Erastus Cornelius Benedict.

The American admiralty, its jurisdiction and practice, with practical forms and directions online

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tirely deprived of his right, as he was in the case of supplies to
domestic vessels, by the alteration of the Twelfth Admiralty Rule,
in 1858, changing it from a rule of mere practice to a most impor-
tant and sweeping rule of law, destroying at the same time a security
and a remedy, — a change made on we know not what examination,
but certainly without open argument. Nor does it appear by what
authority the court could make such a change in the law, their power
under the statute being limited to regulating proceedings. By it a
most useful and deserving class of contributoi-s to the efficiency of
the ships that carry on our commerce were entirely denied a resort
to either a national or a state tribunal for the enforcement of their
usual remedies. Their contract has always been held to be a mari-
time contract,^* and it has always been held that, when the court
has jurisdiction of the contract, it has jurisdiction of all its inci-
dents, and may enforce all its remedies. If, then, such a maritime
contmct be, no matter by what law or contract, a lien upon the ves-
sel, the creature and the ward of the admiralty, it is not apparent
how jurisdiction to enforce that lien can properly be denied. The
court has always held that it cannot, consistently with its duty, re-
fuse to exercise a power with which the constitution and. law have
clothed it, when its aid is invoked by a party entitled to demand it.
It is as great a violation of duty to refuse to exercise jurisdiction
which is granted, as to exercise that which is not granted.

§ 813 a. Importance of the Question. — The extent of the polit-
ical grant of judicial jurisdiction in maritime cases to the general gov-
ernment, as a national sovereignty, haa been thus treated at greater
length than it would have been, but for the conviction that the sub-
ject is one deserving all the importjince which the founders of the
republic gave to it. The coui-se of decisions has been such that many
paragraphs which have been retained in this edition, might, perhaps,
have been omitted as obsolete ; but while the settled range of admi-

lasThe Moses Taylor, 71 U. S. (4 '« The General Smith, 17 U, S. (4
WalL) 411 ; The Belfast, 74 U. S. (7 Wall.) Wheat.) 43S.
«24; The Josephine, 39 N. Y. Rep. 19.

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rally jurisdiction has been greatly extended, some important ques-
tions maj' be considered as still open to discussion, and it was therefore
deemed better to allow the whole to stand. To arrive at the present
state of progress, the court has not hesitated to correct the errors
into which it has been sometimes led by disposing of cases with less
discussion and consideration than they would have received, had the
importance, which subsequent events developed, been perceived
when the cases were heard ; and this, although the overruled cases
have been accepted as the law for long periods of years.^ The
discussions and events of the past few yeai-s have greatly modified
current opinions and theories, legislative, as well as judicial, and
have changed that drift of opinion towards the exaltation of the au-
thority of the states, and the corresponding undervaluing of the
national powei*s, which was too often perceptible in the opinions of
individual judges, and sometimes in the adjudication of the court,
in the matter of admii-alty jurisdiction, and have established juster
theories of the national power.

§ 313 b. The True Test of Admiralty Jurisdiction.— The rule
Blare decins^ when properly applied, is a sound one. When the
decisions are, in fact, a series rerum perpehio et similiter judicatarum^
they furnish very high evidence of the law. They are, however,
evidence which may be rebutted, and, when successfully rebutted,
their evidence cannot prevail. No number of erroneous decisions
can furnish sufficient reason for deciding contrary to law. When
a decision has been followed without hesitation or consideration
by many others, it is but one decision, of which the others are but
echoes. The question always remains, what is the law ; and deci-
sions are to be weighed, not counted. In the decision of a particular
case, the judges are to be counted, but as evidence of the law, they
are to be weighed. There may be a dissent by one judge, which
may be of more weight than the opinions of all the majority. There
may be decisions on cognate or analogous questions. There may
be inconsistent, or conflicting decisions, which invite to re-argument
and re-examination. These, and other considerations, have made
the list of overruled cases a long and important one in all the
great departments of law, equity, and admiralt}'. While the second
edition of this work was going through the press, the case of The

w'The Genesee Chief, 63 U. S. (12 I Wall.) 689; The Eagle, 75 U. S. (8 Wall.)
How.) 465-6; The Belfast, 74 U. S. (7 ' 16.

