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IRA S. BUSHEY & SONS v. THE FISHING VESSEL OCEAN S

July 12, 1957

IRA S. BUSHEY & SONS, Inc., Libelant,
v.
THE Fishing Vessel OCEAN SPRAY, her boilers, engines, tackle, apparel and furniture, etc., and Ocean Fisheries Co., Inc., Respondent-Claimant



The opinion of the court was delivered by: BYERS

There are now before the Court, exceptions by both libelant and respondent to the Report of the Special Commissioner, fixing the amount due to the former in connection with the repairs made by it to the fishing vessel Ocean Spray, which were the subject of the libel filed in this Court on April 25, 1955.

The Commissioner's Report was filed May 27, 1957 and contains a full and complete discussion of all matters comprehended in the Order of Reference to him, dated July 30, 1955, which was in effect an interlocutory decree in favor of the libelant.

By reason of matters later to be referred to, the order directed the Commissioner

 'to ascertain the reasonable value and worth of the work and materials furnished by libelant in repairing the fishing vessel, Ocean Spray, and the amount due and owing from the claimant to the libelant, and if not due so to state and why * * *.'

 The circumstances above referred to, had to do with the matters alleged in affirmative defenses contained in the claimant's Amended Answer, which in effect sought to inject into the controversy an issue or issues involving alleged agreement or agreements for deferred payments in connection with the said repairs. Those matters were stricken for legal insufficiency, but the facts were developed very fully before the Special Commissioner.

 His report contains 24 findings which comprehensively set forth the history of the relationship between the parties to this litigation, and all cognate incidents which arose during the progress of the repairs; the Court is indebted to the Commissioner for thus depicting in detail a somewhat unusual situation.

 Upon conflicting testimony touching the nature of the repairs and the various items embraced, he has found that the reasonable value thereof was $ 31,447.50.

 In all, 87 items were presented to him, of which 8 were either disallowed or cancelled.

 The Commissioner's Report is presumptively correct (Supreme Court Admiralty Rule 43 1/2, 28 U.S.C.), and in obedience to the provisions thereof, has been reviewed by this Court, which finds no reason to modify or reject the figure so found, even though challenged by both sides.

 In addition to the exceptions filed by the claimant, the argument is made for it that the Court is without jurisdiction by reason of the assertion that the Ocean Spray was a dead ship at the time that the repairs were contracted for, which may now be urged to defeat the jurisdiction of the Court to adjudge the existence and dimensions of the lien asserted by libelant.

 No such plea was made in either the Answer or the Amended Answer, but since the issue is always deemed to be present, it will now be dealt with.

 The Ocean Spray was formerly a survey vessel owned by the United States Navy, and was acquired by the claimant's vendor. One French arranged to purchase the vessel to fit her out for service in the menhaden fishing trade, and it appears from libelant's brief (which claimant does not dispute), that before the necessary repairs had been completed, the vessel was enrolled and licensed for the trade.

 The evidence taken by the Commissioner demonstrates that the vessel was altered in many respects, but her hull and general structure were never rebuilt in the process; what was done was to make interior changes necessary to render her fit for the special service for which she was intended; it is of no consequence that she was not actively engaged in trade or commerce at the time of her acquisition by the claimant's vendor, or the said arrangement with French.

 See The Jack-O-Lantern, 258 U.S. 96, 42 S. Ct. 243, 66 L. Ed. 482; Hercules Co., Inc., v. The Brigadier General ...


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