
    411 F.2d 1246
    J. J. HENRY CO., INC. v. THE UNITED STATES
    [No. 116-64.
    Decided June 20, 1969]
    
      
      Michael Lesch, for plaintiff. Jesse Climenko, attorney of record.
    
      Bussell W. Koskinen, with whom was Assistant Attorney General William D. Buekelshaus, for defendant.
    Before CoweN, Chief Judge, Laeamoee, Dueeee, Davis, ColliNS, SkeltoN, and Nichols, Judges.
    
   Laramore, Judge,

delivered the opinion of the court:

Plaintiff, a New York corporation engaged in naval architecture and engineering, was a subcontractor to Gibbs Corporation of Florida which had a prime contract with defendant, acting through the Department of the Navy. The prime contract called for construction by Gibbs of an oceanographic research vessel known as the AGOK.-3. Plaintiff’s contract with Gibbs was to perform certain design work and to prepare certain plans and drawings which have given rise to this suit.

This case has been before the court on two prior occasions. Plaintiff’s original petition, filed April 30, 1964, asserted a cause of action for $101,313.28 as the value of its lien rights in the AGOR-3 (pursuant to Fla. Stats. Ann. §§ 85.01 and 85.11) acquired when the prime contractor failed to pay. Plaintiff alleged that defendant destroyed these lien rights when title in the AGOR-3 vested in it.

Defendant filed its motion for summary judgment on August 14, 1964, and as an exhibit thereto submitted the prime contract (and modifications thereto) between defendant and the Gibbs Corporation. One of these modifications revealed to plaintiff (for the first time) that defendant still retained a fund of $100,000 under the prime contract. In addition, plaintiff learned that defendant had used its AGOR-3 plans in the construction of subsequent AGOR vessels. (Plaintiff claims to have retained the right to be compensated for the use of such plans in future vessels in its agreement with Gibbs Corporation.)

Plaintiff opposed defendant’s motion and cross-moved asking for leave to amend its petition by adding two causes of action based on the above newly revealed facts. On December 14, 1964, the court granted plaintiff’s cross-motion and denied defendant’s motion without prejudice to renewal after plaintiff amended its petition.

Plaintiff filed its amended petition and alleged as a second cause of action that it was sole owner of the plans, designs and drawings furnished Gibbs Corporation and that therefore it should have been compensated for any use of these plans on projects other than the AGOR-3. Defendant, without plaintiff’s consent, had made these plans available to other builders and thereby, plaintiff argued, it had appropriated said plans by a “taking” in violation of the Fifth Amendment.

For its third cause of action, plaintiff alleged that Gibbs Corporation had assigned the AGOR-3 contract to Gibbs Shipyards, Inc. as part of a purchase agreement and that Shipyards, Inc. was substituted for Gibbs Corporation as prime contractor. By agreement, Gibbs Shipyards, Inc. assumed all obligations and liabilities of Gibbs Corporation, Inc. and agreed to act as if it were the original party.

At the time of the filing of the petition, defendant possessed a fund of $100,000 owed to the prime contractor (Aerojet General Shipyards, Inc., the successor to Gibbs Shipyards, Inc.) which defendant had not then paid, and plaintiff alleged that it was entitled to this fund. Subsequent to the filing of the petition, defendant paid Aerojet the $100,000 subject to an indemnity agreement whereby Aerojet agreed to reimburse defendant to the extent of plaintiff’s recovery, if any.

Defendant filed a second motion for summary judgment and on March 25,1966 the court, by order, partially allowed defendant’s motion by dismissing plaintiff’s first cause of action, denying the motion as to the second and third causes without prejudice, and remanding the case to the commissioner for trial on the two remaining causes of action. Plaintiff’s cross-motion was denied without prejudice and the case has been tried. We agree with the trial commissioner’s conclusion that plaintiff cannot recover on either cause of action.

Second Cause of Action

The general provisions of the contract between Gibbs Corporation and the Department of the Navy, provided in part:

ARTICLE 11. PLANS AND OTHER DATA- * * *
(c) If the Department shall so require, the Contractor will, at the cost of reproduction, furnish to other contractors constructing similar types of vessels copies of working and finished plans (including reproducibles), booklets, material schedules, purchase specifications, lists and other data relating to the construction of the vessel.
í í $ $
(e) The furnishing or delivery of any of the copies of plans, booklets, material schedules, material orders, lists or other data required by the provisions of this Article shall not, either expressly or impliedly, constitute (i) any guaranty or warranty by the Contractor other than that they are correct copies of such data or (ii) any license for the use of any patented article or invention shown or listed. The Government shall have the right to use such data for the construction of other vessels or for any other purpose.

The subcontract between Gibbs and plaintiff did not expressly incorporate any of the terms of the main contract, which in fact was not seen by plaintiff prior to commencement of this suit. The plaintiff’s contract was actually only a purchase order issued by Gibbs on July 28, 1960, which read:

Drawings necessary for construction of AGOKr-3 vessel. Price $6.75 per hour plus 2,000 per month for minimum period twelve months. Terms-work to be billed per month or oftener if required.

