CHAPTER XIV. OF COSTS IN ADMIRALTY. COSTS in admiralty do not necessarily follow the result of the suit, but are entirely within the discretion and control of the court, and although each court has certain rules to which it adheres under ordinary circumstances, it does not hesitate to make such a special decree as to costs in any case as the merits and the justice of that case, or public policy, may seem to require. The general rule may be said to be the same in admiralty as at common law and in equity, that costs follow the result, and that the successful party is entitled to them. But this rule is often departed from in practice. Thus costs have been decreed for the plaintiff where he recovered no debt, because he had been induced to begin the suit by the misconduct of the defendant.2 Where a suit had been brought on a state of facts which, as the law had previously been understood and administered in the court, would have authorized a recovery, but which under a recent decision of the Supreme Court of the United States was deemed insufficient, the court ordered the libel to be dismissed without costs.3 And where a party recovers but a small part of the sum demanded, costs have been refused.4 Where a libel was dismissed in the district court for want of jurisdiction, and costs awarded against the libellant, and on appeal by the libellant from the whole decree, the circuit court affirmed so much of the decree as dismissed the libel, and reversed so much of it as awarded costs, no costs in the circuit court were allowed to either party.5 1 In The Segredo, 1 Spinks, 36, 63, the court said that costs were given in that case because, "it is now laid down by all the courts that costs are to follow the results of the case." 2 Pettit's Case, U. S. D. C. Mass., Dunlap's Adm. Practice, 102. The Sarah Starr, 1 Sprague, 453. The John Walls, Jr., 1 Sprague, 178. 'The McDonald, 4 Blatchf. C. C. 477. In salvage, it has been said that the general rule must be applied with somewhat greater leniency and relaxation because of the expediency of encouraging salvors in the rescue and preservation of property upon the seas. So in a case where a legal set-off was to be made against the claim of a mate for wages, which would have been more than his wages, the court ordered that the claim for wages and costs should be allowed in full, and then the set-off made only against this amount.2 And costs are not decreed against seamen, if they had any probable cause for bringing their action, unless it is clearly shown that they are able to pay them.3 If many suits are brought where all the interests might have been embraced in one, only the costs of one are allowed. So where a suit was brought against the owners of a vessel, and another suit against the master, for the wrongful discharge of the libellant at a foreign port, it was held that, as the master had done him no injury, except that resulting from the breach of the contract, and as the libellant could recover for that against the owners, the suit against the master should be dismissed with $10 costs to the respondent.5 If several seamen join in one libel, and severally have decrees for their respective wages, and from some appeals are taken, while from others no appeal lies, those who have obtained final decrees can recover all the costs they have advanced or for which they are liable.6 Where the log of a vessel had been tampered with by the master and mate of a vessel, the court, although rejecting the claims of salvors, condemned the vessel to pay the costs." The Princess Alice, 3 W. Rob. 138, 143. From this reasoning it might be inferred that where salvors were entitled to recover, they should have their costs, but in The Red Rover, 3 W. Rob. 150, a claim of salvage was pronounced for, but without costs, the nature of the claim being very trivial. See The Joseph C. Griggs, 1 Bened. Adm. 81; The Theodore, Swabey, Adm. 351; The Martha, id. 489; The Sovereign, Lush. Adm. 85; The Little Joe, id. 88; The Alpha, id. 89. Anonymous, U. S. D. C. Mass., Dunlap's Adm. Practice, 102. See ante, p. 418, n. 1. The Henry Ewbank, 1 Sumner, 400, 408. Sheffield v. Page, 1 Sprague, 285. • Two Hundred and Ninety Barrels of Oil, 1 Sprague, 475. The Anastasia, 1 Bened. Adm. 166. The costs of further answers are made to fall on the defendant, if they are made necessary by his fault. The taxable costs are now regulated by statute. This statute gives proctors, "on a final hearing in admiralty, a docket fee of twenty dollars,"2 except in cases where the libellant recovers less than fifty dollars, and then the docket fee is only ten dollars. "For each deposition taken and admitted in evidence in the cause, two dollars and fifty cents." A compensation of five dollars is also allowed for the services rendered in cases removed from a district to a circuit court by appeal. The act also provides for clerks' fees and marshals' fees.5 Counsel fees have been sometimes allowed as part of the costs; 6 1 Act of 1853, c. 80, 10 U. S. Stats. at Large, 161. The Act of 1847, c. 55, 9 U. S. Stats. at Large, 181, provided that where the amount recovered was less than $100, the costs should not be more than 50 per cent of the amount, and should be divided in a certain way. But it has been held that this statute is repealed by the act of 1853, and full costs are now allowed although the amount is less than one hundred dollars. The Sloop Canton, 21 Law Rep. 473. This is construed to give one docket fee for each court, and not one for each term. Dedekam v. Vose, 3 Blatchf. C. C. 77. The docket fee is taxable on a final disposition of the cause by the court. Hayford v. Griffith, 3 Blatchf. C. C. 79. The appeal in this case was dismissed on motion for irregularity in the way it was brought up. Held, that the docket fee was taxable. See Dedekam v. Vose, 3 Blatchf. C. C. 153. If a deposition is taken and used in the district court, and then read in the circuit court, a fee is not taxable for it in the circuit court. Dedekam v. Vose, 