DISTRICT COURT, E.D. NEW YORK
October 27, 1936
FLAT-TOP FUEL CO., Inc.,
The opinion of the court was delivered by: BYERS
BYERS, District Judge.
Motion for retaxation of costs in a cause in which the Circuit Court of Appeals reversed the District Court on the issue of limitation raised by respondent, and affirmed on the question of responsibility for the loss of cargo, which constituted libelant's cause.
The clerk has taxed all costs in favor of respondent, because the result of sustaining the right to limit is to deprive libelant of any recovery since the barge was a total loss, and there was no pending freight.
That is a fortuitous circumstance which ought not to control the matter of costs.
The next cause in which a similar legal result is reached, may not accomplish practical exoneration while in terms denying it.
For this reason it is concluded that costs should be taxed in behalf of each party as to the legal issue on which he prevailed.
The suggested schedule forming part of libelant's memorandum will be adopted.
Motion granted. Settle order.
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