The St. Paul

271 F. 265 | 2d Cir. | 1921

HOUGH, Circuit Judge

(after stating the facts as above). [1] The question of law presented by this record is whether we have any right to hear the appeal. It has been often held that mere questions of costs are not appealable (The Ada, 255 Fed. 52, 166 C. C. A. 378, citing cases), and, since it is out of a taxation of the marshals “bill of costs” that this appeal grows, we are asked to dismiss it.

But-it is a mistake to suppose that in the prope'r sense of that word the marshal has, or can have, any costs at all. That official is entitled under the statute to certain fees and to his reasonable expenses in caring for property under seizure. But he is no party to the suit, he has no opponent, and cannot collect costs; he does get fees, as does the clerk of court, -a’nd expenses beside. The habit is firmly fixed of calling the fees of both clerk and marshal their “costs,” but the word is misleading.

But this wharfage item is not even a “disbursement,” for the marshal never authorized berthing the St. Paul at Pier 32, and never promised to pay for such berth—indeed, this is admitted. What he has done is this: He has presented in his bill the demand of Pludson Company to be paid for services rendered the ship—a kind of service which might have been enforced by libel in rem or by petition against the proceeds of the res.

-The method here pursued is without precedent, and not to be approved as such; but we feel justified in treating the claim as it was below, viz. as a demand for preferential payment, or as an asserted superior lien on the proceeds of the steamship. Consequently a final order refusing (in part) such payment out of, or lien upon, a fund in the registry is the subject of appeal. Trustees v. Greenough, 105 U. S. 527. 26 L. Ed. 1157.

[2] The reason moving the District Court to refuse all wharfage after August 2th we may accept, from the concessions of counsel rather than the record, to be the. fact that on that date a resale would have occurred had not this appellant procured a stay. But such stay did not mean that the steamship was ordered to remain at Pier 32— one of the most expensive places in this harbor. It was just as possible and.just as necessary, after the stay as before, to exercise economy and common sense in caring for the St. Paul, and to keep her at Pier 32 was neither good sense nor economy.

But it was Hudson Company that took the ship to Pier 32, and that company also kept her there after she was emptied. Why this was done the record does not tell, further than to prove that the damaged cargo was removed so slowly that certainly until long after August 7, and perhaps as late as October 8, the pier was still so incumbered with cargo, that where the St. Paul lay was an undesirable berth. The inference is that whatever could be gotten for wharfage was so much clear gain. This condition of affairs lasted 82 days, during which Hudson Company pressed on the steamship (so to speak) a berth at Pier 32.

■ We cannot approve the reason advanced for refusing wharfage after August 7th, but are of opinion that the duty of Hudson Company, the moment cargo was unladen, was to order the boat to an inexpensive place; and if it was preferred to keep her at Pier 32, the charge must be reasonable for the St. Paul, not for Pier 32 under ordinary conditions. In fact the order appealed from awarded $2,625 for the first 21 days of the 82-day period. We think the award should have been a reasonable charge for 82 days, and some evidence of what a reasonable charge was is shown by what it cost to berth the St. Paul from October 8th. to November 24th, when she was at last sold. Applying this measure, Hudson Company has by the award of $2,625 been, if anything, overpaid.

The order is affirmed, on the ground that the award made was sufficient, although of the reason given therefor we disapprove. There will be no costs.