(dissenting) :
I respectfully dissent.
In my view the majority’s decision rewards the owner and creditors of a trespassing ship for the owner’s misconduct, which was permitted to continue with resulting benefit to the ship because the ship was in the district court’s custody. The effect is unjustly to enrich the shipowner and other creditors at the expense of the party wronged, in this case the City of New York. I believe the proper rule to be that where a ship in custodia, legis trespasses upon another’s wharf in order to gain resulting benefits, including protection from hurricanes, the failure of the admiralty court promptly to order removal of the ship, once removal has been requested and the court is aware of the benefits being realized by the ship from its continued trespass, entitles the wharf owner to preferential payment for resulting wharfage charges. The inaction of the court having custody of the ship amounts to permission for or acquiescence in the provision of whar-fage services beneficial to the vessel’s preservation. New York Dock Co. v. S.S. Poznan, 274 U.S. 117, 122-123, 47 S.Ct. 482, 71 L.Ed. 955 (1927).
Though the S.S. Caribia had trespassed upon a City-owned pier, the district court failed for a period of several months to order the removal or sale of the vessel, which was in its custody, despite prompt application by the City for relief and the court’s recognition at the outset that the City was entitled to such relief. Frustrated in its efforts to obtain relief and unable, because the ship was in federal custodia legis, to use self-help or to take remedial action under its own Administrative Code without being held in contempt, the City finally capitulated and entered into a wharfage agreement with the shipowner. As a result, the shipowner and creditors received substantial benefits which they would not have realized if the district court had granted the relief to which the City was clearly entitled. Under the circumstances a wooden-like and literal application of the rule that in the absence of a specific court order a custodial claim will not normally be allowed as an administrative expense strikes me as unconscionable. In my view the district court’s failure for almost three months to sign the order submitted to it by the City amounted to an acquiescence in or approval of the City’s claim as an administrative expense entitled to preferential payment.
The essential facts are simple and undisputed. On August 15, 1970, the S.S. Caribia, then in custody of the United States District Court for the Eastern District of New York pursuant to creditors’ attachments, and requiring shelter in the face of the imminent hurricane season, trespassed upon Pier 86, owned by the City of New York, by mooring to the bollards along the bulkhead of the pier. The City, acting pursuant to § 704-2.0 of its Administrative Code, which authorizes it to remove and sell such a squatting ship at auction, immediately ordered the vessel to vacate the pier, which normally rented at $250 per day. However, the shipowner refused to comply, the ship being in federal court custody.
On August 26, 1970, the City promptly applied to the district court for an order directing that the vessel in the court’s custody be removed from the pier or be required to pay the regular wharfage rate of $250 per day. Under 28 U.S.C. § 1921 the U.S. Marshal, who had legal custody of the ship pursuant to the district court’s order dated April 21, 1969, was required to obtain from the libellants a deposit in advance to cover expenses, including wharfage, *1071which would become administrative expenses entitled to preferential payment.1 In this case, however, the Marshal sought to avoid responsibility in the matter on the grounds that (1) although the ship was in his custody pursuant to Supplemental Admiralty Rule E(4)(b),2 the shipowner had agreed to pay all expenses, and (2) that the Marshal was unable to pay for wharfage because adequate funds had not been provided by the parties to meet such expenses. The creditors were apparently content with the status quo as long as the wharfage fees would not become a first charge against the ship, which was the asset relied upon by them to satisfy their claims.3
On September 4, 1970, the district court denied the City’s motion for removal of the ship, pointing out that removal would leave the vessel without a berth. At the same time, recognizing that the ship was trespassing on the City’s waterfront, Judge Dooling stated that if the parties could not reach an agreement with respect to wharfage charges,
“[t]he only practical order is one that will terminate the present arrangement in favor of the marshal’s resumption of custody in usual form. If the parties are unwilling to advance the expense of the marshal’s custody, it will not be possible to stave off sale.
“It is accordingly apparent that an order must be forthwith settled on the initiative of any interested claimant directing the marshal to resume custody and providing for immediately advancing or securing the expense of his doing so or else providing for immediate sale.”
