Werner Thielebeule v. M/s Nordsee Pilot, Schiffarts, K.G., 452 F.2d 1230, 2d Cir. (1971)

452 F.
2d 1230
Werner THIELEBEULE et al., Appellants,

v.
M/S NORDSEE PILOT, Schiffarts, K.G., Defendants.
No. 389, Docket 71-2044.
United States Court of Appeals,

Second Circuit.
Argued Nov. 16, 1971.
Decided Dec. 27, 1971.
Ned R. Phillips, New York City (Abraham E. Freedman, New York City,
on the brief), for appellants.
Michael J. Pangia, United States Dept. of Justice (Whitney North
Seymour, Jr., U. S. Atty. for the Southern District of New York, L.
Patrick Gray III, Asst. Atty. Gen., Gilbert S. Fleischer, Dept. of Justice, on
the brief), for appellee United States Marshal.
Before MOORE, HAYS and MULLIGAN, Circuit Judges.
HAYS, Circuit Judge:
Appellants, all foreign seamen, instituted an in rem action, pursuant to 46

U.S.C. Sec. 604 (1970), for unpaid wages against the M/S Nordsee Pilot, a ship
of German registry. The United States marshal, acting pursuant to a directive of
the Department of Justice issued on August 11, 1971, refused to attach the
vessel unless appellants prepaid approximately $2,000 representing the "costs"
that would be incurred every ten days for safeguarding the ship while it was in
his custody. These "costs" were primarily the expenses for watchmen and
insurance, as well as other incidental expenses. The appellants prepaid the
$2,000 and the marshal attached the vessel on October 20, 1971. On November
3 the appellants obtained an order directing the marshal to sell the ship, and the
sale was scheduled for November 17. Prior to the sale, the marshal demanded
that appellants prepay the additional watchmen, insurance, and other costs that
had accrued or would accrue prior to the date of the sale. The marshal indicated
that if these costs were not prepaid he would move for an order relieving him of
responsibility for and custody of the ship. Appellants, lacking sufficient funds
to pay the amount demanded, moved in the district court for an order to show
cause requiring the marshal to return the payment already made by appellants
and to cease and desist from requiring appellants to prepay any additional costs
of the character described above. On November 5, the district court denied the
motion, and the appellants moved for and were granted an expedited appeal to
this court. Oral argument was heard on November 16, and this court issued an
order requiring the marshal to maintain custody of the ship and not to demand
further prepayment of costs pending either the decision of this court or the sale
of the ship.
2
Appellants assert that 28 U.S.C. Sec. 1916 (1970) specifically exempts seamen
such as appellants from the duty to prepay costs. That section provides in
relevant part:
3 all courts of the United States, seamen may institute and prosecute suits and
In
appeals in their own names and for their own benefit for wages * * *without
prepaying fees or costs or furnishing security therefor. (Emphasis added.)
4
However Section 1921 of title 28 provides that:
5
Only
the following fees of United States marshals shall be collected and taxed as
costs, except as otherwise provided:
6______
7* * *
8 the keeping of property attached (including boats, vessels, or other property
For
attached or libeled) actual expenses incurred, such as storage, moving, boat hire, or
other special transportation, watchmen's or keeper' [sic] fees, insurance, and $3 per
hour for each deputy marshal required for special services, such as guarding,
inventorying, moving, and so forth. The marshals shall collect, in advance, a deposit
to cover the initial expenses for such services and periodically thereafter such
amounts as may be necessary to pay such expenses until the litigation is concluded; .
. . (emphasis added).
9
The question presented by this appeal is whether the specific exemption for
seamen from the prepayment of "fees and costs" of Sec. 1916 includes those
"expenses" that the marshal is required by Sec. 1921 to collect in advance. The
district court held that, as the Sec. 1916 seamen's exemption was not mentioned
in the advance payment provision of Sec. 1921, the latter provision prevails
over the former and that therefore the marshal could demand advance payment
of expenses of the type referred to in Sec. 1921. We disagree, and hold that Sec.
1916 exempts seamen from having to prepay the "costs" or "expenses" at issue
in this case.
10
The two provisions involved herein deal with the matters relating to the same
subject matter, fees and costs, and should therefore be construed in pari
materia. Estate of Sanford v. Commissioner of Internal Revenue, 308 U.S. 39,
60 S.Ct. 51, 84 L.Ed. 20 (1939). Section 1916 exempts seamen from prepaying
"fees and costs"; Sec. 1921 lists those "fees" which the marshal must collect
and tax as "costs," and specifically provides that the section applies to admiralty
and maritime actions. These "closely related provisions," id. at 42, 60 S.Ct. 51,
must be construed together, and should be construed if possible so as to
effectuate the legislative policies of both. A.P.W. Paper Co. v. FTC, 149 F.2d
424 (2d Cir. 1945), aff'd, 328 U.S. 193, 66 S.Ct. 932, 90 L.Ed. 1165 (1946).
Even if the two provisions are deemed to conflict, it is an elementary rule of
statutory construction that the "specific statutory provision must be considered
to be controlling over a general one . . .," United States v. City of Chester, 144
F.2d 415, 421 (3rd Cir. 1944).
11
We hold that the specific exemption of Sec. 1916 for seamen from prepaying
fees or costs prevents the marshal from requiring prepayment of or security for
such "expenses" as watchmen's salaries and insurance premiums.
12
In Solomon v. Bruchhausen, 305 F.2d 941, 943 (2d Cir. 1962), cert. denied,
Isbrandtsen Co. v. Maximo, 371 U.S. 951, 83 S.Ct. 506, 9 L.Ed.2d 499 (1963),
this court said:
13 error led the court to contravene a fundamental facet of the broad

