Erastus Cornelius Benedict.

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

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of the defendant then argues the case to the court, and the advocate
of the libellant closes the discussion, and the cause is fully submit-
ted to the judge for his decision, which may be given on the spot,
in cases in which there is not a possibility of doubt, or, as is usual,
it is pronounced after re-examination and deliberation.^

It is customary for the advocates to submit to the court written
points of fact and of law, with reference to the testimony, and the

§ 540. Opening Case for Further Proofs. — Allusion has already
been made to the power of the court to vary, interrupt, or postpone
proceedings when the cause of justice may reqnire it. So, after the
hearing of the case Ls concluded, on proper cause shown, the court
will rescind the conclusion of the cause for the purpose of hearing
further proofs. This is sometimes done at the suggestion or request
of the judge himself, if, in his examination of the case, he finds
that by the surprise of the party, or by his own, exclusion of testi-
mony, the case is so imperfectly before him that injustice may be
done ; and it is sometimes ordered on the application of the party,
when there is newly discoviered evidence, or when it is necessary to
enable him to supply omissions.^

» Greenleaf 8 Ev. 204, 408.

« Betts' Priac. 92, 97.

**Cargill V. Spence, 2 Hag. Ecc. Sup.
140; Le Nieraen, 1 Dod. 10; Waller &
Smyth V. Hegeltine, 1 Phil. 173; The
ForUtudo, 2 Dod. 70; James v. Cohen, 3

CurteiH, 786; Smith v, Blake, 1 Hag.
Ecc. 88; The Elizabeth, 2 Act. 57, 58 a;
The Vrouw, 1 C. Rob. 1'68; The Har-
mony, 2 Dod. 78; The Francis Wright,
7 Ben. 101.

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§ 541. The Decree. — ^The cause being heard and submitted to the
court for decision, the court pronounces its decree according to the
facts and the law, in favor of the libellaiits, or the defendants, or
some of the libellants and some of the defendants, and against the
othei-s, with or without costs, distiibutively, for or against any or all
the parties, as justice may require. The flexibility of the admiralty
proceedings in this respect, greatly conduces to the cause of justice.

§ 542. Interlocutory or Final. — The decree made upon the hear-
ing may be interlocutory or final. It is final when it disposes of the
whole controversy, and leaves nothing further for the court to do in
the cause, as when the libel is dismissed with costs or without costs,
or there is a decree for a sum certain, with or without costs.

But when by the decree something still remains to be done by the
court, before all the rights of the parties in the premises are fixed
and the recovering party has an order for execution, — then the de-
cree is interlocutory, however much it may dispose of the merits of
the cause.

§ 543. Reference to Compute Damages. — When the decree is
against the libeUant, whether the suit be in personam or in rem^ the
usual form of the decree is that the libel be dismissed with costs or
without costs.

If the decree be in favor of the libellant, in a suit for the recov-
ery of money, and the amount be not ascertained, it is usual to de-
cide the principles on which the amount is to be settled, and to refer
it to a commissioner to ascertain and report the amount to the court,
in the same manner as on a default. In the Southern District of New
York, long experience has fully established tlie practice of confining
the testimony on the hearing in such cases to the right of the party
to recover, and of leaving the details of the amount to be proved,

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and the sum or balance to be ascertained before a coniniissioner and
reported by him to the court.^

This not only renders it unnecessary that the time of the court
should be occupied with the small details of accounts and compu-
tations, and the multifarious testimony necessary to ascertain them,
but it greatly promotes the interest of parties, by enabling them to
biing their proofs before the commissioner, from time to time, as
convenience may dictate.

§ 544. Proceedings on Reference. — A copy of the order of ref-
erence should be served on the commissioner and on the opposite
paity, — and notice should be given of the time of proceeding with
the reference. The commissioner appoints the time. On the hear-
ing, the testimonj' taken before the court, and any other testimony,
may be given. It is introduced as on a trial, and is taken down by
the commissioner. Commissioners have the usual powers of Mas-
ters in Chancery, and may administer oaths, and examine parties and
witnesses in proper cases. They have also the power to summon
witnesses, and compel their appearance to testify, and may adjourn
the healing from time to time, to give the parties time to put in their

The hearing being closed, the commissioner reports to the court
the result and conclusion to which he has arrived.^

§ 545. Form of Report. — The report is in the following form :


"WiLiJAM Robinson ^

The Barque ''^/.Aard Alsop, Commissioner^ s Report.
her tackle, etc. . J

" In pursuance of a decretal order made in this cause, on the first
day of September, in the year of our Lord one thousand eight hun-
dred and forty-nine, by which, among other things, it was referred
to one of the commissioners of this couit, to ascertain and compute
the amount due to the libellant, for materials and repairs, and to re-
port thereon to this court with all convenient speed.

