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the decision was not determined by a consideration of costs of manufacture or their reimbursement nor by the requirements of the policies of the exporting country. It regarded the fact and effect of the remitted excise.

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Under Const. art. 3, § 2, extending judicial power of United States to all cases of admiralty jurisdiction, and legislation enacted to carry it Downs v. United States, 187 U. S. 496, 231 Stat. 73, 77; Rev. St. § 563 (8); Judicial Code into execution (Act Sept. 24, 1789, c. 20, § 9, Sup. Ct. 222, 47 L. Ed. 275, is a like example, § 24 (3) [Comp. St. § 991]), entire contract, conand direct and indirect bounties are illustrat- templating performance of service and furnished. As an instance of the former the amounting of necessary materials for repairs of steampaid upon the production of sugar under the act of Congress of October 1, 1890 (26 Stat. 617, c. 1244) is adduced, and also the "drawback" (the word of the statute is used) upon certain articles exported; as instances of the latter, that is, of indirect bounties, the remission of taxes upon the exportation of articles which are subject to a tax when sold or consumed in the country of their production is given, and, as another example, the laws permitting distillers of spirits to export the same without payment of an internal revenue tax or other burden.

We consider further discussion unnecessary
and the judgment of the Court of Customs
Appeals is

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ship to make her fit for Alaskan voyage, held within maritime jurisdiction, so that libel in personam against owner would lie, though repairs in which libelant was to furnish work and materials, and use of marine railway and other equipment, would have been under superintendence of owner.

Appeal from the District Court of the United States for the Northern District of California.

Libel by the Hall Bros. Marine Railway & Shipbuilding Company against the North Paand cross-libel, resulting in decree for the cific Steamship Company, which filed answer Shipbuilding Company and dismissal of the cross-libel; the Steamship Company filing motion to arrest and vacate the decree and to dismiss the cause for want of jurisdiction, which motion was denied, and the Steamship Company appeals. Decree affirmed.

Messrs. Jackson H. Ralston and William E. Richardson, both of Washington, D. C., for appellant.

Messrs. Warren Gregory, Allen L. Chickering, and George H. Whipple, all of San Francisco, Cal., for appellee.

*Mr. Justice PITNEY delivered the opinion of the Court.

This is a direct appeal under section 238, Judicial Code (Act March 3, 1911, 36 Stat. 1087, 1157, c. 231 [Comp. St. § 1215]), involving only the question whether the cause was within the admiralty jurisdiction of a District Court of the United States.

Both parties are corporations of the state of California. Appellee, which for conNeither in jurisdiction nor in method of pro-venience may be referred to as the "Shipcedure are the admiralty courts of the United States dependent alone upon the theory of implied hypothecation; it being established that in a civil cause of maritime origin, involving personal responsibility, libelant may proceed in personam, if respondent is within reach of



Contract for building ship or supplying materials for her construction is not a "maritime contract."

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Maritime Contract.]

building Company," filed its libel in personam against appellant, which we may call the "Steamship Company," to recover a balance claimed to be due for certain work and labor done, services rendered, and materials furnished in and about the repairing of the steamship Yucatan. The Steamship Company filed an answer denying material averments of the libel, and a cross-libel setting up a claim for damages for delay in the making of the repairs. The cause having been heard upon the pleadings and proofs, there was a decree for a recovery in favor of the Shipbuilding Company and a dismissal of the cross-libel. After this the Steamship Com

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


pany filed a motion to arrest and vacate the each working day thereafter, another rate; decree and to dismiss the cause for want of for vessel lying alongside the dock for rejurisdiction. The motion was submitted to pairs, no charge; for the running of air comthe court upon the pleadings, the proofs tak-pressors, a certain charge per hour; for the en upon the hearings of the merits, and some use and operation of other machines, cerslight additional proof. It was denied, and tain rates specified; and for materials supthe present appeal followed. plied, invoice prices and cost of freight to plant, with 10 per cent. additional.

