Erastus Cornelius Benedict.

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

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it should be uniform throughout the states, as well as conformable

1 Betta' Prac. art. xiv.

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200



THE AMERICAN ADMIRALTY.



to the course of proceedings in the admiralty courts o{ other nations,
and of the separate states before the adoption of the constitution.

§ 348. The Judiciary and Process Acts. The act to establish
the judicial system of the United States was passed on the 24th of
September, 1789, and five days thereafter, on the 29th of theksame
month, was passed the " Act to regulate the processes in the courts
of the United States." This act adopted, as the practice of the
courts of the United States, in the respective states, in suits at com-
mon law, the practice of the Supreme Courts of the states, and pro-
vided also that " The forms and modes of proceedings in causes of
equity and of admiralty and maritime jurisdiction, shall be accord-
ing to the course of the civil law,^^ This act was, by its own provision,
to continue in force until the end of the next session of Congress,
and no longer.^ It was continued May 26, 1790, and Feb. 18, 1791 ;
and repealed, and its place supplied May 8, 1792.^ Its necessary
effect was, however, to start the courts on that system of practice,
and really to impose upon them, in admiralty and maritime cases,
the civil law practice, as that under which they must continue to
administer justice, even after the expiration of that act, until fur-
ther provision should be affirmatively made.

§ 349. Act of 1792. This adoption, however, of the course of
the civil law, without modification or exception, could not fail to be
somewhat embarrassing, by keeping the courts fettered by many
rules and proceedings, which in the admiralty and maritime courts
of other countries, to which ours were to be assimilated, had, long
before, been directly abrogated or allowed by tacit neglect to give
place to simpler and less technical proceedings; and might, in a
measure, defeat the very unity and uniformity which it was intend-
ed to establish. Accordingly, in 1792, Congress passed the act
" For regulating processes in the courts of the United States," which
provided that the forms of writs, executions and other process, ex-
cept their style, and the forms and modes of proceedings in suits of
admiralty and maritime jurisdiction, should be according to the prin-
ciples^ rules and usages which belong to courts of admiralty^ as contra-
distinguished from counts of common law. Subject, however, to such



2 1 Stat, at Large, p. 93; The St. Law-
rence, 1 Black, 528; Manro r. Almeida,
23 U. S. ( 10 Wheat.) 473; vide The



American Ins. Co. v, Johnson, Blatchf.
& H. 10.
8 1 Stat, at Large, 93, 123, 191, 275.



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THE PRACTICE HI8TORICAJLLY CONSIDERED.



201



alterations and additions as the said courts should in their discre-
tion deem expedient, or to such regulations as the Supreme Court
o£ the United States should think proper, from time to time, by rule
to prescribe to any circuit or distiict court concerning the same.*
[This act is now § 913 of the Revised Statutes, et 9eqJ\

§ 350. Its Effect on the Practice.— Under that act of 1792, the
practice of the courts in admimlty and maritime cases maintained
its chai-acteristic i-esemblance to the principles, rules and usages of
coilrts of admiralty. The courts, however, in the different districts,
have differed from each other in many of the less important details,
quite as much as the whole have differed from the admiralty courts
of other countries, while in all can be traced the evidence of their
common descent from the practice of the civil law.*

§ 351. The Practice under the Civil Law. — The primitive Roman
lawsuit had few details and little machinery. The plaintiff him-
self, without writ, seized his adversary by the neck, and took him
by force before the Praetor. The plaintiff told his grievance, the
defendant his defence ; proof was taken if necessary ; the cause was
decided without delay ; and if the demand was not paid, the defend-
ant was confined as a criminal, or payment was enforced by a forci-
ble sale of his property. Necessity and convenience transferred the
power to arrest from the party himself to officers of justice appointed
for the purpose. The order of the judge then became necessary,
-which soon ripened into a process or citation. The judge required
a written statement of the plaintiff's case, which soon became the
libel. Security to appear and to pay the debt, or bail, took the place
of forcible detention ; and a written statement of the defence was
demanded instead of a verbal one. Delays ensued, — ingenuity, and
wisdom, and eloquence were put in requisition, — and from thence
sprung the legal profession ; and from their acuteness and habits of
analysis, grew inevitably and insensibly a complicated and technical
system of proceedings, which had come to the greatest perfection of
strictness in the time of the empire. Many of the details of that
practice are now unknown ; and although Brown asks with empha-



* Dunlap Prac. 72, 79; Grayson «.
Virginia, 3 U. S. (3 Dal.) 320; Manro v.
Almeida, 23 U. S. (10 Wheat.) 473; The
Process Act of 1792, § 2; The St. Law-



rence, 66 U. S. (1 Black.) 528.

6TheU. S. r. The Little Charles, 1
Brock. 880; Jennings v. Carson, 8 U. S.
(4 Cranch), 2.



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202



THE A3IERICAN ADMIRALTY.



sis, — " How can the practice of the Admiralty Court be intelligible
without knowing the practice of the civil law ? " and Lord Hardwicke
says, — " The Court of Admiralty always proceeds according to the
rules of the civil law," this is true only in a very general seuse.^

§ 352. The Admiralty Practice differs.— The coui-se of a law-
suit in ancient Rome, so fiir as it can be now ascertained, and even
as it exists at this time in the countries subject to the civil law after
many centuries of modifications and meliorations, is only of the
same type with a suit in admiralty, as conducted in modern days.
And the study of that wonderfully refined and artificial mode of
proceeding, in all its details of subdivision and systematic distribu-
tion of subjects, cannot fail to have a salutary effect upon the mind
of the student, in furnishing him a careful analysis and classification
of all the elements of a complete system of remedies through the
medium of courts of justice, and could not be without its advantage
in showing him the origin of many actual rules of practice in courts
of admiralty. Still the deviation from that original type is so wide,
and so great a proportion of the details have been wisely allowed to
fall into disuse, that no attempt will be made to furnish even a sy-
nopsis of the Roman practice, nor to elucidate, much less to cover up
or encumber that which is in its nature, simple, intelligible and nat-
ural, by the obsolete learning and multifarious technicalities of earlier
periods or other countries. The attempt will be only, in as simple
and intelligible a manner as practicable, to give the actual practice
of the courts of the United States in admiralty and maritime causes,
and this without collecting the local rules of the various courts in
which diversity exists, which would only tend to keep up a divei-sity,
that in time might lead to the establishment of sevei-al systems of
admiralty practice, instead of that uniformity which should be es-
tablished in all the courts of admiralty and maritime jurisdiction.^

§ 353. Act of 1842. — The actual admiralty practice of modern
times, is in truth, so natural and simple, that it is not easy to see
why any divei"sity should exist in the established practice. The de-
viations from a universal and uniform system of proceedings which



•Dunlap Prac. 73, 75; 2 Brown Civ.
& Ad. Law, 507; Sir Henry Blount's
Case, 1 Atk. 295; Lane v* Townsend,



Ware 298, 299: The American Ins. Co.
V. Johnson, Blatchf. & H. 17.

'Dunlap Prac. 79; The Mary Jane,
Blatchf. & H. 391.



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THE PRACTICB HISTORICALLY CONSIDERED. 203

may be necessary in particular cases, may well enough be left to the
discretion of the court, to be exercised as the circumstances of the
case may demand, without, in any manner, a£fecting the general
rule. Congress seems to have felt the importance of this uniform-
ity, and, with a view moi-e fully to secure it, to have passed the act
of August 23, 1842. Section six has been embodied in § 917 of the
Revised Statutes which reads as follows.®

§ 354. *' Sec. 917. The Supreme Court shall have power to pre-
scribe, in any manner not inconsistent with any law of the United
States, the forms of writs and other process, the modes of framing
and filing proceedings and pleadings, of taking and obtaining evi-
dence, of obtaining discovery, of proceeding to obtain relief, of draw-
ing up, entering and enrolling decrees, and of proceeding before
trustees appointed by the court, and generally to regulate the whole
practice to be used in suits in equity or admiralty by the Circuit and
District Courts."

The powers of the court seem to be confined by the act, strictly
to regulating the conduct of a suit.

§355. [Omitted.]

§ 356. Admiralty Boles of the Supreme Court— Under that act
of 1842, the Supreme Couit, in 1844, adopted " Rules of Practice
of the Courts of the United States, in causes of Admiralty and Mari-
time Jurisdiction, on the Instance side of the Court, — in pursuance
of the act of 23d August, 1842, chap. 188." These rules, although
in many respects imperfect as a system of practice, lay down and
establish the leading and characteristic outlines of the admimlty
practice, leaving the District and Circuit Courts to regulate the
practice of those courts, respectively, in such manner as they shall
deem most expedient for the due administration of justice in suits
in admii-alty, in all cases not provided for by the rules adopted by
the Supreme Court.^ These rules, also, presuppose a knowledge
of the general course of admiralty practice, and of many of its de-
tails, as it has come to us from the civil law courts on the continent,
modified in England by the practice of the ecclesiastical courts and
the Court of Chancery, and to those who are already familiar with
the course of admiralty proceedings, these rules are the clear and

* 5 Stat at Large, 61S. i serted at length in the Appendix. Kev.

* Ad. Rale 46. These rules are in- 1 Stat § 918.



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201 THE AMERICAN ADMIRALTY,

easily understood introduction of a most salutary reform in the ad-
miralty practice, — abolishing and rendering unnecessary many of
the cumbrous and useless forms and proceedings which, in earlier
periods, perhaps, were not without practical benefit.

§ 357. The Same. — The publication of these rules seemed to the
author to furnish an occasion for a simple commentary upon them,
embracing a straightforward account of the proceedings in admiralty
buits, in which so much of the universal law and traditionary prac-
tice of the courts should be united with the rules of the Supreme
Court and methodically ari'aiiged, as should be necessary to furnish
a useful book of instruction for learners, and a convenient manual
for the more experienced pmctitioner, and, at the same time, tend
to make the practice uniform throughout the United States.

It will be .seen that they apply equally to all the courts of the
United States, as well the Supreme and the Circuit Courts as the
District Courts, in admiralty and maritime cases. Many matters of
minor detail have been left to be prescribed by the courts themselves,
by their own rules, and many othfers to be disposed of its they arise,
according to the discretion of the presiding judge. In those matters
of minor detail, instead of stating the pmctice of several districts,
that of the Southern District of New York is alone given.^^

^^ The Rales of the District Court for I inserted at length in the Appendix,—
the several Districts of New York, are I vide Index.



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CHAPTER XX.

The General Character and Course op Admiralty
Proceedings.

§ 358. Equity and Justice are the Foundation.— The Admiralty

Court, as before stated, is bound to determine the cases submitted
to its cognizance, upon equitable principles, and according to the
rules of natural justice. This principle of the maritime law pervades
also the whole practice of the admiralty in the United States. The
grand object of doing justice between the parties is superior to tech-
nical rules and forms, and whei*e the stricter practice of the English
common law, or the civil law, would turn a party out of court, or
defeat or pervert justice, by considering an arbitrary rule of proceed-
ing as paramount to all other considerations, the American Admi-
ralty finds, in the educated reason and cultivated discretion of the
court, the means of defeating chicanery, rectifying mistakes, supply-
ing deficiencies, and suggesting to the party the means of recon-
structing his case, if necessary, without the loss of such real progress
as he may have already made.^

§ 359. Suits in Bern and in Personam. — Suits and proceedings
in admiralty are divided into two great classes, — ^suits and proceed-
ings in rem^ and suits and proceedings in personam.

Suits in rem are against a thing itself, and the relief sought is con-
fined to the thing itself, and does not extend to any pei-son. Suits
in personam^ on the other hand, are against a person, and the relief
is sought against him, without reference to any specific property or
thing. In a suit in rem^ unless some one intervenes and assumes
the responsibilities of the controversy, the power and process of the



1 Ante, §§ 41, 321; The Virgin, 33 U.
8. (8Pet)53S; The Minerva, 1 Hag. Ad.
R. 357; The Packet, 3 Mason, 334; The
Zephyr, id. 343; Sheppard v, Taylor, 30
U. S. (5 Pet) 709; Oliver c. Alexander,



31 U. S (6 Pet.) 145; The Phebe, Ware,
355; The Adeline, 13 U. S. (9 Cranch),
284; Brown v. Burrows, Betts, J. Aug. 5,
1837, Coote's Prac. 2; post, 483.

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206



THE AMERICAN ADMIRALTY.



court 18 confined to the thing itself, and does not reach either the
person or the other property of its owner. In a suit in personam
the court is confined to the rights and liabilities of the person, and,
in its execution, proceeds against his property generally, without
any regard to its relation to the matter in controversy.^

§ 360. No Criminal Proceedings in Eem.— There are no crimi-
nal proceedings in rem. The only cases of quasi criminal and penal
character are those for the enforcement of the penalties and for-
feitures which are imposed by law upon property afloat, under the
navigation and revenue laws. They are, like other cases in rem^
classed with civil causes, and are tried without the intervention of
a jury .8

§ 361. Joining Proceedings in Bern and in Personam. — In cer-
tain cases the proceedings in rem and the proceedings in personam^
may be united in the same suit, for the purpose of more complete
justice,*

[The Rules of the Supreme Court No. 12 to 19, specify certain
cases in which the suit is to be brought in rem or in personam^ or
both. And in cases not specified in those rules, generally the pro-
ceeding in rem may be joined with a suit in personam.

