Alaska S.S. Co. v. Gilbert

• Decision Date: 23 October 1916
• Docket Number: 2829.
• Citation: 236 F. 715
• Parties: ALASKA S.S. CO. v. GILBERT.
• Court: U.S. Court of Appeals — Ninth Circuit

236 F. 715

ALASKA S.S. CO. v. GILBERT.

No. 2829.

United States Court of Appeals, Ninth Circuit.

October 23, 1916

W. H Bogle, Carroll B. Graves, F. T. Merritt, Lawrence Bogle, and Eugene C. Luccock, all of Seattle, Wash., for appellant.

Eimon L. Wienir, of Seattle, Wash., for appellee.

Before GILBERT, MORROW, and HUNT, Circuit Judges.

HUNT Circuit Judge.

As the opinion of the District Court clearly states the facts of this case, we affirm the decision of Judge Neterer on the merits, and append his opinion.

The appellant has also presented a question of costs. It appears that the testimony of the libelant, Gilbert, and of one Bering, a witness on his behalf, was taken by deposition before trial by stipulation of proctors. When the trial came on, the deposition of the libelant was not used, as he was produced and examined in open court. In making up the costs bill, a proctor's fee for taking the deposition of the witness Bering and the cost of the transcript of all the depositions, including the deposition of libelant, was included. The claimant excepted to these items, and the exception was allowed as to the item for the transcript, but the clerk disallowed cost of the transcript of depositions of Gilbert and Bering. The District Court allowed costs for transcript of all the depositions on the ground that they were taken in good faith, even if the necessity for their use had disappeared. The claimant objects to the allowance of costs for the transcript of libelant's own deposition, upon the ground that libelant was produced in open court and his deposition was not used.

There is a distinction between costs allowed as fees of proctors and those allowed for transcribing evidence. In respect to depositions in the admiralty court, no proctor's fee is recoverable in a cause unless the deposition taken is admitted in evidence. Section 824 of the Revised Statutes (Comp. St. 1913, Sec. 1378) allows proctors' fees on depositions only when the deposition has been admitted in evidence. Barnardin v. Northall et al. (C.C.) 83 F 241; The Persiana (D.C.) 158 F. 912; United States v. Venable Construction Co. (C.C.) 158 F. 833. But the allowance of disbursements for transcribing a deposition pertains directly to testimony intended to be used in the case, and when the deposition has been taken in good faith and under apparent necessity therefor, the fee for transcribing it so that it can be used may be allowed in the discretion of the court, even though the witness himself is produced and for this reason the deposition is not used. Nead v. Millersburg Home Water Co. (C.C.) 79 F. 129; G., C. & S.F.R. Co. v. Evansich, 61 Tex. 3; The Oregon, 133 F. 609, 68 C.C.A. 603.

Finding no substantial reason for disaffirmance of the discretion exercised by the District Court, the order taxing costs is sustained.

Affirmed.

Opinion of Neterer, District Judge.

'Libelant was employed as night watchman on board the steamship Seward September 25, 1915. No hours of employment were specified in the shipping articles. On a previous trip on the same vessel his hours were from 6 p.m. to 6 a.m. He understood the same hours applied upon the trip in issue, and he was on duty from 6 p.m. to 6 a.m., from the time the vessel left the port of Seattle until the controversy arose some days later. On October 3d, while preparing to 'turn to' his watch at 5:45 p. m., the first mate asked him. ' Why aren't you on watch?' Libelant replied, 'It isn't 6 o'clock yet;' to which the mate replied that it didn't make any difference, he was supposed to be on watch at 5 o'clock, to which libelant replied, in substance, that it would mean an hour overtime for him. ...