The opinion of the court was delivered by: Juergens, Chief Judge.
This civil action in the nature of mandamus is brought pursuant
to the provisions of Title 28 U.S.C.A. § 1361, against the
marshal of this Court.
Plaintiff Joseph Cohn is an attorney and represents plaintiff
Robert Foster in a libel suit against the Motor Vessel CAYUGA in
Civil No. 66-191 filed in this Court.
It is stipulated that on September 30, 1966, plaintiff Foster,
through his attorney plaintiff Cohn, filed a libel in rem against
the M/V CAYUGA in a cause of action for tort civil and maritime
in nature, under the general maritime laws of the United States;
that plaintiff at the time of the injury for which
indemnification is sought was a seaman employed on the navigable
waters of the inland waterways system. Suit was brought pursuant
to the provisions of Title 28 U.S.C.A. § 1916, which statute
exempts seamen from prepayment of or stipulation for costs; that
Cohn is an attorney whose practice consists of, among other
things, representing injured seamen in claims under the Jones Act
and under the general maritime law; that defendant Harry George
is the United States Marshal for the Eastern District of
Illinois; that on April 5, 1966, after filing the libel referred
to above, plaintiff Cohn received a telephone call from the
office of the United States Marshal for the Eastern District of
Illinois, advising that office would not handle any libels in rem
unless they were bonded; that plaintiff Cohn advised defendant
George that a bond was not required; that defendant George has
refused to execute the libel in rem or to arrest the vessel
CAYUGA until the plaintiff tenders to defendant a bond, the
amount and considerations of which are unknown to plaintiff; that
on October 20, 1966, plaintiff Cohn wrote defendant a letter
confirming the conversation "concerning the policy of your office
not to file any libels without first obtaining a bond from the
Plaintiff asks this Court to compel its marshal to take and
retain custody under process for admiralty arrest in an in rem
action a vessel without advance collection of a cash deposit for
necessary disbursements for moving the vessel, wharfage, keepers,
insurance and other custody expenses.
The parties concede that a seaman is excused from giving
security for costs recovered in an action and from prepaying fees
for all official services performed in the action by the clerk
and marshal of the Court and their deputies under the provisions
of Title 28 U.S.C.A. § 1916.
The only dispute appears to be whether or not the marshal may
require prepayment for expenses necessary for wharfage, keepers,
maintenance and insurance against damage and injury done to the
vessel while in his custody.
Section 1921, Title 28 U.S.C.A., relates to the United States
Marshal's fees and provides for fees which the marshal shall
collect and tax as costs. This section provides in part as
"For the keeping of property attached (including
boats, vessels, or other property attached or
libeled) actual expenses incurred, such as storage,
moving, boat hire, or other special transportation,
watchmen's or keepers' fees, insurance, and $3 per
hour for each deputy marshal required for special
services, such as guarding, inventorying, moving, and
so forth. The marshals shall collect, in advance, a
deposit to cover the initial expenses for such
services and periodically thereafter such amounts as
may be necessary to pay such expenses until the
litigation is concluded;" (Emphasis supplied).
In Villanueva v. Gulf Oil Corporation, 262 F. Supp. 492
(D.C.E.D.Pa., 1967), a seaman attempted to obtain prepayment from
defendant for his deposition costs under the provisions of
Section 1916. The Court there said that the purpose of § 1916,
Title 28 U.S.C.A., is to relieve the plaintiff from prepayment of
those fees and costs of suit, such as the initial filing fee and
various marshal's fees that must be paid to the court. The
statute does not give plaintiff an automatic right to avoid
prepayment of any other costs that he may incur in preparing his
case for trial.
Under federal practice the marshal may insist on payment of
fees and expenses in advance of performing the service. Duy v.
Knowlton, C.C., 14 F. 107. Brewer v. Hunter, 163 F.2d 341 (10th
The marshal also is entitled to collect payment in advance for
payments for keepers, pumping, wharfage, towage, etc., for
disbursements to be made in maintaining the vessel during the
period it is in his custody in addition to the fee for other
services performed. The Allegheny, 85 F. 463 (D.N.J., 1897); The
Neptune, 252 F. 129 (2nd Cir., 1918).
The Marshals Manual provides that a marshal is not authorized
to pay the costs in pauper or seamen cases for publishing a
monition in a suit in admiralty against a vessel or of keeping
the vessel while in his custody.
In admiralty proceedings in which the United States is not a
party, the expenses incurred in connection with the safekeeping
of a libeled vessel, such as compensation of a shipkeeper, are
not payable from public funds, notwithstanding an order from the
court directing the payment of such fees by the marshal. This
includes seaman cases, in which the ...