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CAPTAIN SHELBY C. ROBERTS v. S. S. KYRIAKOULA D. LEMOS AND CAPETANDIAMENTIS CIA MAR S.A. (06/08/81)

decided: June 8, 1981.

CAPTAIN SHELBY C. ROBERTS
v.
S. S. KYRIAKOULA D. LEMOS AND CAPETANDIAMENTIS CIA MAR S.A., A GREEK CORPORATION V. THE CITY OF WILMINGTON, THE BOARD OF HARBOR COMMISSIONS, RETLA STEAMSHIP COMPANY CAPETANDIAMENTIS CIA MAR S.A., A GREEK CORPORATION, APPELLANT (D.C. CIVIL NO. 77-0301)



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

Before Gibbons, Hunter and Garth, Circuit Judges.

Author: Gibbons

Opinion OF THE COURT

Capetandiamentis Cia Mar S.A. (CCM), the successful defendant in a maritime tort action, appeals from the district court's affirmance of the District Court Clerk's disallowance of two items of costs. On August 4, 1977, following his fall from a gangway leading to appellant's vessel, Captain Shelby C. Roberts (Roberts), a Delaware River pilot, initiated an unseaworthiness action against CCM. On February 14, 1978, the district court on Roberts' motion ordered CCM to produce the Master of the vessel for deposition in Wilmington, Delaware. CCM flew Captain Petros Nikiforos from his home in Pireaus, Greece, to Roberts' counsel's office in Wilmington. The deposition was videotaped and was introduced at the subsequent trial. At trial, CCM also produced an expert witness, Paul J. Keeler, to testify concerning gangway safety standards. On July 13, 1979, the district court rendered a judgment in favor of CCM. This court affirmed by judgment order on March 21, 1980.

CCM then filed a bill of costs in the district court. On September 22, 1980, the Clerk of that court ordered taxation of various costs against Roberts, but denied the bulk of Captain Nikiforos' travel expenses to and from the United States, and denied Mr. Keeler's expert witness fee. The Clerk disallowed the travel expenses on the ground that "mileage in excess of the "100 mile rule' is at the discretion of the trial judge not the Clerk." Appendix 155 n.2. Concerning the expert's fee, the Clerk stated:

Pursuant to Local rule 6.1(B)(4), fees of expert witnesses are not ordinarily taxable in an amount greater than that statutorily allowable for ordinary witnesses; however, the Court may allow, in its discretion, a reasonable amount as an additional award for expert witnesses, provided the Court finds that the expert's testimony was not only helpful but also played a crucial role in the resolution of the issues presented. Therefore the request for expert fees for Mr. Keeler will be disallowed by the Clerk.

Appendix 154 n.4.

On September 26, 1980, CCM filed a Federal Rule of Civil Procedure 54(d) motion for review of costs, contesting the denial of these two items. On November 10, the district judge entered an order summarily affirming most of the Clerk's assessment, but awarding an additional sum to cover the costs of transcripts and copies of exhibits. We reverse the denial of Captain Nikiforos' travel expenses. We also reverse the district court's denial of the expert witness' fee.

Travel Expenses

Since the Supreme Court's decision in Farmer v. Arabian American Oil Co., 379 U.S. 227, 85 S. Ct. 411, 13 L. Ed. 2d 248 (1964), award of witness' travel expenses beyond 100 miles has been within the discretion of the district court. Before Farmer, many federal courts had assumed that the taxable mileage allowance for witnesses under 28 U.S.C. § 1821 corresponded to the 100 mile reach of the court's subpoena power. See, e. g., Spiritwood Grain Co. v. Northern Pac. Ry. Co., 179 F.2d 338 (8th Cir. 1950); Lee v. Pennsylvania R. Co., 93 F. Supp. 309 (E.D.Pa.1950). In Farmer, the Court, while declining to invalidate the "100 mile rule" in all cases, remitted the issue to the discretion of district courts. Accordingly, most courts now recognize that restrictions on their subpoena power are no barrier to taxing as costs the travel expenses of a prevailing party's witness who appears from beyond the court's reach. See generally 10 C. Wright & A. Miller, Federal Practice and Procedure, § 2678 at 231-34 & cases cited n.42 (1973).

The "100 mile rule" may be of particularly dubious application when the witness travels from abroad. The version of 28 U.S.C. § 1821 in force at the time of this action stated:

Provided that, in lieu of the mileage provided for herein, witnesses who are required to travel between the territories and possessions or to and from the continental United States, shall be entitled to the actual expenses of travel at the lowest first class rate available at the time of reservation for passage, by means of transportation employed....

28 U.S.C. § 1821 (1964). The language of the statute would seem to supersede the mileage restrictions pertinent to intra-United States travel. If so, the prevailing party whose witness travels from abroad would clearly be entitled to recover the cost of passage.*fn1

While there is little doubt that a witness' expenses incurred in traveling to and from the United States may be recovered, some courts have held award of these costs a matter of discretion, see, e. g., Scientific Holding Co. Ltd. v. Plessey Inc., 510 F.2d 15 (2d Cir. 1974) (by implication); Kaiser Indus. Corp. v. McLouth Steel Corp., 50 F.R.D. 5 (E.D.Mich.1970); Rosenthal v. Brangier, 37 F.R.D. 248 (D.Haw.1965), while others have held § 1821 mandated their award, see, e. g., Oscar Gruss & Son v. Lumbermens Mut. Cas. Co., 46 F.R.D. 635 (S.D.N.Y.1969); Dunn v. Merrill Lynch, Pierce, Fenner & Smith Inc., 279 F. Supp. 937 (S.D.N.Y.1968).*fn2

We need not here decide whether 28 U.S.C. § 1821 requires taxation of a witness' expenses incurred in traveling to and from the United States. In this case, the district court ordered CCM to produce Captain Nikiforos from overseas. Award of travel costs generally resides within the district court's discretion. Where, as here, however, the witness appears pursuant to a court order made on the losing party's motion, we believe it an abuse of discretion not to award costs that would not have been incurred but for that court's order, unless the losing party demonstrates circumstances warranting an exercise of discretion in his favor. Captain Roberts has made no such showing.*fn3 Accordingly, we reverse the ...


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