" I, John W. Nelson, United States Commissioner, do report, that

» Ante^ § 449; Shawt). CoUier, 18 How.
Pr. 238; vide the Forms of the Decrees
in the Appendix.

« Ad. Rule 44; The E. C. Scranton, 2
Ben. 81.
•Dist RuleSl.

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I have been attended by the proctor for the libellant and the proc-
tor for the claimant, and have taken and examined the testimony
offered by the proctors respectively, and do find that there is due to
the libellant, for the materials and repairs mentioned in the libel, the
sum of one hundred and eighty-eight dollars and ten cents.
♦* Dated the 20th day of September, A. D. 1849.

" All which is respectfully submitted,

"John W. Nelson,
" U, S. Commissioner.
** A. B., Proctor for Libellant:'

On the request of either party, the commissioner must report the
testimony taken before him, fully, to the court, and he may always
report specially.

§ 646. Exception to Report. — If either party be dissatisfied with
the conclusion to which the commissioner has arrived, either in the
principles of his report, or in the allowances which he has made, he
may except to the report. If the report be special, and error appear
on the face of the report, a written exception is not necessary,*

The following is the form of exceptions to the report :

" A. B. 1

vs. >
CD. )

" Exceptions on the part of the libellant, to the Report of John W.

Nelson, Esquire, a United States Commissioner in this cause,

dated September, 1849 :

" First Exception. That the said commissioner did not allow to
the defendant fifty doUai-s and twenty-four cents, paid by him to the

** Second Exception, That the said commissioner allowed to the
libellant seventy-seven dollars, for said repairs, beyond the contract
price for the same.

" Third Exception, That the said commissioner has reported a
balance of $188.70, due to the libellant, instead of a balance of f 60,
as shown by the proofs.

" A. B., Proctor for Libellant^

[The report of the Commissioner is filed in the clerk's office, after
payment of the commissioners' fees. Notice of the filing is given by
the commissioner to the proctors for both parties. Either party may
except thereto or may enter an order that the report stand confirmed

< Vide The Columbus, Abb. Ad. 37; I Wall.) 43; vide other Forms of Reports
The Commander in Chief, 68 U. S. (1 1 in the Appendix.

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unless excepted to. And if no exceptions are filed within four days
after service of notice of such order, a final decree on the report may
be entered.] *

When there are exceptions, the party excepting files and serves
his exceptions and the exceptions are heard as a motion. The fol-
lowing is the form of a decree thereon :

^'A. B. )

CD. )

" This cause coming on to be heard on the exceptions to the report
of John W. Nelson, Esquire, the commissioner to whom the same
was referred, bearing date September 20, 1849, and the advocates for
the respective parties being heard, on motion of C. D., proctor for
the libellant, it is ordered : that said exceptions be overruled, and
that the said report be in all things confirmed with costs ; and that
the libellant recover against the defendant the sum of $188.10, with
costs, and have execution therefor." *

§ 547. Proceeding on Decree. — If the suit be in personam, and the
decree be for the libellant for a sum certain, the usual form of the
decree is, that the libellant recover against the defendant and his
stipulators the amount, with costs as taxed, and that he have execu-
tion therefor. Such decree is a lien upon the debtor's real estate,
in all cases where a judgment of a state court would be ; standing,
in this respect, upon the same footing as a decree in equity.^ In
cases in rem^ it is usual to give a decree the same form as in personam^
and also, if the property be still in custody, to decree a condemnation
and sale of the property, and that the proceeds be brought into court ;
or if the property have been delivered on stipulation then that the
stipulators cause the engagement of their stipulation to be fulfilled
within a certain time after notice of the decree, or show cause why
a summary judgment should not be entered against them on their
stipulation, and execution issue thereon. [In collision cases, where
two vessels are held in fault, provision ma}^ be necessary for collect-
ing out of either vessel a deficiency, if such arises out of the inability
of the other vessel to pay her share.] ®

In a suit in rem^ it is not usual to render a decree in personam^

•Di8t.Tlule8 51, 52,53, 54.
> Vide other Forms of Ezceptionfland
Decrees in the Appendix.
7 Ward V. Chamberlain, 2 Black. 480;

vide Cropsey v. Crandall, 261atcbf. 341.
8 The D. S. Gregory and The George
Washington, 2 Ben. 227, and 74 U. S.
(7 Wall.) 513.

