THIS Contract may be whatever the parties to it choose to make it. Thus, one who desires to own a ship, may propose to supply the builder with all requisite materials, the builder to do for him all the requisite labor. The ship would then never be the builder's, but would from the beginning belong to him for whom it is built. Ships are not however often built in this way. The builder usually constructs the vessel for one of four purposes. Either to supply an order, or to execute a contract, which may be regarded as substantially the same thing, or to sell it to some purchaser who may desire to buy it, or to own it himself. (x)

One important question has arisen about which the cases are not reconcilable. If a ship be built on a building contract, and the price is to be paid by instalments, does each instalment when paid purchase the fabric as it then exists, passing the property absolutely to the purchaser, subject only to the lien which the builder has for the purposes of finishing the ship?

The cases on this subject were in much conflict. In the earlier English cases much reference is made to provisions in the English statutes and usages as to builders' certificates and the grand bill of sale, which do not exist in our own. We consider, however, that

(x) A ship becomes such when she is launched, and her keel touches the water. She then acquires a personality of her own, enabling her to sue and be sued apart from her owners. While upon the stocks, she is a land structure like a house, and subject only to mechanics' liens created and enforced under State laws. If, in the process of launching, she escapes from control and injures another vessel, she is liable to a suit in rem for damages. Tucker v.

Alexandroff, 183 U. S. 424, 438, 22 S. Ct. 195, 46 L. Ed. 264; Workman v. New York, 179 U. S. 552, 586, 21 S. Ct. 212, 45 L. Ed. 314. In England the ship is not responsible in admiralty where the owner would not be at common law, but this is not the American rule. Homer Ramsdell Transp. Co. v. La Compagnie Générale Transatlantique, 182 U. S. 406, 413, 21 S. Ct. 831, 45 L. Ed. 1155.

the law is now well settled, especially in this country * 259 and by recent cases. If it be the intention of the parties that the builder should sell and the purchaser buy the ship before it is completed, and at different stages of its progress, and a bargain is made sufficiently expressive of this intention, there is no reason whatever why the law should not enforce such a bargain. But no such bargain would be implied from the mere fact that payment is to be made by instalments, whether they are graduated merely on time, or on the state or condition or progress of the ship. Nor would this implication arise from, or be greatly aided by the employment by the purchaser of a superintendent. These facts might assist in identifying the structure, or sustaining an action for a breach of the contract; and they might bear on the amount of damages. But they would not be sufficient to prove an actual sale and transfer of the property by the payment of an instalment, so that after such payment, if the property were lost or destroyed, it would be the loss of the purchaser. (a) (x)

At the same time, it appears to be decided, that payment of instalments imposes upon the builder an obligation to finish and deliver under his contract the identical vessel. (b)

The original bill of sale by which the builder transfers the ship to the first purchaser, whether built by contract or otherwise, is called in England the Grand Bill of sale, (c) and is distinguished

(a) Wood v. Bell, 5 Ellis & B. 772, 34 Eng. L. & Eq. 178, affirmed in the Exchequer Chamber, 6 Ellis & B. 355, 36 Eng. L. & Eq. 148; Baker v. Gray, 17 C. B. 462, 34 Eng. L. & Eq. 387; Woods v. Russell, 5 B. & Ald. 942; Battersby v. Gale, cited 4 A. & E. 458; Atkinson v. Bell, 8 B. & C. 277, 282; Clarke v. Spence, 4 A. & E. 448; Laidler v. Burlinson, 2 M. & W. 602; Andrews v. Durant, 1 Kern. 35; Merritt v. Johnson, 7 Johns. 473; Johnson v. Hunt, 11 Wend. 135; Moody v. Brown, 34 Maine, 107; Clarkson v. Stevens, 106 U. S. 505; Wright v. Tetlow, 99 Mass. 397; Elliott v. Edwards, 35 N.J. L. 265; 36 N. J. L. 449; Lang's Appeal, 81 Penn. St. 18. See, however, Sandford v. The Wiggins Ferry Co., 27 Ind. 522; Bank of Upper Canada v. Killaly, 21 Up. Can. Q. B. 9. A conveyance of the keel after

(x) It is competent for the parties to contract that the ship, or any other specific article shall become the purchaser's property when it has reached a certain stage it is a matter of construction at what stage the property is to pass, and one of fact whether that stage has been reached.

it is laid, vests the property of it in the vendee, and draws after it all subsequent additions. Glover v. Austin, 6 Pick. 209. See also Sumner v. Hamlet, 12 Pick. 76, 82.