3 Blatchf. C. C. 77. See Stimson v. Brooks, 3 Blatchf. C. C. 456. Where a case was removed into the circuit court before the passage of this act, it was held that this fee was not taxable. Dedekam v. Vose, 3 Blatchf. C. C. 77. Under the first section of the act of 1853, which provides that "in case the debt or claim shall be settled by the parties without a sale of the property, the marshal shall be entitled to a commission of one per cent on the first five hundred dollars of the claim or decree, and one half of one per cent on the excess over five hundred dollars," it has been held that where the claim was settled before the claimant appeared in court, the marshal was not entitled to the commission. Bone v. Steamer Norma, 1 Newb. Adm. 533. If a marshal holds a vessel by virtue of two warrants to arrest, in different suits, the custody fees are to be charged equally upon the two suits. The John Walls, Jr. 1 Sprague, 178. The Apollon, 9 Wheat. 362. Mr. Justice Story, in delivering the opinion of the court, said: "The fifth item, allowing five hundred dollars as counsel fees, is, in our opinion, unexceptionable. It is the common course of the admiralty to allow expenses of this nature, either in the shape of damages, or as part of the costs. The practice is very familiar on the prize side of the court. It is not less but we presume that they would not be now, except to the extent prescribed by the above statute.1 The subject of costs upon an appeal to the Supreme Court has been a matter of much controversy, but it is now settled by a general rule of the court passed in 1838.2 This provides that " In all cases where any suit shall be dismissed in this court, except where the dismissal shall be for want of jurisdiction, costs shall be allowed for the defendant in error, or appellee, as the case may be, unless otherwise agreed by the parties. "In all cases of affirmance of any judgment or decree in this court, costs shall be allowed to the defendant in error, or appellee, as the case may be, unless otherwise ordered by the court. "In all cases of reversals of any judgment or decree in this court,5 (except where the reversal shall be for want of jurisdiction,6) costs shall be allowed in this court for the plaintiff in error or appellant, as the case may be, unless otherwise ordered by the court. the law of the court in instance causes, it resting in sound discretion to allow or refuse the claim." See also Carter v. Am. Ins. Co. 3 Pet. 307. The Ship Liverpool Packet, 2 Sprague, 37. Rule 45, 1 How. xxxvi. This rule is now the 24th, 21 How. xiii. M'Ivers v. Wattles, 9 Wheat. 650. In Winchester v. Jackson, 3 Cranch, 514, decided before the above rule was passed, costs were allowed upon a dismission of a writ of error for want of jurisdiction, the original defendant being also the defendant in error. In Strader v. Graham, 18 How. 602, a suit was brought in a State court and decided in favor of the plaintiff. The defendant then sued out a writ of error to the Supreme Court of the United States, and the writ of error was dismissed for want of jurisdiction. The original plaintiff then applied to have his costs in the Supreme Court taxed, but the court refused to do so, as the cause was dismissed for want of jurisdiction. See also The Mayor v. Cooper, 6 Wallace, 247; The McDonald, 4 Blatchf. C. C. 477. In Post v. Jones, 19 How. 150, a whaling vessel was wrecked in Behring's Straits, and was sold, together with the oil and bone on board, to the captains of three other whaling vessels, who brought the cargo home. The court held the sale void, but decreed salvage, affirming the decree of the circuit court, from which the salvors had appealed. In regard to costs, the court said: "As this case has presented very unusual circumstances, and as we think the claimants have acted in good faith in making their defence, all the taxed costs should be paid out of the fund in court." Bradstreet v. Potter, 16 Pet. 317. • Montalet v. Murray, 4 Cranch, 46. The clause in brackets is omitted in the new rule. "Neither of the foregoing rules shall apply to cases where the United States are a party; but in such cases no costs shall be allowed in this court for or against the United States.1 "In all cases of the dismissal of any suit in this court, it shall be the duty of the clerk to issue a mandate, or other proper process, in the nature of a procedendo, to the court below, for the purpose of informing such court of the proceedings in this court, so that further proceedings may be had in such court as to law and justice may appertain. "When costs are allowed in this court, it shall be the duty of the clerk to insert the amount thereof in the body of the mandate, or other proper process, sent to the court below, and annex to the same the bill of items taxed in detail." If judgment is entered up in the Supreme Court, and a blank left for the amount of the costs, it is competent for the court below, at a subsequent term, to tax the costs and have the blank filled nunc pro tunc.2 If the judgment of the court below is reversed, the appellant is of course entitled to his costs in that court.3 And a judgment for costs includes all the costs belonging to the suit, whether prior or subsequent to the rendition of the judgment.* If the libel is dismissed "without costs to either party," the liability of a party to the clerk for his fees for services rendered to such party, is not thereby affected.5 At common law, where costs always follow the result, it is necessary to decide claims to nominal damages upon strict legal principles, but in admiralty, where costs are discretionary, suits for mere nominal damages, unless they are so connected with a substantial right, that it can only be vindicated in this way, will not be entertained.6 1 United States v. Boyd, 5 How. 29. 2 Sizer v. Many, 16 How. 98. 2 4 M'Knight v. Craig, 6 Cranch, 183; Riddle v. Mandeville, 6 Cranch, 86. In the Matter of Stover, 1 Curtis, C. C. 201. Barnett v. Luther, 1 Curtis, C. C. 434. |