Stark v. The Mary H. Brockway

• Citation: 49 F. 161
• Parties: THE MARY H. BROCKWAY. [1] v. THE MARY H. BROCKWAY. STARK et al.
• Decision Date: 14 January 1892
• Court: U.S. District Court — Southern District of New York

49 F. 161

THE MARY H. BROCKWAY. ^[1]

STARK et al. v. THE MARY H. BROCKWAY.

United States District Court, S.D. New York.

January 14, 1892

James Parker, for libelant.

BROWN District Judge.

Upon a libel filed to recover possession of the schooner Mary H Brockway from a part owner, who had been removed as master but who refused to give up possession, the marshal arrested and took possession of the vessel under process. Thereafter the suit was settled between the parties, and the possession of the property was accordingly delivered by the marshal subject to the payment of his fees. The vessel being of the value of $25,000, the marshal's fees were taxed at the sum of $127.50, under section 829 of the Revised Statutes. The libelant appeals from the taxation, on the ground that section 829 allows only $2.50 per day for keeping the vessel that the language of the following paragraph of that section, giving the marshal a commission 'when the debt or claim in admiralty is settled by the parties without a sale of the property,' is not applicable; and that, under section 857, upon the analogy of the state practice, (Code, Sec. 3307, subd. 2) he should only receive such reasonable compensation for his trouble as the court or judge should allow.

Section 857 of the Revised Statutes relates only to the mode of recovering fees, not to the amount of fees chargeable. These are regulated by section 829. The language of the paragraph above referred to--

'When the debt or claim in admiralty is settled by the parties without a sale of property, a commission of one per centum on the first $500 of the claim or decree, and one-half of one per centum on the excess: provided, that if the value be less than the claim, the commission shall be allowed only on the appraised value thereof'--

is broad enough to include the present case. The claim was for the possession of the vessel. Possession has been secured through the process of the court, the attachment, and the possession and custody of the marshal, until delivered over pursuant to the settlement. The claim was settled by the parties without a sale. The claim is, indeed, not for a money demand, so that the case is not within the very letter of the section, but it is plainly within its spirit. The claim, being for the possession of the vessel, was, in effect, a claim for the value of the vessel, not in money, but in property. Mr. Justice BLATCHFORD in the Case of Johnsto...