None of the other cases which the trustees have referred to us denied a maritime lien because the ship was not actively engaged in navigation and commerce (i.e. it was a dead ship). It would appear that the dead ship doctrine which had some efficacy in the Second Circuit ( The Henrick Hudson, 11 Fed. Cas. No. 6,355, p. 1085 (S.D.N.Y. 1869)) is not recognized in either the Fifth Circuit which is the situs of the ship, or the Third Circuit in which this action was commenced.
The Poznan presented the Supreme Court with an opportunity to rule on the dead ship doctrine. By allowing the claim, it rejected this doctrine. As Judge Staley observed in The Hercules, 214 F.2d 66, footnote 1 at 68, "if the structure were a dead ship, there would be no admiralty jurisdiction". Since The Poznan was a libel in admiralty,
the Supreme Court, in reaching the merits, acknowledged that it had jurisdiction. In so doing, it impliedly rejected the dead ship doctrine.
Rather than having the existence of a lien depend on the ethereal quality of the owners' intent to use the ship in commerce and navigation, more uniform results are likely to be achieved, continuing along the line of the "showboat" cases. The Ark, 17 F.2d 446 (S.D. Fla. 1926); The Showboat, 47 F.2d 286 (D.C. Mass. 1930); The Club Royale, 13 F. Supp. 123 (D.C.N.J. 1936) in which the existence of a lien is dependent upon the degree of permanence of the attachment of the structure to the land.
For that reason, we determined that the ELIZABETH was a vessel to which a maritime lien would attach.
Next we must determine whether the bases of these claims are of a type which would support a maritime lien. Claim no. 49, filed by Dade Dry Dock Corporation, in the amount of $1,326.11 is for dry dock services. Title 46 U.S.C. § 971 sets forth "use of dry dock" as a type of service giving rise to a lien. This claim clearly should be accorded lien status.
Claim no. 82, filed by Belcher Oil Company, in the amount of $8,599.38 was for fuel and lubricating oil. Such products are "supplies", which the statute enumerates as giving rise to a lien. It does not matter that the fuel supplied to a vessel is used for heating rather than navigation. The Jack-O'-Lantern, 282 F. 899 (D.C. Mass. 1922). Claim no. 82, therefore, should also be accorded lien status.
Claim no. 50, filed by Cleaning Company of America, in the amount of $32,627.75 was for cleaners who scrubbed the decks, polished the brass and cleaned the corridors through which visitors passed. Such services are not enumerated in the statute, and if they are to be accorded lien status, must come under the category of "other necessaries". Gilmore and Black have expressed the modern concept of "other necessaries" as follows: "The present state of the law is not far from the point where any service which is convenient, useful, and at times necessary, may qualify as a lien under the Act." (§ 9-34). The court of appeals for the third circuit in The Penn, 273 F. 990 (3d Cir. 1921) expressed the concept of necessaries as follows: "The test of what is necessary is what is reasonably needed in the ship's business." In other jurisdictions, claims for fumigating have been held to be included as necessaries. The American, 1931 AMC 197 (D.C. Mass. 1930) Cf. The Susquehanna, 3 F.2d 1014 (D.C. Mass. 1923); The Ascutney, 278 F. 991 (D.C. Md. 1921). It is difficult to make a valid distinction between fumigating and the less vigorous forms of cleaning rendered by the claimants which would indicate that cleaning services are not "reasonably needed in the ship's business." Therefore claim no. 50 is entitled to lien status.
Claims no. 37, filed by Manpower, Inc., in the amount of $5,714.82, and no. 38, filed by Kelly Services, Inc., in the amount of $785.25, are for clerical services and maintenance work. These services were essentially those performed by the crew of the vessel if it had had its full complement. Such services would be reasonably needed in the operation of the vessel ELIZABETH as a maritime tourist attraction. Therefore these claims should also be accorded lien status.
The claimants in their brief opposing the trustees' petition for review request this court to allow them interest on their claims. The bankruptcy judge has denied this claim for interest. No petition for review of this denial was filed by the claimants as required by § 39(c) of the Bankruptcy Act (11 U.S.C. § 67(c)). Therefore the claimants' request for interest on their claims is denied. In re: Middletown Packing Co., Inc., 199 F. Supp. 657 (D.C. Conn. 1961) Cf. Morley Construction Co. v. Maryland Casualty Co., 300 U.S. 185, 57 S. Ct. 325, 81 L. Ed. 593 (1937).
For the foregoing reasons the trustees' petition for review is denied and the order of the bankruptcy judge is confirmed.