It is clear that nothing in the purchase order indicates any restriction on use of the drawings ordered. Plaintiff now says that negotiations with Gibbs leading up to the purchase order supplement it and show that plaintiff never consented to use of its plans for construction of any vessels other than AGOR-3. Some color is given to this assertion by the testimony of one of Gibbs’ officials, David Jackson, who testified that prior to issuance of the purchase order he understood that, in view of conversations had with plaintiff’s officials during negotiations, plaintiff would receive additional compensation for other use of its plans. Plaintiff had originally made a bid which Gibbs rejected because it was considered too high. The ultimate arrangement was for plaintiff to do less than the whole design and engineering job, Gibbs assuming a considerable part of it. The trouble with this understanding is at least sixfold. (1) It is uncorroborated by Mr. Gibbs, president of Gibbs Corporation, who signed the purchase order and participated in the negotiations leading thereto. (2) No such understanding is reflected by the terms of the purchase order or by any contemporaneous papers. (3) There is nothing on the drawings furnished by plaintiff which indicates any restriction on their use and plaintiff asserted no such restriction during the life of the contract or procurement of similar vessels. (4) Plaintiff admittedly prepared the plans in accordance with the specifications of the prime contract which came into existence before plaintiff’s contract with Gibbs was completed and before the plans and drawings were made. This contract provided, in part:

All plans, including tracings, Vandykes, and blueprints, specified to be furnished by the contractor to the Bureau or its representatives, shall become the property of the Government.

(5) Mr. Jackson had no authority to modify this contract between his employer and the defendant and could not remember telling the Navy that he did so. (6) In any contract, prior negotiations are merged into it and the writing will be considered complete on its face, absent ambiguity.

Plaintiff’s president testified that his understanding of the custom of the trade at the time of the purchase order in 1960 was that title to plans and drawings for commercial vessels remained in the architect. He admitted no acquaintance with respect to the trade practice on government contract work in 1960 but confessed knowledge of development of a definite trend in government contracts to vest title in the United States.

Plaintiff prepared 85 plans for Gibbs and billed the latter $113,111.98. Plaintiff was paid only $11,643.27, leaving $101,468.71 due and owing.

On August 31, 1960, defendant issued invitations for bids for construction of additional vessels of the AGON class. Bidders were advised that if successful they could get copies of the AGOK-3 drawings at their own expense from Gibbs Corporation. Contracts were let for six additional vessels, the AGOR-4, -5, -6, -7, -9 and -10. The successful bidders for these vessels did obtain copies of some of the AGOR.-3 plans and drawings from Gibbs Corporation at the cost of their reproduction. Many of these plans and drawings were used. It is plaintiff’s evidence that, considering the value thereof, as represented by reduced billing costs to defendant, since the plans used did not again have to be paid for at their original cost, defendant saved $144,104.67. This is the sum plaintiff now claims, in requested findings under its second cause of action, as the reasonable value of the plans and drawings allegedly taken by defendant for public use without payment of just compensation, in violation of the Fifth Amendment to the Constitution. We find, however, that a taking has not occurred.

The cases have evolved certain standards to identify takings compensable under the Fifth Amendment. Generally, there must be an intent to take or such definite invasion of private property as to imply it. See, B Amusement Co. v. United States, 148 Ct. Cl. 337, 341, 180 F. Supp. 386, 389 (1960); Biggs Rental Co. v. United States, 173 Ct. Cl. 789, 353 F. 2d 1013 (1965), cert. denied, 384 U.S. 927 (1966); Eyherabide v. United States, 170 Ct. Cl. 598, 345 F. 2d 565 (1965).

The clear thrust of the authorities is that where the government possesses property under the color of legal right, as by an express contract, there is seldom a taking in violation of the Fifth Amendment. The amendment has limited application to the relative rights in property of parties litigant which have been voluntarily created by contract. Consolidation Coal Co. v. United States, 60 Ct. Cl. 608 (1925), appeal dismissed, 270 U.S. 664 (1926); Klebe v. United States, 57 Ct. Cl. 160 (1922), aff’d, 263 U.S. 188 (1923). See generally 2 Nichols, EMINENT Domain § 6.1 (3d ed. 1963). Where, however, the government has not asserted its legal and contractual rights until after the liens of others have attached, and title was in the shipbuilder when materials were furnished, the assertion of the government’s rights to destroy the liens of others is a compensable taking. Armstrong v. United States, 364 U.S. 40 (1960),rev'g 144 Ct. Cl. 441, 169 F. Supp. 259 (1959). As we held in our Order dismissing the first cause of action, that is clearly not the situation in the instant case where the government’s title to the plans was created by the prime contract and did not await a default termination and the invoking of a contract provision for a transfer of title after the liens of others had attached.

The language quoted from the prime contract in the specifications was known to plaintiff’s Philadelphia office manager who prepared plaintiff’s first bid estimate for Gibbs, although it is not clear that Mr. Henry, president of plaintiff corporation, knew about it. He explained at the trial that the provision was in a 380-page set of specifications. It appeared there on page 20. The inference is that he overlooked what his Philadelphia manager found. The statement on page 20 of the specifications provided that all plans and blueprints furnished by the contractor became the property of the government. If plaintiff intended to restrict the government’s use of the plans, it was obliged to give defendant some notification of that fact.

