THE ERMA S.

THE ERMA S. (District Court, S. D. Florida. July 24, 1926.) No. 2160. 1. Evidence ¡@=>158(28) — Testimony of workmen’s.employer and superintendent that work was done and bill correct held inadmissible, in absence of foundation. Where workmen repairing tug made out and filed time cards from which entries in their employer’s books were made, and no foundation' for secondary evidence was laid, testimony of the employer and his superintendent that work was done and hill sued on correct was inadmissible. 2. Equity ¡§=>71 (I). Laches is not so much a matter of time elapsed as of one’s opportunities to act. 3. Maritime liens <@=>61 — Repairer of tug held barred by laches from asserting lien against bona fide purchaser. Repairer of a tug, which was afterward sunk within five miles of its yard, who waited until after it was bought by a bona fide purchaser, who raised and repaired it, held barred by laches from asserting a lien thereon. In Admiralty. Suit by the Eogal Boat Yard against the tugboat Erma S. Decree dismissing libel. C. L. Brown, of Miami, Fla., for libelant. Hooks & Lohmeyer, of Miami, Fla., for respondent. [MAJORITY — CALL, District Judge.] CALL, District Judge. This cause comes on for a final hearing upon the libel, answer, and testimony taken before the commissioner. The libel is filed to recover the amount of $490 for work done and materials furnished in repair of the tug by libelant. The claimant in his answer puts in issue the furnishing of the materials and doing the work, as well as stating affirmatively the circumstances of his becoming the owner. Erom the testimony it appears that, while one Swartz was in possession and control of the tug, and operating her in the towing business in and around Miami, he took her to libelant’s boat yard for certain repairs; that subsequent to the doing of the work a partial payment was made by Swartz; that subsequently the tug sunk, was raised and placed in a canal, where she again sunk, and while in this sunken condition was purchased by claimant, raised, repaired, and sold after attachment. It is established law that one furnishing labor and material for repairs acquires a maritime lien ,on the vessel repaired. It is equally well established law that a maritime lien, once acquired, follows the vessel into whose-soever hands she comes, unless it is lost through laches. In the instant case, the libelant, for some reason, failed to produce his books to sustain the account attached to and made a part of his libel, but contented himself with having his superintendent swear that the work was done and the bill correct, and swearing to it himself, and this in the face of claimant’s objection, entered at the time, and the further fact shown that time cards were made out by the workmen and. filed with the bookkeeper, from which the entries in the books .were made. No ground was laid to introduce secondary evidence, and the objections of claimant are well taken. This condition would leave the libelant without any testimony to support his claim, but in admiralty I do not think a decree dismissing the libel would be proper, without giving libelant the opportunity to prove his ease by competent testimony. I therefore will proceed to consider the defense of laches made by the answer. • It appears that the last work was done about April 5th and a payment of $150 on account made some two weeks after. After that time the tug was sunk, some five miles away from libelant’s boat yard, and lay in that condition until bought, raised, and repaired by claimant. Admiralty administers equity as far as may be in its decrees. It is well settled that laches is not so much a matter of time elapsed as of one’s opportunities to act. Here the contest is between a bona fide purchaser and the. claim of one furnishing materials and labor in repairs, to a vessel exposed to the elements. Therefore a short delay may constitute laches under the circumstances of this case. A tugboat, engaged in towing in and around Miami harbor, with a repair bill amounting to $490, disappearing from the knowledge of libelant from about the 20th of April, and no effort made to ascertain her -whereabouts, the boat in the meantime sunk. Is it using due diligence by the holder of a secret lien, like admiralty, to sit quietly by until this sunken boat is purchased, raised, and repaired, before asserting the lien ? I think not. I am of opinion that the libelant was guilty of such laches as will displace bis lieu in favor of the claimant. Por this reason, a decree dismissing the libel at libelant’s cost will be entered.