The opinion of the court was delivered by: GORBEY
Before this court is the petition of the trustees in bankruptcy for review of an order by the bankruptcy judge dismissing the trustees' objections and allowing proofs of certain claims. The bankruptcy judge determined that certain creditors were entitled to a preference by reason of their maritime liens.
These liens arose under 46 U.S.C. § 971, for services rendered to the debtor in conjunction with businesses operated on board the ship ELIZABETH (formerly the RMS QUEEN ELIZABETH).
It is the trustees' position that since the ELIZABETH was withdrawn from commerce and navigation, it was a "dead ship", not subject to a maritime lien. They further argue that the services rendered by certain claimants were not "necessaries", which would give rise to a lien. For the reasons which follow, we reject these contentions and deny the petition for review.
"'The same transaction may be maritime in one case and not maritime in another. As emphasizing this distinction, there is the maxim that "a ship is made to plough the seas, and not to lie at the walls." Hence wharfage rendered to a ship while loading or unloading, or in her regular use as a freight-earning enterprise, is a maritime contract. On the other hand, wharfage to a ship laid up for the winter while waiting for the season to open is not maritime.'"
By allowing the claim, the Supreme Court (274 U.S. 117, 47 S. Ct. 482, 71 L. Ed. 955 (1927)) can hardly be said to have endorsed this reasoning. The Supreme Court, however, decided that the claim did not depend upon the existence of a maritime lien, but rather upon "the most elementary notion of justice", which required that services furnished upon the authority of an officer of the court, for the common benefit of those interested in a fund administered by the court, should be paid for from that fund. The Poznan cases do not establish the dead ship doctrine.
Next, the trustees urge that Hercules Co., Inc. v. The Brig. Gen. Absolom Baird, 214 F.2d 66 (3d Cir. 1954) is controlling. The district court in Hercules denied a maritime lien on the Baird, since it was out of service without a certificate of inspection from the Coast Guard. The district court's conclusion of law was apparently premised on its finding that the vessel was a dead ship on which no maritime lien arose. Again, reversal by the court of appeals, which allowed the lien, does more to refute the dead ship doctrine than to advance it. Specifically that court stated:
"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."
The next case which the trustees urge in support of their proposition is J.C. Penney-Gwinn Corp. v. McArdle et al., 27 F.2d 324 (5th Cir. 1928), cert. denied, 278 U.S. 632, 49 S. Ct. 31, 70 L. Ed. 550. In this case, the court of appeals denied a lien to a dredge engaged in pumping sand from the bottom of the bay to a tract of land for landfill purposes. In denying the lien, the court stated: "It is essential in order to maintain an admiralty lien on a vessel for supplies or advances, that she be at the time engaged in a maritime venture. It is clear that such is not the case here." That same court, however, in Miami River Boat Yard, Inc. v. 60-foot House Boat, Serial No. SC-40-2860-3-62, 390 F.2d 596 (5th Cir. 1968), reversed the district court which denied a maritime lien. In so doing, the court stated:
The court relied upon the houseboat status as a vessel in determining whether or not it was capable of being subjected to a maritime lien.
Next, the trustees rely on Hayford v. Doussony, et al., 32 F.2d 605 (5th Cir. 1929). In this case the United States gunboat "Marietta" was renamed "The Pirate Ship" and had been refitted as an amusement or dance barge and attached to a dock at the foot of Canal Street, in New Orleans. "The Pirate Ship" was secured at the dock, not like an ordinary ship, but with cables and clamps. The cables having 8 or 10 turns around clusters of piling. A permanent gangway was built ashore with a house over it, extending to the wharf, and the gangplank was secured to the hull with 7 or 8 one inch pins. Electric wires and water pipes connected the structure to the shore. In this instance, the court of appeals denied a maritime lien. In so doing, they relied upon Evansville and Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, 46 S. Ct. 379, 70 L. Ed. 805 (1926) and J.C. Penny-Gwinn Corp. v. McArdle, discussed supra.
The Evansville case concerned a wharfboat which sank, damaging the plaintiff's merchandise. At issue was not the existence of a maritime lien, but rather the admiralty limitation of liability. The Supreme Court ...