Thereafter the present petitioner, claimant of the vessel, appeared specially by counsel and moved the District Court to quash the attachment in the Crane suit and dismiss the libel on the ground of want of jurisdiction. These motions, after argument, were overruled; and at a subsequent date motions for a rehearing and for a certificate of jurisdiction as the basis of a direct appeal to this court were denied upon the ground that the claimant had no standing to attack the validity of the attachment.

Thereafter this court granted leave for the filing of a petition for a writ of prohibition, and made an order upon the judges of the District Court to show cause why such writ should not issue. Return was made by the judge who had acted in the proceedings above mentioned, and, the matter having been argued here by counsel for the petitioner and by counsel for the Crane Company, the question for decision is whether the prohibition ought to be issued, or the order to show cause discharged.

The validity of the attachment in the suit of the Vulcanite Company and the continued possession of the marshal or his deputy under that process are not in controversy. No bond was given or deposit made for release of the vessel pursuant to § 941, Rev. Stats., or the admiralty rules of this court or of the District Court. Hence the vessel remained, for all purposes of the action, in the custody of the court. The requisition of the Shipping Board extended merely to the use of the ship for war purposes, and did not in fact take her out of the custody of the court. So far as any interest of the petitioner was concerned, there was nothing to prevent the vessel from being subjected to attachment under process in the Crane Company suit; and as she actually was subjected to that process by the action of the marshal, the jurisdiction of the court in that suit was complete, and the owner's only recourse was to enter appearance therein, with or without giving a bond or making a deposit.

If the custody of the ship by the officer of the court was inconsistent with the purposes of the Executive, acting through the Shipping Board, this was not a matter of which petitioner could take advantage. The application of the Board through its counsel for an order permitting the vessel to be put at the service of the Government for war purposes while still remaining in the custody of the marshal for the purposes of the court's jurisdiction, consented to by the only other parties who had a standing in court, was a sufficient warrant for the order made.

Order to show cause discharged and petition dismissed.

NORTH PACIFIC STEAMSHIP COMPANY v. HALL BROTHERS MARINE RAILWAY & SHIPBUILDING COMPANY.

APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF CALIFORNIA.

No. 53. Argued November 18, 19, 1918.- Decided March 3, 1919.

A contract for maritime service is within the admiralty jurisdiction, although not to be executed upon navigable waters. P. 125. The place of performance-i. e., whether upon navigable waters or elsewhere-is but an evidentiary circumstance, to be considered in determining whether the contract is by nature maritime. Id.

A materialman furnishing supplies or repairs may proceed against the ship in rem, or against the master or owner in personam. 12th Admiralty Rule. P. 126.

While a contract for building a ship or supplying materials for her construction is not maritime, a contract for services, materials, and use of facilities, for the repair of a vessel already launched and devoted to maritime use, is a maritime contract; and in this respect it is immaterial whether the repairs are made while she is afloat, in dry dock or hauled out upon the land. P. 126. The Robert W. Parsons, 191 U. S. 17, limited.

Argument for Appellant.

249 U. S.

The fact that the repairs are made under superintendence of the shipowner does not destroy the maritime nature of such a contract. P. 129.

For the purpose of repairing a vessel for a voyage, the owner of a shipyard, marine railway and machine shops, agreed to furnish materials and men to work under supervision of the shipowner, and to tow the vessel in and haul her out upon the land next the shops, as required in the repairs, by means of the railway, stated prices being exacted for labor, use of tug and scow, hauling out, use of railway, materials, etc. Held, an entire marine contract, for the repair of the vessel, not involving a lease, or agreement in the nature of a lease, of the railway and machine shops, the use of these being but incidental. P. 128.

Affirmed.

THE case is stated in the opinion.

Mr. Jackson H. Ralston, with whom Mr. Frank W. Aitken, Mr. H. W. Glensor and Mr. Ernest Clewe were on the brief, for appellant:

The contract involved in this case did not call for the performance by libelant of any service on or for a ship, either on water or land, but merely for the supply of a marine railway shipyard and equipment. Appellant did not bargain for making repairs or for the results of the use of the equipment, labor and materials supplied by libelant, but for the use thereof by itself. The testimony of the parties forecloses any other construction. Such a contract does not relate to "navigation, business or commerce of the sea."

The subject-matter of a contract is the test for determining whether or not admiralty has jurisdiction. Subjectmatter must not be confused with the object of a contract, Leland v. Ship Medora, 15 Fed. Cas. No. 8237; The Paola R, 32 Fed. Rep. 174; De Lovio v. Boit, 7 Fed. Cas. No. 3776; Insurance Co. v. Dunham, 11 Wall. 1, 26; The Eclipse, 135 U. S. 599, 608; Atlantic Transport Co. v. Imbrovek, 234 U. S. 52; nor must the old single test of location be entirely disregarded, The Robert W. Parsons, 191 U. S. 17;

119.

Argument for Appellant.

Ransom v. Mayo, Fed. Cas. Nos. 11571, 11571A; Bradley v. Bolles, Fed. Cas. No. 1773; Pritchard v. Lady Horatia, Fed. Cas. No. 11438; Boon v. The Hornet, Fed. Cas. No. 1640. Wortman v. Griffith, Fed. Cas. No. 18057, and The Vidal Sala, 12 Fed. Rep. 207, distinguished.

Under the subject-matter test as so limited, admiralty has no jurisdiction of the present case for two reasons, first, because the repairs to the vessel were made wholly upon land in a shipyard in no sense a part of the sea, and second, because the repairs were made solely by appellant, the libelant only furnishing the plant. In other words, the claim of libelant is merely for charges for the use and occupation of its marine railway and shipyard, a subject which under the decision in the The Robert W. Parsons, is not within the admiralty jurisdiction. See also Berton v. Dry Dock Co., 219 Fed. Rep. 763, 769. For admiralty jurisdiction the contract must be maritime as a whole; and, even if this were not so, the contract here could not be severed, inasmuch as the libel was brought on the contract as an entirety. Furthermore, if there could be any such segregation of items, there would be no jurisdiction in admiralty inasmuch as the only items in dispute-for overtime rent-are not maritime at all. To give admiralty jurisdiction, the contract must be maritime in all its elements. Plummer v. Webb, Fed. Cas. No. 11233; The Vidal Sala, 12 Fed. Rep. 207, 208.

The Act of Congress of 1910 does not purport to give jurisdiction in this case. If such were its purpose the attempt would be nugatory. The St. Lawrence, 1 Black, 522; The Lottawanna, 21 Wall. 558, 575; The Sinaloa, 209 Fed. Rep. 287, 288.

An extension of admiralty jurisdiction to cases like this would constitute an unwarranted invasion of the field of ordinary contracts and result in a denial to litigants of the right of trial by jury and other incidents of common-law procedure which are jealously guarded by

the Federal Constitution and the constitutions of the several States.

Mr. Warren Gregory and Mr. Allen L. Chickering, for appellee, submitted.

MR. JUSTICE PITNEY delivered the opinion of the court.

This is a direct appeal under § 238, Judicial Code (Act of March 3, 1911, с. 231, 36 Stat. 1087, 1157), 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 convenience may be referred to as the "Shipbuilding 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 Company filed a motion to arrest and vacate the decree and to dismiss the cause for want of jurisdiction. The motion was submitted to the court upon the pleadings, the proofs taken upon the hearings of the merits, and some slight additional proof. It was denied, and the present appeal followed.

The facts were these: In the month of May, 1911, the Steamship Company was the owner of the American steamer Yucatan, which then lay moored or tied up at