Erastus Cornelius Benedict.

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

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"To the Honorable Samuel R. Betts, Judge of the District Court
of the United States, for the Southern District of New York :

" David Rome and William B. King, of Eastport, in the County
of Washington, State of Maine, owners of the schooner Hornet,
her tackle, apparel, and furniture, intervening for their interest in
the said schooner Hornet, her tackle, apparel, and furniture, appear
before this Honorable Court, and claim the said schooner, her tackle,
apparel, and furniture, and state that they are the true and bona
fide ownei-8 thereof, and that no other person is the owner thereof.

" And thereupon, the said claimants pray, that this Honorable
Court will be pleased to decree a restitution of the same to them,
and otherwise right and justice to administer in the premises.

" David Rome.
« Sworn, July 10, 1847, before me, " Wiui^iA^ B. King.

" George W. Morton, U. S. Commissioner.

"W. R. Beebe, Proctor r

This claim may be put in immediately, without waiting for the
return of the process.^

[If the right of the claimant to intervene as such is contested by the
libellant, he may file an exception to the claim. And the question
arising on such exception may be summarily disposed of by a hear-
ing befoi^ the court or by a reference.] *

§ 463. Who may Claim. — Claimants of separate interests may ap-

« Ad. Rule 26; Dlst Rule 7; Jenks I « Ad. Rule 26.
©. Lewis, Ware, 52; Betta' Prac. 56, 57. | * The Two Marys, 10 F. R. 919.



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THE PLEADINGS AFTER THE LIBEL.



262



pear separately, aad put in separate claims. The owners of the re-
spective shares of the ship, — the ownei-s of the respective portions of
the cargo, — the government, for its duties, or for a forfeiture, — the
underwriters, when they have reason to believe that the property
has been, or may be abandoned to them, — a mortgagee in possession,
when the suit affects his lien upon the vessel, — the consul of a for-
eign nation, if he have reason to believe that the citizens or subjects
of his nation are interested, — in short, any pei-son or officer will be
allowed to appear and make his claim (fii-st giving security for
costs), whenever, in the opinion of the court, excluding him may
lead to a failure of justice. Persons or officers, however, who appear
by virtue of some general right, will not be allowed to receive the
property or money awarded by the decree, unless the right of the
principal party to receive it, and the right of the agent to represent
him be proved to the court.^



§ 464. Claims where there are Several Libels.— If there be sev-
eral libels against the same vessel or property, the claimant must
put in his claim in each suit, and the libellants in each suit should
also put in their chiiin in all the other suits, lest a decree of con-
demnation and sale by default, in one suit, should dispose of the
property, without the power of redress. In proper cases, causes
may be consolidated.*



§ 465. Claimant mast Answer.^-The merely putting in a claim
is not a defence to the libellant's demand. The property may be-
long to the claimant, and still the libellant have full title to the re-
lief sought, — ^indeed, his right to that relief often depends upon the
claimant's being the owner of the propert3^ After the claim is in,
and the claimant is thus entitled to be h^rd for his interest, he
must put before the court the grounds of his defence, in suitable al-
legations, that the court, as well as the opposite party, may be in-
formed of the grounds of defence. These may be put forward in



^DonlapPrac. S8; The Bello Corrunes,
10 U. S. (6 Wheat.) 152; The Antelope, 23
U. S. (10 Wheat.) 06; The London Pack-
et, 1 Mason, 14; antey § 325; The Mary
Anne, Ware, 104; Hinchliffe's Prac. 10;
The Vrouw Judith, 1 Rob. 127-129; The
Kinders Kinder, 2 id. 88; The Fortune,
id. 92; The Kising Sun, id. 104; Thomas



V, The Kosciusko, 11 N. Y. Leg. Obs.
38; The Monticello t. MoUison, 58 U. S.
(17 How.) 156; The Jenny Lind, 3
Blatchf. 513; Robson v. The Huntress,
2 WaU. Jr. C. C. 69; Matter of Stover,
1 Curt C. C. 201. For Forms in the
Appendix, vide Index.
« Vide post, i 651.



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264



THE AMERICAN ADMIRALTY.



a separate defensive allegation, or they may be united with the an-
swer, if one be required. If the libel does not pray for an answer,
the defendant need not put in an answer, properly so called ; that
is to say, he is not compelled to answer the facts set forth in the
libel. But whatever may be the prayer of the libel, any party de-
fending the suit must spread before the court the grounds of his
defence, or he will be debarred from making his defence, — it being
a primary rule in admiralty, that the cause must be heard and
decided according to the allegations, as well as the proofs in the
cause."^

[The respondent cannot in the admiralty make a defence of an
independent claim by way of set-off. But a claim aiising out of the
contract, on which the libellant's cause of action arises, may be used
to defeat it. Thus if a vessel be libelled to recover for damage to
cargo, her owner might set up as a defence a balance of the freight
on it unpaid. But he could not recover in that action any excess
of freight over the damage. Nor if he had set off part of the freight
against the damage could he recover the rest of it in a suit brought
by himself.] ®



§ 465 a, Praetiee under 53d Kule.— [The 53d Admiralty Rule
provides however a somewhat similar proceeding. Under that rule,
if the defendant files a cross-libel on a counter-claim arising out of
the same cause of action, he can obtain a stay of proceedings on
the original libel till security in given to meet the claim set up in
the cross-libel. And if the security is given the two cases can be
tried together and the proper decrees made in both.®

The fact, that under the limitation of liability statute the owner
of a vessel, against whom a cross-libel has been filed for collision,
may have been freed fr(5m liability by the total loss of his vessel in
the collision, does not relieve him from the requirement of giving
security under the 53d Admiralty Rule.

His coui-se would seem to be therefore to give the security in the



7 Ad. Rule 34; Dist Rules 42, 43, 44;
The Virgil, 2 W. Rob. 204; The Speed,
id. 227; The Ebenezer, 7 Jur. 1117;
Mooraom v. Moorsom, 3 Hag. Ecc. 97;
The Crusader, Ware, 439.

8 2 Pars. Mar. Law, 717; Willard v.
Dorr, 3 Mas. 161 ; The James and Cath-
erine, Bald w. 544; The Water Witch, 66



U. S. (1 Black.) 494; The Two Brothers,
4 F. R. 158; O'Brien v. 1614 Bags of
Guano, 48 id. 726; but see the City of
New Bedford, 20 F. R. 57, and the C. B.
Sanf ord, 22 id. 863.

The Bristol and the G. S. Brown, 4
Ben. 55.



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THE PLEADINGS AFTER THE LIBEL. 265

suit on the cross-libel and then take proceedings to limit his lia-
bility and obtain a stay of proceedings on the cross-libel.

Tliis would seem to be a useless formality, unless the owner was
claimed to be personally liable, notwithstanding the total loss of
his vessel. But it has been decided in the District Court for the
Eastern District of Pennsylvania ^^ that the security must be given
under the 53d Rule in such a case.]

§ 466. Exceptions. — If any pleading or proceeding be irregular,
insufficient, or objectionable, the proper mode of bringing before
the court the objection, is by exceptions or exceptive allegations, —
which in their purpose and effect correspond with special demurrei-s
and pleas in bar at common law, and they are properly classed with
pleadings. Thus, if the libel, — the answer, — the interrogatories, or
the answers to them, — the report of the clerk, or commissioner, au-
ditor, or assessor, to whom any matter is referred, — be liable to just
objection, it may be excepted to, — and if not excepted to, the court
will be slow to listen to any objections to its form or substance. The
court is indulgent in regard to all matters of mere form, and does
not encoui-age severe and captious objections.^^

In mere matters of form, exceptions should be made before an-
swering in chief, or at the same time, or they will be considered as
waived.^

The following is the form of an exception :

§ 467. Form of an Exception. — " To the Honorable, etc.

" The Exceptions of David Jones, defendant, to the libel of James
Jackson, libellant, allege that the said libel is informal and insuflS-
cient, as follows :

" Fir%t Exception, — That the same is not signed by the libellant,
nor by any proctor of this court.

" Secmd Exception, — That the same does not allege that the li-
bellant has sustiiined any damages in the matter of the libel ; nor
that the defendant is indebted to the libellant in any sum.

" Third Exception, — That the third article thereof is scandalous
imper men . ^^ ^ p^ Proctor for Defendant:'

§ 468. Exception and Answer. — If on the libel itself, it appeai-s
that the libellant ought not to have the relief for which he prays, or



^<> The Minnie A Gussie, unreported,
w 2 Brow. Civ. and Ad. 361; Dunlap,



192, 193; Bett8» Pi-ac. 38, 57-59. See
the forms referred to in the Index.
^'^ Fumiss V. The Magoun, 01c. 55.



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266 THE AMERICAN ADMIRALTY.

that the court have not jurisdiction, instead of answering the facts
alleged in the libel the respondent may except to the libel, stating
in an exception the point in which he considera the libellant's case
defective ; or, if there be any single fact on which the defendant
chooses to rely as a bar to the libellant's demand, — as a prior judg-
ment or decree, or release, — an accord and satisfaction, — a forfeit-
ure, or the like, — he may set it up alone, and put his case upon that
issue. It is not usual to adopt this coui*se, because he may set up
the subject-matter of the plea in his answer, and have the same bene-
fit of it, without losing his defence on the general merits, if he fail
in the matter of the plea. The pmctice, therefore, prevails of unit-
ing the matter of the plea and the answer in the same pleading.
Pleas of this sort are called exceptions. If they'set up matter in
abatement merely, they are called dilatory exceptions ; if matter in
bar, they are called peremptory exceptions.^*

The following is the form of such plea or exception :

§469. Form of Exception. — "To the Honorable Samuel R.
Betts, Judge of the District Court of the United States, for the
Southern District of New York :
" The exception of David Jones, defendant, to the libel of James
Jackson, libellant, alleges that, on the tenth day of June last, the
said libellant, in consideration of one dollar to him paid, released
the said defendant from the cause of action set forth in the said li-
bel ; and, therefore, the said defendant is not bound further to an-
swer the same ; and he prays that the said libel may be dismissed

with costs. ^

"David Jones.

" Sworn, etc.,

" E. F., Proctor for Beftr

§ 470.* Excepting to the Answer.— The libellant may, in like
manner, except to the sufficiency, or fulness, or distinctness, or rele-
vancy, of the answer to the articles and interrogatories in the libel.

Exceptions must be carefully prepared, specifying in the simplest
and clearest manner, in separate exceptions, the matter excepted to,
each exception being numbered ; and the exceptions must be put
in without unnecessary delay, — the time is usually fixed by the rules
of the court. They must be filed with the clerk, and notice there-
of given to the opposite party. He may then, at any time before
the matter of the exceptions has been decided by the court, move

u Betts' Prac. 48; The Seminole, 42 F. R. 924.



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THE PLEADINGS APTER THE LIBEL.



267



to amend his pleadinj^, or give notice that he submits to any or all
of the exceptions, in which case, on filing such notice, the clerk will
enter, of course, the proper order as to such exceptions, — that the
defendant answer further, or more fully, or more distinctly, or that
the irrelevant matter be stricken out.^*

§ 471. Argument of Exceptions.— If there be any exceptions not
submitted to, they are noticed for hearing before the court by either
party, and each exception is overruled, or adjudged good and valid
by the court, — ^and as to such as are adjudged good and valid, the
court must order the defendant to answer the same within such
time as the court* shall in the order direct; and may also impose
such costs on the defendant as may be reasonable. And the court
may also, as a further sanction to its order, compel the defendant to
make further answer, or it may direct the matter of the exception
to be taken pro confesBo against the defendant to the full purport
and effect of the article of the libel, which it purports to answer, ^s
if no answer had been put in thereto.^*

§ 472. Answer. — If the libel, whether it be in rem or in personam,
prays for an answer, then all parties intervening as defendants must
put in an answer to the allegations of the libel. This answer, when
the sum or value in dispute exceeds fifty doUai-s, exclusive of costs,
must be on oath, or solemn afiirmation, and must be full, explicit,
and distinct, to each separate article of the libel and each sepamte
allegation in the libel, in the same order as numbered in the libel ;
and must, in like manner, answer each interrogatory propounded at
the close of the libel.^®

When, however, the sum or value in dispute does not exceed fifty
dollars, exclusive of costs, the foregoing requirements need not be
observed, unless the court is of opinion that they are necessary for
the purposes of justice in the case before it.^^



»♦ Ad. Rule, 28; Betts' Prac. 58,69;
Town V. The Western MetropoUs, 28
How. Prac. 288; 'The Dictator, 30 F. R.
409; The Intrepid, 42 Id. 185.

w Ad. Rule, 30.

" Ad. Rule, 27; Hutson v, Jordan,
Ware, 385; The Crusader, id. 439; The
Boston. 1 Sum.328 ; Macomber V.Thomp-



son, id. 384; Orne v, Townsend, 4 Ma-
son, 541 ; Betts^ Prac. 51 ; Dunlap's Prac.
197-210; TreadweU v, Joseph, 1 Sum.
391; The Commander in Chief, 68 U. S.
(1 WaU.) 49; Dupont c. Vance, 60 U. S.
(19 How.) 162.
i^Ad. Rule 49.



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268 THE AMERICAN ADMIRALTY.

§ 473. Form of an Answer. — The following is the form of an
answer :

" To the Honorable Samuel R. Betts, Judge of the District Court
of the United States, for the Southern District of New York :

" The answer of John Richards, of Portland, in the State of
Maine, intervening for his interest in the brig Spartan, to the libel
of Edmund Kimball, junior, and George R. Sheldon, of the city of
New York, merchants, copartners, doing business under the name
of Kimball and Sheldon, answers and alleges as follows :

" First. That thLs respondent is ignomnt of the matter contained
in the first, fourth, and fifth articles of the said libel, and as to the
matters contained in the second and third articles pi the said libel,
he has no personal knowledge, but on information and belief he
avers that the same are, in a great part, falsely alleged, and that the
truth is as is hereafter alleged.

§ 474. " Second. That the said brig S[>artan, being in good order,
and well and sufficiently equipped and manned, amved in the bay
of New York early in the evening of the 28th day of November, it
being moonlight, and the wind and tide being favorable ; but the
wind being light, the vessel did not enter the East river before the
moon had set, and it had become overcast and dark, so that it was
difficult to see a vessel without a light, even at a short distance.
That, when about to anchor, the master and crew of the said brig
Spartan discovered a vessel, which proved to be said brig Buenos
Ayres, lying in the stream at single anchor, directly ahead of them,
and but a short distance oflF, and by the force of the tide and wind,
without any neglect, carelessness, or default of the master and crew
of the Spartan, and notwithstanding every possible precaution, she
was driven towards, and in contact with, the said brig Buenos Ayres,
and sustained damages to a large amount, to wit, to the amount of
two hundred and fifty dollars and upwards.

§ 475. " Third, That at the time above mentioned, the brig Buenos
Ayres was lying at anchor in the harbor of New York, in the chan-
nel of the East river, between the Fulton Ferry and the South Ferry,
and had not a light set in her rigging, on deck, or elsewhere visible
to those on board of the brig Spartan, and the said accident was oc-
casioned by negligence and want of care in the master, officers, and
crew of the said brig Buenos Ayres, in anchoring the said brig,
without proper light, in the channel of the East river, where in
ward bound vessels must pass.

" Fourth. That all and singular the premises are true.

*' Wherefore the respondent prays that this Honorable Court
would be pleased to pronounce against the libel aforesaid, and to



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THE PLEADINGS AFTER THE LIBEL. 269

condemn the libellant in costs, and otherwise law and justice to ad-
minister in the premises.

"BuBR & Benedict,
"Sworn, &c. . Proctors for Respondent.

" E. Burr, Advocate.''

§ 476. Defendant is not Bonnd to Criminate Himself.— The de-
fendant is not, however, bound to answer any allegation or interrog-
atory contained in the libel, which will expose him to any prosecution
or punishment for a crime, or any penalty, or any forfeiture of hiis
property for any penal ofifence. He cannot pass by in silence such
allegations or interrogatories, but must object to answer them on
such grounds. If his objection covers the whole matter of tlie libel,
he may set up his exemption in a single exception to the proceeding.
In other cases, he may unite his exception with his answer.^®

§ 477. Interrogatories to Libellant.— As the libellant has the
right to propose interrogatories to the defendant, so the defendant
has the right to resort to the oath of the libellant, and may, at the
close of his answer, propose to the libellant any interrogatories touch-
ing any matters charged in the libel, or touching any matter of de-
fence set up in the answer. These interrogatories should be num-
bered, and the libellant must answer in writing in detail, under oath
or solemn aflBrmation, each interrogatory in the order of their num-
bers. Like the defendant, the libellant is not bound to answer any
interrogatory which will expose him to any prosecution or punish-
ment for a crime, or any penalty, or any forfeiture of his property
for any penal offence.

Either party may with his pleading propose interrogatories to the
other.i*

The following is the form of interrogatories :

§ 478. Form. — " Interrogatories propounded to James B. Tucker,
libellant, by Abraham Farmer and Timothy Stevens, respondents,
in a cause civil and maritime, for wages, in the District Court of
the United States, for the Southern District of New York.

" First Interrogatory. Did not Timothy Stevens above named,
some time in the month of June last past, or at some oth^r time,
and when in particular, tender to you, or offer to pay to you some,

"Ad. Rule 31. §470; Scoville v. Giles, 10 F. R. 224;

» Ad. Rule 23, 32; Conk. Treat 2d The Edwin Baxter, 32 id. 290.
edit. 356; Dunlap'g Prao. 125; ante,



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270 THE AMERICAN ADMIRALTY.

and how much money, which he admitted to be due to you, for
wages for services on board the ship Orbit?