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Eagle, 75 U. S. (8 Wallace,) page 15, declared the admiralty juris-
diction, so far as the waters are concerned, to extend to all nav-
igable waters; and this irrespective of the special clause in the
ninth section of the Judiciary Act of 1789, and of the Act of 1845.^
In the first edition of this work, forty years ago, the opinion was
ventured that, for practical purposes, in i-elation to the admiralty
and maritime law, we are limited, not by any strict and technical
limit, but by the purpose and the use — the subject-matter — for the
purposes of commerce ; and that navigability, so far as water is con-
cerned, is, on principle, the only test of admiralty and maritime ju
risdiction. It is now so settled by the highest judicial authoi-ity
It may now be permitted to express the confident hope that in a
much shorter period of time the same high authority, on further
consideration, will reach the inevitable conclusion, that the naviga-
bility of a ship, that navigates the water, subjects its commercial re-
lations to the admiralty jurisdiction ; that the navigability of the
water subjects it to the admiralty jurisdiction, only because it floats
a ship ; and that the ownei-s, builders, repairers, charterers, freight-
ers, insurers, mortgagees, salvors, and creditors of ships and vessels
are, in those characters, all subject to that jurisdiction, and entitled
to the benefits of the maritime law, and subject to the duties imposed
by its characteristic, equitable decisions, without any regard to the
place where built, or owned, or found. Not till then will our country
come up to that full standard of nationality and uniformity in this
respect, which becomes every day more and more desirable. [Dur-
ing the twenty years which have elapsed since the second edition of
this work, much progress has been made towards the fulfilment of
the hope thus confidently expressed, but its full realization has
not yet been reached.]

If all the judicial power vested in the United States had, in all its
details, been provided for in a judicial system, composed of subordi-
nate judicial ofBcei*s and courts, as well as of higher tribunals, fully
adequate to all the wants of the people, — in small matters as well
as great, — within the range of that grant of power, it would have
been felt in the strength, and harmony, and peace, and affection
which would have resulted from the increased security of the rights
of the citizens of the different states. The national judiciary would

138 [When the Statutes of the United
States were revised in 1874, e£fect was
given to the decisions of the Supreme

Court in the cases of The Genesee Chief
and The Eagle, and the act of 1845
was omitted from the Revision.]

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thus liave been visible everywhere, accessible everywhere, and every-
where the shield and the protection of the citizen and the stranger,
against local prejudices, and sectional sympathies. The mere moral
effect of that judicial system is of incalculable benefit to the nation,
and it is the duty of all the courts to sustain it in its legal and
proper extent,^ — ^in the language of Chief Justice Marshall, in the
case of Gibbons v. Ogden, " with that independence which the peo-
ple of the United States expect from this department of the gov-

»^ntp,§§ 27, 2S.

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Admiealty Pbactioe — The Organization op thb Courts.

§ 814. What is Practice. — The law of national jurisdiction or
sovereignty in admiralty and maritime cases being ascertained, the
next subject of inquiry is the mode of administering justice in such
cases, under that jurisdiction.

Practice is the means by which justice is administered. And as
the first step in providing for the administration of justice is the
ci'eation of courts of justice, so the last step is the exercise of the
powers of the couit in executing its judgments. Thus the whole
of what is usually denominated admiralty practice, is the organiza-
tion and jurisdiction of the admiralty courts, their forms, modes,
and rules of procedure, and the duties and responsibilities of their
various functionaries.

