The principal question in this case is whether the contract to furnish the schooner La Ninfa with sails was a land contract, or purely maritime. It is conceded that the case is one of admiralty jurisdiction, and the lien sought to be enforced under the State law must wholly fail, unless the contract for
sails was a land contract. The authorities are very clear that an agreement for the building and construction of a vessel is not maritime. (People's Ferry Co. v. Beers, 20 How. [U.S.] 402;Roach v. Chapman, 22 How. 129; Morewood v. Enequist,
23 id. 491; Edwards v. Elliott, 21 Wall. 532; Cunningham v.Hall, 1 Cliff. 46; Young v. The Orphans, 2 id. 29.) The learned counsel for the appellant does not deny that the rule as stated is finally settled, but opposes the lien with the argument that the furnishing of sails after launching is not a contract, which relates to the building or construction of a vessel, and cites the decisions of our own State as authority for the distinction. (Sheppard v. Steele, 43 N.Y. 52; Brookman v.Hamill, id. 554; Happy v. Mosher, 48 N.Y. 133; King v.Greenway, 71 id. 417.) In the discussion of these cases the several contracts were spoken of as made respecting a vessel "before launching; while yet on the ways;" while "unfinished on the ways;" when "not launched." But these expressions were used because in those cases such was the fact, and not with any view of declaring a rule that after launching every contract relating to a vessel is purely maritime. It is doubtless true that before launching the contracts for construction are more easily and strongly shown to be land contracts but no case holds that the work of building or constructing a vessel cannot proceed after the launch. Indeed no case could hold that for it is purely a question of fact. A vessel may be unfinished when launched, and the work of building may continue while she is in the water. The question in this case, therefore, is, did it so continue, and was the contract for sails one relating to the building of the vessel? There is evidence that after the launch work continued upon the schooner; that she was drawn out of the water and put again upon the ways and while there caulked, painted and fastened; and the sails in question furnished to her. It is further shown that she was a sailing vessel; that the sails were furnished to complete her building, and were a part of her construction. Based upon this evidence the court below found as a fact that the owner of the schooner had contracted a debt to the plaintiffs for certain sails, material,
and labor for or toward the building of said vessel. The finding was warranted by the evidence, and settles the fact for the purposes of this appeal. Assuming it, therefore, to be true that the work of construction did not stop when the vessel was launched, and that the building continued, we see no difficulty in the conclusion that the sails were furnished as part of the process of construction. In Roach v. Chapman (supra), an engine and boilers were furnished, and the court held that "a contract for building a ship, or supplying engines, timber, or other materials for her construction, is clearly not a maritime contract." If an engine is an essential part of the construction of a vessel propelled by steam, why are not the sails an essential part of the construction of a sailing vessel? Is the ship, without these necessary aids any more built, or constructed, in the one case than the other? In Edwards v.Elliott (supra), the general subject is very carefully discussed, and the court say "no reason is perceived why a contract to build a ship, any more than a contract for the materials of which a ship is composed, or for the instruments or appurtenances to manage or propel the ship, should be regarded as maritime" (p. 554). We are satisfied, therefore, that the contract in this case was a land contract and that the lien attached.
Some technical objections to the plaintiffs' proceedings were raised but need not be considered, as the giving of the bond was a waiver of any technical defect in the prior proceedings. (Happy v. Mosher, 48 N.Y. 318.)
We have examined the exceptions to the admission of evidence, and do not think they raise any question necessary to be considered.
The judgment should be affirmed with costs.
All concur.
Judgment affirmed.