Plaintiff first gave definite notice to defendant that use of its drawings was intended to be restricted to the AGOR-3 when it filed its amended petition on January 21,1965. Previously, plaintiff had failed to advise the government of its claimed title or the restricted use it intended for its plans. There is no legend on the plans and no evidence that plaintiff otherwise notified defendant. Generally, if the limitation is clearly stated as to persons entitled to see the plans and as to the uses to which they may be put, the restriction will be upheld. The only agreement in this case is the alleged oral understanding which plaintiff had with the Gibbs Corporation and we agree with the trial commissioner that the proof does not establish this agreement.

Plaintiff claims that it gave the Navy Department notice of its rights by two letters of March 1962. The letters are in evidence and neither refers to plaintiff’s claimed retained ownership rights or makes any mention of restrictions on the future use of these plans in other government procurements.

Plaintiff’s basic loss is because the party to whom it sold its plans did not pay for them. That party was not the government. The remedy does not therefore lie against the government, but against the def aulting party or its successor. If plaintiff retained any title to the AGOR-3 plans, which is most doubtful from the evidence, its right to anticipate profits from their sale was merely frustrated by defendant’s use of them, according to its contract with Gibbs. Defendant had no notice of plaintiff’s claim of title, which appears from the evidence to have been plaintiff’s afterthought. Defendant had no intention of taking anything belonging to plaintiff.

In the absence of some indication either on the face of the plans or through some communication to the government that it retained rights in the plans (and in the presence of an. explicit statement in the specifications furnished plaintiff that the plans became the property of the government), we find that the government has not taken plaintiff’s property within the meaning of the Fifth Amendment.

Before the court, plaintiff argued that the property taken by the government was its common law copyright in its plans and drawings. We have found that a taking did not occur, and we do not reach the question of the extent of plaintiff’s common law copyrights, if any.

Third Cause of Action

The Gibbs Corporation ran into difficulties and on December 19,1981, after establishing a controlled account with the Atlantic National Bank of Jacksonville, sold its assets including work in progress under the prime contract for AGOR-3, to the America Corporation. In January 1962 Gibbs Corporation filed a petition for reorganization under the Bankruptcy Act. In February 1962 Gibbs Shipyards, Inc., a wholly owned subsidiary of America Corporation, was nominated and accepted as purchaser of Gibbs Corporation, by an addendum to the agreement of December 19, 1961. Gibbs then petitioned the referee in bankruptcy to sell its property identified in the agreement of December 19,1961, as amended. The referee declared null and void all liens against the property of Gibbs Corporation, obtained by legal or equitable proceedings during the 4 months prior to January 23,1962, and on March 2,1962, authorized the sale which was consummated and finally confirmed in that month. On April 6, 1962, Gibbs Corporation was declared bankrupt. On the same date Gibbs Shipyards, Inc., Atlantic National Bank, and the defendant entered into a novation agreement whereby Gibbs Shipyards, Inc., took over all the bankrupt’s liabilities and its assets, including the contract for the AGOR-3.

On May 27, 1964, Gibbs Shipyards, Inc., was acquired by Aerojet-General Corporation, of Ohio, which together with Gibbs Shipyards, Inc., and defendant, entered into a novation agreement whereby the contract for AGOR-3 was transferred to Aerojet-General Shipyards, Inc., a subsidiary of Aerojet-General. The AGOR-3 was completed and delivered to the Navy, on November 29, 1962. As noted above at the time of completion the Navy retained the sum of $100,000.

When plaintiff learned of the retention of this sum, it amended its petition asking that the said $100,000 be paid to it, to at least partially satisfy the indebtedness of the prime contractor. Plaintiff looks to the defendant as a mere stakeholder.

After the amendment of the petition, the Navy, in February of 1965, paid Aerojet General Shipyards, Inc., the $100,000 subject to the above-mentioned indemnity agreement.

It is the position of defendant that the $100,000 was retained because it was not sure who was going to complete the contract, that being the prime concern of the government. However, it did hold the $100,000 for almost three years after completion by Aerojet.

Plaintiff’s claim asserts, inter alia, that by virtue of the novation agreement Gibbs Shipyards Inc. assumed all of the rights and obligations of Gibbs Corporation in the AGOR-3 contract, including the amount owed plaintiff; that plaintiff can assert its equitable lien directly against the defendant in the absence of a Miller Act surety and that plaintiff, an architect and engineer, is a laborer or materialman within the meaning of Pearlman v. Reliance Insurance Co., 371 U.S. 132 (1962). We conclude that plaintiff is not a laborer or materialman, and we do not decide whether laborers or materialmen (in the absence of a surety) may assert their claims directly against a retained fund.

In this posture of the case it may well be said that the defendant was a mere stakeholder. However, assuming plaintiff has rights by virtue of the agreement which are assertable under Pearlman, plaintiff has on threshold hurdle to cross before its claim can be considered. prove it was either a laborer or a materialman before the language of Pearlman v. Reliance Insurance Co., supra, can come into play. The Supreme Court in Pearlman said:

