In re Standard Oil Co.

S.D. New York

In re Standard Oil Co.

284 F. 526, 1922 U.S. Dist. LEXIS 1227

DecidedJune 6, 1922

StatusPublished

This text of 284 F. 526 (In re Standard Oil Co.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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In re Standard Oil Co., 284 F. 526, 1922 U.S. Dist. LEXIS 1227 (S.D.N.Y. 1922).

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Opinion

LEARNED HAND, District Judge.

The commissioner must file his report without holding it back for his fees. This is indicated by our local rule (admiralty ride No. 26), though not there definitely stated. It follows from Supreme Court admiralty rule No. 43 (267 Fed. xvii), which assimilates commissioners in admiralty to masters in chancery. Supreme Court equity rule No. 68 (198 Fed. xxxviii, 115 C. C. A. xxxviii) requires a master to filé his report, and gives him as his only remedy attachment against the party who is ordered to pay his compensation. Therefore neither party is “initially” obliged to pay the commissioner. The court must fix his compensation and decide how it shall be borne.

The remaining question is: Who shall bear the compensation after the report be filed. It is a disbursement falling within the third division mentioned by Benedict (Benedict’s Admiralty, § 558), since it arises out of a contentious issue in the limitation proceedings. The costs upon these issues will follow the event, as in the case of an original libel on the instance side. The H. F. Dimock. 77 Fed. 226, 23 C. C. A. 123; The W. A. Sherman, 167 Fed. 976, 93 C. C. A. 228, The Leonard Richards (D. C.) 41 Fed. 818, 821. Had this been such a libel, the costs up to interlocutory decree would have been divided, but the disbursements of the reference would fall upon the party who opposed — i. e., the petitioner at bar. The Doris Eckhoff (D. C.) 41 Fed. 156, 159; The Merrill C. Hart, memorandum unreported of Judge Holt, affirmed 188 Fed. 49, 110 C. C. A. 187; Benedict, op. cit. § 491.

The only method by which the petitioner could avoid the costs of liquidating the claimant’s damages is under local admiralty rule No. 24. If he files a tender, the claimant takes the risk of proving more. Without a tender the disbursements are a necessary expense of proving the claimant’s damages, which he must do before any final decree can be entered. Should both vessels be injured and proof be necessary to liquidate the damages of each, it would appear that each may tax so much of the disbursements as the liquidation of his damages occasions, but that is not this case.

The petitioner will pay the commissioner’s fees when fixed, after his report be filed.

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LEARNED HAND, District Judge.

The commissioner must file his report without holding it back for his fees. This is indicated by our local rule (admiralty ride No. 26), though not there definitely stated. It follows from Supreme Court admiralty rule No. 43 (267 Fed. xvii), which assimilates commissioners in admiralty to masters in chancery. Supreme Court equity rule No. 68 (198 Fed. xxxviii, 115 C. C. A. xxxviii) requires a master to filé his report, and gives him as his only remedy attachment against the party who is ordered to pay his compensation. Therefore neither party is “initially” obliged to pay the commissioner. The court must fix his compensation and decide how it shall be borne.

The remaining question is: Who shall bear the compensation after the report be filed. It is a disbursement falling within the third division mentioned by Benedict (Benedict’s Admiralty, § 558), since it arises out of a contentious issue in the limitation proceedings. The costs upon these issues will follow the event, as in the case of an original libel on the instance side. The H. F. Dimock. 77 Fed. 226, 23 C. C. A. 123; The W. A. Sherman, 167 Fed. 976, 93 C. C. A. 228, The Leonard Richards (D. C.) 41 Fed. 818, 821. Had this been such a libel, the costs up to interlocutory decree would have been divided, but the disbursements of the reference would fall upon the party who opposed — i. e., the petitioner at bar. The Doris Eckhoff (D. C.) 41 Fed. 156, 159; The Merrill C. Hart, memorandum unreported of Judge Holt, affirmed 188 Fed. 49, 110 C. C. A. 187; Benedict, op. cit. § 491.

The only method by which the petitioner could avoid the costs of liquidating the claimant’s damages is under local admiralty rule No. 24. If he files a tender, the claimant takes the risk of proving more. Without a tender the disbursements are a necessary expense of proving the claimant’s damages, which he must do before any final decree can be entered. Should both vessels be injured and proof be necessary to liquidate the damages of each, it would appear that each may tax so much of the disbursements as the liquidation of his damages occasions, but that is not this case.

The petitioner will pay the commissioner’s fees when fixed, after his report be filed.

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284 F. 526, 1922 U.S. Dist. LEXIS 1227, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-standard-oil-co-nysd-1922.

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