When the parties failed to reach agreement, the City, on September 8, 1970, acting in accordance with the court’s September 4 decision, submitted a proposed order along the lines directed *1072by the court, which would have required the Marshal to lease a different pier from the City at $250 a day to be paid out of funds to be advanced by the owner and creditors, failing which the Marshal would sell the vessel. Instead of signing the order, however, the court held a hearing on October 6, 1970, attended by the City and various creditors but not by the shipowner. At this hearing the City made crystal clear its demand that the S.S. Caribia be removed from Pier 86 and that past and any future wharfage charges be treated as an administrative expense entitled to priority over the liens of the mortgagees. Mr. Dick, counsel for the City, stated to the court:
“I meant we want the boat out of pier 86 immediately. We want it in the Brooklyn pier, we want a permit issued to the marshal so that eventually if the owner does not pay, we have a first administrative claim on this vessel, or at least equal with other people who have administrative claims.”
Although the court indicated that in the absence of a court Order directing that the Marshal “be put in funds” to satisfy such charges or that the vessel be sold, the wharfage charges probably could not be treated as administrative expenses, the record reveals that the court clearly understood the City’s position in the matter.4 This, therefore, is not a case where the City looked only to the credit of the shipowner. Cf. Larsen v. New York Dock Co., 166 F.2d 687, 689 (2d Cir. 1948). Notwithstanding the fact that more than one month had elapsed since the City had moved for relief and nearly a month had passed since the City had submitted an order pursuant to the court’s decision of September 4, the court, apparently desirous of avoiding a forced sale of the vessel to satisfy custody charges, took no action other than to announce that it would “take [the City’s proposed] order under advisement.”
Thus the City in its effort to gain the relief to which it was clearly entitled was frustrated by the court’s inaction. There followed several more weeks without any action on the part of the court. Meanwhile the trespassing vessel remained as a squatter at Pier 86, realizing benefits for its owner and creditors to which they were not entitled. The City was anxious to enter into a lease with the Port Authority for rehabilitation of Pier 86 but was prevented from doing so by the presence of the vessel. By October 30, 1970, approximately two months had elapsed since the court’s decision and the City’s submission of the proposed order. With no alternative but to wait indefinitely, the City finally negotiated a settlement with the shipowner *1073under which the City would waive its rent claims on condition that the owner would move the vessel to Pier 56 and do the dredging required to enable the ship to be berthed at that pier. The agreements embodying the settlement, however, were not signed until December 3, 1970. Finally, no order having been signed by the district court for over three months, the parties on December 8, 1970, filed a stipulation withdrawing the City’s proposed order.
Upon the foregoing record I cannot agree with the majority’s conclusion that the “City failed to seek in a timely manner the relief which it might have received from the admiralty court.” On the contrary, the record reveals that the City acted promptly, but was frustrated by months of delay on the court’s part in failing to sign an order granting it the relief to which it was entitled. While I concur in the majority’s characterization of the City of New York as “great,” I do not share its difficulty in apprehending how the City was forced, notwithstanding its greatness, to settle the dispute. The City simply had no alternative. The district court had sole and exclusive custody of the S.S. Cari-bia. If the City had attempted to move the ship from Pier 86 without the district court’s approval, the City would have been in contempt.
The linch-pin of the majority opinion is its reliance upon the rule that charges for services rendered to a ship in custo-dia legis may not ordinarily be treated as an administrative expense in the absence of permission from the custodial court. Gilmore & Black, The Law of Admiralty 497 (1957). However, this rule is subject to the equitable principle that where a court permits a vessel to receive the benefit of essential services with knowledge that the party rendering them looks to the court for preferential payment, the charges may be treated as administrative expenses. New York Dock Co. v. S.S. Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L.Ed. 955 (1927); Pyne v. Oil Screw Fishing Vessel Chrisway, 298 F.Supp. 1160 (S.D.Ga.1969); Roy v. MV Kateri Tek, 238 F.Supp. 813 (E. D.La.1965).
