United States District Court, D. Maine
PORTLAND PILOTS, INC. Plaintiff,
M/V NOVA STAR, in rem, Defendant. PORTLAND DEVELOPMENT CORP., Claimant & Intervening Plaintiff
ORDER ON BILL OF COSTS
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 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.
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).
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
statutory basis for claiming the costs. Objection to the
Allowance of Requested Costs, ECF No. 306, p. 5.
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.
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. However, Owners has not established that
the Clerk (as opposed to a district judge) has the authority
to tax costs on equitable grounds.
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.
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
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
for the costs stemming from the arrest of the vessel and
invoiced by substitute custodian NMS. See Order
Allocating Custodial Costs, ECF. No. 51.
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.
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 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 ...