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but if the case proved shows a clear right to recover in personam^
the libellant may be permitted, after a decree in rem^ to introduce
the proper allegations in personam^ and proceed upon them to a
further decree against the person.® [But see The Zodiac, 5 F. R.

§ 548. Correcting Decree. — After the decree is made, it some-
times app^pmj that, by accident, oversight, mistake, or misapprehen-
sion, the decree is erroneous. In such cases, the Court of Admiralty
possesses the power of correcting or varying the decree.^^ Such a
variation, however, should be confined to the alteration of an error
arising from the defect of knowledge or information upon a par-
ticular point in the case, and the error must be brought to the at-
tention of the court with the utmost possible diligence.^^

§ 549. Enrolment of Decree. — The final decree of the court be-
ing pronounced, the clerk enrolls the decree. The enrolment con-
sists of an engrossment of the pleadings, processes, stipulations,
orders and evidence in the cause, arranged in chronological order,
from the libel to the final decree, constituting a complete written
history of the cause. The depositions, exhibits, and documents, if
there be any, are inserted at length in the enrolment, as a part of
the evidence, and the testimony of the witnesses who are examined
in court is copied from the notes of testimony taken by the judge.

•Betts' Prac. 99; Boyd's Proc. 28;
Oonk. Prac. 774, 775.
JO The Fortitudo, 2 Dods. 70; The Sara-

toga, 1 P. R. 158.

" Betta* Prac. 100; 2 Chit Gen. Prac.
538; The Monarch, 1 W. Bob. 21.

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§ 550. Costs are under Control of the Court — The costs in ad-
miralty are entirely under the control of the court, and they are,
thei-efore, often made the means of amercing either of the parties
for misconduct, and are a salutary check upon mischievous litiga-
tion. They are sometimes, from equitable considerations, denied
to the party who recovers his demand, and they are sometimes given
to a libellant who fails to recover anything, when he was misled to
commence the suit by the act of the other party. In prize and sal-
vage cases, the property is sometimes acquitted on payment of costs
by the claimant. In the Massachusetts District, in a hard case, the
court decreed for a libellant for his whole demand, with costs, and
then allowed a set-off of a demand against debt and costs, so that
although the set-off was more than the debt, still the libellant had
a large portion of the costs.^

It is evident that no system of rules can be laid down in a matter
so purely in the discretion of the court. The general rule is, that
costs follow the decree ; but circumstances of equity, of hardship,
of oppression, or of negligence, induce the court to depart from that
rule in a great variety of cases.^

Under ordinary circumstances, a demand of payment of a debt
before suit brought, is so obviously required by fair dealing, that
Courts of Admiralt3% in the exercise of their pmctically equity
powers, sometimes insist upon proof of such demand before a de-
cree for costs will be given.^

An unconscionable demand, or a demand pursued in a vexatious
or unconscionable manner, will not usually carry costs. When a
libellant has put forward a principal demand, which he makes no

' Hutson V, Jordan, Ware, 395; Dun-
lap, Prac. 87, 102; Edw. Ad. 170; The
Glasgow Packet, 2 W. Ilob. 306; The
Reliance, 2 Hag. Ad. 90.

« The Eliza Cornish, 26 Eng. Law A
Eq. 596.^

«Dunlap Prac. 91, 92; 1 Chit. Plead.


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real attempt to enforce, or which he must know to be unfounded,
and recovers only a comparatively trifling amount, which would not
have been resisted, it is not usual to allow him costs. Costs are
never decreed against the government.*

[On a dismissal of a case for want of jurisdiction, costs are dis-
allowed on the ground of want of power to decree them.] *

