BREITENSTEIN, Circuit Judge.
We have here another episode in the woeful tale of the S.S. CARIBIA. For prior installments see Bassis v. S.S. CARIBIA, E.D.N.Y., 309 F.Supp. 989, and Bassis v. Universal Line, S.A., 2 Cir., 436 F.2d 64. The present dispute relates to wharfage charges of the City of New York and the issue is City’s right to have the reasonable cost of wharfage taxed as administrative expense. The appeal by City is from the district court’s denial of its claim. No libellant has appeared in this appeal. The marshal seeks a determination of whether the City’s claim is an administrative expense. Jurisdiction lies under 28 U.S.C. § 1292(a)(3); see also In re Wills Lines, 2 Cir., 227 F.2d 509, 510, cert, denied 351 U.S. 917, 76 S.Ct. 709, 100 L.Ed. 1450.
The 32,000-ton passenger liner CARI-BIA, owned by Universal Line, S.A., was arrested by the United States Marshal for the Eastern District of New York on April 21, 1969, under a warrant of attachment. Later at the behest of other creditors successive arrests were made and the various actions consolidated. The peregrinations of CARIBIA around New York harbor must be noted.
1— Arrested at Todd shipyards.
2— Moved to a Gravesend Bay anchorage under a June 13, 1969, court order.
3— —Moved to 33rd Street pier under a July 22,1969, court order.
4— Moved to an anchorage under a May 13,1970, court order.
[1067]*10675— Moved on an unstated date in the summer of 1970 to pier 86 without court order or permission of City.
6— Moved to pier 56 on June 1, 1971, under a May 27, 1971, court order recognizing an agreement between Owner and City.
The 33rd Street pier and piers 86 and 56 are all City facilities. A dispute to be noted later arose between Owner and City over the use of pier 86. This dispute was resolved by a settlement agreement dated October 30, 1970, but apparently not executed by City until December 3, 1970. We are concerned with City’s claim for pier 86 wharfage between December 4, 1970, when City says the vessel should have been moved to pier 56 under the settlement agreement and June 1, 1971, when it was so moved. The City claim does not cover any whar-fage at pier 56. So far as the record shows, those charges have been paid by Owner to City.
On December 13, 1971, City made demand on the marshal for payment of wharfage charges at pier 86 for the period noted above, amounting to $250 a day for 180 days, or a total of $45,000, as an administrative expense under 28 U.S.C. § 1921 and Rule E(4)(b), (d), and (e) of the Admiralty Rules. The demand was refused. City then moved on February 10, 1972, for an order that (1) the marshal pay the reasonable value of the wharfage, and '(2) plaintiffs be required to deposit “such costs on a pro-rata basis,” or (3) “such expense be taxed as costs * * * and that the ship be sold to pay such expenses.” The court, on October 31, 1972, denied the motion holding that City had dealt with Owner and, hence, was not entitled to recover wharfage charges as an administrative expense under 28 U.S.C. § 1921. This appeal followed.
At all pertinent times the vessel had been and, so far as the record shows, now is in custodia legis, and has not been sold. The law as to whether custodial claimants have priority over pre-custodial claimants asserting liens “has reached a high point of confusion.” Gilmore and Black, The Law of Admiralty, p. 497.
City relies on New York Dock Company v. S.S. Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L.Ed. 955, which concerned a custodial claim for wharfage when there had been no authorizing court order. Poznan recognizes the rule that “there can be no maritime lien for services furnished a vessel while in custodia legis.” 274 U.S. at 120, 47 S.Ct. at 484. The district court had denied a petition to remove the vessel from the 'custodial claimant’s wharf. The Supreme Court commented that the denial was with the consent or knowledge of the libellant and those united in interest, who “appear to have acquiesced” in the denial. 274 U.S. at 122, 47 S.Ct. 482. The Court said that the custodial charges were for the common benefit and “in equity and good conscience, should be satisfied before the libellants may enjoy the fruits of their liens.” 274 U.S. at 122, 47 S.Ct. at 484.
