Erastus Cornelius Benedict.

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

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security for costs, he is not thereby denied justice, but is, on appli-
cation to the judge, permitted to give the juratory caution, or secu-
rity by his oath. This is analogous to the common law practice of
suing in forma pauperi». That is to say, he pei-sonally stipulates in
the necessary amount, to appear from time to time, as required by
the court, and adds to it his oath that he will do so. The defend-
ant may also, by order of the judge, be permitted to give the jura-
tory caution in proper cases, where he cannot procure bail. This
security is but rarely taken .^^

The juratory security for costs is in the following form :



" In the District Court of the United States for the Southern Dis-
trict of New York.

" In a certain cause, civil and maritime, wherein A B is libellant
and C D is defendant, — on this tenth day of February, 1849, the
said A B pei*sonally appeared and stipulated in the sum of one hun-
dred dollars, to prosecute this snid cause, and to pay all costs and
expenses which may be awarded against him herein by the final de-
cree of this court, and, in case of appeal, of the appellate court ; and
to appear on the twelfth day of February instant (the return day),
and as often afterwards as he shall l)e ordered by the court. And
the said A B made oath that he would appear as aforesaid. A B.
" Taken, acknowledged, and sworn,

Februaiy lOtli, 1849, before me,

" Chas. W. Newton, U, S. Commissioner''

[Besides the juratory caution, a libellant may also be allowed by
the court to sue in forma pauperis^ in which case no stipulation
for costs is required of him.] ^''



i» Conk. Ad. 446-8; Diet. Rule 17; vide

the f omi of the Bond, in the Appendix.

>"Dunlap'8 Prac. 157; Conk. Prac.



463, 638; Harriot' s Forms, 354; Thomas
V, Thorwegan, 27 F. R. 400.
»" Dist. Rule 8.



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CHAPTER XXIX.

Seamen's Wages.

§ 503. Seamen are Wards of the Admiralty. — The character of
seamen and the nature of their employment has induced Congress to
provide specially for the collection of their demands for wages. Sea-
men have always been considered as wards of the admiralty, and the
wages of their perilous service have been by all nations highly fa-
vored in the law. It was the great cotisidemtions of policy and
justice connected with that humble but most useful class of citizens,
that induced the English common law courts to leave to the admi-
ralty the undisputed cognizance of suits for seamen^s wages, and to
make those wages a lien upon the last plank of the ship. A cheap
and summaiy mode has been, therefore, provided, for hearing the
confi'oversies in relation to their wages, which are usually of small
absolute amount, but of very great importance to the seamen.

[This procedure is a summary and cumulative remedy given to
seamen, which they may pursue at their option ; but they are not
thereby deprived of the right in the first instance to the ordinaiy
admiralty process against a vessel, on a direct application to the
court] ^

§ 504. When Seaman may sue. — As soon as the voyage is ended,
and the cargo or ballast discharged, the seaman is entitled to his
wages. His light to sue for them in personam is perfect, the pro-
visions of the Act of July 20th, 1790, (Rev. Stat. § 4546, 4547,)
which prescribe the manner in which his suit may be prosecuted,
having reference only to actions in rem} If, however, there be
any dispute as to his wages, or if he be discharged from the vessel,
he may, without any delay, proceed to enforce payment by proceed-



» Murray «. The F. B. Nimick, 2 F. R.
S6; The Edwin Post, 6 id. 206.

* Freeman «. Baker, Blatchf . A H.
372 ; Francis v. Bassett, Spragiie, 16;
(284)



The Commerce, id. 34; Collins v. Nick-
erson, id. 126; The William Jarvis, id.
485.



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SEAMEN 8 WAGES.



