Hercules Co. v. The Brigadier General Absolom Baird

• Decision Date: 17 June 1954
• Docket Number: No. 11208.,11208.
• Citation: 214 F.2d 66
• Parties: HERCULES CO., Inc. v. The BRIGADIER GENERAL ABSOLOM BAIRD et al.
• Court: U.S. Court of Appeals — Third Circuit

214 F.2d 66 (1954)

HERCULES CO., Inc. v. The BRIGADIER GENERAL ABSOLOM BAIRD et al.

No. 11208.

United States Court of Appeals Third Circuit.

Argued January 19, 1954.

Decided June 17, 1954.

Logan Cresap, New York City, for appellant.

Vincent A. Catoggio, New York City (Purdy, Lamb & Catoggio, New York City, on the brief), for appellee.

Before McLAUGHLIN, KALODNER and STALEY, Circuit Judges.

STALEY, Circuit Judge.

This is a libel in rem seeking to assert a maritime lien for repairs furnished to the Steamship Brigadier General Absolom Baird. There were two defense theories, one jurisdictional and the other going to the merits. The district court decided both in favor of the claimant and dismissed the libel, and the libellant appeals.

The services for which the lien is sought were furnished at two separate times, the first in the spring and summer of 1950 and the second in the spring of 1951. It is not denied that the labor and services were performed nor that the amount claimed is reasonable.

In order that claimant's jurisdictional point may be understood, it is necessary to set out the facts showing the physical condition of the Baird. She was a steel, steam screw vessel, built in 1919 and was over 690 gross tons, 161 feet in length, 32 feet abeam, with a draft of about 13 feet. In 1946 she had been sold by the United States Maritime Commission to the United Boat Service Corporation, her record owner when the 1950 services were performed. In 1950 she had no Coast Guard certificate of inspection, and there is no evidence as to whether she was registered or enrolled. Libellant's services were performed while she was at the Todd Shipyard in Hoboken, New Jersey. The purpose of the services was to help prepare the Baird for a sealing voyage off the coast of Labrador. The 1950 services were begun on April 3 and continued, with some interruptions, until July 17 when, the work not having progressed sufficiently to enable her to depart for the 1950 sealing season, it was discontinued and she was towed to anchorage off City Island in the East River. There she remained until some time before March 19, 1951, when she was towed back to the Todd Shipyard where libellant again furnished services preparatory to the Baird's sailing for the 1951 sealing season. She actually sailed on that voyage in April of 1951. The only findings of fact made by the district court relating to the Baird's condition were that she was of more than 200 tons, that she was towed to and from Hoboken, and that "At the time the * * * 1950 labor and services were furnished to the vessel she was not in commission and she was unable to sail." The conclusion of law apparently premised on this finding was that "The vessel was a `dead' ship and no maritime lien arose * * *." This conclusion of law seems to indicate that the district court treated the "dead ship" proposition as a defense on the merits. As we understand it, however, it is a jurisdictional matter and will be so treated here.¹ The concept is that when the 1950 services were performed, the Baird was a dead ship, i. e., not a maritime object, and, therefore, there was no admiralty jurisdiction. The legal theory underlying this contention is that, while admiralty jurisdiction in tort depends upon locality,² admiralty jurisdiction in contract depends upon the presence of a maritime flavor in the subject matter of the contract.³ Therefore, if the subject matter of the contract were a nonmaritime object, there would be no admiralty jurisdiction.