The present case is on all fours with S.S. Poznan, supra, where the Supreme Court held that, notwithstanding the lack of any prior judicial authorization or contractual arrangement for whar-fage, the New York Dock Co. was entitled to allowance of its claim for whar-fage provided to a vessel in custodia leg-is as an administrative expense. The Court of Appeals had denied the claim on the same ground as that adopted by a majority here, namely, that the whar-fage agreement had been made with the owner and not with the custodian of the ship, 9 F.2d 838, 844 (2 Cir. 1925). In reversing the Court of Appeals the Supreme Court expressly affirmed the decision of district judge Learned Hand, 297 F. 345, at page 346 (S.D.N.Y.1923), where in he stated:
“The ship is in the custody of the court, and the court alone can pledge her upon such a lien; there must be some one authorized to create consensual liens. The marshal cannot, and obviously the owner cannot. Hence the Polish-American Navigation Company by its contract could not create any lien after the marshal once took charge. The contract did not at once create a lien for the whole period; that arose de die in diem, and ceased on December 2 [the date when the ship was arrested by the marshal], if it ever began at all. Hence, in so far as this bill depends upon a maritime lien, it must fail.
“However, it is not necessary to deny the libelant all relief under the libel, if it has any against the fund in court. If the lienors, who are entitled to the whole of that fund, have in fact enjoyed the benefit of the wharfage service, to the extent of that benefit they may be called on to respond, upon familiar principles. This was the course pursued in The St. Paul, 271 F. 265 (C.C.A. 2). The Poznan required wharfage while under arrest; she required the wharfage which she got, or at least the creditors’ committee of *1074lienors, or a majority of them, thought so.”
Thereafter Judge Augustus N. Hand, in allowing the full claim of New York Dock Co. as an administrative expense, stated:
“The ship was at the libellant’s pier and the cargo owners kept her there. They received the benefit of shelter and discharge from use of libellant’s property. I can conceive of no reasonable measure of this benefit except the reasonable value of the particular wharfage enjoyed and the incidental services rendered.” (See Record on Appeal, Vol. 116, October 1926 Term, Library of the Assn, of Bar of the City of New York).
The foregoing principles were expressly approved by the Supreme Court in New York Dock Co. v. S.S. Poznan, supra, 274 U,S. at 120-121, 122-123; 47 S.Ct. at 484:
“[W]e think petitioner’s right of recovery depends, as the district court ruled, not upon the existence of a maritime lien, but upon principles of general application which should govern whenever a court undertakes the administration of property or a fund brought into its custody for the benefit of suitors.
“The libellants in the consolidated cause were not only concerned as owners in securing delivery of the cargo, but as lienors they were interested in the ship and, as eventually appeared, in the whole of her proceeds. Service rendered to the ship after arrest, in aid of the discharge of cargo, and afterward pending the sale, necessarily inured to their benefit, for it contributed to the creation of the fund now available to them.
* * * •* * *
“But in the present case [the court below] thought that The St. Paul case was to be distinguished on the ground that there the wharfage service was furnished and the obligation incurred in accordance with an order made by the court and with the consent of the libellants. But here the court denied a motion to remove the ship from petitioner’s wharf with the consent of some of the libellants and with full knowledge of all concerned that the wharfage was then being furnished. The libellants in the consolidated cause, who are united in interest with respondent in the present case, thus appear to have acquiesced in this determination. . . It is enough if the court approves the service rendered or permits it to be rendered, and it inures to the benefit of the property or funds in its custody.” (Emphasis supplied).