286



ings in rem. If the balance be admitted, he must wait ten days,
or, at least, a reasonable time, after the cargo is out, before he com-
mence. If the vessel have left the port, when the voyage ended,
without paying the wages, or is about to go to sea again before the
expiration of the ten days, he proceeds by libel, in the fii-st instance,
and arrests the vessel, — all the seamen joining in the same suit, —
and the suit proceeds like other suits in rem. In all other cases he
proceeds by a preliminary summons before a magistrate, before
whom the question of probable cause of suit is investigated.*

§ 505. Proceeding by Snmnions.r— In such cases, the judge of the
district, or a magisti-ate, or United States commissioner, issues a
summons to the master of the vessel to appear before him and show
cause why process should not issue against the vessel, according to
the course of the admiralty, to answer for the wages. This summons
should be founded on an affidavit, or a libel, showing a prima facie
right to sue. On the return of the summons, if the master do not
appear, the certificate of sufGcient cause is given of coui-se. If the
master appear, he is permitted " to show that the wages are paid, or
otherwise satisfied or forfeited," or to settle the dispute on the spot,
without further suit. If he does neither, the magistrate gives a cer-
tificate that there is sufficient cause whereon to found admiralty proc-
ess, and the certificate, with the libel, is filed with the clerk, who
issues the process against the vessel, and the suit proceeds in the
regular manner, according to the courae of the admiralty.*

§ 506. Other Seamen may Join in the Suit. — The suit being thus
coamienced, if there be any other seamen on the same voyage, hav-
ing Uke cause of complaint, they are not compelled to repeat the
preliminary proceeding, but by petition, stating their case, they are
allowed to join in the suit, which is done by filing their petition and
annexing it to the libel. They are then considered as original libel-
Ian ts, and the suit proceeds, in their collective names, to a decree.
Their rights are entirely separate and independent. They are co-
libellants, but not joint libellants, and they are competent witnesses
for each other. Each man's case must be separately proved, — should
be separately passed upon by the court, and the decree should be



»Bett8* Prac. 60, et seq,; (Rev. Stat
§§4o46,4o47;) Dist. Rule 68; vide The
Merchant, Abb. Ad. 1 ; The Eagle, 01c.



232; The Trial, Blatchf. <fc H. 94.

* Betts' Prac. 60, et aeq. ; vide the
Forms in the Appendix.



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286



THK AMERICAN ADMIRALTY.



separate for each, especially in cases in which the amount will jus-
tify an appeal.^

§507. Effect of the Statute. — The practice in these cases is
founded on the " Act for the Government and Regulation of Seamen
in the Merchant Service." (Now Rev. Stat. § 4524 et seq.} This
is believed to embrace all vessels not in the national naval service.
The first three sections of the act relate to vessels and voyages of a
particular character, but other sections of the act embrace " any ship
or vessel," " any seamen or mariner," and the careful use of different
phraseology for different purposes, in the different sections, shows
that the language, in every case, was intended to have its appropri-
ate force.^ The law, as administered under this act in the Southern
District of New York, will be found very fully laid down in Betts'
Pmctice, pp. 59-68.

By the act of 1846, chap. 60, (Rev. Stat. § 4251) canal boats,
navigated without masts or steam, are not subject to be libelled
for wages."^

[A seaman's wages are not subject to be attached in a suit against
him at common law.] *

§ 508. Summary Practice. — The learned judge of the Southern
District of New York, with a desire to promote expedition and to re-
duce expense, in 1838 established for that district a summary practice,
in all cases when the demand is under $50, and, of course, not then
subject to appeal. As that practice is local, it will not be set forth
here in detail. It will be found in the rules of that court, which
are given in the Appendix, and in the full commentary on those
rules in Betts' Practice, pp. 16, 78-82. The statutory practice of
the preliminary summons and this summary practice greatly reduced
expenses. Jt is, however, much to be desired that Congress, or the
Supreme Court, would enact a tariff of fees, in plenary cases, ar-
ranged with a full knowledge of the course of admimlty proceedings
and the wants of commerce in this behalf.



6 Oliver v. Alexander, 31 U. S. (6 Pe-
ters), 143.

6 Seamen's Act of July 20, 1790, 1
Stat at Largo, 133; Acts of 1846, p. 61.



' The Wm. L. Norman, 49 F. R. 285.

