The Bluefields
| Decision Date | 27 May 1921 |
| Parties | THE BLUEFIELDS. |
| Court | U.S. District Court — Southern District of Alabama |
A. T Howard, of Mobile, Ala., for libelant.
E. G Rickarby, of Mobile, Ala., for claimant.
This matter comes on to be heard on a motion of the proctor for libelant for a final decree. The facts in this case are substantially as follows:
Libelant was employed as a sailor on the schooner Bluefields, and had earned $44.90, and when they got to Mobile he was found to be in a condition which necessitated his going to the Marine Hospital, and he was sent there. After being treated, he was discharged by the hospital, and then he made a demand for his wages on Capt. Scott, owner of the vessel, who resides in Mobile. Capt. Scott told him that he could not then go with him to the shipping commissioners to pay him off, but there had been a bill for the services of the hospital presented and he did not know at that time whether the vessel or the sailor would have to pay the bill, but that he would go with him the following day to the proper authorities, and then he would know whether to deduct the hospital bill or not according as the authorities said it should or should not be deducted.
The sailor misunderstood in part what Capt. Scott had said, and inferred from the conversation that he would be willing to pay the wages on the following day, but was going to deduct the hospital bill. The sailor then went to the port authorities, who told him the hospital bill could not be deducted from his wages. He then asked them what he should do, and was advised by them to consult his attorney. This he did; he stating to his proctor that Scott proposed to deduct the hospital bill from his wages. The libel was filed, and, as soon as notice of the filing of the libel was given, the vessel came in and paid the amount of the sailor's demand, and paid the costs then accrued into court, and it is now held by the clerk. The only controversy in the case arises over the question of a proctor's fee to the libelant's proctor, and this question depends on the proper construction of section 824 of the Revised Statutes (Comp. St. Sec. 1378).
The rule of this court provides as follows:
There having been no final decree entered, it is manifest that the libelant's proctor has not yet become entitled to his fee; but treating the case, for the purpose of deciding the question, as though the motion had been granted and a final decree entered in favor of the libelant, I will proceed to discuss the question of the proctor's fee.
It is manifest in the first place that the rule of this court must be construed in light of the federal statute, and also that in construing the rule it will be necessary for the claimant who makes the tender to pay into court, not only the costs then accrued, but the necessary costs of filing the tender and entering the final decree thereon. The controlling statute is section 824 of the Revised Statutes, which reads as follows:
'On a trial before a jury, in civil or criminal causes, or before referees, or on a final hearing in equity or admiralty, a docket fee of $20.'
There is a further provision that, if the claim is for less than $50 the proctor's docket fee shall be only $10. This statute has been before the courts frequently, and has not been construed uniformly at all by the various courts; some of them holding that the docket fee is earned whenever any final order is made disposing of the cause. Goodyear v. Sawyer (C.C.) 17 F. 2; The Alert (D.C.) 15 F. 620; L. & N.R. Co. v. Mer. Comp. & Storage Co. (C.C.) 50 F. 449. Others hold that there must be a passing on the merits of the 'controversy' by the court in order to tax the fee. Swan v. Wiley, Harker & Camp Co. (D.C.) 161 F. 236. I am inclined to think that these two conflicting views are the extremes, and according to my construction of the statute the right lies between them. In discussing the matter we must remember that section 823, Revised Statutes (Comp. St. Sec. 1375), forbids allowance of any other compensation to the attorney than such as shall be taxed and allowed under the provisions of section 824.
What then, is necessary under section 824 to entitle a proctor to have his fee taxed. It...
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