PORTLAND PILOTS INC, et al. v. NOVA STAR M/V, et al.
ORDER denying 304 Bill of Costs; denying 309 Motion to Strike; granting 311 Motion for Leave to File By CLERK OF COURT, Christa K. Berry. (ckb)
UNITED STATES DISTRICT COURT
District of Maine
PORTLAND PILOTS, INC.
CORP., Claimant & Intervening
M/V NOVA STAR, in rem,
ORDER ON BILL OF COSTS
Commencement of this action began when Plaintiff Portland Pilots, Inc.
(“Pilots”) requested a warrant to affect the maritime arrest of M/V Nova Star. The
Court issued the warrant on October 30, 2015, and M/V Nova Star was arrested
and placed into the care of substitute custodian National Maritime Services
(“NMS”). Order, ECF No. 10 and Warrant, ECF No. 12. The vessel remained in the
care of NMS until November 30, 2015, when it was discharged by Court order.
Order, ECF No. 149. Multiple parties and claims were involved in this action. All
claims against the Defendant vessel and its owners, Singapore Technologies
Marine, Ltd. (“Owners”), were settled with the exception of the claims by Intervenor
Plaintiffs Portland Development Corp. (“PDC”) and Maine Uniform Rental, Inc.
Separate bench trials were held for PDC and Maine Uniform Rental. See ECF Nos.
281 and 286. Defendant received judgment in its favor against PDC. Judgment,
ECF No. 293. As the prevailing party, Defendant M/V Nova Star and its Owners
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have filed a Bill of Costs requesting the taxation of costs against Plaintiff PDC in
the amount of $103,248.52 for custody charges. Bill of Costs, ECF No. 304.
Plaintiffs have objected. Objection, ECF No. 306.
Prevailing parties are entitled to move for an award of costs pursuant to
Federal Rule of Civil Procedure 54(d)(1), which provides in pertinent part: “[u]nless
a federal statute, these rules, or a court order provides otherwise, costs . . . should
be allowed to the prevailing party.”
The term “costs,” as used in Rule 54(d)(1), is defined by a comprehensive
listing of such costs in 28 U.S.C. § 1920 that the Court may award. The Court is
limited by that statute and may only award those costs explicitly authorized by it.
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-445 (1987).
The first subdivision of section 1920 permits the taxation of “[f]ees of the
clerk and marshal.” 28 U.S.C. § 1920(1). Though not proven by Defendant, the
claimed costs associated with the custody of M/V Nova Star could be claimed as
falling within subsection (1). None other would be possible. Fees charged by the
marshal would be taxable as outlined in 28 U.S.C. § 1921, but Defendant has not
proven that these costs are marshal fees, under the only relevant section, 28 U.S.C.
§ 1921(a)(1)(E), which permits the taxation of costs by the marshal for “[t]he
keeping of attached property (including boats, vessels . . . .).” Plaintiff PDC argues
that Defendant has not properly claimed marshal’s fees and has provided no
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statutory basis for claiming the costs. Objection to the Allowance of Requested
Costs, ECF No. 306, p. 5.
Before any Bill of Costs is taxed, the party claiming the cost is to attach an
affidavit that the claimed items are correct and have “been necessarily incurred in
the case and that the services for which fees have been charged were actually and
necessarily performed.” 28 U.S.C. § 1924. In this case, Defendant has not
submitted an affidavit in support of its Bill of Costs, but only a copy of a bill by
NWS for custodial charges related to the custody period of “10/30/15-11/30/15” Bill
of Costs, ECF No 304-1. Some courts have held that the failure to provide a proper
affidavit of costs can bar the taxation of costs. See, e.g. Wahl v. Carrier
Manufacturing Co., 511 F.2d 209 (7th Cir. 1975). It is presumed, but not proven by
affidavit or supporting documentation, that these costs were incurred as marshal
costs within the meaning of § 1921(a)(1)(E) where NWS was to serve as a custodian
for the marshal. Order Appointing Substitute Custodian, ECF No. 10, p. 2.
