MORTON, District Judge.
[1, 2] The contract for the repair and improvement of this steamer was, I infer, made in Massachusetts, and certainly was to be performed here. It is therefore covered by Massachusetts law. Eor a great many years there has been a statute in this state conferring upon persons who perform labor or furnish materials in the construction, launching, or repair of vessels a lien upon the vessel to secure the payment of the debt therefor. Rev. Laws, c. 198, § 14. This statute occasioned a difference of opinion as to the forum in which it could be enforced between the Supreme Courts of Massachusetts and of the United States. The Glide, 167 U. S. 606/17 Sup. Ct. 930, 42 L. Ed. 296. . But the statute, is unquestionably valid.
[3] Under it the Bethlehem Shipbuilding Company has a lien on the City of Miami for its bill. As between the two contracting parties, I see no reason why the lien should not be fully recognized in the admiralty court. . We are not dealing with a case of a third party having, by the admiralty law, a right in rem against the vessel, who seeks to enforce that right here, in disregard of .the lien given by the state statute. The Director (D. C.) 34 Eed. 57, 67. I do not think that the Act of June .23, 1910, c. 373, § 5 (36 Stat. 604'; U. S. Comp. St. § 7787), which repeals only such state statute's as “purport to create rights of action to be enforced by proceedings in rem against vessels,” affects the Massachusetts statute. The latter confers a possessory lien, something essentially different. I do not mean to intimate that the lien of the Shipbuilding Company rests only on the Massachusetts statute; probably it exists at common law. See The Two Marys, 16 Eed. 697; The Ulrica (D. C.) 224 Eed. 140.
[4] Assuming that the Shipbuilding Company has a valid lien, it should be treated like any other possessory lien. The Shipbuilding Company is entitled to possession until its bill has been paid. If it makes an overcharge, the owner, as a first step towards asserting its - [429]*429right, must make an adequate tender. That not having been done, I think that the arrest was improvidently ordered, and that the vessel should be restored to the possession of the Shipbuilding Company.
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