8 The City of New Bedford, 4 F. R.
818; Ross v. Bourne, 14 id. a58; The
City of New Bedford, 20 id. 57.



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CHAPTER XXX.



Pbize Causes.



§ 509. Prize Cases must be heard in Admiralty. — Before pro{>-
«rty captured can be properly disposed of, it must be condemned as
prize, in a regular judicial proceeding, in which all parties interest-
ed may be heard.^ This proceeding must be had in a court of ad-
miralty deciding according to the law of nations. The proper court
is the court of the nation or government to which the captor belongs.'*
In the United States, the only court having original jurisdiction in
cases of prize, is the District Court of the United States. To ad-
judicate in matters of prize, is a portion of the regular functions of
that court.*

§ 610. Prize Commissioners. — On the breaking out of hostilities
the court appoints prize-commissioners.* These commissioners are
officers of the court, and subject to its direction and control. They
examine the witnesses on the standing interrogatories ; and perform
such other duties as may be imposed upon them by the law, or the
court. The other officers of the court — the district attorney, the
clerk, and tlie marshal — ^perform their respective functions in prize
cases as in cases on the instance side of the court.

§ 511. The Evidence mnst come from the Prize. — A peculiarity
of prize proceedings is that the evidence upon which the cause must
be heard in the first instance, and on which the property must be con-
demned or acquitted, must come entirely from the vessel taken, — the
papers on board the vessel, and the testimony on oath of the master,



> The Henrick and Maria, 4 Rob. 55 ;
Jecker v. Montgomery, 54 U. S. (13
How.) 498; Fay v. Montgomery, 1 Curt
C. C. R. 206; Stewart u. The U. S., 27
Law Rep. 134.

^Cheviott V, Fausset, 3 Binn. 220;
Bingham u. Cabot, 3 U. S. (3 Dall.) 19;
L' Invincible, 14 U. S. (1 Wheat) 238;



The Santissima Trinidad, 20 U. S. (7
Wheat) 283; Findlay v. The William,
1 Pet Ad. R. 12.

«The Amiable Nancy, 16 U. S. (3
Wheat) 546; The Amy Warwick, 2
Sprague, 123; The Anna, Blatchf . Pr.
Cas. :j:i7.

* Rev. Stat § 4621; Prize Rule 9.
(287)



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288 THE AMERICAN ADMIRALTY.

oflBcers, and other persons attached to the vessel and on board at the
time of the capture.* This peculiarity is of the very essence of the
administration of prize law. The common law practice and rules
of evidence have no relation to the subject.**

At the time of the capture, it is therefore the duty of the captoi-s
to secure, tiike an inventory of, and preserve as evidence, all the pa-
pers on board the prize, and to bring in for examination the master,
principal officers, and some of the crew of the captured vessel.^

§ 512. Examination of Witnesses. — As soon as the prize arrives
in port, notice should be given by the captors who are in charge of
it, to the district judge, or to the prize-commissioners, that the ex-
aminations of the captured witnesses may be taken without delay .^
These witnesses are examined by the prize-commissioners in writing
and upon oath, in answer to the standing interrogatories. These in-
terrogatories are sifting and thorough on all points which can affect
the question of prize. They are prepared and published by stand-
ing order of the court, and are accessible beforehand to the witnesses.
[But see Rev. Stat. § 4622.] The witnesses are not allowed to have
communication with, or to be instructed by counsel. They are pro-
duced, each separately and apart from the othei-s, in the presence of
the agents of the parties, before the commissioners, whose duty it is
to superintend the regularity of the proceedings, and protect the
witnesses from surprise or misrepresentation.® The commissionei-s
have no authority to use any but the standing interrogatories, and
must require each interrogatoiy to be answered fully. In the event
of the refusal of a witness, either to answer at all, or to answer
fully, it is their duty to certify the fact to the court.^^ There is no
cross examination. These examinations are called examinations in
preparatorio,

''The Dos Hermanos, 16 U. S. (2
Wheat) 76; The Pizarro, id. 227; The
Amiable Isabella, 19 U. S. (6 Wheat.) 1;
The Sir William Peel, 72 U. S. (5 WaM.)
517; The Peterhoff, id. 28; s. c, Blatchf.
Pr. Cas. 403; The Cheshire, id. 151, 463;
The Zavalla, id. 173; The Jane Camp-
bell, id. 101.

