The opinion of the court was delivered by: BYERS
In this matter it is necessary to decide upon the efficacy of exceptive allegations to the libel of April 3, 1958, in a cause of 'supply, work, labor, services and materials furnished' by libelant to the tug Mars.
The vessel has been claimed by New London Towboat Co., although the owner named in the libel is Red Stack Towing Co., Inc.
Without inquiring into the legal status of the claimant, the court will assume for present purposes that it is presently the owner of the vessel, although the handwritten insertions in the exceptive allegations directed to this subject are informal to say the least.
The issue tendered is that the work concededly done upon the Mars was in the nature of reconstruction rather than repairs, whereby jurisdiction in rem must be denied, within the meaning of the applicable statute, Tit. 46 U.S.C.A. § 971.
The affidavit in support of the exceptive allegations was verified May 20, 1958, by one Charles F. Romano who does not identify himself other than to say that he is familiar 'with all the reconstruction work performed by the libelant in the within matter, and have been in continuous and intimate contact with all the phases of said work from its inception through all its concluding phases.'
The opposing affidavit by libelant's president mentions a person by the same name but without descriptive comment; hence the weight to be attached to the statements of Romano is less than self-evident.
Attached to the Romano affidavit is a carbon copy of a typed 'estimate' without date, furnished by libelant, listing 24 'jobs.'
The affidavits, pro and con, disclose the following essentials concerning the Mars:
She was a steam tug, built in 1916, and operated as recently as 1956 by the New York Central Railroad Company. Her steam engines had fallen into disrepair but could have been reconditioned.
By some undisclosed process she became the property of Red Stack Towing Co., Inc. and in September, 1957, was towed to the libelant's yard where repairs were contracted for by her owner, apparently as set forth in the said estimate; the work was completed in April of 1958 but was not paid for; of course it should be, and in my opinion the vessel was properly arrested, and should remain in the custody of the court, defacto or de jure, until the amount payable to libelant can be adjudicated.
Of the items listed in the estimate, all but two are clearly in the nature of repairs and nothing more; many of them are so designated.
The only two which are open to discussion are 5 (new propeller) and 10 and 11 (main engineroom foundation and floor).
Surely the first was not reconstruction but replacement of a missing part, since the steam engine had been removed, to admit of the installation of a diesel engine.
Whether the propeller had to be replaced for that reason, or because the old one was missing when the vessel was ...