Page:Federal Reporter, 1st Series, Volume 7.djvu/247

 THE ERINAGH. 235 �ably modified by decisions of the courts, The Windermere, 2 Fbd. Bep. and cases cited ; The River Queen, Id. 731 ; l'he Onore, 6 Ben. 564. The cases of The John T. Moore and of The E. A. Barnard appear also to have been cases of vesselfl laid up and not in use for purposes of commerce. Judge Woods, in the case of The John T. Moore, cites, in support of the disallowance of the claim, the case of The Thomas Seat- tergood, 1 Gilpin, 1. In that case, which was decided in 1828, the claim was disallowed — partly, at least — on the ground that it had no connection with any voyage performed or to be performed. It was a claim for service by the mate as ship-keeper, after he had been discharged as mate, and after his wages as mate had been paid to him, and after the dis- charge of the cargo, and for part of the term of service after the marshal had taken possession of the vessel. None of the cases cited, therefore, presented the same reasons that the facts of this case do for holding the service of the watch- man to be a maritime service. And whatever may be the ruie upou the facts of those cases, where the vessel was laid up, undergoing repairs, dismantled, or not engaged in any voyage, or eaming freight, I have no hesitation in holding that it is in accordance with the present view of what consti- tutes a maritime contract, that the service of a watchman on board a vessel coming into port utterly disabled by the sick- nesa of her crew, and having on board a cargo to deliver in order to earn her freight, is a maritime service for which there is a maritime lien on the ship. �In respect to the relative priority of the wages of the watch- man and the master, I think it clear that the claim of the watchman has the preference. His lien is a maritime lien. That of the master, though a lien given as security for a maritime contract, is a lien created by a foreign statute in favor of the very person who, on behalf of the vessel, con- tracted this other maritime debt, which purported, by the general maritime law, to carry with it, as security, a tacit hypothecation of the vessel. I think, therefore, that the mas- ter, having contracted the debt in this port, .cannot set up against the maritime lien, which the contract itnplied, his ��� �