"This
Congressional policy favoring and facilitating seamen's wage claims suits. Congress
has looked with great favor upon such actions; has regulated them in great detail;
and has granted seamen preferential treatment over other litigants in admiralty. See
Isbrandtsen Co. v. Johnson, supra, 343 U.S. 779, 72 S.Ct. 1011, 96 L.Ed. 1294;
Warner v. Goltra, 293 U.S. 155, 55 S.Ct. 46, 79 L.Ed. 254; Robinson on Admiralty
285-286 (1939). Seamen's wages are protected even from legitimate claims of their
employers or others. Wilder v. Inter-Island Steam Nav. Co., 211 U.S. 239, 29 S.Ct.
58, 53 L.Ed. 164. One of the advantages Congress has given seamen prosecuting
wage claims is access to the federal courts free of all requirements to post security as
a condition of suit. Normally a libelant need not post security of any kind to answer
in damages, but he may be required to give security for costs. Admiralty Rule 24;
Washington-Southern Nav. Co. v. Baltimore & Philadelphia Steamboat Co., 263
U.S. 629, 633, 44 S.Ct. 220, 68 L.Ed. 480. In order to free seamen of all financial
preconditions to suit, Congress passed a statute relieving them of any requirement
even to provide security for fees and costs."

14
The courts, when dealing with the specific question of prepayment of costs or
security in seamen's suits for wages, have been mindful of the congressional
intent to facilitate seamen's actions and have interpreted the statute in light of its
remedial purpose. See Gregory v. Dimock, 286 F.2d 717 (2d Cir. 1961). See
also Washington-Southern Navigation Co. v. Baltimore & Philadelphia
Steamboat Co., 263 U.S. 629, 44 S.Ct. 220, 68 L.Ed. 480 (1924).
15
The policy enunciated in Sec. 1916 would be thwarted if Sec. 1921 were
construed to require a seaman to prepay the expenses referred to in the latter
section. The "expenses" incurred by the marshal in this case amounted to
approximately $2,000 every ten days. In order to assure that the security for
their back wages was preserved prior to sale, appellants would have to prepay
almost $6,000 under appellee's interpretation of Secs. 1916 and 1921. A seaman
who wishes to bring a libel for unpaid wages would normally have very little, if
any, money, and what he did have would be needed for immediate living
expenses. To interpret the "fees and costs" exemption of Sec. 1916 as not
including the "expenses" of Sec. 1921 would, as a practical matter, subvert the
congressional purpose of Sec. 1916. Requiring a seaman to prepay these costs
would inhibit, and, in most cases, effectively foreclose, the prosecution to
judgment of meritorious libels for unpaid wages.
16
Although the record on this appeal is not clear, the administrative practice for
many years apparently was for the marshal to advance the required sums and
then to recoup them from the proceeds of the sale of the ship. This
administrative practice, effective until August 1971, buttresses the
interpretation of Sec. 1916 that "fees and costs" includes disbursements
normally made by the marshal to conserve and to protect the attached property
in a proceeding such as this. See Norwegian Nitrogen Prods. Co. v. United
States, 288 U.S. 294, 315, 53 S.Ct. 350, 77 L.Ed. 796 (1933).
17
In light of the congressional policy underlying provisions of the Judicial Code

dealing with seamen's actions in general and Sec. 1916 in particular, Sec. 1916
must be read as exempting seamen from prepaying the "expenses" listed in Sec.
1921.
18
Reversed.

Werner Thielebeule v. M/s Nordsee Pilot, Schiffarts, K.G., 452 F.2d 1230, 2d Cir. (1971)

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452 F.

Werner THIELEBEULE et al., Appellants,

United States Court of Appeals,

Appellants, all foreign seamen, instituted an in rem action, pursuant to 46

However Section 1921 of title 28 provides that:

13 error led the court to contravene a fundamental facet of the broad

even to provide security for fees and costs."

In light of the congressional policy underlying provisions of the Judicial Code

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