The Eva D. Rose, 166 F. 101

The Eva D. Rose

166 F. 101

4th Cir.

1908

Check Treatment

WADDILL, District Judge

(after stating the facts as above). From the foregoing statement of facts, it is clearly seen that the only question before this court is one of costs. The libelants having by agree*103ment, after filing the libel, received the cargo attached, no decree in their favor was necessary. The court decided adversely to their claini for shortage оf cargo, directed certain seamen to be paid, and divided the costs. Manifestly the court had the right to do this, if that was its judgment of what was right in the premises, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and from what was done the libelants did not appeal. Subsequеntly, and within a few days, the case was reopened, upon a petition filed by respondent, and, as the court says, at the instance of both parties, and in a short time— within 16 days of the original hearing — -a decision wаs rendered upon the case as reopened.

The court, of its own motion, could have ordered the reopening of the case, where it is recited thal “the former decree was entered under a misapprehension as to some of the facts, and upon рapers improperly filed.” Such authority would seem to- be undoubted. This wоuld be true of any court, certainly during the term at which the judgment was renderеd, and doubtless, on appropriate pleadings, after the term; but in a court of admiralty, which is deemed always open (section 571, Rev. St. [ U. S. Comp. St. 1901, p. 475]), there can be no question of the authority to do so, upоn application seasonably made (The Vaderland [D. C.] 19 Fed. 527; Cohen on Admiralty, 279; Benedict’s Admiralty, § 548).

The giving or withholding costs is a matter in the discretion of the court (Benedict’s Admir. § 550), ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and onе which is not subject to review, where that is the sole question involved. Dubois v. Kirk, 158 U. S. 58, 15 Sup. Ct. 729, 09 L. Ed. 895; Wright v. Gorman-Wright Co., 152 Fed. 408, 81 C. C. A. 534; the latter being a recent decision of this court.

Counsel for appellant refer to the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍case оf Kell v. Trenchard, 146 Fed. 245, 76 C. C. A. 611, also a decision of this court, as containing a contrary doctrine; but a careful review of that case will be found not to support the view contended for. That case turned upon whether certain expenses of a re.ceiver were meant to be covered by a decree of this court, awarding costs.

The controversy in this case probably arises because the amount of costs involved, 81,030.52, is undoubtedly heavy. But it will be found that the larger items of the bill, with the exception of $120.95, the examiner’s fee, which from the amount of testimony taken is reasonable, consists of one item of wharfage, $304; threе caretakers, $151.'-40, $136, and $28 respectively • appellant’s witnesses аlone cost $87.20. The item for wharfage and watchmen arose almоst entirely from the failure of the appellant, respondent below, to bond'the vessel, which he had authority to do, and as appeаrs ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍from this record was able to do; and while it may have been best for the court to have sold the property pending the litigation, because expensive to keep, no such motion seems to have bеen made, and certainly the appellant is not in a position to complain of any failure in this regard, since the master' had secured permission to give the bond and procure the release of thе vessel, and neglected to do so. The suggestion was made in argument thаt the bond was not given because appellant hoped to sеcure damage's for the detention of his vessel. Thai phase of thе case need *104not be considered, though it is a fact that in the answer filed as early as the 10th of October, 1906, a claim of $150 was made for damages, and $25 per day for demurrage or detention.

For the reasons herein stated, the decree ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the lower court will be affirmed.

For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes