      and able to maneuvre, is an essentially different vessel from      the car float, which furnished the hull.'

In support of this conclusion McMaster v. One Dredge (D. C.) 95 Fed. 832, and The Dredge A (D. C.) 217 Fed. 617, 629, 630, were cited.

It is not always easy to determine what constitutes repairs as opposed to original construction. A contract for the former is maritime; if for the latter, it is not. We are not disposed to enlarge the compass of the rule approved in Thames Towboat Co. v. The Francis McDonald, under which contracts for the construction of entirely new ships are classed as nonmaritime, or to apply it to agreements of uncertain intendment-reasonable doubts concerning the latter should be resolved in favor of the admiralty jurisdiction. Nor do we think that in cases like the instant one any refined distinction should be made between reconstruction and repairs-the latter word as used in the statute has a broad meaning.

As pointed out in Piedmont Coal Co. v. Seaboard Fisheries Co., 254 U.S. 1, 11, 12, 41 Sup. Ct. 1, 4 (65 L. Ed. 97), the Act of June 23, 1910, makes 'no change in the general principles of the [present] law of maritime liens, but merely substitutes a single statute for the conflicting state statutes.'

This court has not undertaken and will not now essay to announce rigid definitions of repairs and new construction; but we do not accept the suggestion that the two things can be accurately differentiated by consideration of the ultimate use to which the vessel is to be devoted. The view expressed by Judge Hughes in United States v. The Grace Meade, Fed. Cas. No. 15,243, is both sound and helpful:

'And generally, it may be held as a principle, that, where     the keel, stem, and stern posts and ribs of an old vessel,      without being broken up and forming an intact frame, are      built upon as a skeleton, the case is one of an old vessel      rebuilt, and not of a new vessel. Indeed, without regard to     the particular parts re-used, if any considerable part of the      hull and skeleton of an old vessel in its intact condition,      without being broken up, is built upon, the law holds that in      such a case it is the old vessel rebuilt, and not a new      vessel. But where no piece of the timber of an old vessel is     used without being first dislocated and then replaced, where      no set of timbers are left together intact in their original      positions, but all the timbers are severally taken out,      refitted, and then reset, there we have a very different case      That is a case of a vessel rebuilt.'

There was jurisdiction in the court below to determine and enforce the rights of the parties. Its judgment to the contrary must be reversed and the cause remanded for further proceedings in conformity with this opinion.