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.

The Constitution, Art. III, § 2, extends the judicial power of the United States to "all cases of admiralty and maritime jurisdiction"; and the legislation enacted by Congress for carrying the power into execution has been equally extensive. Act of September 24, 1789, c. 20, § 9, 1 Stat. 73, 77; Rev. Stats., § 563 (8); Judicial Code, § 24 (3), 36 Stat. 1087, 1091, c. 231. In defining the bounds of the civil jurisdiction, this court from an early day has rejected those trammels that arose from the restrictive statutes and judicial prohibitions of England. Waring v. Clarke, 5 How. 441, 457-459; Insurance Co. v. Dunham, 11 Wall. 1, 24; The Lottawanna, 21 Wall. 558, 576.

It must be taken to be the settled law of this court that while the civil jurisdiction of the admiralty in matters of tort depends upon locality-whether the act was committed upon navigable waters-in matter of contract it depends upon the subject-matter-the nature and character of the contract; and that the English rule, which conceded 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; Philadelphia, Wilmington & Baltimore R. R. Co. v. Philadelphia, &c. Steam Towboat Co., 23 How. 209, 215; Insurance Co. v. Dunham, 11 Wall. 1, 26; The Eclipse, 135 U. S. 599, 608.

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; The Planter [Peyroux v. Howard], 7 Pet. 324, 341; Steamboat Orleans v. Phœbus, 11 Pet. 175, 183; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 392); 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.

Neither in jurisdiction nor in the method of procedure are our admiralty courts dependent 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; Manro v. Almeida, 10 Wheat. 473, 486; New Jersey Steam Navigation Co. v. Merchants' Bank, 6 How. 344, 390; Morewood v. Enequist, 23 How. 491; The Belfast, 7 Wall. 624, 644; The Kalorama, 10 Wall. 204, 210; The Sabine, 101 U. S. 384, 386; In re Louisville Underwriters, 134 U. S. 488, 490; Workman v. New York City, 179 U. S. 552, 573; Ex parte Indiana Transportation Co., 244 U. S. 456.

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 12th Rule in Admiralty, adopted in its present form in the year 1872 (13 Wall. xiv) after a long controversy that began with The General Smith, 4 Wheat. 438, and ended with The Lottawanna, 21 Wall. 558, 579, 581. See The Glide, 167 U. S. 606.

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; Roach v. Chapman, 22 How. 129; Edwards v. Elliott, 21 Wall. 532, 553, 557; The Winnebago, 205 U. S. 354, 363. In the case in 20 Howard the court said (p. 402): "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 between 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 to her launching she is a mere congeries of wood and iron-an ordinary piece of personal property-as distinctly a land structure as a house, and subject to mechanics' liens created by state law enforcible 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 becomes a subject of admiralty jurisdiction." Tucker v. Alexandroff, 183 U. S. 424, 438.

In The Robert W. Parsons, 191 U. S. 17, 33, 34, 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.'

Opinion of the Court.

249 U.S.

In The Steamship Jefferson, 215 U. S. 130, 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.

What we have said sufficiently indicates the decision that should be reached in the case at bar. The contract as made contemplated the performance of services and the furnishing of the necessary materials for the repairs of the steamship Yucatan. It was an entire contract, intended to take the ship as she was and to discharge her only when completely repaired and fit for the Alaskan voyage. It did not contemplate, as is contended by appellant, either a lease, or a contract for use in the nature of a lease, of the libelant's marine railway and machine shop. The use of these was but incidental; 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, 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, must be laid aside; and that there is no difference in character as to repairs made upon the hull 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, c. 373, 36 Stat. 604, which declares that "Any per

son 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 vessel.

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. No. 18,057, which was a libel in personam to recover compensation for services rendered in repairing a steamboat. Libelant was the owner of a shipyard with apparatus consisting of a railway cradle and other fixtures and implements used for the purpose of hauling vessels out of the water and sustaining them while being repaired. Certain rates of compensation were charged for hauling the vessel upon the ways, and a per diem charge for the time occupied while 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. The owner of the yard and apparatus, together with his employees, superintended and conducted the operation of raising and lowering the vessel and also of fixing her upon the ways preparatory to the repairs, a service requiring skill and experience and essential to the process of repair. Mr. Justice Nelson held there was no substantial distinction between such a case and the case where the shipmaster was employed to make the repairs; and that the admiralty jurisdiction must be sustained.

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 or the nature of the contract, which, in our opinion, were maritime. Decree affirmed.