The final argument is that the Prairie Bank and Henningsen cases were in effect overruled by our holding and opinion in United States v. Munsey Trust Co., supra. The point at issue in that case was whether the United States while holding a fund like the one in this case could offset against the contractor a claim bearing no relationship to the contractor’s claim there at issue. We held that the Government could exercise the well-established common-law right of debtors to offset claims of their own against their creditors. This was all we held. The opinion contained statements which some have interpreted as meaning that we were abandoning the established legal and equitable principles of the Prairie Bank and Henningsen cases under which sureties can indemnify themselves against losses. But the equitable rights of a surety declared in the Prairie Bank case as to sureties who complete the performance of a contract were expressly recognized and approved in Munsey, and the Henningsen rule as to sureties who had not completed the contract but had paid laborers was not mentioned. Henningsen was not even cited in the Munsey opinion. We hold that Mimsey left the rule in Prairie Bank and Henningsen undisturbed. We cannot say that such a firmly established rule was so casually overruled.
We therefore principles stated above that the Government had a right to use the retained fund to pay laborers and material-men ; that the laborers and materialmen had a right to ~be paid out of the fwnd; that the contractor, had he completed his job and paid his laborers and materialmen, would have become entitled to the fund; and that the surety, having paid the laborers and materialmen, is entitled to the benefit of all these rights to the extent necessary to reimburse it. Consequently, since the surety in this case has paid out more than the amount of the existing fund, it has a right to all of it. [Emphasis added; 371 U.S. at 140-142.J

With respect to the above, we think it clear that plaintiff was not a materialman. All definitions of “materialman” are to the effect that something must be furnished that goes into the construction of a building or a vessel. Wbat is involved here are plans, drawings, and the performance of other drafting and engineering services. We think the above cannot be said to go into the construction of the vessel.

More troublesome is the question of whether plaintiff can be classed as a “laborer”. “Laborer” has been defined variously in the states. Since this was a Florida transaction, and since no Federal law is cited controlling the situation, we look to an expression of the Florida courts and to the general weight of authority among the states as to whether plaintiff can be classed as a laborer.

Plaintiff argues same fund as that which would have been assertable by a surety, had there been one. It classifies itself as a “laborer or mate-rialman” for this purpose and in a letter filed with the court subsequent to oral argument it supported that proposition by arguing:

[A] majority of States recognize that an architect is entitled to a lien for preparing plans and specifications that were used in the construction of a building or vessel. * * *
In Florida, because of prior doubts upon architects’ lien rights a statute was enacted which brought that State’s law into accord with the prevailing rule by providing that an architect is entitled to a lien for preparing plans and specifications used to build a streetcar or vessel. See 6 Fla. Stat. Ann. §§ 85.01 and 85.11 * * *.

Our examination leads ns to conclude that the Florida statutes upon which plaintiff appears to rely for its claim to laborer status, do not support plaintiff’s position.

Prior to the enactment of section 85.11 the prevailing rule in Florida was to deny a lien to architects who only furnish plans used in the construction of a building. Palm Beach Bank & Trust Co. v. Lainhart, 84 Fla. 662, 95 So. 122 (1922). In Street v. Safway Steel Scaffold Co., 148 So. 2d 38, 41 (1962), the court analyzed the new section:

* * * [P]rior to the specific inclusion of engineering and architectural services in the Mechanics’ Lien Law, these professions had no liens as contractors, subcontractors or laborers, [citing in a footnote, the decision in the Palm Beach case].
* # * *
The Mechamos'' Lien La/w is limited by its terms to improvements to real property * * *. [Emphasis added.]

Under Florida law, therefore, the only statutory protection for architects is that given to those who perform their services in connection with realty. The rule of the Palm Beach Bank & Trust Co. case remains applicable and limits lien rights to architects on non-realty projects to those who perform superintendent services.

Plaintiff also relies on the statement in section 85.11 to support its claims that architects on vessels are similarly protected. That section, however, does not on its face appear to protect plaintiff, and plaintiff has not cited any judicial interpretation of that section extending protection to architects.

The statute protects those persons who perform “any labor” for use in the “construction” of the vessel. Under the Palm Beach decision, an architect who furnishes only plans does not perform “any labor.” The second clause of section 85.11 protects persons who furnish services “for the use or benefit of a vessel or its crew.” That section appears to pro-

tect persons wlio furnish the vessel or its crew with services. There is no indication that the use of the word “services” in the second clause is to be extended to those who are to be protected during the construction of the vessels. We find, therefore, that plaintiff is not a “laborer” who would be protected by Florida lien law had this been a private contract.

The weight of judicial authority excludes architects who furnish only plans from the special protection afforded laborers. We find that plaintiff has no rights as a “laborer” and we do not reach the question whether laborers or mate-rialmen who have not been paid can assert their rights ■against a retained fund in lieu of a surety in a case where no surety is present.

Plaintiff also has argued that it does not matter whether it is classed as a laborer because it is entitled to the fund in any case -as compensation for its services. Traditionally, laborers and materialmen have been given a peculiar protection which has been denied to other creditors. Plaintiff is no more than a general creditor asserting rights against a retained fund. The Supreme Court in United States v. Munsey Trust Co., 332 U.S. 234, 240 (1947) “recognized the peculiarly equitable claim of those responsible for the physical completion of building contracts to be paid from available moneys ahead of others whose claims come from the advance of money. * * *” A surety is given preference in its claim to retained moneys because it is obligated to pay the laborers and materialmen. If plaintiff, as a non-laborer or materialman were to be given rights against a retained fund, there appears to be no reason to deny other general creditors involved in the contract similar rights against the retained fund. Were that the case here, the laborer and ma-terialman’s special protection would be effectively ended. Laborers or materialmen may have rights against a retained fund, but in the absence of that special class of persons, as is the case here, we find that non-laborers are within the general rule of United States v. Munsey Trust Co., supra, and cannot assert rights directly against a retained fund.

