41 F. 147 | E.D.N.Y | 1890
The steam-boat Captain John was seized by the collector of customs for violations of law which subjected her to forfeiture. A libel was thereafter filed against her to enforce the forfeiture, and on October 4, 1889, she was seized by tne marshal by virtue of process in rem, issued in accordance with the prayer of the libel. Thereupon pro- . eeedings were taken under the statute to obtain a remission of the forfeiture, and thereafter the secretary of the treasury remitted the forfeiture, and directed the boat to be released on the claimant’s paying all costs and expenses incurred in the case by the United States. The marshal accordingly presented his bill to the court for allowance, which being objected to by the claimants, a reference was ordered to take proof as to the facts touching the items in dispute. The only disputed items are these: For three keepers, at $2.50 each day; for two keepers, at $2.50 each night; for pumping, $25.
Section 829 of the Revised Statutes provides that there shall be allowed to the marshal, for the necessary expenses of keeping boats, vessels, or other property attached or libeled in admiralty, not exceeding $2.50 a day. This section has been interpreted to apply to the expenses of maintaining the actual custody of vessels by the marshal under ordinary circumstances. It has no application to other kinds of expenses, nor was it intended to limit that kind of expense in extraordinary cases, such as appeared in the case of The F. Merwin, 10 Ben. 403, or, for instance, in a case where it is made to appear that the removal of the vessel from the custody or control of the marshal has been threatened by a mob, or by persons, without authority of law, intending to use force, or where there is reasonable ground to believe that the removal of the vessel from the
The marshal has sought to justify the employment of extra keepers by proof that the proceeding against the vessel has been characterized by the treasury department as an important one; that he had informed the district attorney that he had put three keepers in charge, and his employment'of extra keepers was approved by the district attorney. The evidence is not sufficient to throw upon the district attorney any responsibility for the employment of extra keepers;-and, besides, in all such cases the marshal’s right to charge for extra keepers must depend upon the facts made to appear to the court. As already stated, I am unable to find from any facts proved in this case that there was a necessity requiring the employment of extra keepers. The marshal is entitled to $2.50 per day for the days the vessel was in his custody, but no more. That he cannot charge $2.50 for day and $2.50 for night was decided by this court in the case of The Perseverance, 22 Fed. Rep. 462. This view of the case, as I understand the briefs, renders unnecessary the consideration of any of the other questions raised by counsel in regard to keepers’ fees.
In regard to the charge of $25, expense of pumping, it appears that the owners of the vessel maintained a man of their own on board, who did some pumping, and, for all that appears, was able to do all the pumping required; for there was no serious leak or sudden emergency demanding unusual pumping. It also appears that $10 was paid by the marshals keepers for some pumping, — $3 to a longshoreman, and $7 to an Italian. The payment of this money is positively sworn to; and, while it is not easy to see why the receipt said to have been taken from the Italian was not produced, still I think the $10 maybe allowed upon the proof as it stands, especially as the expense of sending the case back to the referee for further proof on this point would probably exceed the $.10 in dispute.
ON MOTION TO COMPEL MARSHAL TO PAY COSTS OF REFERENCE.
(February 30, 1890.)
Benedict, J. In this action, which is a proceeding in admiralty on the part of the United States to obtain a decree of forfeiture against the
Upon this question my- opinion is that the marshal cannot be compelled to bear the expenses of the reference. Those expenses were a necessary incident to the case pending in court, in which case the marshal was not a party. The controversy which made a reference necessary was between the United States and the claimant. I am unable to discover any ground upon which any part of the costs of the suit can be charged upon the marshal. In ordinary cases, the expense of ascertaining the amount of the marshal’s costs by the taxation of the clerk, which is fixed by statute, is never charged against the marshal, but 'forms part of the costs of the cause, to be paid by the parties. So, in this case, although the expense is greater than in ordinary cases, owing to the nature of the dispute which arose about the marshal’s bill, the expense must be borne by one or the other of the parties to th^ litigation, and by the terms of the remission the claimant is the party to bear it.
■ The other question, is raised by the marshal, who claims, by virtue of section 829, to be entitled to commissions upon the value of the vessel proceeded against; . The 'paragraph of section 829 relied on is as follows:
“When the debt or claim in admiralty is settled by the parties without the sale of the property, the marshal shall be entitled- to a commission of one peícent. on the first five hundred dollars, by the claim or decree, and one-half of one per cent, on the excess of the sum thereafter from five hundred dollars.”
• The contention of the claimant is that this statutory provision is confined by its terms to cases of a personal demand, in a proceeding' to collect a debt or demand, and does not cover a case where the govern-'
“ The theory of this allowance is that the marshal in an admiralty suit in rem has attached the property, and holds it, and that then, without sale of the property by the marshal, the controversy is so disposed of by the parties that the marshal is called upon to give up'possession of the property, so that he loses the fees for selling it and for receiving and paying over the money. In such a ease he is allowed a commission, which is intended as a compensation for his risk and responsibility, just as the poundage allowed on final process, and the percentage allowed on the sale of property in admiralty, are each of them a compensation for risk and responsibility, not merely in selling the property, but in holding possession of it under process. Personally, he can have no other compensation for keeping safely the property; for the expense of keeping it, not exceeding $2.50 a day, can be allowed only when paid to a keeper.” In re Johnston, 8 Ben. 201.
My conclusion, therefore, is that the expenses of the reference above mentioned must be paid out of the fund now in the registry, in place of the vessel, and that, in addition to the costs already allowed the marshal, he is entitled to the commission provided by section 829, to be calculated upon the value of the vessel proceeded against. If the parties cannot agree upon the value of the vessel, a reference to the clerk will be ordered to ascertain the same.
1 Not reported.