(dissenting):
I respectfully dissent.
The majority reasons that the district court had no jurisdiction to grant relief to Everett because the Galicia Defender was outside the territorial waters of the United States when the original complaint was filed. That complaint alleged that the vessel would be within the geographical jurisdiction of the court during the pendency of the action.
On June 17, 1968, the United States filed an answer in which it admitted that the vessel was expected within the jurisdiction on or about June 26, 1968. It denied that there was any process pending for her arrest at the instance of Everett.1 2It also alleged as a separate defense that the court lacked jurisdiction because the vessel was outside the waters of the district.
That defense was not called to the attention of the trial court until August 12, 1969, by a motion for judgment on the pleadings. In the meantime, however, on June 24, 1968, the Galicia Defender entered the territorial waters of the district and proceeded to San Francisco where she arrived at 1918 hours Pacific Daylight Saving Time on June 24, 1968. At the time the motion for judgment on the pleadings was heard on September 12, 1969, the defect that the vessel was outside the jurisdiction had been cured. Indeed, the trial court’s order did not even mention this defense of lack of jurisdiction but denied relief for failure of the complaint to allege a cause of action upon which relief could be granted. It allowed Everett twenty days within which to file an amended complaint.2
The order granting summary judgment from which the instant appeal was taken was addressed to that amended complaint. It was filed June 17, 1970. Again, it alleged the existence of facts which would support its claim of a maritime lien,3 the time and demise charters *467to the United States which prevented Everett from seizing or arresting the Galicia Defender and its reliance therefore upon the Suits in Admiralty Act, 46 U.S.C. §§ 741, 742 for in personam relief.4 The majority does not consider the problem. It is content with the explanation that section 742 does not give the lienholder “greater rights against the Government than it would have against a private charterer.” Since Everett recovered a pro rata share of the proceeds from the in rem proceeding in which it intervened against the ship, the majority say that it is entitled to no more.
But the very purpose of the Act is to permit not only a recovery in rem, but one in personam as well, when the claim is within the framework of the statute. Section 743 provides in part:
“If the libelant so elects in his libel, the suit may proceed in accordance with the principles of libels in rem wherever it shall appear that had the vessel or cargo been privately owned and possessed a libel in rem might have been maintained. Election so to proceed shall not preclude the libelant in any proper case from seeking relief in personam in the same suit. ” . . . "5
The majority argue that the limitation of liability provision of the Act, 46 U.S.C. § 746, precludes recovery by Everett of any sums in excess of its pro rata share of the total amount of liens against the vessel in the in rem proceeding. They cite McMahon v. Pan American World Airways, Inc., 297. F.2d 268 (5th Cir. 1962). It does not so hold. Nor do any of the cases cited by the Government. What they do hold is that *468Aberfoil), 28 F.2d 744, 747 (3rd Cir. 1928).
*467“The extent of his damages is measured by the value of the vessel at the time his libel is filed, when she could be seized, if privately owned.” Hudson Trading Co. v. United States (The
*468Even this quoted liability in rem is placed in question by Eastern Transportation Company v. United States, 272 U.S. 675, 47 S.Ct. 289, 71 L.Ed. 472 (1927), where the offending vessel was a complete wreck, yet in personam liability was sustained without limitation.
Here it is plain that Everett elected to and did proceed in rem; it is also clear that it continued to insist on its in per-sonam remedy against both the United States and against Liberty, the owner under its appointment as husbanding agent. It is entitled to try its case.
I would remand to the trial court for further proceedings consistent with the views expressed herein.
. The complaint was one in intervention in a libel filed by Oakland Dock & Warehouse Company and then pending against Galicia Defender and two sister ships. The United States answered voluntarily according to the record here. An order was made consolidating seven separate libels but preserving the distinction between the libels of others and that of Galicia Defender.
. Under these circumstances Blamberg v. United States, 260 U.S. 452, 43 S.Ct. 179, 67 L.Ed. 346 (1923), does not apply. In that case the vessel against which relief under the Act was asserted, was, at the date of the filing of the libel, in a foreign port where it remained at all times thereafter. Cf. Eastern Transportation Co. v. United States, 272 U.S. 675, 47 S.Ct. 289, 71 L.Ed. 472 (1927) ; Warren v. United States, 179 F.2d 919 (2 Cir. 1949).
. The original complaint as well as the amended complaint asserted maritime lien claims for advances for the payment of crew’s wages and furnishing of repairs, supplies and other necessaries. In the amended complaint for the period between February *4671, 1967 and February 2, 1968, the amount was alleged to be the sum of $20,040.47. Such advances create maritime liens, 1 Benedict on Admiralty 17-20 (6th ed., 1940), and were the vessel privately owned and operated, a proceeding in admiralty could be maintained to enforce them. Claim was also asserted ex contractu against Liberty, as owner, under Everett’s appointment by Liberty as husbanding agent for the ship. A “husbanding agent” or “port agent” is one who assists the vessel and its master in getting in and out of port, purchases supplies and stores, advances funds for payment of wages, procures repairs, etc. Dorn v. Balfour, Guthrie & Co., 155 F.Supp. 203 (N.D. Cal.1958), aff’d. 262 F.2d 48 (9th Cir. 1958).
. Suits in Admiralty Act, March 9, 1920, 41 Stat. 525; 46 U.S.C. §§ 741-752. The Act provides in pertinent part:
“§ 741 Exemption of United States vessels and cargoes from arrest or seizure “No vessel owned by the United States . . . or in the possession of the United States . . . and no cargo owned or possessed by the United States . . . shall, in view of the provision herein made for a libel in personam, be subject to arrest or seizure by judicial process in the United States or its possessions: Provided, That this chapter shall not apply to the Panama Railroad Company.”
Ҥ 742 Libel in personam
“In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be main-táined, any appropriate nonjury proceeding in personam may be brought against the United States .... Such suits shall be brought in the district court of the United States for the district in which the parties so suing, or any of them, reside or have their principal place of business in the United States, or in which the vessel or cargo charged with liability is found. The libelant shall forthwith serve a copy of his libel on the United States attorney for such district and mail a copy thereof by registered mail to the Attorney General of the United States, and shall file a sworn return of such service and mailing. Such service and mailing shall constitute valid service on the United States . . ...”
. The fact that some portion of the claim may have been incurred prior to the demise charter to the United States does not defeat recovery. The recovery sought against the United States is not ex contractu, but on a statutory right granted as quid pro quo for preventing the creditor from arrest and seizure of the ship in assertion of ordinary maritime liens.