The facts were these: In the month of May, 1911, the Steamship Company was the The vessel was docked and repaired in the owner of the American steamer Yucatan, manner contemplated by the agreement; she which then lay moored or tied up at *dock was brought to the shipyard on the 27th of upon the waters of Puget Sound at Seattle, May, and lay in the water alongside of the in the state of Washington. The vessel, which dock there until the 17th of June, during was of steel construction, was in need of which time upper decks and beams were put extensive repairs. She had been wrecked, in and other work of a character that could and had remained submerged for a long time; be done as well while she was afloat as in ice floes had torn away the upper decks, and the dry dock. On June 17th she was hauled some of her bottom plates also needed to out and remained in dry dock for about two be replaced. She was under charter for an weeks while her bottom plates were renewed. Alaskan voyage, to be commenced as soon as During the same period the propeller was rethe repairs could be completed. The Ship moved to permit of an examination of the building Company was the owner of a ship- tail shaft, and as the shaft showed deteriyard, marine railway, machine shops, and oration a new one was ordered to be supplied other equipment for building and repairing by a concern in San Francisco. Upon comships, situate upon and adjacent to the nav-pletion of the work upon the bottom plates, igable waters of Puget Sound at Winslow, in and on the 5th of July, the vessel was rethe same state, and had in its employ nu- turned to the water and lay there for about merous mechanics and laborers. Under these two weeks awaiting arrival of the new tail circumstances it was agreed between the shaft. When this arrived the vessel was parties that the Shipbuilding Company should again hauled out, the tail shaft and propeltow the vessel from where she lay to the ler were fitted, and the remaining repairs shipyard, haul her out as required upon the completed. Libelant's claim was for work marine railway to a position on dry land and labor performed, services rendered, and adjacent to the machine shop-the place be- materials furnished under the circumstances ing known as the "dry dock," and the haul- mentioned, and was based upon the agreed ing out being described as "docking"-and scale of compensation. should furnish mechanics, laborers, and foremen as needed, who were to work with other men already in the employ of the Steamship Company, and under its superintendence; and the Shipbuilding Company was also to furnish plates and other materials needed in the repairs, and the use of air compressors, steam hammers, riveters, boring machines, lathes, blacksmith forge, and the usual and necessary tools for the use of such machines.

The question in dispute is whether a claim thus grounded is the subject of admiralty jurisdiction; appellant's contention being that the contract, or at least an essential part of it, was for the use by appellant of libelant's marine railway, shipyard, equipment, and laborers in such manner as appellant might choose to employ them, and that it called for the performance of no maritime service by libelant.

At the time the contract was made, The Constitution (article 3, § 2) extends another vessel (the Archer) was upon the the judicial power of the United States to dry dock, and it was uncertain how soon she "all cases of admiralty and maritime juriscould be returned to the water. It was un- diction"; and the legislation enacted by Conderstood that the Yucatan should be hauled gress for carrying the power into execution out as soon as the Archer came off, should has been equally extensive. Act Sept. 24, remain upon the dry dock only during such 1789, c. 20, § 9, 1 Stat. 73, 77; Rev. Stat. § part of the work as required her to be in that 563 (8); Judicial Code, § 24 (3); 36 Stat. 1087, position, and at other times should lie in the 1091, c. 231 (Comp. St. § 991). In defining water alongside the plant. For the services the bounds of the civil jurisdiction, this to be performed and the materials and equip- court from an early day has rejected those ment to be furnished, the Shipbuilding Com- trammels that arose from the restrictive statpany was to receive stated prices, thus: For utes and judicial prohibitions of England. labor of all classes, the actual rate of wages Waring v. Clarke, 5 How. 441, 457, 459, 12 paid to the men plus 15 per cent.; for use of L. Ed. 226; Insurance Co. v. Dunham, 11 tug and scow, a stated sum per hour; for haul- Wall. 1, 24, 20 L. Ed. 90; The Lottawanna, ing out the vessel and the use of the marine 21 Wall. 558, 576, 22 L. Ed. 654. railway, a stated sum for the first 24 hours, and a specified rate per day for 6 "lay days" immediately following the hauling out; for

[1] It must be taken to be the settled law of this court that while the civil jurisdiction of the admiralty in matters of tort de


pends upon locality, whether the act was long controversy that began with The Genercommitted upon navigable waters, in mat- al Smith, 4 Wheat. 438, 4 L. Ed. 609, and endter of contract it depends upon the subject- ed with The Lottawanna, 21 Wall. 558, 579, matter, the nature and character of the con- 581, 22 L. Ed. 654. See The Glide, 167 U. S. tract, and that the English rule, which con- 606, 17 Sup. Ct. 930, 42 L. Ed. 296. ceded jurisdiction, with a few exceptions, only to contracts made and to be executed upon the navigable waters, is inadmissible; the true criterion being the nature of the contract, as to whether it have reference to maritime service or maritime transactions. People's Ferry Co. v. Beers, 20 How. 393, 401, 15 L. Ed. 961; Phila. W. & B. R. Co. v. Phila., etc., Steam Towboat Co., 23 How. 209, 215, 16 L. Ed. 433; Insurance Co. v. Dunham, 11 Wall. 1, 26, 20 L. Ed. 90; The Eclipse, 135 U. S. 599, 608, 10 Sup. Ct. 873, 34 L. Ed. 269.