Owner counters with Larsen v. New York Dock Co., 2 Cir., 166 F.2d 687, which also involved a preferential claim for wharfage of a ship in custodia legis. Two periods were in question. The court found that during the first the dock company “relied solely” on the credit of the libellant which caused the ship to be moved to the wharf of the custodial claimant and during the second period it did not. After observing that the decision in Poznan rested on the doctrine of unjust enrichment, see 166 F.2d 689, and particularly n.2, the court cited as authority Restatement of the Law, Restitution, § 110, p. 455, which states that “A person who has conferred a benefit upon another as the performance of a contract with a third person is not entitled to restitution from the other merely because of the failure of performance by the third person.” Thus, although New York Dock Co. may have conferred a benefit upon the parties claiming an interest in the ship, the court held that its arrangements with a specific party for payment of its whar-fage claims precluded reliance upon the Poznan doctrine for recovery when this [1068]*1068source proved unavailing. Accordingly, wharfage claims for the first period were denied. As for the second period, when there was no reliance, the court held that “its claim for wharfage comes within the ruling in Poznan,” 166 F.2d 689, and allowed the claim to be taxed as an administrative expense.
The present state of the law appears to be that under Poznan, wharfage claims arising while a ship is in custodia legis may be allowed a preference over pre-custodial claimants, by means of taxation as an administrative expense, on the basis of “equity and good conscience.” No preference will be allowed under Larsen, however, where the custodial claimant relied not on the fund represented by the ship but on the credit of the party which caused the wharfage to be incurred. As stated in Gilmore and Black, The Law of Admiralty, p. 497, the result is that those furnishing custodial services to a ship in custodia legis “are gambling on a wholly unpredictable result unless they take the precaution of having their services authorized in advance by an order of the custodial court.”
With this background, we turn to the pertinent facts and court orders.- The June 13, 1969, order permitting the removal of CARIBIA from the Todd pier to Gravesend Bay anchorage provided that the wharfage claims would be borne by Owner and would not be an administrative expense and that the vessel must be kept within the Eastern or Southern disti’icts of New York.
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BREITENSTEIN, Circuit Judge.
We have here another episode in the woeful tale of the S.S. CARIBIA. For prior installments see Bassis v. S.S. CARIBIA, E.D.N.Y., 309 F.Supp. 989, and Bassis v. Universal Line, S.A., 2 Cir., 436 F.2d 64. The present dispute relates to wharfage charges of the City of New York and the issue is City’s right to have the reasonable cost of wharfage taxed as administrative expense. The appeal by City is from the district court’s denial of its claim. No libellant has appeared in this appeal. The marshal seeks a determination of whether the City’s claim is an administrative expense. Jurisdiction lies under 28 U.S.C. § 1292(a)(3); see also In re Wills Lines, 2 Cir., 227 F.2d 509, 510, cert, denied 351 U.S. 917, 76 S.Ct. 709, 100 L.Ed. 1450.
The 32,000-ton passenger liner CARI-BIA, owned by Universal Line, S.A., was arrested by the United States Marshal for the Eastern District of New York on April 21, 1969, under a warrant of attachment. Later at the behest of other creditors successive arrests were made and the various actions consolidated. The peregrinations of CARIBIA around New York harbor must be noted.
1— Arrested at Todd shipyards.
2— Moved to a Gravesend Bay anchorage under a June 13, 1969, court order.
3— —Moved to 33rd Street pier under a July 22,1969, court order.
4— Moved to an anchorage under a May 13,1970, court order.
[1067]*10675— Moved on an unstated date in the summer of 1970 to pier 86 without court order or permission of City.
6— Moved to pier 56 on June 1, 1971, under a May 27, 1971, court order recognizing an agreement between Owner and City.
The 33rd Street pier and piers 86 and 56 are all City facilities. A dispute to be noted later arose between Owner and City over the use of pier 86. This dispute was resolved by a settlement agreement dated October 30, 1970, but apparently not executed by City until December 3, 1970. We are concerned with City’s claim for pier 86 wharfage between December 4, 1970, when City says the vessel should have been moved to pier 56 under the settlement agreement and June 1, 1971, when it was so moved. The City claim does not cover any whar-fage at pier 56. So far as the record shows, those charges have been paid by Owner to City.
