200 F2d 107 Theodorakis v. Xilas the Alfios

200 F.2d 107



XILAS et al.


No. 6493.

United States Court of Appeals Fourth Circuit.

Argued November 14, 1952.

Decided November 15, 1952.

Morewitz & Morewitz, Newport News, Va. (J. L. Morewitz and B. M. Morewitz, Newport News, Va., on brief), for appellant.

Thomas M. Johnston, Norfolk, Va., (Harry E. McCoy, Jr., and Hughes, Little & Seawell, Norfolk, Va., on brief), for appellees.

Before PARKER, Chief Judge, DOBIE, Circuit Judge, and BARKSDALE, District Judge.



This is an appeal in a seaman's wage case. The case was instituted by the filing of a libel in May 1949. In May 1950 an interlocutory decree was entered in favor of libelant granting him a recovery in the sum of $250 on facts developed by answers to interrogatories which he had propounded. The case came on for hearing on January 17, 1952, when libelant asked to be allowed to take a nonsuit without prejudice. The District Judge granted this permission on condition that libelant within thirty days pay the statutory costs which had been incurred in the case and upon the further condition that if such costs were not paid the case would then be dismissed with prejudice. Upon the failure of libelant to pay the costs in accordance with the condition, an order was duly entered dismissing the case with prejudice. The appeal challenges the power of the court to impose the payment of costs as a condition of the right to take a nonsuit without prejudice. We think that this was a matter resting in the sound discretion of the District Judge and that the discretion was properly exercised. There would be no question about the correctness of the questioned action if the rules of civil procedure were applicable in admiralty. See Fed.Rules Civ.Proc. rule 41(a)(2), 28 U.S. C.A. We think it equally clear that the action was proper under the practice in admiralty. The Confiscation Cases, 7 Wall 454, 19 L.Ed. 196. Section 1916 of Title 28 of the Code permits a seaman to prosecute suits for wages without prepayment of costs. There is nothing in that section, however, which permits him as a matter of right to discontinue without prejudice a case which he has instituted and in which costs have been incurred.