Thus in actions on charter-parties or bills of lading suit may be
brought against the vessel in rem and against the master or owner
in personam. But the joinder of the owner and the vessel in a suit
for collision is forbidden by the 15th Admiralty Rule, which how-
ever does not forbid the joining in a collision suit of a vessel and
the owner of another vessel under the 59th Rule.] ^

§ 362. Suits in Personam. — One of the attempts to limit the ju-
risdiction of the admiralty consisted of a denial of its power to
entertain a suit in personam. In England, and in this country on
English authority, it was said, that since the venue has become im-



« Dunlap Prac. 80; The Merchant, Ab.
Ad. 4; BeaDe v. The Mayurka, 2 Curt,
C. C. 72; Marshal c. Bazin, 7 N. Y. Leg.
Ob8. 342.

«The U. S. u. The Eliza, 11 U. S. (7
Cranch), 112; The Commerce, 66 U. S.
(1 Black.) 574; The Slavers, 69 U. S. (2
Wall.) 883.



*Manro v. Almeida, 23 U. S. (10
Wheat.) 473; The Zenobia, Abb. Ad. 52;
Ad. Rules, 13, 14, 15.

* The Shand, 10 Ben. 294; The Monte
A., 12 F. R. 331; The Sinclair, 26 id.
708; Joice v. Canal-boate, 32 id. 553;
The Clatsop Chief, 8 id. 163; but see
The Alida, 12 id. 348.



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CHARACTER AND COURSE OF ADMIRALTY PROCEEDINGS. 207

tnaterial, the courts of common law are competent to give relief in
rU personal actions*; and that when the common law can give re-
lief, the admiralty has no jurisdiction ; and that the admiralty has
jurisdiction in rem only because the common law has no power to
pi-oceed in rem. This point was urged with some emphasis, although
almost all the earliest English cases, and many of the latest, are cases
in personam. Gierke, in his Piactice, devotes the first and largest
portion of the work to proceedings in personam. The same is true
of Boyd, in his Proceedings of the Scotch Admiralty. Suits in per-
sonam have ahvaj'^s been of constant occurrence in the continental
courts of admiralty, and it is the usual mode of proceeding there ;
and they constituted, in all periods, a large portion of the business
of the British Colonial Courts of Vice-Admii-alty, before the Amer-
ican Revolution ; and since that period, in the English Admiralty,
at home, and in our own courts, suits in personam have been of fre-
quent occuiTence. It is only remarkable that judges, of distinguish-
ed learning and acuteness, should ever have been mystified on the
subject.

Wherever there is personal liability in a maritime cause of action,
" personal contracts and injuries which concern navigation," the
right may be enforced by a suit in personam^ in the admiralty.

Wherever there is a maritime lien on a thing, the lien may be en-
forced by a suit in rem^ in the admiralty.^

§ 363. The Parties. — The pai-ty complaining is called the libel-
lant, — the party resisting is called the claimant, in a suit in rem^ be-
cause his right to appear or intervene depends upon his claiming
the property or some interest in it. In some cases, a party is brought
in, against whom no substantial relief is sought, but who, from his
position or relation to the controveray, is bound to answer the libel ;
in that case, he is more properly called the respondent. In suite
in personam^ the party who defends is usually called the defendant.
Both parties are actors. The libellant is also sometimes called pro-
movent, — actor, — plaintiff. The defendant is sometimes called
reus, — impugnant, — intervenant, — ^intervenor.^

[But the term respondent is often used as meaning the defendant



«2 Brown Civil Law- Appendix; Da-
vi« V, Child, 3 N. Y. Leg. Obs. 147; ante,
§§48, 55-69, 93-96, 104-107,115, 116,
126, 151, 203, 270, 271.



'Dunlap Prac. 84; The XT. S. v. Kid,
8 U.S. (4 Cranch), 2; 2 Brow. Civ. Law,
428, 432; Wood, Civ. 339; id. 375.



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208



THE AMERICAN ADMIRALTY.



in a suit in personam^ or the claimant in a suit in rem; and not un-
naturally, for any one who answers or responds may properly be
called a respondent.]