An agreement to pledge a vessel building to cover certain advances, and that the pledgee may purchase her at a certain rate, is neither a sale nor a mortgage or pledge, and transfers no property in the vessel, although the advances are many. Bonsey v. Amee, 8 Pick. 236. See Reid v. Fairbanks, 13 C. B. 692, 24 Eng. L. & Eq. 220. Where the property passes before the completion of the ship, the builder has a common-law lien, a right of possession to finish her, and earn the full price. Woods v. Russell, supra. (b) Andrews". Durant, 1 Kern, 35. (c) Abbott on Shipping, 3. In England the grand bill of sale is necessary to

Seath v. Moore, 11 A. C. 350. If the written contract for building a vessel is not complete, and is silent as to when the title is to pass, parol evidence may be received as to what the parties intended. The Poconoket, 70 Fed. 640, 17 C. C. A. 309, 67 Fed. 262.

by this name from subsequent bills of sale,

made by the pur

chaser or his transferees; but we have no such distinction in this

country. (d)

*The builder should deliver his certificate to the first owner, and the owner give it to the collector, as required by the Statute of Registration. (e)

* 260

Formerly, builders of ships, as well as those who repaired, equipped, or supplied them, were called material men; (f) and this somewhat peculiar phrase has been in use as a term of the law-merchant for some centuries. Now, however, the phrase is confined, perhaps in law, and certainly in practice, to those who repair the ship, or furnish her with supplies, or do any work about her necessary for her seaworthiness and complete equipment. (g) By the maritime law of Europe and by the Roman civil law, material men have a lien on any ship which they repair or supply. (h) The reason of this is obvious. Ships are often at a distance from their owners when they need and have these repairs or supplies, and therefore persons who furnish them should have a demand against the ship itself, without being obliged to recur to the owners. There is also another reason; and it is that ships may be owned by persons who are unknown to the material man. For these two reasons, the civil law and the general maritime law give to material men this lien upon all ships, without any distinction between foreign and domestic vessels. In this country, however, it would seem that the first reason only has any influence; for with us the maritime lien is limited to foreign vessels. (i) But in this respect, as in the

the transfer of a ship at sea. Atkinson v. Maling, 2 T. R. 462; Gordon v. East India Co., 7 T. R. 228, 234.

(d) Portland Bank v. Stacey, 4 Mass. 661; Wheeler v. Sumner, 4 Mason, 183; Morgan v. Biddle, 1 Yeates, 3.

(e) Act of 1792, c. 1, § 8, 1 U. S. Stats. at Large, 291.

(f) Jacobsen's Sea Laws, 357, note; Sir Leoline Jenkins, as cited by Lord Stowell in The Neptune, 3 Hagg. Adm.

142.

(g) Thus, it has been held, that no lien

exists by the maritime law for the building of a vessel. People's Ferry Co. v. Beers, 20 How. 393; Roach v. Chapman, 22 How. 129. See The Richard Busteed, Sprague, 441, for an able decision in favor of the jurisdiction in such a case.

(h) Dig. 14, 1, 1; Ord. de la Mar. liv. 1, tit. 14, art. 16; The General Smith, 4 Wheat. 438; The Nestor, 1 Sumner, 73; The Young Mechanic, 2 Curtis, C. C. 404.

(i) In the case of a domestic vessel, by the maritime law as now settled in this

1 Such a lien may exist on dredges and scows, The Count De Lesseps, 17 Fed. 460; The Alabama, 19 Fed. 544; The Pioneer, 30 Fed. 206; or on a ferry-boat, Phoenix Iron Co. v. The Hopatcong, 127 N. Y. 206. But not on a dry dock, Cope v. Vallette Dry Dock Co., 10 Fed. 142, 16 Fed. 924 ; nor on a floating platform, Ruddiman v. Scow Platform, 38 Fed. 158. — W.

general application of the law-merchant, our States are considered as foreign to each other. (j) (x)

*261

*Persons employed about a vessel may have in fact either of three liens, or in some instances all of them, which though quite distinct in their origin, and somewhat so in their operation, are sometimes confounded together. One of these is the common-law lien of a bailee. The second is the maritime lien of material men. And the third is the statutory lien of workmen and mechanics.

By the first, a builder of a ship belonging to another person, or any person making repairs upon a ship, if for this purpose he has possession of the ship, has a common-law lien upon her for his charges, and may retain his possession to enforce this lien. And this lien may be enforced in admiralty, so far as repairs are con

country, the lien depends on possession. The Generai Smith, 4 Wheat. 438; The St. Jago de Cuba, 9 id. 409. But in the case of foreign ships, the lien does not depend on possession. The Jerusalem, 2 Gallis. 345; Zane v. The Brig President, 4 Wash. C. C. 453.

(j) Pratt v. Reed, 19 How. 359; The Brig Nestor, 1 Sumner, 73; The Huron, 29 Fed. Rep. 183. This doctrine grew out of a dictum in The General Smith, 4 Wheat. 438, but it may now be considered as settled. See The Edith, 94 U. S. 518; The

(c) A lien for repairs in the home port, though not given by the maritime law, may be created by a State statute and made enforceable in a State court. Atlantic Works v. The Tug Glide, 157 Mass. 525, 33 N. E. 163, 34 Am. St. Rep. 305; Globe Iron Works Co. v. The John B. Ketcham, 2d, 100 Mich. 583, 59 N. W. 247; The Electron, 21 C. C. A. 21 and note; The John S. Parsons, 110 Fed. 994.