§815. Admiralty Courts. — There are no courts of the United
States which are merely admiralty courts. The only courts, ex-
cept the courts in the territories, are — the District Courts, the Cir-
cuit Courts, the Circuit Courts of Appeals, the Supreme Court, and
the Court of Claims. And each of them, except the Cii'cuit Courts
and the Court of Claims, has admimlty jurisdiction in certain cases,
and also common law — both civil and criminal — and equity jurisdic-

§ 815 a. Tlie Territorial Courts. — The territorial courts are not
constitutional courts, in which the judicial power conferred on tlie
general government can be deposited. They are legislative courts,
created in virtue of the general right of sovereignty which exists in
the government, or in virtue of the clause which enables Congress
to make all needful rules and regulations respecting the territory
belonging to the United States. They have, therefore, no admiralty

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jurisdiction ; but such jurisdiction may be vested in courts created
by the territorial legislatures.^

[The above statement must be corrected. The Supreme Court
of the United States, in the case of The City of Panama, (101 U. S.
461,) held that the territorial courts in the Territory of Washington
have such jurisdiction in admiralty causes as is vested in tlie Federal
District and Circuit Couits.]

§ 316. The District Court.— The United States, exclusive of the
territories, were originally divided into as many districts as there were
states. The great increase in population and business of some of
the states, has made it necessary to divide them into two or more
district. In each of these districts is a court called a District Courts
held by a single judge, who is called the district judge, and in him
all the judicial powera of that court are vested.

It is to the admiralty jurisdiction of the District Court that the
previous pages of this work have been devoted.

§ 317. The Same. — The District Courts have exclusive original
cognizance of all civil causes of admiralty and maritime jurisdiction.
The jurisdiction extends to all navigable waters.^

§ 318. The District Judge.— The judge of the District Court
must reside within the district for which he is appointed, and is re-
quired to hold stated terms, at such times and places as are estab-
lished by hiw. The stated terms in the Southern District of New
York are held on the first Tuesday of eveiy month. The district
judge is also authorized to hold special courts at his discretion, at
such place in his district as the nature of the business and the dis-
cretion of the judge shall direct. The character of maritime causes,
and the necessities and occupations of many of the pei-sons engaged
in maritime ti-ansactions, and whose presence as parties or witnesses
is often necessary to the administration of justice, renders delay, in
many cases, equivalent to a denial of justice. It is with a view to
speed}' justice, that this power to hold special courts has been con-
ferred ; and in the maritime portions of the country, it is the uni-

^ The American Ins. Co. v. Canter, 26
U. 8. (1 Pet) 611; vide TUe American
Ins. Co. V, Johnson, Blatchf. & H. 13;
Chouteau v. Rice, 1 Minn. Rep. 192. See

Clinton c. Engelbrecht, S2 U. S. (18
Wall.) 447.

2 Rev. Stat. §563, subd.S; The Eagle,
75 U. S. (8 Wall.) 15.

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form practice to hold special courts frequently for the trial of causes.
In the Southern District of New York, special terras are held on eveiy
Tuesday, when the stated term is not in session.' And as the court
is always open, and, wherever the judge is, there is a court, it is the
jimctice to enter all ordei's in causes, in the vacation of the usual
terms, as of a special term held on the day of entering the order.

§ 819. Disability or Deatli of tlie Judge. — In case of the inability
of the judge of any District Court to attend on the day appointed
for holding a District Court, such court may, by virtue of a written
order from the judge theieof, directed to the marshal of the district,
be adjourned by the marshal to the next stated terra of said court,
or to such day piior thereto as in the said order shall be appointed.
And in case of the death of the said judge, all process, pleadings
and proceedings are continued of course, until the next stated ses-
sion after the appointment and acceptance of the office by his suc-

In case of the disability of the district judge to perform the duties
of his office, the cases before him are transferred to the Circuit
Court, as is more fully stated in section 321.

§ 320. Tlie Circuit Court. — A prescribed number of districts,
varying with the growth of the country, constitute a circuit, and in
every district of said circuit is held a Circuit Court, composed of
three or four judges, — the justice of the Supreme Court assigned
to the circuit for the time being, the circuit judges of the circuit,
an<l the district judge of the distnct. Either one or more of the
judges may hold the Circuit Court in all cases.

§ 321. Disability of District Judge.— In case of the disability of
the district judge to perform his duties, the business may be trans-
ferred to the Circuit Court, by virtue of the " Act further to amend
the judicial system of the United States," passed March 2, 1809,
now §§ 587, 588 and 590 of the Revised Statutes.

[Since the creation of the Circuit Courts of Appeals, the only
way in which admiralty cases might come before the Circuit Courts
is under these sections and section 601.]