Accordingly, plaintiff is not entitled to recover on any of its claims, and the petition is dismissed.

FINDINGS op Fact

1. Plaintiff is a New York corporation engaged in the profession of naval architecture and engineering. In July 1960 plaintiff undertook to provide for Gibbs Corporation, a Florida corporation, architectural and engineering services for the AGOBr-3, an oceanographic research vessel. Gibbs was awarded the construction contract, designated NObs-4342, by the Navy on May 26,1960. The ship was to be built at Gibbs’ shipbuilding plant in Jacksonville, Florida.

2. Plaintiff presented three causes of action to this court. Defendant moved for summary judgment and plaintiff presented a cross-motion for partial summary judgment. By order of the court March 25,1966, the court allowed defendant’s motion as to plaintiff’s first cause of action for a lien under Florida law. The rest of defendant’s motion and plaintiff’s cross-motion were denied without prejudice. The case was remanded to the commissioner for trial on the remaining issues.

3. In its second cause of action plaintiff claims just compensation in the amount of $144,104.67 for the taking of its plans and drawings for the AGOE-3 by the Government for use in the construction of subsequent vessels of the AGOE type.

4. In its third cause of action plaintiff claims an equitable lien on $100,000 which was withheld from Gibbs Corporation and later paid to Aerojet-General Shipyards, Inc., the successor to Gibbs, after the latter went bankrupt during the course of the construction of the AGOE-3. The funds were released to the contractor’s assignee on February 5, 1965. Plaintiff commenced its action in this court on April 30,1964.

5. The general provisions of the contract between Gibbs and the Navy provided in part as follows:

Article 11. Plans and Other Data— * * *
(a) If the Department shall so require, the Contractor will, at the cost of reproduction, furnish to other contractors constructing similar types of vessels copies of working and finished plans (including reproducibles), booklets, material schedules, purchase specifications, lists and other data relating to the construction of the vessel. *****
(e) The furnishing or delivery of any of the copies of plans, booklets, material schedules, material orders, lists or other data required by the provisions of this Article shall not, either expressly or impliedly, constitute (i) any guaranty or warranty by the Contractor other than that they are correct copies of such data or (ii) any license for the use of any patented article or invention shown or listed. The Government shall have the right to use such data for the construction of other vessels or for any other purpose.

Plaintiff did not see a copy of this contract between Gibbs and the Navy prior to the commencement of this suit and the contract between Gibbs and J. J. Henry did not expressly incorporate any of the terms of the main contract not relating to performance.

6. In early 1960, before entering into the contract with the Navy, executives of Gibbs Corporation, George Gibbs, Jr., president, and David Jackson, executive vice president, commenced discussions with James J. Henry, president of plaintiff corporation, on the subject of architectural and engineering services to be rendered for the design of the AGOE.-3. Since the AGOB-3 was to be the prototype of a new class of vessels, Gibbs was looking for creative design as well as normal drafting services.

In response to Mr. Jackson’s request for a bid, plaintiff submitted a price quotation for all engineering and architectural work, prepared by Mr. Kent Thornton, manager of plaintiff’s Philadelphia office. This bid was not accepted.

7. Shortly after the Navy contract was awarded to Gibbs, discussions with J. J. Henry were resumed. Because Henry’s original quotation was too high it was ultimately agreed that Henry would design the more difficult portions of the vessel at its usual hourly rate for designing an entire vessel and that the less difficult design work would be performed by Gibbs Corporation in Jacksonville. Basically, Henry was to work on the hull outfitting, engine room machinery, piping and electrical drawings. This agreement was initially evidenced by a proposal of July 19,1960, sent by Mr. Henry to Mr. Gibbs. Gibbs later issued a purchase order; there was no formal contract between J. J. Henry and Gibbs Corporation.

8. The purchase order to plaintiff, issued July 28, 1960, and signed by “Geo. W. Gibbs, Jr., Pres.,” read as follows:

Drawings necessary for construction of AGOE-3 vessel. Price $6.75 per hour plus 2,000 per month for minimum period twelve months. Terms-work to be billed per month or oftener if required.

There is nothing in the purchase order to indicate any restriction on the use of the plans.

9. On August 12, 1960, the Navy was advised that J. J. Henry had been employed to assist in the design of the AGON-3.

10. Plaintiff’s employees spent a total of 11,907.3 hours in the preparation of plans and drawings for the AGOE-3. The services to Gibbs Corporation were rendered during the period July 28,1960 — January 31,1962. Plaintiff billed Gibbs Corporation $113,111.98 by monthly invoices but only $11,643.27 was paid, leaving $101,468.71 due and owing. Plaintiff’s verified costs were $74,649.16.

11. Plaintiff prepared approximately 35 final drawings for the AGOE-3. There was nothing on the drawings to indicate title in plaintiff or that their use was restricted to the AGOE-3. However, the Navy was aware of which plans had been prepared by J. J. Henry.

12. During the construction of the AGOE-3, Gibbs Corporation kept the plans and drawings for the vessel in a locked file cabinet to which only certain Navy and Gibbs personnel had access. The drawings were used by Gibbs to make working plans from which the ship was actually constructed.