« 1 Wheat. Appendix, note II, p. 497;
The Adeline, 13 U. S. (9 Cranch), 244,
284.

7 Rev. Stat §4615; The Eliza and



Katy, 6 Rob. 185; The Henrick and Ma-
ria, 4 id. 43, 67; The Dos Hermanos, 15
U. S. (2 Wheat) 76; The ArabeUa, 2
GaH. 308; The Flying Fish, id. 374;
The Actor, Blatchf. Pr. Cas. 200.

8 Prize Rule 2.

•The Speculation, 2 Rob. 243; The
William and Mary, 4 id. 381 ; The Apol-
lo, 6 id. 286; Rev. Stat § 4C22.

w Prize Rules 12, 13, 14, 15, 16; The
Peterhoff, 72 U.S. (5 WaU.) 28; s. c,
Blatchf. Pr. Cas. 463.



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PRIZE CAUSES.



289



The prize-master should also deliver up to the prize-commissioners,
or one of them, all the papers and documents found on board the
prize, together with an aiBdavit made by him, that they are delivered
up as taken, without fraud, addition, subduction, or embezzlement.^^

§ 612 a. Court may Order Farther Proof. — As soon as the ex-
aminations are completed, each deposition is signed by the witness
making it, and also by the commissioners, or one of them. They
are then sealed up and transmitted to the proper District Court,
together with all the vessel's papei*s which have not already been
delivered up by the captors.^ These papers and examinations con-
stitute the only evidence on which the cause is fii-st heard. If on
this evidence there be doubt, or justice require it, the court may, in
its discretion, order further proof ; and the court on proper applica-
tion may order the cargo to be landed, and the packages opened and
inspected for the detection of contmband articles, or for ascertaining
the destination of the vessel or cargo, or the true character of the
voyage



18



§ 512 (. No Delay Admissible. — The necessary papers and the
preparatory examinations having been transmitted to the court, it
is the duty of the captors to apply to the court without delay, for
adjudication ; and in case of neglect or refusal on their part, the
claimants may so apply .^* The proceeding for the condemnation of
a prize is purely in rem. It is commenced, when the capture is
made by a national vessel, in the name of the United States by the
United States District Attorney, by filing a libel in the District
Court.^ In the case of captures by privateers, the commander em-
ploys his proctor and libels in behalf of himself and the other captors.
On the libel a monition and warmnt issues to the marshal, for the
seizure of the property. The notice under the monition is made by
publication.^®



" Rev. Stat §§ 4617, 4622; Prize Rules
i, 9, 10.

"Prize Rules 11, 20.

WThePeterhoflf, Blatchf. Pr. Cas. 463;
The Adriana, 1 Rob. 313; The Romeo,
6 id. 851; The Sarah, 3 ib. 330; The
Cuba, 2 Sprague, 168; The LiUa, id. 577.

I'Bev. Stat J 4625; Prize Rule 23;

19



The Tropic Wind, Blatchf. Pr. Cas. 66;
The Springbok, id. a50.

"Rev. Stat § 4618; Jecker t?. Mont-
gomery, 59 U. S. (18 How.) 110; vide
The Emma, Blatchf. Pr. Cas. 661; The
Sally Magee, id. 382; The Empress, id.
146, 659; The Andromeda, 69 TJ. Sw
(2 WaU.) 481.

i« Prize Rules 24, 43, 44.



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290



THE AMERICAN ADMERALTY.



