Araya then filed a Petition for Writ of Mandamus, claiming that 28 U.S.C.A. § 1916, exempting seamen from prepayment of "fees and costs" in an action for, inter alia, wages, precluded the marshal from demanding prepayment of attachment costs as a condition to attachment. The district court found the approach of Cohn v. George, E.D.Ill. 1968, 297 F. Supp. 527, persuasive, and denied the petition. 28 U.S.C.A. § 1921 provides in pertinent part:

Therefore, seamen were not responsible for any and all prepayment of costs. In its analysis, the Fifth Circuit approved the district court's use of the approach in Cohn v. George, 297 F. Supp. 527 (E.D.Ill. 1968), to deny the Writ of Mandamus. In Cohn, the district court agreed with the parties 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.

The Fifth Circuit, however, refused to follow Thielebeule, and held that the later statutory enactment should be given primary consideration. Araya v. McLelland, 525 F.2d 1194 (5th Cir. 1976); Souyoutzis v. M/V GEORGIOS K, 525 F.2d 1197 (5th Cir. 1976); accord, Cohn v. George, 297 F. Supp. 527 (E.D.Ill. 1968). The Fifth Circuit found that § 1921 was amended in 1962 to require prepayment of attachment costs, forty-six years after the seamen's exemption was created.

         ‘ In all courts of the United States, seamen may institute and prosecute suits and appeals in their own names and for their own benefit for wages or salvage or the enforcement of laws enacted for their health or safety without prepaying fees or costs or furnishing security therefor.’          The defendants rely on Villanueva v. Gulf Oil Corporation, 262 F.Supp. 492 (E.D.Pa.1967) and Cohn v. George, 297 F.Supp. 527 (E.D.Ill.1968). In Villanueva, the plaintiff-seaman's attorney demanded that defendant pay him the cost of a deposition which counsel for defendant had taken of the plaintiff and that the defendant supply him with free copies of the transcript.

In Araya v. McLelland, 525 F.2d 1194 (5th Cir. 1976), the Fifth Circuit held that a United States marshal was under no statutory duty to attach a vessel without prepayment of the attachment fees by a seaman proceeding under § 1916. The Fifth Circuit specifically followed Cohn v. George, 297 F. Supp. 527 (E.D.Ill. 1968) where the district court reasoned that these out-of-pocket expenses are not payable from public funds, and a marshal is not permitted to make expenditures from public funds for the purpose of assisting a seaman in pursuing his claim. Discussing the apparent conflict between §§ 1916 and 1921, the Araya court stated that in resolving a conflict between successive statutory enactments, the later enactment should be given primary consideration.