13. Plaintiff never expressly consented to the use of its plans for construction of any vessel other than the AGOE-3. However, the plans for the vessel were prepared in accordance with the specifications in Gibbs’ contract with the Department of the Navy which provided, in part, that:

All plans, including tracings, Vandykes, and blueprints, specified to be furnished by the contractor to the Bureau or its representatives, shall become the property of the Government.

Mr. Thornton, manager of the plaintiff’s Philadelphia office, testified that he was familiar with this specification. Mr. Henry did not remember it. Mr. Jackson, Gibbs’ vice president who participated in negotiations with plaintiff prior to the purchase order, admitted conversations at that time suggesting an understanding that the plans be restricted for use to the AGON-3. There is no showing that he discussed the specification quoted above. Plaintiff’s first definite notice to defendant of the alleged restriction on use of the AGON-3 drawings was contained in its amended petition filed January 21,1965, in this court.

14. Plaintiff was never advised that the plans had been purchased by others and plaintiff’s permission was not requested when the plans were used on subsequent vessels.

15. Plaintiff’s president testified that it was his understanding of custom in the trade at the time of the purchase order in 1960 that plans and drawings made for commercial vessels remained the property of the architect. He was not well acquainted with the practice as to Government contracts but indicated that the custom in recent years allows the Government to obtain title to the plans and that this is now specifically covered by Government contracts. He was indefinite about when the Government actually commenced this practice.

16. On August 31,1960, the Department of the Navy issued invitations for bids for the construction of two additional ships of the AGOE class. The invitations were accompanied by a sample contract. The special provisions of the sample contract contained the following language:

(f) The Contractor may, at its own expense and election, and at the cost of reproduction obtain from Gibbs Corporation, P.O. Box 4190, Jacksonville 1, Florida, for use hereunder to the extent applicable, copies of such working plans as have been or will be prepared by said shipbuilder for the construction of a similar vessel (AGOE 3) pursuant to contract NObs-4342 entered as of 26 May 1960. * * * It will be the contractor’s responsibility to adapt, revise, or correct such plans and other data or prepare new plans and other data as may be necessary to fulfill the requirements of this contract.

17. The contract for AGOE’s-4 and -5 was awarded to Christy Corporation of Sturgeon Bay, Wisconsin. Gibbs requested instructions from tbe Department of the Navy as to whether it should comply with a purchase order from Christy for the plans for the AGOR-3. The Navy asked Gibbs to comply with the Christy Corporation request and Gibbs did so.

18. Thirty of (the 35 plans (85.7 percent) prepared by plaintiff J. J. Henry Co., Inc., were received by R. A. Stearn, Inc., the architect for AGOR’s-4 and -5. Considering the time saved and skill of personnel employed, Steam used 68.5 percent of plaintiff’s plans sent to it by Gibbs Corporation or 58.7 percent of the total plans plaintiff produced for the AGOR-3. Fifty-eight and seven-tenths percent of the amount billed ($113,111.98) is $66,396.73.

19. R. A. Steam, Inc., mailed the plans for the AGOR’s-4 and -5 to Philip L. Rhodes, Inc., for use in connection with preparation of plans for AGOR’s-6 and -7. Examination of the plans for the AGOR’s-6 and -7 showed that 24 of the 35 (68.5 percent) plans prepared by plaintiff for AGOR-3 were used in the AGOR’s-6 and -7. Considering the time saved and skill of personnel employed, Rhodes used 64.4 percent of the 24 J. J. Henry plans received or 44.2 percent of the total plans prepared by J. J. Henry. Forty-four and two-tenths percent of $113,111.98 (the amount plaintiff billed Gibbs for the plans) is $49,995.50.

20. Similarly, on the AGOR’s-9 and -10, 22 of plaintiff’s 35 plans (62.9 percent) were used. Considering the time saved and skill of personnel employed, 39 percent of the 22 plans for AGOR-3 were used on vessels 9 and 10. This was 24.5 percent of the total plans produced by plaintiff for a price of $113,111.98. Twenty-four and five-tenths percent of said sum is $27,712.44.

21. The sum of the dollar amounts in findings 18,19, and 20 is $144,104.67 which plaintiff claims as the total value of its plans and drawings for the AGOR-3, as represented by reduced billing costs to defendant since the plans were used on additional vessels. Plaintiff claims this amount in its second cause of action as the reasonable value of what defendant allegedly took.

22. For the purpose of determining an amount of recovery for any taking as claimed by plaintiff, it does not appear reasonable to accept tbe amounts as proposed by plaintiff.

Plaintiff bases its claim on percentages of its original plans used by other shipbuilders. It then applies said percentages to the total billings it made to Gibbs Shipyards, Inc., for the original plans in the amount of $113,111.98. Pretrial audit verified that plaintiff incurred the following costs:

Direct labor_$39, 610. 00

Other costs_ 4,694.96

Overhead _ 30,344.21

Total_ 74,649.16

Since the total billings amounted to $113,111.98 and costs were $74,649.16, the difference ($38,462.82) has to be plaintiff’s profit.

Any taking by defendant, if such occurred, a tailing of plaintiff’s costs, but rather a taking of its opportunity to realize additional profits. Therefore, accepting plaintiff’s undisputed percentages as to use by other shipbuilders of its original plans, recovery, if granted, would be $49,001.64, computed as follows:

23. On or about December 14,1961, Gibbs Corporation, the Atlantic National Bank of Jacksonville, Florida (Atlantic) and the defendant entered into an agreement for a controlled account. Gibbs was required to deposit all funds thereafter paid by the Government under contract NObs-4342 and other contracts into this account. Funds could only be withdrawn on the countersignature of a Government representative and for the purposes of payroll, cash, and set amounts of overhead.

24. On December 19,1961, Gibbs and others as sellers entered into a sale and purchase agreement with America Corporation as buyer for the sale of certain assets and properties. This included such work in progress as contract NObs-4342.

25. On January 23,1962, Gibbs Corporation filed a petition in the United States District Court of the Southern District of Florida, for reorganization under Chapter XI of the Bankruptcy Act.

26. An addendum to the sale and purchase agreement of December 19,1961, was executed February 8, 1962, whereby Gibbs Shipyards, Inc., a wholly owned subsidiary of America Corporation, was nominated and accepted as the purchaser of Gibbs Corporation and its assets including work in process.

27. Gibbs Corporation petitioned the referee in bankruptcy to sell the property referred to in the agreement of December 19 as amended February 8.

28. On February 26, 1962, the referee in bankruptcy declared null and void all liens against the property of Gibbs Corporation obtained by attachment, judgment, levy or other legal or equitable proceedings during the 4 months preceding J anuary 23,1962.

29. On March 2,1962, the referee in bankruptcy authorized the sale of Gibbs assets to Gibbs Shipyards, Inc. The sale was consummated on March 16,1962, and confirmed by the referee on March 26 as in accordance with his orders of February 26 and March 2, 1962. On April 6, 1962, Gibbs Corporation was declared bankrupt. There is no evidence that plaintiff, which had filed a claim as an unsecured creditor with the bankruptcy court, contested any of the foregoing proceedings.

30. On April 6,1962, Gibbs Corporation, Gibbs Shipyards, Inc., Atlantic National Bank, and the defendant entered into a novation agreement whereby Gibbs Shipyards, Inc., took over the bankrupt’s contracts with the Government, including that for the AGOK-3, and acquired all rights in the controlled bank account. The agreement further provided that:

2. The Transferee hereby assumes, agrees to be bound by, and rmdertakes to perform each and every one of the terms, covenants, and conditions contained in the Contracts. The. Transferee further assumes all obligations and liabilities of, and all claims and demands against the Transferor under the Contracts in all respects as if the Transferee were the original party to the Contracts.
4. * * * The Transferee hereby becomes entitled to all right, title, and interest of the Transferor in and to the Contracts in all respects as if the Transferee were the original party to the Contracts. * * *

31. On May 27,1964, Gibbs Shipyards, Inc., was acquired by Aerojet-General Corporation, an Ohio corporation, and its business was thereafter carried on by Aerojet-General Shipyards, Inc., a wholly owned subsidiary of Aerojet-General. i

32. On May 28, 1964, Gibbs Shipyards, Inc., Aerojet-General Shipyards, Inc., and the defendant entered into a novation agreement whereby contract NObs-4342 and certain other contracts were transferred to Aerojet-General Shipyards, Inc.

33. The AGOEr-3 was completed and delivered to the Navy on November 29, 1962. In February 1965, the Navy paid Aerojet-General Shipyards, Inc., $100,000 which had been withheld as a reserve on the contract, subject to an indemnity from the assignee for any liability the Government may have to plaintiff under plaintiff’s claim to said sum.

CONCLUSION OF LAW

Upon the foregoing findings of fact and opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover and the petition is dismissed. 
      
       In pertinent part the Order held :
      “* * * [It] is concluded that plaintiff’s first cause of action should be dismissed on the ground that plaintiff had no lien on the vessel (or its components) since no lien under Florida law, if a lien existed, could attach prior to the vesting of title in the United States pursuant to Article 12(c) of the contract (see Armstrong v. United States, 364 U.S. 40, 42 (1960). * * *” We did not decide whether a lien existed under Florida law.
     
      
       We do not reach the question of whether this is a correct calculation of plaintiff’s damages, had there been a taking.
     
      
       Gibbs had filed Its petition for an arrangement nnder Chapter XI of the Bankruptcy Act. At a meeting of creditors, a tabulation showed that an Insufficient number of unsecured creditors had filed proofs of claim and therefore the proposed plan of arrangement was rejected. The Bankruptcy Court announced that an order adjudicating Gibbs Corporation bankrupt would be entered,
     
      
       In pertinent part, that agreement provided :
      “2. » * * The Transferee further assumes all obligations and liabilities of, and all claims and demands against the Transferor under the Contracts In all respects as if the Transferee were the original party to the Contracts.
      
        “4. * * * The Transferee hereby becomes entitled to all right, title, and interest of the Transferor in and to the Contracts in all respects as if the Transferee were the original party to the Contracts.”
     
      
      
         See e.g., Hartford Accident and Indemnity Co. v. N. O. Nelson Mfg. Co., 291 U.S. 352 (1934) ; Roberts v. Spires, 195 Cal. 267, 232 P. 708 (1925), P. Grassi & Bro., Inc. v. Lovisa Pistoresi, 259 N.Y. 417, 182 N.E. 68 (1932) ; Berger v. Baist, 165 Wash. 590, 6 P. 2d 412 (1931).
     