State liens are enforced in the admiralty only when the structure is subject to its jurisdiction, and the mere fact that the structure, which may be a house, floats upon the water does not make it a ship or vessel. Pile Driver E. O. A., 69 Fed. 1005; In re Hydraulic Steam Dredge, No. 1, 80 Fed. 545, 556. State legislation cannot interfere with the admiralty system. The Corsair, 145 U. S. 335, 12 S. Ct. 949, 36 L. Ed. 727; The North Cambria, 40 Fed. 655. But when a right maritime in its nature has been created by State law, the Federal courts of admiralty may enforce that right according to the local rules of procedure. The H. E. Wil.

Francis, 21 Fed. Rep. 715; The Thomas Fletcher, 24 Fed. Rep. 375. In Beach r. Sch. Native, U. S. D. C., N. Y., it is said, on the authority of a remark in Pratt v. Reed, 19 How. 359, that as the master would have no power to give a bottomry bond where the vessel belonged to an adjoining State, and as the necessity which authorizes the giving a bond differs from the necessity authorizing the imposition of a lien only in respect to the maritime interests, no lien could be imposed in such

a case.

lard, 52 Fed. 387; The City of Norwalk, 55 Fed. 98; The Lida Fowler, 113 Fed. 605.

A steam-dredge, which is towed, and does not propel itself, is a vessel, within the jurisdiction of the Admiralty. Saylor v. Taylor, 77 Fed. 476. So is a raft of logs, manned for market and propelled by oars, sails, or poles. Seabrook v. Raft of Railroad Cross-Ties, 40 Fed. 596; see The Annie C. Cooper, 48 Fed. 703; Southport v. Morriss, [1893] 1 Q. B. 359; Flandreau v. Elsworth, 29 N. Y. S. 694. An iron gas-retort, though floating and boat-shaped, is not subject to salvage claims. Wells v. Gas Float Whitton, [1897] A. C. 337. So of a floating dry-dock. Cope v. Vallette Dry Dock Co., 119 U. S. 625, 7 S. Ct. 336, 30 L. Ed. 501.

The crew of a ferry-boat running across a river have a maritime lien. The St. Louis, 48 Fed. 312. So a bath-house, not built for permanent mooring, but erected upon boats and intended for navigation and transportation, is within the admiralty jurisdiction. The Public Bath No. 13, 61 Fed. 692.

cerned. (k) But if possession of the ship is parted with, this lien is lost. (1)

The maritime lien of material men is widely extended in admiralty, and our admiralty courts claim and exercise a full jurisdiction over all claims and questions arising under this lien. They require, however, evidence that the supplies and repairs were obtained, and that they could not have been obtained upon the personal responsibilities of the owners, without security on the vessel; (m) although it is not necessary that the vessel should in terms be made liable for the payment. (n) Hence, although the vessel is in a foreign port, if the owners are present or have an agent present, ready to advance or pay for whatever may be necessary, there is no lien. (o) And although the general rule confines this lien to a foreign vessel, yet if a vessel is in her home port, and is there held out by her owners as a foreign vessel, material men who have repaired or supplied her * 262 in that belief, will have a lien which admiralty will enforce. (p) The residence of the owners of the vessel, and not that of the furnisher, is to be looked to in determining whether the vessel is a domestic one or not. (x) Therefore if the vessel is in her home port, no lien exists for the supplies there furnished, although the furnisher resides and does business in another State. (9)

The third or statutory lien is of course defined and determined by the statutes of each State, and to these statutes we must refer. Some of the more important results of adjudications determined under them are as follows:

In Maine, the lien attaches to the vessel while building, and

(k) The General Smith, 4 Wheat. 438, per Story, J.; The Sch. Marion, 1 Story, 68; Peyroux v. Howard, 7 Pet. 324. If material men who repair a vessel retain possession of her and claim a common-law lien for the repairs made, they cannot add to this charge the expense of keeping the vessel, since they keep her for their own benefit. Somes v. British Empire Shipping Co., H. of Lords, 2 Law Times N. s.

547.

(7) See cases supra, note (i).

(m) Pratt v. Reed, 19 How. 359; The Sarah Starr, Sprague, 453. See Beach v.

(x) Woodall v. Dempsey, 100 Fed. 653. The lien may be created by express contract if the owner's financial standing is doubted; a contract for supplies to a vessel may be maritime and give rise to a

Sch. Native, U. S. D. C., N. Y., cited supra, note (j).

(n) The Sea Lark, Sprague, 571; The Hiram R. Dixon, 33 Fed. Rep. 297. See also The Comfort, 25 Fed. Rep. 158, 159; 32 Fed. Rep. 327: The Esteban De Antunano, 31 Fed. Rep. 920.

(0) Boreal v. The Golden Rose, Bee, 131. See also Berwind v. Schultz, 25 Fed. Rep. 912.

(p) The St. Jago de Cuba, 9 Wheat. 409. See also Musson v. Fales, 16 Mass. 332.

(9) The Eliza Jane, Sprague, 152.

lien, though the vessel is not yet ready for her voyage. The Marion S. Harris, 85 Fed. 798, 29 C. C. A. 428; Cuddy v. Clement, 115 Fed. 301.