The Neptune

252 F. 129 | 2d Cir. | 1918

REARNIJD HAND, District Judge

(after stating the facts as above). [1] The appellee does not contend that, without the libelant’s au-uiurizacion. the marshal has the right to charge more than $2.50 per diem for the custody of the vessel. Indeed, such a contention would, if made, be in the face of the statute (R. S. §§ 823, 829 [Comp. St. 1916, §§ 1375, 1386]), which expressly limits the marshal's allowance to that amount. Such has been the uniform ruling o-f the District Courts for the Southern and Eastern Districts of New York, and the question admits of no debate. The Perseverance (D. C.) 22 Fed. 462; The Captain John (D. C.) 41 Fed. 147; The F. Merwin, 10 Ben. 403, Fed. Cas. No. 4,893. Furthermore, since the fees are fixed by statute, under settled rules no agreement is valid by which they are changed. Hatch v. Mann, 15 Wend. (N. Y.) 44; Gilman v. Des Moines Valley R. R. Co., 40 Iowa, 200; Phoenix Ins. Co. v. McEvony, 52 Neb. 566, 72 N. W. 956; Edgerly v. Hale, 71 N. H. 138, 51 Atl. 679; Price v. Lancaster County, 189 Pa. 95, 41 Atl. 987 (obiter); Burke v. Webb, 32 Mich. 173, 182; Carpenter v. Taylor, 164 N. Y. 171, 58 N. E. 53. In Crofut v. Brandt, 58 N. Y. 106, 17 Am. Rep. 213, the limitations upon the sheriff in such matters are discussed with learning. The doctrine goes back to English cases before the Revolution, which may be found collated in Hatch v. Mann, supra. Hence we find that no legal agreement could exist which would authorize a recovery by the marshal of more than $2.50 per diem for keeping a vessel. The amount may be inadequate under present conditions, but it is fixed by law, and we have no power to change it.

[2,3] Plowever, this fee comprises only the cost of the custody proper of the vessel; it does not cover the marshal’s expenses for wharfage (The F. Merwin, supra), or the like (The Nellie Peck [D. C.] 25 Fed. 463). If the vessel sank without fault of the marshal, he would be responsible for her protection, and his charges for raising and beaching her would be proper. Indeed, the libelant and the lienors do not dispute this, or contend that the charge of $2.50 per diem would cover such services. Their position is that the marshal was at fault for leaving her where she was. It is clear that this issue cannot be satisfactorily disposed of upon affidavits. If the parties wish to contest the charge, the matter must be referred, so that evidence may be taken and the issue properly determined. If not, the charge must be allowed.

The charge of $5 is proper when the marshal draws and executes a deed; if the party draws it, as he may, the charge is only $1. R. S. § 829.

Order reversed, and cause remanded, with instruction to retax the costs as above provided.

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