In some of the earlier cases the influence of the English *rule may be discerned, in that the question whether a contract was to be performed upon the navigable waters was referred to as pertinent to the question whether

the contract was of a maritime nature (The

Thomas Jefferson, 10 Wheat. 428, 429, 6 L. Ed. 358; The Planter [Peyroux v. Howard] 7 Pet. 324, 341, 8 L. Ed. 700; Steamboat Orleans v. Phoebus, 11 Pet. 175, 183, 9 L. Ed. 677; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 392, 12 L. Ed. 465); but a careful examination of the opinions shows that the place of performance was dealt with as an evidential circumstance bearing with more or less weight upon the fundamental question of the nature of the contract. If they go beyond this, they must be deemed to be overruled by Insurance Co. v. Dunham, supra.

[2] Neither in jurisdiction nor in the method of procedure are our admiralty courts de pendent alone upon the theory of implied hypothecation; it being established that in a civil cause of maritime origin involving a personal responsibility the libelant may proceed in personam if the respondent is within reach of process. The General Smith, 4 Wheat. 438, 443, 4 L. Ed. 609; Manro v. Almeida, 10 Wheat. 473, 486, 6 L. Ed. 369; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 390, 12 L. Ed. 465; Morewood v. Enequist, 23 How. 491, 16 L. Ed. 516; The Belfast, 7 Wall. 624, 644, 19 L. Ed. 266; The Kalorama, 10 Wall. 204, 210, 19 L. Ed. 941; The Sabine, 101 U. S. 384, 386, 25 L. Ed. 982; In re Louisville Underwriters, 134 U. S. 488, 490, 10 Sup. Ct. 587, 33 L. Ed. 991; Workman v. New York City, 179 U. S. 552, 573, 21 Sup. Ct. 212, 45 L. Ed. 314; Ex parte Indiana Transportation Co., 244 U. S. 456, 37 Sup. Ct. 717, 61 L. Ed. 1253. That a materialman furnishing supplies or repairs may proceed in admiralty either against the ship in rem or against the master or owner in personam is recognized by the twelfth rule in admiralty (29 Sup. Ct. xi) adopted in its present form in the year 1872 (13 Wall. xiv, 20 L. Ed. 922) after a

[3] It is settled that a contract for building a ship or supply*ing materials for her construction is not a maritime contract. People's Ferry Co. v. Beers, 20 How. 393, 15 L. Ed. 961; Roach v. Chapman, 22 How. 129, 16 L. Ed. 294; Edwards v. Elliott, 21 Wall. 532, 553, 557, 22 L. Ed. 487; The Winnebago, 205 U. S. 354, 363, 27 Sup. Ct. 509, 51 L. Ed. 836. In the case in 20 How. 402, 15 L. Ed 961, the court said:

"So far from the contract being purely maritime, and touching rights and duties appertaining to navigation (on the ocean or elsewhere), it was a contract made on land, to be performed on land."

But the true basis for the distinction be

tween the construction and the repair of a ship, for purposes of the admiralty jurisdiction, is to be found in the fact that the structure does not become a ship, in the legal sense, until it is completed and launched.

"A ship is born when she is launched, and lives so long as her identity is preserved. Prior wood and iron-an ordinary piece of personal to her launching she is a mere congeries of property-as distinctly a land structure as a house, and subject * to mechanics' liens. created by state law enforceable in the state courts. In the baptism of launching she receives her name, and from the moment her keel touches the water she is transformed, and bea subject of admiralty jurisdiction." Tucker v. Alexandroff, 183 U. S. 424, 438, 22 Sup. Ct. 195, 46 L. Ed. 264.


In The Robert W. Parsons, 191 U. S. 17, 33, 34, 24 Sup. Ct. 8, 13 (48 L. Ed. 73), it was held that the admiralty jurisdiction extended to an action for repairs put upon a vessel while in dry dock; but the question whether this would apply to a vessel hauled up on land for repairs was reserved, the language of the court, by Mr. Justice Brown, being:

"Had the vessel been hauled up by ways upon the land and there repaired a different question might have been presented, as to which we express no opinion; but as all serious repairs upon the hulls of vessels are made in dry dock, the proposition that such repairs are made on land would practically deprive the admiralty Courts of their largest and most important jurisdiction in connection with repairs."