3 Rev. Stat § 572 ; Dunlap's Prac. 108.

4 Ex parte The U. S., 1 Gal. 238; Rev. Stat. $$ 58S, 602.

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§ 322. The Order therenpon. — Under the 3d section of the act
of 1809 (now R. S. § 590) the Hon. Judge Nelson, the justice of
the Supreme Court allotted to the second circuit, made the order
pi-escribed in that section in the following form :

*'It having l)een satisfactorily shown to me, that the Hon. Sam-
uel R. Betts, District Judge of the Southern District of New York,
is disabled, from ill health, to discharge tiie duties of his office, it
is ordered that James' W. Metcalf, Esq., Clerk of the said District
Court, do take, during such disability of said district judge, exam-
inations and depositions of witnesses, and make all necessary rules
and ordei-s preparatory to the final hearing of all causes of admi-
i-alty and maritime jurisdiction, according to the Act of Congress,

March 2, 1809.

" Samuel Nelson.

** Washington, Jan. 28th, 1850."

This order is entered at length in the minutes of the District
Court, and in pui-suance of it, the clerk, at the regular term of the
court, calls the causes of admiralty and maritime jurisdiction, in
their order on the docket or calendar of causes, and performs all
the functions of the judge in such causes, except to hear the argu-
ments and decide the cause. He takes down the testimony in
writing, upon which, after hearing the parties, the judge decides.

§ 323. Where the Jadge is interested. — In all suits and actions
in any District Court of the United States, in which it shall appear
that the judge of such coui-t is anyways concerned in interest, or
has been of counsel for either paity, or is so related to or connected
with either party as to render it improper for him, in his opinion, to
sit on the trial of such suit or action, it shall be the duty of such
judge, on application of either party, to cause the fact to be entered
on the records of the court ; and, also, an order that an authenticat-
ed copy thereof, with all the proceedings in such suit or action,
sliall be forthwith certified to the next Circuit Court of the district ;
and if there be no Circuit Court in such district, to the next Circuit
Court in the state ; and if there be no Circuit Court in such state,
to the most convenient Circuit Court in an adjoining state ; which
Circuit Court shall, upon such record being filed with the clerk
thereof, take cognizance thereof in the like manner as if such suit
or action had been originally commenced in that court, and shall
proceed to hear and determine the same accordingly,* and the juris-

» Rev. Stat. § 601, 007.

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diction of such Circuit Court shall extend to all such cases so re-
moved as were cognizable in the District Court from which the
same was removed.

§ 323 a. The Circuit Coart of Appeals.— [The Circuit Court of
Appeals is composed of three judges, two of whom constitute a quo-
rum. The chief justice, the associate justice of the Supreme Court
assigned to each circuit, and the circuit judges and district judges
within the circuit are competent to sit in the Circuit Court of Ap-
peals for the circuit. The Circuit Court of Appeals has jurisdic-
tion to review by appeal all decrees in admiralty cases made in the
District Courts within the circuit, except in such cases as may be
taken by appeal directly to the Supreme Court as provided in the
second section of the act creating the Circuit Courts of Appeals.
Such cases seem to be cases in which the jurisdiction of the Dis-
trict Court is involved, or the construction or application of the
Constitution of the United States, or the constitutionality of any
law of the United States, or the validity or construction of a treaty,
or in which is raised the question whether a provision of the consti-
tution or of a law of a state is in contravention of the Constitution
of the United States.

In admiralty cases which may be taken to the Circuit Court of
Appeals for review, its decision is final, except that the Supreme
Court may by certiorari call the case up before it for its decision,
and the Circuit Court of Appeals may certify to the Supreme Court
any question or proposition of law as to which it desires the instruc-
tion of the Supreme Court.^

§ 324. Supreme Court — The Supreme Coui-t of the United States
consists of a chief justice and eight associate justices. It has exclu-
sively all such jurisdiction of all civil suits in admiralty, against
ambassadors or other public ministers, or their domestics, or domes-
tic servants, as a court of law can have, consistently with the law
of nations ; and also of all civil suits in admiralty, when a state is
a party, except between a state and its citizens, or citizens of other
states, or aliens.