On December 13, 1971, City made demand on the marshal for payment of wharfage charges at pier 86 for the period noted above, amounting to $250 a day for 180 days, or a total of $45,000, as an administrative expense under 28 U.S.C. § 1921 and Rule E(4)(b), (d), and (e) of the Admiralty Rules. The demand was refused. City then moved on February 10, 1972, for an order that (1) the marshal pay the reasonable value of the wharfage, and '(2) plaintiffs be required to deposit “such costs on a pro-rata basis,” or (3) “such expense be taxed as costs * * * and that the ship be sold to pay such expenses.” The court, on October 31, 1972, denied the motion holding that City had dealt with Owner and, hence, was not entitled to recover wharfage charges as an administrative expense under 28 U.S.C. § 1921. This appeal followed.
At all pertinent times the vessel had been and, so far as the record shows, now is in custodia legis, and has not been sold. The law as to whether custodial claimants have priority over pre-custodial claimants asserting liens “has reached a high point of confusion.” Gilmore and Black, The Law of Admiralty, p. 497.
City relies on New York Dock Company v. S.S. Poznan, 274 U.S. 117, 47 S.Ct. 482, 71 L.Ed. 955, which concerned a custodial claim for wharfage when there had been no authorizing court order. Poznan recognizes the rule that “there can be no maritime lien for services furnished a vessel while in custodia legis.” 274 U.S. at 120, 47 S.Ct. at 484. The district court had denied a petition to remove the vessel from the 'custodial claimant’s wharf. The Supreme Court commented that the denial was with the consent or knowledge of the libellant and those united in interest, who “appear to have acquiesced” in the denial. 274 U.S. at 122, 47 S.Ct. 482. The Court said that the custodial charges were for the common benefit and “in equity and good conscience, should be satisfied before the libellants may enjoy the fruits of their liens.” 274 U.S. at 122, 47 S.Ct. at 484.
Owner counters with Larsen v. New York Dock Co., 2 Cir., 166 F.2d 687, which also involved a preferential claim for wharfage of a ship in custodia legis. Two periods were in question. The court found that during the first the dock company “relied solely” on the credit of the libellant which caused the ship to be moved to the wharf of the custodial claimant and during the second period it did not. After observing that the decision in Poznan rested on the doctrine of unjust enrichment, see 166 F.2d 689, and particularly n.2, the court cited as authority Restatement of the Law, Restitution, § 110, p. 455, which states that “A person who has conferred a benefit upon another as the performance of a contract with a third person is not entitled to restitution from the other merely because of the failure of performance by the third person.” Thus, although New York Dock Co. may have conferred a benefit upon the parties claiming an interest in the ship, the court held that its arrangements with a specific party for payment of its whar-fage claims precluded reliance upon the Poznan doctrine for recovery when this [1068]*1068source proved unavailing. Accordingly, wharfage claims for the first period were denied. As for the second period, when there was no reliance, the court held that “its claim for wharfage comes within the ruling in Poznan,” 166 F.2d 689, and allowed the claim to be taxed as an administrative expense.
The present state of the law appears to be that under Poznan, wharfage claims arising while a ship is in custodia legis may be allowed a preference over pre-custodial claimants, by means of taxation as an administrative expense, on the basis of “equity and good conscience.” No preference will be allowed under Larsen, however, where the custodial claimant relied not on the fund represented by the ship but on the credit of the party which caused the wharfage to be incurred. As stated in Gilmore and Black, The Law of Admiralty, p. 497, the result is that those furnishing custodial services to a ship in custodia legis “are gambling on a wholly unpredictable result unless they take the precaution of having their services authorized in advance by an order of the custodial court.”
With this background, we turn to the pertinent facts and court orders.- The June 13, 1969, order permitting the removal of CARIBIA from the Todd pier to Gravesend Bay anchorage provided that the wharfage claims would be borne by Owner and would not be an administrative expense and that the vessel must be kept within the Eastern or Southern disti’icts of New York. The transfer to the 33rd Street pier was under an order conditioned upon payment by Owner of all expenses and payment of 30-days wharfage in advance. The advance payment was made and wharfage was paid for two more months but was discontinued after a dispute arose between Owner and City. On May 13, 1970, the court ordered that the ship be removed to an anchorage.
Then the trouble began. Owner became concerned over the approaching hurricane season and sought a permit from City to tie up the vessel. No agreement was reached and without permission from either City or the court, Owner moved the vessel to pier 86. Owner then commenced a state court action to compel City to issue a permit on what Owner considered reasonable terms. The action was dismissed and Owner appealed. Owner also filed a complaint with the Federal Maritime Commission alleging that City was bound to provide space at the $100 a day rate in its published tariff rather than the $250 a day rate which City proposed to charge. City retaliated by filing various criminal charges.