§ 551. The Fee Bill of 1853 Previous to the act of Feb. 26,

1853, there was no legal tariff of fees in admiralty. The fees of
proctors and advocates were subject to the regulation of the courts,
under their general power to regulate the practice, while those of
the clerk and the marshal were in some cases prescribed by acts of
Congress, and in othei's, were subject to the discretion of the court.
(See 1 Blatch. 662.) There was, therefore, a great diversity, spring-
ing in some degree, from the fact that where there is no fixed rate,
there will always be a strong tendency to assimilate the rates to
those in the state courts of common law and equity. This defect
was cured and the practice made uniform by the Fee bill of 1853,
(now §§ 823 to 829 of the Revised Statutes) which regulated the
compensation of proctors, clerks of District and Circuit Courts,
marshals, witnesses, commissioners and printers. The statute, and
the tariff of fees in admiralty, established by it, will be found in the

[In some cases items have been allowed which are not specified in
the statute. Thus, expenses, made necessary in order to defeat an
attempt to defraud the court, in searching the title to real estate,
claimed to be held by suspicious sureties, were allowed by the court
as costs against the party offering the sureties.] ^

< The EUza, 1 W. Rob. 828; 1 Notes of
Cases, 306; The Ocean, 10 Jur. 506; 4
Notes of CaseSf 571.

*The McDonald, 1 Blatch. 477; Coop-
er r. N. H. St. Co., 18 F. R. 588; Pent-
lai-ge V. Kirby, 20 id. 898; but see The
City of Florence, 56 F. R. 236.

« Rev. Stat § 021; vide the Appendix.
** The expenses in Courts of Admiralty
are frequently a subject of complaint
by those who are not sufficiently ac-
quainted with the proceedings there,
and the manner in which they arise.

Those sums which seem most to startle
by their large amount, relate solely to
the custody of the property, a duty
which does not devolve upon any other
species of courts of justice." (The
Hiram, Stewart's R. 588.) They are not
higher than what are usually and vol-
untarily paid and received by merchants
for like services. (Id. 480.) Dist Rule

7 Simpson v. Sticks of Timber, 7 F. R.
243, 246; The Sarah £. Kennedy, 25 F.
R. 672.

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COSTS. 811

§ 552. Costs on Multiplicity of Salts. — ^Whenever there are sev-
eitil actions or processes against persons who might legally be joined
in one action, — and whenever there are several libels against an 3'^
vessel or cargo which might legally be joined in one libel, only the
costs of one suit can be allowed, except on special cause shown for
the multiplicity of suits. And in causes of like nature, or relative
to the same question, the court has full power to make any orders
with a view to avoiding unnecessary costs, and especially to consol-
idate causes. The order to consolidate will be made only on appli-
cation to the court, on notice to the other party,® [and the court may
compel several suits resting on the same matter of right or defence
to be tried together.] ®

If proctors, advocates, or other persons managing or conducting
causes, appear to have multiplied the proceedings, so hs to increase
costs, unreasonably and vexatiously, they may be i-equired by order
of the court to satisfy any excess of costs so incurred ; and the
court will protect the proctor from a collusive settlement to tue
prejudice of his right to his costs.^®

§ 552 a. Costs when Suits are consolidated. — [In salvage cases,
when a number of salvors file libels, which are afterwards consoli-
dated into one suit, it is the practice in New York to allow a dock-
et fee and disbursements to the salvor first filing his libel, and their
disbursements only to the remaining salvors.

In a case where a vessel is brought into a suit by petition under
the 59th Admiralty Rule and is afterwards declared innocent, she is
entitled to costs against the petitioning party.^^

As to costs in Limitation of Liability proceedings, see post, § 583.

§ 552 b. Costs in Collision Suits. — In collision cases, where both
parties are held in fault the costs, as well as the damages, are di-
vided.^ If damages are divided and but one party has suffered
loss, the practice in the Southern District of New York is to divide
the costs before reference, but to give full reference costs to this
party proving damages.

" The Brothers, 30 F. R 75 ; The Wa-
verly and The AngUa, 42 F. R. 18S.

la The America, 92 U. S. 4S2; Vander-
bilt V. Reynolds, 16 Blatchf. 80; Tlie
Pennsylvania, 15 F. R.814; The Warreu,
25 id. 782; The Wyanoke, 42 id. 80.

8 Rev. Stat, § 982; Betts' Prac. 124;
id. 10; The Etna, Ware, 476: Peterson
c. Watson, Blatchf. & H. 487.

• Dist Rule 5.

10 The Nahor, 9 F. R 214.

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When both parties have been held entitled to recover each party
should tax a full bill of costs, which bills are then set off one against
the other, and the party taxing the larger bill is entitled to one half
the excess of his bill over that of his opponent.