Claimant's objection assumes that the Baird was a "ship," the point being made that she was "dead," that is, withdrawn from navigation and marine commerce. It is a fact that in 1950 the Baird was not properly documented, since she had no certificate of inspection from the Coast Guard, without which she could not have been cleared to sail even if able, which she was not. We think, however, that the presence or absence of complete documentation, important as it may be for many other purposes, does not of itself determine whether a floating object is or is not a vessel subject to admiralty jurisdiction. Nor is it necessarily fatal that in 1950 and a part of 1951 the Baird was unable to navigate under her own power. An essential element of claimant's objection is a finding that the Baird had been withdrawn from marine commerce and navigation. There is no such finding here, and we think this record could not support one if it had been made. Indeed, the efforts of everyone concerned were bent upon readying her for a sealing voyage. That is a sufficient devotion to marine commerce to make her a vessel.⁴ She need not actually hoist anchor on beginning that voyage to become a vessel. Once given a completed vessel, we think that the purpose and business of the craft or use for which she is intended when the repairs are completed are the factors which determine whether there is admiralty jurisdiction.⁵ Here libellant's services were ordered and furnished to prepare the Baird to go sealing, an obvious maritime venture. When the services were performed, she was tight and navigable, at least to the extent that she could be towed. In 1950 libellant's employees worked on the boat falls, chipped and scaled the side, chipped, scaled, and painted the superstructure, foremast, aftermast, painted the foredecks and forecastlehead, and cleaned and painted the holds. This is the work ordinarily done by a vessel's crew when preparing for a voyage. In 1951 libellant's men worked as firemen, keeping up steam, at first merely to run the bilge pumps but later to turn over the main engines preparatory to sailing. This is work customarily done aboard a live vessel. If the Baird ever was withdrawn from navigation and maritime commerce, she was returned to those pursuits when her owners and would-be owners began putting her in shape for an intended voyage, which in fact took place in April of 1951, libellant's services being largely responsible for her ability to depart on that voyage. If the craft involved in North Pacific Steamship Co. v. Hall Bros. Co., 1919, 249 U.S. 119, 39 S.Ct. 221, 63 L.Ed. 510, was a vessel, we have little doubt that the Baird was. There the Yucatan was moored at dock in Puget Sound and was in need of very extensive repairs. She had been wrecked and submerged for a long time. Ice floes had torn away her upper decks, and some bottom plates required replacing, She was under charter for an Alaskan voyage, to be commenced as soon as the necessary repairs were completed. The libellant furnished those repairs, and the Supreme Court affirmed the assertion of a maritime lien on the vessel.

We feel the same hesitancy here to extend the scope of the asserted "dead" ship theory that the Supreme Court felt in New Bedford Dry Dock Co. v. Purdy, 1922, 258 U.S. 96, 42 S.Ct. 243, 66 L.Ed. 482, where it refused to enlarge the scope of the rule which holds new construction to be nonmaritime.⁶ We hold that in 1950 and 1951 the Baird was a vessel and, therefore, a contract to repair and ready her for a voyage is sufficiently maritime to support the jurisdiction of a court of admiralty.⁷

We turn now to the merits, setting out some additional facts necessary to a disposition of the question.

Libellant first sent its men aboard the Baird pursuant to the order of one Gunderman, who said that he was the vessel's chief officer. From then on in 1950, the work was done under his direction. Gunderman was taking his orders from a W. Ellison. A receipt for each day's work in 1950 was signed by Gunderman as chief officer. A statement covering the 1950 work was marked "accepted" and signed by W. Ellison for the Chester Import Company. At the time the 1950 services were performed, United Boat Service Corporation was the Baird's record owner, and a Captain Grening, testifying for claimant, stated that at that time he and United Boat Service were the sole owners, although his name does not appear on the abstract of title. Grening lived aboard the Baird during the time the 1950 services were performed and observed their progress. He was a master mariner and was addressed as captain aboard the ship. He said that he not only was a part owner himself but was on board to represent the other owner, United Boat Service. It appears that Chester Import Company had or was arranging to purchase the Baird, and Grening said that Ellison was the representative of Chester Import, that he appointed the officers of the vessel, gave orders for work to be furnished her, and that the vessel was intrusted in that area to himself and Ellison. Grening stated that the agreement to purchase bound Ellison (Chester Import) to pay for work done on the Baird and that Ellison had no authority to bind the vessel. Finally, he said that no one representing libellant ever inquired of him as to Ellison's authority to pledge the vessel's credit and that, if anyone had asked, he would have informed him that Ellison had no such authority. It is upon this testimony that claimant bases its contention that libellant acquired no maritime lien for the 1950 work because Ellison, who ordered the services, was without authority to subject the Baird to a repairman's lien and that such asserted lack of authority could readily have been discovered by libellant, who made no effort to do so. The pertinent statutory provisions are printed in the footnote.⁸

The district court agreed with claimant's position. It found as to the 1950 phase of the case that those who ordered the services were without authority to pledge the credit of the vessel, that libellant made no investigation as to the authority of those who requested its services, and that casual inquiry would have disclosed that Ellison did not own the vessel and had no authority to bind her.

But Grening, himself an owner of the vessel, and Ellison, a prospective purchaser, were intrusted with the vessel, and Section 972 of the Ship Mortgage Act says that any person to whom the...