THE ALBION, (S.D.Fla. 1926)

CALL, District Judge.

This comes on for final hearing on the libel, answer thereto, and the testimony taken before the commissioner. The libel was filed March 5, 1924, and the testimony taken November 7, 1924, and the cause brought on for a hearing this day.

The libel is for work and labor performed and materials furnished in the repair of the boat. The answer puts in issue the amount of labor performed and the item charged for lay days after the completion of the work. No testimony was produced for the respondent. The testimony establishes the amount of labor performed and materials furnished, and the reasonable value of same, amounting to $580.16, including the charge for hauling out, and for this sum a decree will be entered, with interest at the rate of 8 per cent. per annum from February 16, 1924, to date of the decree.

The bill of particulars contains three items for lay days on the ways after the completion of the repairs amounting to $270. It does not seem to me that this is a proper charge to be allowed. There was no necessity for keeping the boat on the ways, and the charge seems to have been an afterthought of the libelant, based upon the mistaken idea that his lien was dependent upon his keeping possession of the boat. Maritime liens do not depend upon possession of the res, and there was admittedly no contract for such items. Any damages which might have resulted to the libelant by reason of the fact that the boat occupied the ways during this time are not maritime liens.

The libelant also claims $160 for acting as custodian for the marshal. The amount to be allowed such custodian is a part of the marshal's costs, and will have to be allowed by the court on a proper hearing of the matter on application of the marshal.

A decree will be prepared accordingly.