§ 552 c. Costs on Appeals. — On appeals the rule is the same that
costs are ordinarily awarded the successful party. When both par-
ties appeal and the decree below is affirmed, no costs of appeal are
allowed.^ When appellant reduces the decree of the District Court,
the appellee must bear the costs of the Appellate Court.^*

By section 968 of the Rev. Stats, when a libellant, on his own ap-
peal, recovers less than the sum or value of three hundred dollars,
he shall not be allowed, but, at the discretion of the court, may be
adjudged to pay costs.] ^*

§ 552 d. Costs on a Tender, etc. — ^The court discourages hard and
sharp practice, either in the proceedings in court, or in the negotia-
tions between the parties. Hurrying up a suit without a demand
of payment or reasonable indulgence, — refusing to listen to offers
of adjustment, — making technical objections to a tender sufficient
in amount, — if brought before the court, are likely to be remembered
in the decree upon the question of costs. As to tender, the strict
rules of the common law do not prevail in admiralty. A sincere
offer of payment by a party, who has the means of making imme-
•diate payment, has often been ruled to be a good tender, and the
actual production of the money is not required, when the offer of
payment is rejected. [The ordinary method on a tender is to pay
into court the amount which is admitted, and give notice of the same
to the libellant. It is usual to make the payment into court at the
time of filing the answer, and to plead such payment in the answer.
If the libellant does not prove on the trial that the amount so paid
into court was insufficient, costs will generally be awarded against
him.^^ In the New York districts, a libellant may at any time, on or-
der of court, obtain money tendered and deposited in court, sufficient

"The Miletus, 3 Blatchf. 335; The
Wm. Cox, F. R. 672.

1* Carr t. Austin, etc., R. R., 14 F. R.
419; Ross n. Southern etc. Co., 41 id.
152. And see misceUaneous cases of
award of costs altered on appeal in The

Columbia, 25 F. R. 844; The C. P. Ray-
mond, 36 id. 336; The Dentz, 29 id. 525.

^ Quaere if this act applies to the Cir-
cuit Court of Appeals.

i« The Denis Valentine, 47 F. R. 664,
afTd. 57 id. 398.

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only being reserved to cover future costs.^^ In the same court,
when respondent serves written notice that he consents to libellants
taking an order for the withdrawal of the whole or any specific por-
tion of a sum so deposited in the registry, interest on so much of
the libellant's claim thereafter ceases.]

The court encourages efforts to settle, and will, under all circum-
stances, hold an offer to pay as equivalent to a technical tender,
and a declaration in advance, that less than a certain sum will not
be accepted, will be considered as waiving a formal tender. The re-
fusal of a fair tender exposes the party refusing to the loss of his
costs, and, in some cases, to the payment of costs to the adverse

It was the common practice of Courts of Admiralty, to give coun-
sel fees, either in the shape of damages or as a part of the costs.^®
But it is no longer the practice and qwBre whether the power to do
so exists, since the passage of the Fee Bill.

§ 553. Costs apportioned. — Taxation. — ^It is often the case, from
the peculiar form of admiralty proceedings, that justice requires
that costs should be apportioned, — as, when the court discriminates
between parties in its decree, and some appeal and others do not ;
or when the property is in custody in several causes, and the fees
of the mai-shal for the custody and keeping of the property have
accrued for a common benefit to unconnected parties. In such and
similar cases, the court will sometimes apportion the costs.^

Costs are taxed by the clerk, on notice to the opposite party, —
subject to an appeal to the judge, — and are included in and form a
portion of the decree against the losing party. The taxed bill must
be filed.M

17 Oalifamo et al. v, MacAndrews et
al., 50 F. R. 300; Dist. Rules 3«, 3S.

M Dunlap Prac. 103, 104; Conk. Prac.
7il; The Frederick, 1 Hag. Ad. R. 218.

"The AppoUon, 22 U. S. (9 Wheat)

362; Canter v. The American & Ocean
Ins. Cos., 28 U. S (3 Pet) 307.

*>The John WaUs, Jr., 2 law Rep.
(new series), 24.

2»Rev. Stat §983.

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Limitation of Liability.

[§ 554. History and Result of the Statute. — ^The present sys-
tem, by which owners of vessels are enabled to limit their liability
to the value of their interest in the vessel and freight, has grown
in this country since the second edition of this work was published
in 1870. The first statute of the United States on the subject,
which is the foundation of the system, was passed in 1851 (9 Stats,

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 32 of 80)