§ 512 c. Practice on Defaults. — On the return day of the process,
if no claim be interposed, upon the usual proclamation being made,
and no person appearing, the default of all persons is entered, and
the court will then proceed to examine the evidence and make its
decree. It is not usual, however, to condemn goods by default, till
a year and a day after the service of the process ; at the expiration
of which time, no claim being interposed, the property is condemned
of course, and the question of former ownership is precluded forever,
and distribution may be raade.^^

§ 512 d. Claim of Property. — If the parties interested wish to con-
test the capture, or procure the restitution of property captured, they
should, at or before the return of the monition or time assigned for
trial, enter their claim before the court. The claim should be made
by the parties interested, if present, or if absent, then by the master,
or some agent of the owners. A stranger will not be permitted to
claim.^® The claim must be accompanied by an aflBdavit, which is
called the test affidavit, stating briefly the facts respecting the claim
audits verit3^ It should state that the property, at the time of ship-
ment and also at the time of capture, did belong, and if restored will
belong, to the claimant; and if there should be any special circum-
stances in the case, these should be added. The aflBdavit should be
sworn to by the parties themselves, if they are within the jurisdic-
tion. If they ai-e absent from the country, or at a very great dis-
tance from the court, it may be sworn to by an agent.^®

§ 512 e. Restitution and Damages. — If, upon the hearing, the
sentence of the court be a decree of acquittal and restitution, and
the property remains specifically in the custody of the court, a war-
rant or order issues for its delivery to the claimant. If the property
has been sold and the proceeds are in court, an order issues for the
delivery of such proceeds. If, on account of the absence of probable



"The Henrick and Maria, 4 Rob. 43,
44; The Staadt Embden, 1 id. 26; The
Harrison, 14 U. S. (1 Wlieat) 298; The
Avery, 2 Gall. 308 ; Stratton o. Jarvis,
33 U. S.(8 Pet.) 4; The Falcon, Blatchf.
Pr. Cas. 52; Gushing r. Laird, 107 U. S.
78.

"Prize Rule 42; The Betsey, 1 Rob.
98; The Mentor, id. 181 ; The Huldah, 3



ib. 239; The George, id. 129; The Wil-
liam, 4 id. 215; The Tobago, 5 id- 218;
The Susanna, 6 id. 48; The Marianna,
id. 24; The Fi-ances, 12 U. S. (8 Ci-anch),
336; Bolch r. Darrel, Bee, 74; Gushing
r. Laird, 107 U. S. 78.

'•Prize Rule, 42; The Adeline, 13 U.
S. (9 Granch), 244, 286; The Betoey, 2
Gall. 377.



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PRIZE CAUSES.



291



cause of capture, or by reason of any other misconduct on the part
of the captors, damages are awarded against them, the court appoints
three commissioners to assess the damages.^ Casts and expenses
are in the discretion of the court and depend upon the proof of
probable cause of capture. When, however, further proof has been
ordered, costs and expenses are allowed to the captors.^

If, upon the hearing, the sentence of the court be a decree of con-
demnation, the coui-t will order testimony to be taken tending to
show who are entitled to share in the distribution, and upon such
testimony will make the final decree of distribution.^



§ 512/. Appeals. — In prize causes, an appeal lies from the Dis-
trict Court directly to the Supreme Court, whenever the amount in
controversy exceeds two thousand dollars, and in other cases, on
the certificate of the district judge that the adjudication involves a
question of general importance. [By the Act of March 8, 1891,
(26 Stat, at L. ch. 517), this limitation on appeals in prize causes
is probably removed.] Such appeal must be made within thirty
days of the rendering of the decree appealed from, unless the court
shall previously have extended the time, for cause shown in the par-
ticular case.^



«• Prize Rules, 49, 50; The Charming
Betsey, 6 U. S. (2 Cranch), 64; The
Lively, IGaU. 315; Pratt, Prize Prac.
112.

