Summary
In Otis McAllister & Co. v. S.S. MARCHOVELETTE, 34 F.R.D. 27, (S.D.N.Y.1963), the Court granted a review on a motion filed eleven days after taxation of the costs, upon grounds of excusable neglect.
Summary of this case from Person v. Omni Intern. Hotel-NorfolkOpinion
Suit in admiralty was brought against vessel and owner. Motion was made to review taxation of costs. The District Court, Weinfeld, J., held that it had the power to review the taxation of costs, on ground of excusable neglect and in the interests of justice, even though the motion was not made within the five-day period provided for under Federal Rule of Civil Procedure, where the motion was made within eleven days because of some confusion on the part of the libelant's proctors as to whether admiralty or civil rules governed, and motion was made within a reasonable time, and no prejudice had come to the respondent.
Order in accordance with opinion.
See also D.C., 200 F.Supp. 695.
Hill, Rivkins, Louis & Warburton, New York City, George B. Warburton, New York City, of counsel, for libelant.
Hill, Betts, Yamaoka, Freehill & Long-cope, New York City, Robert H. Peterson, New York City, of counsel, for respondent.
WEINFELD, District Judge.
The Court is satisfied that it has the power to review the taxation of costs, even though the motion was not made within the five-day period provided for under Rule 54(d) of the Federal Rules of Civil Procedure. Assuming arguendo that the Rule is applicable in admiralty, as respondent urges, the Court would have the power with respect to the time default to grant relief under Rule 6(b) for excusable neglect and also in the interests of justice. The fact that the motion to retax was made within eleven days instead of five days is due to some confusion on the part of libelant's proctors as to whether admiralty or civil rules govern; in any event, the motion was made within a reasonable time and no prejudice has come to the respondent.
In Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 134 F.2d 1022 (2d Cir.), cert. denied, 320 U.S. 749, 64 S.Ct. 53, 88 L.Ed. 445 (1943), the Court held that although the Federal Rules of Civil Procedure had not yet been extended to admiralty, the powers given the Court by Rule 6(b) were no different than the powers the Admiralty Court traditionally had.
The item for travelling expenses in the sum of $900 for a witness is disallowed. His presence at the trial was not necessary; his deposition had been taken before the trial, out of the country, where proctors for both sides attended and questioned the witness. The libelant should not be subjected to further expense for this item. But apart from this, it is not allowable and is reduced to $16, computed on the basis of 8¢ a mile for 200 miles travel.
See Ludvigsen v. Commercial Stevedoring Co., 228 F.2d 707 (2d Cir.), cert. denied, 350 U.S. 1014, 76 S.Ct. 660, 100 L.Ed. 874 (1956).