James Shewan & Sons, a corporation of New York, on the 12th day of May, 1922, filed a libel in admiralty against the United States in the District Court for the Southern District of New York, to recover the value of repairs made during the month of May, 1920, on the steamship Biran. The libel averred that the Biran was owned by the United States and at all the times mentioned was engaged in the mercantile trade, that the lien upon the vessel was one which ordinarily could be enforced in admiralty by proceeding in rem against the vessel.
The jurisdiction to sue the United States was questioned by exceptive allegations. It was agreed at the hearing that on the 11th day of June, 1921, the steamship Biran, which had theretofore been in the merchant service of the United States, was laid up in the care and custody of caretakers employed by the United States Shipping Board, in the out of use and laid-up fleet of that Board anchored in the Hudson river within the District, and so remained at and after the time when the libel was filed herein, and that since June 11, 1921, it had carried neither crew nor cargo, nor been the subject of any operating agreement for use in the merchant or other service, nor had it been transferred by the Shipping Board to any other department or agency of the government. The libelant relied for its right to sue the United States upon the Suits in Admiralty Act (Act March 9, 1920, c. 95, 41 Stat. 525 [Comp. St. Ann. Supp. 1923, §§ 1251 1/4 to 1251 1/4 l]). That act provides in its first section, with an exception not important here, that no vessel owned by the United States or by any corporation in which the United States owns the capital stock, or in the possession of the United States or of such corporation, or operated by or for the United States or such corporation, shall hereafter, in view of the provision made elsewhere in the act for a libel in personam, be subject to arrest or seizure by judicial process in the United States.
'That in cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States or against such corporation, as the case may be, provided that such vessel is employed as a merchant vessel or is a tug boat operated by such corporation.'
The section further provides that such suit shall be brought in the district where the party suing resides or has its principal place of business, or in which the vessel or cargo charged with liability is found.
The District Court, following Mack Engineering & Supply Co. v. United States (D. C.) 291 F. 713, dismissed the case solely for lack of jurisdiction, because the vessel whose repairs are the subject of this suit was laid up, and was not, when the action commenced, employed as a merchant vessel, and the judge has so certified in this proceeding in error under section 238 of the Judicial Code (Comp. St. § 1215).