Owners also assert in supplemental filings that it is asking the Court to tax
PDC “its pro rata share of the costs [of arrest and custody]” set forth in the Bill of
Costs based on equitable grounds described in Mullane v. Chambers, 438 F.3d 132,
138 (1st Cir. 2006). Reply of Owners in Support of Request to Tax Costs, ECF No.
308, p. 2.1 However, Owners has not established that the Clerk (as opposed to a
district judge) has the authority to tax costs on equitable grounds.
The Clerk grants Defendant’s Motion for Leave to File Reply Memorandum, ECF No. 311 and
denies PDC’s Motion to Strike Reply, ECF No. 309.
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Plaintiff PDC has also objected to the Bill by saying that “expenses of arrest
are not a taxable cost” within the meaning of 28 U.S.C. § 1920 but “constitute a
maritime lien in custodia legis, which lien is lost when the vessel is released.”
Objection to the Allowance of Requested Costs, ECF No. 306, p. 2. Plaintiff argues
that it did not arrest Defendant vessel and that the imposition of costs against it
would be akin to transferring “to one party the settlement costs of another.” Id. at
p. 5. Plaintiff also asserts that the Bill of Costs is erroneous because the Owners
agreed to pay the costs of arrest in their settlement with Pilots and because Owners
disputed some portions of NWS’s billings. Id. at 2.
Defendant has not established that the costs outlined in its Bill of Costs are
taxable pursuant to 28 U.S.C. § 1920 and has not demonstrated that the Clerk has
authority to tax custodial costs on equitable grounds.
Allocation of Costs
The Bill of Costs seeks to recover the fees of substitute custodian NMS in the
amount of $103,248.52 for the period of October 29, 2015 - December 1, 2015 when
the M/V Nova Star was under arrest. Even if the Clerk has authority to tax the
costs requested pursuant to 28 U.S.C. § 1920 or on equitable grounds, the Clerk
cannot determine what portion of the costs are attributable to PDC or the amounts
that were otherwise paid by other parties pursuant to court order or stipulation of
counsel. For example, on November 12, 2016 U.S. Magistrate Judge John H. Rich
III ordered that World Fuel Services, Inc. and Portland Pilots, Inc. share in paying
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for the costs stemming from the arrest of the vessel and invoiced by substitute
custodian NMS. See Order Allocating Custodial Costs, ECF. No. 51.
During the time the vessel was under arrest, other parties filed claims or
sought permission to intervene as plaintiffs. Moreover, PDC did not file its claim
until November 9, 2015, yet Owners seek to tax costs against PDC for fees that
were incurred prior to PDC’s appearance in the case. The arrest of the vessel
benefitted other parties, so the question remains as to whether the Clerk should tax
the full amount of custodial fees against PDC.
The record in this matter also reflects that the Owners agreed to pay the
charges of NMS that were “attributable or otherwise allocated” to other parties. See
Stipulation Dismissing Sprague’s Intervening Complaint, With Prejudice, ECF. No.
78, Stipulation Dismissing McAllister’s D/B/A Portland Tugboat LLC’s Intervening
Complaint, With Prejudice, ECF. No. 79, and Stipulation Dismissing Cockett Marine
Oil DMCC’s Intervening Complaint, with Prejudice. ECF No. 84. And finally, the
Court has already taxed some of the custodial charges against Century Resorts
International LTD. See Memorandum of Decision and Order on Cross-Motions
Regarding Taxation of Custodial Charges to Claimant, ECF No. 296. There is no
indication in Defendant’s Bill of Costs that this amount awarded by the Court or
other amounts attributable to other claimants and otherwise resolved have been
accounted for or credited against the costs sought in the Bill.
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Where the Defendant has filed a Bill of Costs without a supporting and
explanatory affidavit, where the claimed cost is large and in dispute, where the
authority of the Clerk to tax the custodial costs pursuant to 28 U.S.C. 1920 or on
equitable grounds has not been established, and because the Clerk cannot
determine which arrest costs have been paid by other parties pursuant to court
order or stipulation of counsel, the Clerk denies the Bill of Costs.
IT IS SO ORDERED.
/s/ Christa K. Berry
Dated this 6th day of January, 2017.
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