On August 26, 1970, City obtained an order from the court for cause to be shown why the vessel should not be moved from pier 86. A hearing was held, and on September 4, the court filed a memorandum decision which said:
“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.”
City submitted a proposed order which among other things provided that on nonpayment of costs the marshal was directed to sell CARIBIA at auction. At the October 6 hearing which was held on City’s proposal, it was shown that the state court action brought by Owner to compel City to issue a permit had not been finally decided. A suggestion was made that the matter be held in abeyance to await state court action. A decision favorable to Owner would conceivably moot the controversy because Owner had consistently taken the position that it would pay City reasonable wharfage charges. The court took the matter under advisement.
Owner and City then made the aforementioned settlement agreement whereby there was a mutual release of claims to that date and City’s proposed order was withdrawn. The agreement provided for the issuance of a permit for [1069]*1069pier 56 at $100 a day for a 90-day period commencing when necessary dredging was completed. Disputes arose over dredging and other matters. At City’s request the court entered a May 27, 1971, order for the removal of the vessel from pier 86 to pier 56. The order provided that the removal should be in accordance with the settlement agreement between City and Owner. Dredging was never completed but CARIBIA was nonetheless moved to pier 56 on June 1, 1971. After a dispute over the furnishing of certain services by City, payment at the agreed rate began on July 8 and has apparently continued.
Our only concern is with the pier 86 charges between the time when the settlement agreement required the ship to be moved from that pier until the time when it was so moved. City says that in equity and good conscience it is entitled to have these charges allowed as an administrative expense. Owner says that it is not because City relied solely on Owner for the payment of the charges.
In support of its equitable claim, City says that the court accepted responsibility for all custodial costs when it allowed attachment without prepayment of expenses by libellants. Overlooked are the facts that the vessel was moved from the Todd pier to an anchorage, from there to the 33rd Street pier, and from there back to an anchorage under court orders requiring payment of costs by Owner. The nine-month stay at 33rd Street was under an arrangement between City and Owner whereby Owner paid City $7,500 for 30 days advance wharfage and made similar payments for two more months. Nonpayment thereafter resulted, among other things, from a dispute between City and Owner over the rate charged. Thus, City allowed 33rd Street wharfage with full knowledge that the expense was that of the Owner and not an administrative cost.
City says that if the ship had not been in custodia, legis, City would have removed it from pier 86 and sold it under the authority of city ordinances. The difficulty is that City failed to seek in a timely manner the relief which it might have received from the admiralty court. After the hearing on the August 26, 1970, show cause order and the September 4 memorandum of the court, City on September 8 did submit a proposed order directing the marshal to sell the CARIBIA upon nonpayment of whar-fage charges. But before a decision was rendered, the settlement agreement was made, and the proposed order withdrawn by City. The motion for payment of wharfage charges with which we are now concerned was not made until more than a year after the CARIBIA was first moved to pier 86 and after six months of wharfage charges had been allowed to accumulate. In its order from which this appeal was taken the court said City could have made an early move to oust the ship or require payment of wharfage and had it done so “the consequence would not have been the accumulation of charges but a sale of the vessel willynilly, if the [Owner] had failed to discharge the claim without incurring a lien of any kind.”
City says that the settlement should not be given conclusive effect because it was forced into the settlement. It is a little difficult to comprehend how the great City of New York could be forced by a shipowner to settle a wharfage dispute. City insists that haste was essential because of a contemplated lease of pier 86 to the Port Authority of New York. The record shows that the lease was made on April 2, 1971, substantially after the settlement date, and began May 14 before the June 1 removal of the ship. In any event, the settlement agreement and its attendant circumstances were not brought to the attention of the court until the May 14 motion was filed.
Finally, City’s equity and good conscience argument collides head-on with the trial court’s holding that City dealt with Owner and no one else. The facts sustaining this conclusion have been outlined. The arrangements for the 33rd Street pier and the settlement [1070]*1070of the dispute over the charges for pier 86 are most persuasive. City relied on Owner and, having done so, is in no position to now assert a belated preferential claim. Under Larsen v. New York Dock Co., 2 Cir., 166 F.2d 687, City is not entitled to recover the pier 86 whar-fage charges in dispute as an administrative expense.
Affirmed.