^^The Einigheden, 1 Rob. 323; The
Diana, 5 id. 67; The Pigou, 6 U. S. (2
Cranch), 100, note ; The Charming Bet-
sey, id. 64; Maley v. Shattuclc, 7 U. S.
(.S id.) 45S; Del Col v. Arnold, 3 U. S.
(3 DaU.) 333; The Velasco, Blatchf.
Pr. Cas. 54; The Jane Campbell, id,
101; Thelmina, 3 Rob. 167; The Prin-



cipe, Edw. Ad. R. 70; The Evening
Star, Blatchf. Pr. Cas. 582; The Thomp-
son, id. 377; S. C. 70 U. S. (3 WaU.) 155;
The Dashing Wave, 72 U. S. (5 Wall.)
170; The Ann Green, 1 GaU. 274.

«Rev. Stat. § 4634; Kean v. The
Gloucester, 2 U. S. (2 Dall.) 36; Pen-
hallow V. Doane, 3 U. S. (8 Dall.) 54;
Bingham t?. Cabot, id. 19 ; The Herkimer,
Stewart's Ad. R. 128.

« Rev. Stat. §§ 695, 4636; vide Prize
Rule 51.



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CHAPTER XXXI.
Hearing.

§ 513. Either Party may bring on Hearing. — The cause, being;
ready for lieariug, is noticed for hearing* according to the rules es-
tablished in the district where it is to be heard. The circumstances
of the different districts vary so widely, that no general rule could
well be adopted for all.

The libellant, and the claimant or respondent, are both actors,
and either party may notice the cause, and bring on the hearing.^

§ 514. Defendant must liaye Appeared and Contested. — It has

already been stated, that the defendant cannot be heard in his de-
fence, nor introduce evidence in the cause, unless he have appeared
in the cause and contested the suit, either by exceptions to the
lil)el, or by answering it. If he does neither, the court will hear
and adjudge the cause ex parte^ upon the evidence offered by the li-
bellaiit. If the neglect to answer has, however, been from ignorance
or other sufficient cause, the court is not precluded from receiving
evidence, and may exercise its discretion for the purposes of justice.'

§ 515. Failure to appear on Hearing. — At the hearing, if either
party be not in attendance, his adversary may take such decree as
he would be entitled to if his pleading were confessed. If any
postponement be desired by either party, on sufficient reason, it is
granted by the judge. The whole matter being in his discretion,
he may postpone for a longer or shorter period, absolutely, or on
such terms and conditions as justice may demand. The nature of
maritime transactions is such, that witnesses are often transient, and



^ Jennings v. Carson, S U. S. (4
Cranch), 23. [In the Southern District
of New Yorlc, it has been lield that the
practice of the court does not authorize
the dismissal of a libel for the libellant^s
delay in bringing the cause to a liear-



ing after issue joined. The Mariel, 6
P. R. 881.]

« The David Pratt, Ware, 405; Mo-
Kinlay v. Morrish, 62 U. S. (21 How.)
346.



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HEARING 293

their convenience, as well as the necessities of the parties, often ex-
ercise an important influence in determining the mind of the court
in matters relating to the mere conduct of the hearing. The court
sometimes commences the hearing by taking the testimony of tran-
sient witnesses on either or both sides, without regard to the usual
order of proceeding, and then postpones the cause for a longer or
shorter time, as may be necessary to take the other testimony and
complete the hearing. Sometimes the testimony is all taken, and
the cause is postponed till a future day, to hear the arguments of
counsel. Sometimes postponement is ordered only on condition
that the party asking it shall consent to take the depositions of wit-
nesses in writing, out of court, or to admit what is expected to be
proved by them.

§ 616. Flexibility of Proceedings. — It is this flexibility of a
Court of Admiralty, — its power to adapt itself to the circumstances
of the parties and their witnesses, without prejudice, and often with
signal advantage to the cause of justice, — that constitutes one of its
great points of superiority over the courts of common law and trials
by jury.

[This flexibility of the admiralty is not confined to the mere con-
duct of the cause, but extends to the form of the proceeding and
the remedy, and to a change of a proceeding from one in personam
to one in rem.'] ^

The full and proper presentment of the facts, the careful consid-



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 30 of 80)