In The Steamship Jefferson, 215 U. S. 130, 30 Sup. Ct. 54, 54 L. Ed. 125, 17 Ann. Cas. 907, it was held that the admiralty jurisdiction extends to a claim for salvage service rendered to a vessel while undergoing repairs in a dry dock.

[4] What we have said sufficiently indicates the decision that should be reached in the case at bar. The contract as made con

templated the performance of services and ratus, together with his employés, superinthe furnishing of the necessary materials for tended and conducted the operation of raisthe repairs of the steamship Yucatan. It ing and lowering the vessel and also of fixing was an entire contract, intended to take the her upon the ways preparatory to the re ship as she was and to discharge her only pairs, a service requiring skill and experience when completely repaired and fit for the and essential to the process of repair. Mr. Alaskan voyage. It did not contemplate, as Justice Nelson held there was no substantial is contended by appellant, either a lease, or distinction between such a case and the case a contract for use in the nature of a lease, of where the shipmaster was employed to make the libelant's marine railway and machine the repairs; and that the admiralty jurisshop. The use of these was but incidental; diction must be sustained. the vessel being hauled out, when consistent with the progress of other work of the Shipbuilding Company, for the purpose of exposing the ship's bottom to permit of the removal and replacement of the broken plates and the examination of the propeller and tail shaft. In The Planter (Peyroux v. Howard), 7 Pet. 324, 327, 341, 8 L. Ed. 700, the vessel, requiring repairs below the water line as well as above, was to be and in fact was hauled up out of the water; and it was held that the contract for materials furnished and work performed in repairing her under these circumstances was a maritime contract. We think the same rule must be applied to the case before us; that the doubt intimated in The Robert W. Parsons, 191 U. S. 17, 33, 34, 24 Sup. Ct. 8, 48 L. Ed. 73, must be laid aside; and that there is no difference in

Nor is the present case to be distinguished upon the ground that the repairs in which libelant was to furnish work and materials and the use of a marine railway and other equipment were to be done under the superintendence of the Steamship Company. This affected the quantum of the services and the extent of the responsibility, but not the essential character of the services of the nature of the contract, which, in our opinion, were maritime. Decree affirmed.

(249 U. S. 72)


character as to repairs made upon the hull (Submitted Jan. 22, 1919. Decided March 3,

of a vessel dependent upon whether they are made while she is afloat, while in dry dock, or while hauled up by ways upon land. The nature of the service is identical in the several cases, and the admiralty jurisdiction extends to all.

This is recognized by the Act of Congress of June 23, 1910 (chapter 373, 36 Stat. 601 [Comp. St. § 7783]), which declares that "any person furnishing repairs, supplies, or other necessaries, including the use of dry dock or marine railway, to a vessel, whether foreign or domestic," upon the order of a proper person, shall have a maritime lien upon the


1919.) No. 180.

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Treaty of Paris 1898, arts. 8, 13, providing that cession of Philippine Islands to United States shall not impair property rights of individuals or associations, and continuing in force rights of property secured by patent and copyright, is not involved, within Judicial Code, $ 248, by decision of Supreme Court of Philippine Islands, in action for infringement and unfair competition by Philippine association having Spanish trade-mark in La Flor de la Isabela, that action was for wrongful use of name "Isabela," which was a geographical name incapable of registration as trade-mark, and that no unfair competition was shown.

Appeal from the Supreme Court of the Philippine Islands.

The principle was recognized long ago by Mr. Justice Nelson in a case decided at the circuit, Wortman v. Griffith (1856) 3 Blatchf. 528, 30 Fed. Cas. 648, No. 18057, which was a libel in personam to recover compensation for services rendered in repairing a steamboat. Libelant was the owner of a shipyard Suit for infringement of trade-name by with apparatus consisting of a railway cradle and other fixtures and implements used for the Compania General de Tabacos de Filithe purpose of hauling vessels out of the wa-pinas against the Alhambra Cigar & Cigarette Manufacturing Company. From a deter and sustaining them while being repaired. Certain rates of compensation were charged cree of the Supreme Court of the Philippine for hauling the vessel upon the ways, and a per diem charge for the time occupied while the first instance, plaintiff appeals. Appeal

she was under repair, in cases where the owner of the yard and apparatus was not employed to do the work but the repairs were made by other shipmasters, as was done in that case.

Islands, reversing a decree of the court of


*Mr. F. C. Fisher, of Manila, P. I., for appellant.