§ 364. All Parties Bound by the Decree.— The familiar princi-
ple, that all the parties to a suit are bound by the decree, has its
widest application in cases of admiralty suits and proceedings in rem.
The decree, as has been remarked, can only dispose of the thing,
but so far as the thing is concerned, all the world are bound by the
decree ; that is to say, a decree as to the title, or possession, or sale,
or forfeiture of the thing, binds all the world. No man is allowed
to come in and say that the decree does not bind him, and that he
will have the matter retried ; and this is because all the world are
parties to the suit. By the regular process of the court, all parties
who have any interest in the thing are warned to come in and de*
fend it; and it is therefore said that the whole world are parties in
an admiralty cause, and therefore, the whole world is bound by the
decision.^



§ 365. The Same. — The reason on which this dictum stands will
determine its extent. Every person may make himself a party, and
appeal from the sentence. But notice of the controversy is neces-
sary in order to become a party ; and it is a principle of natural
justice, of univei-sal obligation, that before the rights of an individ-
ual be bound by a judicial sentence, he shall have notice, either
actual or implied, of the proceeding against him. Where these pro-
ceedings are against the person, notice is served personally or by
publication. Where they are in rem^ notice is served upon the thing
itself. This is, necessarily, notice to all those who have any inter-
est in the thing ; and it is reasonable, because it is necessary, and
because it is the part of common prudence for all those who have
any interest in property to guard that interest by persons who are
in a situation to protect it. Every person, therefore, who can assert
any title to a vessel, has constructive notice of her seizure, and may
fairly be considered as a party to the libel; but those who have no
interest in the vessel which could .be asserted in a Court of Admi-
ralty have no notice of the seizure, and can, on no principle of jus-

8 The Neptune, 3 Hag. Ad. R. 132; 144; Croudson v, Leonard, 8 U. S. (4
The Attorney Gen. ©. Noratedt, 3 Price, Cranch), 436. But see Gushing v,
109; The Mary, 13 U. S. (9 Cranch), Laird, 102 U. S. 69.



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CHARACTER AND COURSE OF ADMIRALTY PROCEEDINGS. 209

tice, be considered as parties in the cause, so far as respects the
vessel.®

§ 366. The LibeL — He that has a maritime suit to prosecute, sets
foith, in writing, addressed to the judge of the court, his claim, cir-
cumstantially and intelligibly, with the greatest simplicity and con-
ciseness, and closes with a prayer for the relief which he desires.
This is called a libel, from the Latin libelltts^ a little book. It is
signed by the party, and verified by his oath, and presented to the
clerk of the court, with security when necessary. The clerk files it
and issues the proper process to the marshal of the district, who
executes it according to its direction, and takes the security required
by law,^*^ [or holds the property till it is otherwise discharged.]

§ 367. The Answer. — The defendant appears, and in the same
circumstantial, simple, and concise manner, sets foith, in writing,
what he has to say in answer and defence to the suit. This is called
an answer, which being signed and sworn to, is also filed with the
clerk. The libellant, then, if he desires to dispute the answer, files
a general denial. This is called a replication, and the cause is at
issue. This was the strict admiralty pi-actice in the Southern Dis-
trict of New York till 1854, when it was abolished by the fifty-fii*st
Admiralty Rule. That rule provides that when the defendant, in
his answer, alleges new facts, these shall be considered as denied by
the libellant, and no replication, general or special, shall be allowed.
" But within such time after the answer is filed as shall be fixed by
the District Court, either by general rule or by special order, the
libellant may amend his libel, so as to confess and avoid, or explain,
or add to the new matters set forth in the answer ; and within such
time as may be fixed, in like manner, the defendant shall answer such
amendments." ^

§ 368. Excepting to the Libel. — If, however, the defendant finds
that, on the libel itself, the libellant ought not to have the relief for
which he pmys, or that the court have not jurisdiction, instead of
answering the facts alleged in the libel, he may except to tlie libel,



«The Mary, 13 U. S. (9 Cranch), 144;
Oelston V. Hoyt, 16 U. S. (3 Wheat) 246;
The Commander in Chief, 6S U. S. (1
Wall.) 62.
14



lOBetts' Prac. 16; Hutson t?. Jordan,
Ware, 385.

" Mary Jane, Blatchf. & H. 3H 400,
note. Bailey v. Sundberg, 44 F. R. 807.



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210 THE AMERICAN ADMIRALTY.

stating, in written exceptions, the points in which he considei^s the
libellant's case defective. Or, if he have any single fact which
should constitute a complete bar to the action, he may set that up
alone, in an exceptive allegation, and rely upon it as a bar, or he
may unite the whole in an answer, — answering as to all the facts in



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 22 of 80)