Page:Federal Reporter, 1st Series, Volume 7.djvu/246

 284 FEDSBAIi BEPOBTEB. �the vessel was in the custody of the marshal it was liis own fault. �The commissioner allowed Van Hoesen's claim up to Octo- ber 29tli, amounting to $94,94, and reports that oat of the money in the registry that sum should be first paid, and that the residue, $34.71, should be paid to the administrator of Bowden. The libellant Van Hoesen excepta on the ground that the report does not allow him any costs. As to this point there was no need of an exception. The matter of costs was not referred, and is in the discretion of the court. Nor is the report to be construed as passing on that question at all. Bowden's administrator excepts on the ground that the whole surplus is not allowed to him. �The questions are — First, whether Van Hoesen has a claim which can be paid out of the surplus; and, secondly, if he has, whether it takes precedence of the master's claim for wages. In the case of The Trimountain, 5 Ben. 250, it was held that the wages of a watchman employed on the vessel in port prior to her seizure by the marshal should be paid out of the sur- plus in preference to the claim of the assignee in bankruptey of the owner of the vessel. It is there said by Judge Bene- dict that "such services, being rendered for the benefit of all interested in the ship, create a lien upon the ship. They constituted one of the privileged demands under the ordi- nance, and are so ranked in the Code de Commerce." Sev- eral cases are referred to as authority against the proposition that there is a maritime lien on the ship for the wages of a watchman in port. Gurney v.Crockett, Ahh. kara. i90; The Harriet, Ole. 229; The John T. Moore, 4 Am. L. T. E. (N. Y.) 410; The E. A. Barnard, 2 Fed, Eep. 71-5, 720. In the first two cases referred to, which were decisions in this court in 1845 and 1849, the claims of watchmen employed upon a vessel laid up, and not at the time employed in any voyage, or in the performance of any contract of affreightment, were disallowed, as not being for services maritime in their nature. The test, then, applied to determine whether a contracl was maritime or not, has, I think, been since that time consider- ��� �