^''Second Interrogatory. Did not said Stevens so tender, or ofiFer
to pay to you the sura oi twelve dollars and fifty cents?

" Third Interrogator^/. Did you not decline receiving the said
sum or some sum of money, tendered or ofifered to you by said

Stevens? ..-n tt 71 ^ >»

'' E. H., Proctor.''

§ 479. Defendant may Except to Libellants' Answers.— In de-
fault of due answer, by the libellant, to any interrogatories, the de-
fendant may except to his answer, in the same manner as the libellant
may except to the answers of the defendant ; and on the hearing of
the exceptions, the court may adjudge the libellant in default and
dismiss the libel, or may by attachment compel a further answer,
within a time to be fixed by the court; or may take the subject-
matter of any interrogatory, which is insufficiently answered, pro
confeBBo in favor of the defendant, as the court, in its discretion,
shall deem most fit to promote justice.^

§ 480. Time to Answer may be Extended. — If the libellant or
the defendant is out of the country, or unable, from sickness or
other casualty, to make an answer to any interrogatory on oath or
solemn affirmation, at the proper time, the court ma3% in its discre-
tion, in furtherance of the due administration of justice, extend the
time, award a commission to take the answer of the party when
and as soon as it may be pi-acticable, or may dispense with it alto-
gether.2i

§ 481. No Reply necessary. — ^To the answer of the defendant,
even if the libellant does not admit its statements, no replication is
now necessary.^

§ 482. Several Defences may be Pleaded. — Formerly the plead-
ings might go on, by turns, so long as the mode of pleading might
require it. They were called replications, duplications, triplications,
quadruplications, and so on; but they are now obsolete.

As the libel may set forth many causes of action, so any of the
pleadings may set up as many distinct matters of defence, avoidance,
or reply, as the case may aflford.^

» Betts' Prac. 58, 69; Ad. Rule 32. I ^ Vide ante, § 367.
" Ad. Rule 33. I « Betts' Prac. 48.



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THE PLEADINGS AFTER THE LIBEL. 271

§ 482 a. Interpleader. — [Strictly the practice of interpleader has
not prevailed in the Admiralty. But the Court would not hesitate
to avail itself of the principle involved in that practice where it was
deemed necessary. Thus where a libel was filed by the maker of a
vessel against a consignee of cargo to recover freight according to
a bill of lading, and the consignee presented a petition to the Court
setting forth that the freight was claimed not only by such master
but by an assignee of a charterer of the vessel, and praying that the
consignee might be allowed to pay the freight into Court and be
discharged from liability and that both the master and such assignee
might be restrained from proceeding against the charterer, the Court
granted the petition. But it is to be noticed that the assignee of
the charterer consented to the prayer of the petition and tendered
an appearance in the cause as claimant of the freight.^

Whether the Court would take such action where both parties,
sought to be interpleaded, objected, remains to be seen.^^

§ 482 (. Bringing in Co-defendants. — Since the publication of
the previous edition of this work, a great change has been made in
the pi-actice in collision cases, in the promulgation by the Supreme
Court of the 69th Admimlty Rule, under which a party who, or
whose vessel, is libelled for a collision, in which he claims that an-
other vessel is also involved, may, on petition, have process against
such vessel or her ovvnei"s to bring her or them into the cause, so
that the court, having all parties before it, may dispose of the rights
of all by one decree.

The origin of the matter may be said to have been tlie case of the
Atlas, in 1870,*-* in which the owner of a boat in tow of a tug called
the Kate, which had been sunk by a collision with the Atlas, filed
a libel against the Atlas alone. The District Court gave the libel-
lant an opportunity to amend his proceedings by pleading that boih
the Atlas and the Kate were in fault, and bringing in the Kate also.
This the libellant declined to do, whereupon the Court, having found
that the collision was due to fault on the part of both the Atliis
and the Kate, decreed that the libellant recover against the Atlas,
one half of his damages only. This decree was affirmed by the Cir-
cuit Court, but was reversed by the Supreme Court in 1876. That
court held that the libellant could recover all his damages against

»*Copp V. The De Castro & Donner I «See The Alert, 40F. R. 836.
Sugar Refining Co., 8 Ben. 231. ' «^ 4 Ben. 27.



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272



THE AMERICAN ADMIRALTY.



the one vessel which he had chosen to pursue, or, if he had pursued
more than one, each vessel must pay not only its own share of the
damages, but also any deficiency in the share of the other.

In the year 1883 another step was taken by the decision of the



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 28 of 80)