It has also original, but not exclusive, jurisdiction of civil suits
in admiralty, between a state and citizens of other states, or aliens,
— and suits brought by ambassadors, or other public ministers, or in
which a consul, or vice-consul, is a party.

• Act of March 3, 1891 ; 26 Stat, at Large, ch. 517.

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The Supreme Court has also power to issue writs of prohibition
to the District Courts, when proceeding as Courts of Admiralty and
Maritime jurisdiction.^

[The Supreme Court has junsdiction on appeal to review the de-
cisions of the District Courts in admiralty cases which are excepted
from the appellate jurisdiction of the Circuit Court of Appeals as
stated in the previous sections. The right to such appeal is not af-
fected by the amount involved in the causes.

The Supreme Court has also the power by certiorari or otherwise
to require any case in which the decision of the Circuit Court of
Appeals is road^ final to be certified to it for review and determi-
nation, with the same power, as if it had come before the Supreme
Court by appeal.]

§ 325. The Judges' Oath. — The judges of all these courts are
appointed by the President of the United States, by and with the
advice and consent of the Senate, to hold during good behavior.
Before they proceed to execute the duties of their respective oflBces,
they must take the following oath or affirmation :

" I, A. B., do solemnly swear, (or affirm,) that I will administer
justice without respect to persons, and do equal right to the poor
and to the rich; and that I will faithfully and impartially discharge
and perform all the duties incumbent on me as judge, etc., accord-
ing to the best of my abilities and undei*standing, agreeably to the
constitution and laws of the United States. So help me God." ^

§ 326. Commissions of the Judges. — Their commissions are is-
sued from the Department of State, and are simple appointments to
the office, without any enumeration of duties, or grant of powers or
privileges. Their commissions give the office, and it is to the laws
of Congress alone that they are to look for their duties, their powers,
and their privileges. The commission of the district judge is in the
following form :


" President of the United States of America,
" To all who shall see these presents, greeting :

" Know ye. That, reposing special trust and confidence in the wis-
dom, uprightness, and learning of Samuel Blatchford, of New York,

' The U. S. V, Peters, 8 U. S. (3 Dal.) I « Const. Art 2, § 2, Art. 3, § 1; Rev.
121. I SUt. S 712.

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I have nominated, and by and with the advice and consent of the
Senate, do appoint him to be Judge of the District Court of the
United States, for the Southern District of New York, and do au-
thorize and empower him to execute and fulfil the duties of that
office, according to the constitution and laws of the said United
States, and to have and to hold the said office, with all the powers,
privileges, and emoluments to the same of right appertaining, unto
him, the said Samuel Blatchford, during his good behavior.

" In testimony whereof, I have caused these lettei-s to be made
patent, and the seal of the United States to be hereunto
affixed. Given under my hand, at the City of Washington,
[l. s.] the sixteenth day of July, in the year of our Lord one
thousand eight hundred and sixty-seven, and of the Inde-
pendence of the United States of America the ninety-

"Andrew Johnson.

" By the President,

" WiLLLAJtf H. Seward, Secretary of State.'''

The commission of the judge of the District Court is usually in-
serted at length in the minutes of the court, on the day of his tak-
ing his seat on the bench, preceded by an order, as follows :

" The Honorable Samuel Blatchford, having been appointed judge
of this court, and having taken the oath required by law, took his
seat upon the bench, and his commission was ordered to be entered
at length in the minutes."

The justice of the Supreme Court and the judge of the District
Court have no independent commissions as judges of the Circuit
Court [or Circuit Court of Appeals]. The circuit judge has a com-
mission in the following form :


President of the United States of America,

" To all who shall see these presents, greeting:

" Know ye. That, reposing special trust and confidence in the
wisdom, uprightness, and learning of Lewis B. Woodruff, of New
York, I have nominated, and by and with the advice and consent
of the Senate, do appoint him to be Circuit Judge of the Second
Judicial Circuit of the United States, and do authorize and empower
him to execute and fulfil the duties of that office, according to the

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 20 of 80)