Mr. H. W. Van Dyke, of Washington, D.

The owner of the yard and appa- C., for appellee.

For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes

Mr. Justice DAY delivered the opinion of that court found in favor of the defendthe Court.

ant upon both issues, and directed a reversal of the judgment below. 33 Phil. Rep. 485. Appeal to this court was sought and allowed upon the ground that the judgment of the Supreme Court was in an action which involved the Paris Treaty of 1898 between the United States and Spain, because it is therein provided that the property rights of private establishments or associations having legal capacity to acquire and possess property, and especially the rights of property secured by copyrights and patents acquired by Spaniards in the Philippine Islands at the time of the ratification of the treaty, shall not be impaired, but shall continue to be respected.

modify or affirm the final judgments and decrees of the Supreme Court of the Philippine Islands in all actions, cases, causes, and proceedings in which the Constitution, or any statute, treaty, title, right, or privilege of the United States is involved.

Suit was brought by the appellant, a corporation organized under the laws of Spain, in the Court of First Instance of Manila. The complainant set up: That for more than 27 years it had been engaged in the business of manufacturing cigars and cigarettes in the Philippine Islands. That its factory is known as “La Flor de la Isabela," which name is used upon the packages and containers of the products manufactured by complainant and on the advertising matter in its cigar and cigarette business. That on April 5, 1887, the kingdom of Spain as the sovereign authority in the Philippine Islands issued to it, under laws then in force, a certificate of registration and ownership of certain This appeal was perfected before the Act trade-marks and trade-names and label de- of September 6, 1916, 39 Stat. 726, c. 448, signs therein described and enumerated, in- and is controlled by section 248 of the Judicluding the trade-name "La Flor de la *Isa-cial Code (Act March 3, 1911, c. 231, 36 Stat. bela," conferring the right upon the com- 1158), which provided that this court should plainant to all the benefits appurtenant have jurisdiction to review, revise, reverse, thereto, including the right to prosecute for infringement. That the trade-name has been in continuous use solely by the complainant from the issuance of the Spanish certificate of registration and ownership to the time of bringing suit, except for the acts of the appellee. That by reason of the long-continued use of the phrase "La Flor de la Isabela" to designate its factory and its products the said phrase and sundry abbreviations thereof, when applied to the manufactures of tobacco as a distinguishing brand or name, had come to have a secondary meaning designating and denoting that they are the products of its factory. In common parlance the name "La Flor de la Isabela" is abbreviated to "Isabelas" when applied to cigars or cigarettes. That on or about the 1st of June, 1914, the defendant, now appellee, a corporation organized under the laws of the Philippine Islands, engaged in the manufacture and sale of cigars and cigarettes in Manila and elsewhere in the Philippine Islands, unlawfully misappropriated to its own use and benefit the word "Isabelas" in its secondary meaning as a distinguishing brand or name of its tobacco products. That the unlawful use of the name "Isabelas" as the distinguishing brand or name of the products of the defendant is calculated to deceive the public into the belief that the goods of the defendant so designated and branded are the goods manufactured by the complainant, and that the use thereof by the defendant will cause it irreparable injury. An injunction was prayed against the defendant, and an accounting sought.

The Court of First Instance found in favor of the complainant because of its exclusive ownership of the Spanish trade-mark, and in favor of the defendant on the question of unfair competition. Upon appeal to the Supreme Court of the Philippine Islands, 39 SUP.CT.-15

The contention is that the provisions of this treaty were involved in the decision of the Supreme Court thereby authorizing this appeal.

By the treaty of Paris of 1898 (30 Stat. 1758) Spain ceded to the United States the archipelago known as the Philippine Islands. In article 8 of the treaty it is provided that the relinquishment or cession, as the case may be, “** cannot in any respect impair the property rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire and possess property in the aforesaid territories renounced or ceded, or of private individuals, of whatsoever nationality such individuals may be." Article 13 provides that "the rights of property secured by copyrights and patents ac*quired by Spaniards in the Island of Cuba, and in Porto Rico, the Philippines and other ceded territories at the time of the exchange of the ratifications of this treaty, shall continue to be respected." Treaties in Force, 1904, pp. 722, 725, 726.

It is the evident purpose of these provisions in view of the cession of territory made by Spain to the United States, to preserve private rights of property, and to provide that the change of sovereignty should work no impairment of such rights.

The Philippine Act of 1902, carried into the section of the Judicial Code which we have quoted, intended to give this court jurisdiction in cases involving rights secured

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