The opinion of the court was delivered by: WEBER
This action was commenced on March 10, 1967, by the filing of a Complaint in Rem against the vessel alleging a cause of action - civil and maritime for wharfage. It is alleged, on information and belief, that Harold D. Caldwell and Edward Manley, Both of Chicago, Illinois, are the owners of record and that some right, title or interest in the vessel is claimed by the Security-Peoples Trust Company of Erie, Pennsylvania.
The plaintiff claims wharfage from May 1, 1965, and later by an Amendment to the Complaint claims wharfage from November 1, 1964, to the time of filing this action.
A claim has been filed by Harold D. Caldwell, designated as "Trustee", claiming a one-half interest in the vessel, who alleges that he appears in this case as Trustee and solely to defend against Plaintiff's claim to a maritime lien.
The Security-Peoples Trust Company has filed a Motion to Intervene under Rule 24(a) and a claim alleging that it has a maritime lien against the vessel for laying-up expenses, that it has a lien under the Act of Assembly of the Commonwealth of Pennsylvania of June 13, 1836, P.L. 616, and that it has a claim against the vessel under Foreign Attachment proceedings commenced in the Court of Common Pleas of Erie County, Pennsylvania, and later removed to this court as Civil Action No. 55-65 Erie.
Claimant Caldwell has filed a Motion for Summary Judgment moving for summary judgment and dismissal of the action in rem on the grounds that no maritime lien exists because the vessel was laid up and not in the maritime service when the wharfage was rendered, and on the further grounds that the vessel was under attachment by state court process since May 20, 1965, and no maritime lien could attach since that time.
Maritime liens are governed by the Act of June 5, 1920, c. 250, § 30, subs. P, 41 Stat. 1005, 46 U.S.C. § 971. "Any person furnishing repairs, supplies, towage, use of dry dock or marine railway, or other necessaries, to any vessel * * * shall have a maritime lien on the vessel, which may be enforced in a suit in rem * * *." This was a re-enactment, in substantially the same language, of the Act of June 23, 1910, c. 373, § 1, 36 Stat. 604.
Putting aside for the moment the question of whether the vessel must be "in navigation", is a lien for wharfage within the purview of the statute? The specific word "wharfage" is not mentioned in this statute, nor in its predecessor. "Wharfage" is defined as the pecuniary charge to which vessels are liable while lying at a wharf, dock or pier. 1 Benedict on Admiralty, § 102, p. 309 (6th Ed., 1940).
Such wharfage charges in the general maritime law would support a maritime lien where the service was rendered upon the credit of the vessel and the other requirements of the maritime law were satisfied. This lien was in turn a prerequisite to an action in rem against the vessel:
"The right to collect wharfage is a right which has been recognized in admiralty from the earliest times, and it has been repeatedly held that the warfinger has a maritime lien therefor, and no distinction has been made whether the wharf be privately or publicly owned. The Bold Buccleugh, 7 Moore P.C. 269; The Kate Tremaine, Fed.Cas.No.7,622, 5 Ben. 60.
 Wharfage not only includes mooring of vessels for unloading and loading cargo, but also for the purposes of protection and safety, and a maritime lien attaches to the ship in a home port if she is not out of commission or withdrawn from navigation. The George E. Berry (D.C.) 25 Fed. 780; The Allianca (D.C.) 56 Fed. 609; The C. Vanderbilt, 86 Fed. 785." Beard v. Marine Lighterage Corporation, 296 F. 146, 147 (D.C.E.D.N.Y.1924).
In Ex Parte Easton, 95 U.S. 68, at p. 73, 24 L. Ed. 373, it stated:
"Wharf accommodation is a necessity of navigation and such accommodations are indispensable for ships and vessels and water-craft of every name and description * * * Erections of the kind are constructed to enable ships, vessels, and all sorts of water-craft ...