      
       In defining “laborers” in lien cases, most courts have adopted the dictionary definition — one who works at physical occupation or one whose work requires little skill. See e.g., Rogers v. Dexter & P.R. Co., 85 Me. 372, 27 A. 257 (1893). Recent eases have extended that definition to certain unskilled workers. See, Myers v. Alta Construction Co., 37 Cal. 2d 739, 235 P. 2d 1 (1951).
     
      
       In Miller Act cases, reference is often made to state law. In Wells Benz, Inc. v. United States, 333 F. 2d 89 (9th Cir. 1964), a subcontractor had recovered his Miller Act claim against Wells & Benz, the prime contractor, on the basis of an alleged breach of the subcontract. The court, in a footnote said: “Here the contracts were executed and were to be performed in California. Thus, we resort to the substantive law of that state to determine the rights and duties of the respective parties. * * * [at page 92].”
      Plaintiff has, at least in part, relied on Florida lien statutes. We turn, therefore, to the law of Florida for some assistance.
      The construction of “laborer” and “materialmen” in the Miller Act cases sheds some light on the problem. The Act is designed to afford persons supplying labor and materials for the construction of public buildings the same protection given such persons in private contracting, and it has been held that “the words, Tabor and material’ should be given the same meaning under the Miller Act as under State lien laws.” United States v. Peter Kiewit & Sons’ Co., 235 F. Supp. 500, 502 (D. Alaska 1964). See also, Woods Const. Co. v. Pool Const. Co., 348 F. 2d 687 (10th Cir. 1965). We are, of course, not strictly bound by the State lien law or the substantive definitions of a particular state statute. However, we note that in construing the predecessor of current section 270a of the Miller Act, the court in American Surety of New York v. United States ex rel. Barrow-Agee Laboratories, Inc., 76 F. 2d 67, 68 (5th Cir. 1935) looked to the general weight of authority among the states for a definition of “labor” and commented:
      “It may be true that the term ‘labor’ in this statute, as generally in statutes relating to mechanics’ liens, refers to physical labor rather than their technical and professional skill and judgment, but an architect or other skilled man who actually superintends the work as it is done is by the weight of authority furnishing labor. * * [Emphasis added.]
     
      
       The common law gives an architect no lien for his services. Although some states provide specific Hens for architects, generally the question is whether a general Hen statute includes architects as persons performing “labor.” (See e.g., Lamoreaux v. Andersch, 128 Minn. 261, 150 N.W. 908 (1915) ; Stephens v. 
        Hicks, 156 N.C. 239, 72 S.E. 313 (1911) ; Gould v. McCormick, 75 Wash. 61, 134 P. 676 (1913).
      A distinction has been drawn between to drawing plans and specifications and those whose services include superintending the construction. There is a sharp division among the states when only drawings are furnished and these decisions turn on the specific wording of the applicable statute.
      Generally, architects who only furnish plans are excluded from statute definition of “labor”. (Lien permitted: e.g., Marchetti v. Sleeper, 100 Conn. 339, 123 A. 845 (1924). No lien permitted: Palm Beach Bank & Trust Co. v. Lainhart, 84 Fla. 662, 95 So. 122 (1922) ; Libbey v. Tidden, 192 Mass. 175, 78 N.E. 313 (1906) ; Mitchell v. Packard, 168 Mass. 467, 47 N.E. 113 (1897) ; Stephens v. Hicks, supra).
      
      Where, however, the architect permitted a lien under the general wording of “any labor” in the lien statute. See e.g., Marchetti v. Sleeper, supra; Field & Slocomb v. Consolidated Mineral Water Co., 25 R.I. 319, 55 A. 757 (1903) ; Gould v. McCormick, supra.
      
      In some cases, an architect both but the courts allowed him a lien only for the superintending work. See e.g., Mitchell v. Packard, supra, and Palm Beach Bank & Trust Co. v. Lainhart, supra.
      
     
      
       The applicable Florida statutes, relied upon by plaintiff, are 6 Fla. Stats. Ann. §§ 85.01, 85.11 and 85.05. (The last section cited provides for liens in favor of professional engineers and surveyors who perform a service in connection with any land or property which may stand upon the land.) Sections 85.01 and 85.11 read:
      “§ 85.01. Liens upon property.
      Liens prior in dignity to all others accruing thereafter shall exist in favor of the following persons, upon the following described property, under the circumstances hereinafter mentioned in part II of this chapter, to wit:
      * » » * *
      “§ 85.11. Liens for labor on or for vessels.
      In favor of any person performing for himself or others, any labor, or furnishing any materials or supplies for use in the construction of any vessel or watercraft; and in favor of any person performing for himself or others, any labor or service of any kind, on, to or for the use or benefit of a vessel or watercraft, including masters, mates and members of the crew and persons loading or unloading the vessel or putting in or taking out ballast; upon such vessel or watercraft, whether partially or completely constructed and whether launched or on land, her tackle, apparel and furniture.”
     
      
      
         We note that the Court in that ease also said: “We need not decide whether laborers and materialmen would have any claim to the retained percentages if both contractor and surety failed to pay them.” [332 U.S. at 242.]
     
      
       Defendant verified direct costs other than labor at 00 cents more than claimed by plaintiff. Defendant’s figure is used.
     