Here, as in S.S. Poznan, the district court, shipowner and creditors were all concerned, because of the dangers of the hurricane season, with the safety of the vessel, which represented the asset in the court’s custody to which the creditors had to look as security for their claims. As in the S.S. Poznan all parties except the City stood to benefit from the vessel’s continued berthage at the City’s pier. Although there was nothing to prevent it from doing so, the district court declined for a period of three months to order the removal of the vessel from Pier 86, thus permitting it to remain at the pier with full knowledge that the City was demanding that the wharfarge, which was being unilaterally exacted for the benefit of the owner and creditors, be paid for as an administrative expense. As the Supreme Court stated in S.S. Poznan, where the court thus “permits it [whar-fage] to be rendered, and it inures to the benefit of the property or funds in its custody,” the wharf owner is entitled to preferential payment from the proceeds of the vessel. This principle was later applied by us in Larsen v. New York Dock Co., 166 F.2d 687, 690 (2d Cir. 1948), where Judge Frank stated:
“In the instant case, the court, before the ship’s sale, had made no order approving the service rendered or permitting it to be rendered. Neverthe- • less, we think that, as the ship had to be wharfed somewhere, and since the *1075other parties knew of the wharfage, were ‘enriched’ by it, and took no steps, after September 6, to provide wharfage elsewhere, the Dock Company is entitled to a preferred claim for the period from September 6, to November 22,1946.”
In my opinion the record before us mandates the identical disposition of this appeal.
. “§ 1921. United States marshals’ fees “Only the following fees of United States marshals shall be collected and taxed as costs, except as otherwise provided :
... * * * 3:
“For the keeping of property attached (including boats, vessels, or other property attached or libeled) actual expenses incurred, such as storage, moving, boat hire, or other special transportation, watchmen’s or keepers’ fees, insurance, and $3 per hour for each deputy marshal required for special services, such as guarding, inventorying, moving, and so forth. The marshals shall collect, in advance a deposit to cover the initial expenses for such services and periodically thereafter such amounts as may be necessary to pay such expenses until the litigation is concluded; . . . ”
. “Rule E. Actions in Rem and Quasi in Rem; General Provisions
% }{: Hs $ N:
“(4) Execution of Process; Marshal’s Return; Custody of Property.
>¡í
“ (b) Tangible Property. If tangible property is to' be attached or arrested, the marshal shall take it into his possession for safe custody. If the character or situation of the property is such that the taking of actual possession is impracticable, the marshal shall execute the process by affixing a copy thereof to the property in a conspicuous place and by leaving a copy of the complaint and process with the person having possession or his agent. In furtherance of his custody of any vessel the marshal is authorized to make a written request to the collector of customs not to grant clearance to such vessel until notified by the marshal or his deputy or by the clerk that the vessel has been released in accordance with these rules.”
. Counsel for Todd Shipyard, a creditor as a result of providing wharfage for the vessel at an earlier date, summarized the situation as follows:
“Most of the mortgagees have little or nothing to be gained by anything but cooperating with the owner. They are perfectly willing for a year and a half to have the ship resting at anybody’s expense; are unwilling to see that the bills are paid, are unwilling to have them treated as a maritime lien and unwilling to have them treated as an administrative expense. Nor are they willing to put up any money to protect the ship while its in custody under their attachments. They want the best of all sides of the coin. They don’t care that the owner has run up bills of 50 or 60 thousand dollars with the city and forty thousand dollars with Todd. That’s one hundred thousand dollars.”
. The court’s clear understanding of the City’s position may be gathered from the following, among other colloquys:
“The Court: No, the part that concerns me and I suppose the rest of you is Mr. Dick’s suggestion that the city is so situated that it now could, if not otherwise satisfied, present a claim in the amount of $41,750 in prior time to all other claims other than administrative ones, is that you said? [sic]
“Mr. Dick: I think it would be an administrative claim equal with all other administrative claims.
* m, * * *
“Mr. Dick: Well, your Honor, the city never waived any lien which it had. It at all times knew that the vessel was around and it was hoping that this would be repaired and be put back into operation as soon as possible. Over the —Every time the ship owner came in, he came in for a permit or an extension or something, for a month, after this lie was going to be back in operation. The city never perhaps billed the marshal or came to this Court asking for relief, which it plans to do now; however it never surrendered its lien, it has never foregone it, it knew that it had a lien or a possible lien against the vessel, and since the prospects for refinancing have become dimmer, it is interested in securing both as to the past and certainly as to any future bills which are going to be run up, because it does not see very much prospect of collecting it from Universal Lines.
“The Court: Well, the future is quite another matter.
* * Mí M: *
“The Court: No, in the city’s contention they will make the argument that it’s an administrative expense.”