Erastus Cornelius Benedict.

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

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capital, the District Court has jurisdiction. If committed within
any district, the trial must be in that district; and if upon the high
seas, out of a district, then in the district where the offender is ap-
prehended, or into which he may be fii-st brought.^

Those who contend for the narrow jurisdiction of the admiralty,
have not always considered what would be its effect upon the crim-
inal jurisdiction of the general governmeat.

§ 601. Constitational Proyisions.— Under the general provision
that, in admiralty and maritime cases, the mode of proceeding should

1 Const Art 3, § 2 ; 1 Stat at Large,
112; 4 id. 115, 777; 5 id. 567; 6 Amend,
to the Const U. S. ; vide The U. S. v.

yrilson, 3 Blatchf. 435; The U. S.
Bird, Sprague, 209.

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be according to the usages of Courts of Admiralty, the trial of mari-
time offences must have been according to the usage of admiralty
courts,^ had not the constitution and amendments otherwise pro-
vided :

^^ The trial of all crimes, except in cases of impeachment, shall
be by jury, and such trial shall be held in the state where the said
crimes shall have been committed ; but when not committed within
any state, the tiial shall be at such place or places as the Congress
may, by law, have directed.*

** No pereon shall be held to answer for a capital, or otherwise m-
famous crime, unless on presentment or indictment of a grand jury,
except in cases arising in the land or naval forces, or in the militia
when in actual service, in time of war or public danger.*

'* In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial by an impartial jury of the state and
district where the crime shall have been committed, which district
shall have been previously ascertained by law, and to be informed
of the nature and cause of the accusation, to be confronted with
the witnesses against him, to have compulsory process for obtaining
witnesses in his favor, and to have the assistance of counsel for his

§ 602. Crimes are Tried by a Jury. — ^The practical operation of
these provisions has been to make the practice of the admiralty, in
criminal cases, the same as the pi-actice of the courts of common
law, in like cases. The cases are none the less cases of admiralty
and maritime jurisdiction, although, like criminal cases in the Eng-
lish Admiralty, they are tried before a jury, and, from the begin-
ning, conducted after the manner of trials at common law, in criminal
cases. The proper effect of those provisions is not, however, to adopt
in such cases the practice of the state courts, but the practice must
be according to the usage of admiralty courts, subject to the limita-
tions of the constitution, the amendments, and the acts of Con-

§ 603. Warrants and Commitments. — The powers usually ex-

> Act of Mays, 1792, §2.
•Const. Arts, §2.
* 5th Amendment.

> 6th Amendment.
« Conk. Treat 305.

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ercised by justices of the peace and other magistrates in the states,
of issuing warrants for crimes, making preliminary examinations,
and committing, are usually exercised by the United States com-
missioners, by virtue of § 727 of the U. S. Revised Statutes.

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§ 604. No Statute of Limitations.— There is no fixed rule of
limitation of the time in which admiralty suits shall be brought, ex-
cept in the cases of crioiinal suits, and suits quasi criminal. Stat-
utes of limitation are founded entirely on public policy, rather than
on sound principle. Indulgence to a debtor, and delay in prosecut-
ing him, would seem not to form any good reason why the creditor
should lose his debt. The policy of all nations has, however, fixed
limits to that indulgence in certain cases, longer in one nation than
in another, and almost as various as the classes of cases. These limita-
tions have usually been subject to exceptions, one of which is against
persons beyond sea« and all of which have their foundation in the
inconvenience or impi-acticability of sooner enforcing the demand.

§ 605. Limitations are left V> the Discretion of the Conrt. —

If the omission to enact any statute of limitations, in civil cases of
admiralty and maritime jurisdiction, sprang from the peculiar char-
acter of the cases, and the pursuits of many of those employed in
maritime commerce, who are, for a large portion of their time in
foreign countries, on the seas, and beyond the seas, urged by the
strongest incentives of commercial necessity, as well as of public
policy, to pursue their avocations without interruptions, and with-
out being the masters of their own steps, it would not be the only
instance in which the founders of the republic, and the framers of
her first system of laws, silently manifested their remarkable fore-
cast and practical wisdom. I cannot help thinking that, in such
cases, the matter of limitations is best left as it is, to the discretion
of the coui-t, which can best judge, in view of all the ciroumstancest
whether the demand be so stale as to be considered neglected and
abandoned,^ — availing itself of that principle of limitation in the
administi-ation of every system of jurisprudence, which is derived
out of the nature of things, and which is admitted in the universal

iThe Key City, 81 U. S. (14 Wall.) 060; but see Reed v. Ins. Co., 95 U. S. 28.


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maxim, " Vigilantibus non dormientibits tubveniunt leges.*^ This is
the constant pi-actice of Courts of Admiralty. This discretion of
the court is not mere caprice, nor will, nor arbitrary power. It is
the sound legal discretion of cultivated reason, in which the cir-
cumstances of the parties, of the property, and of the transaction,
the wants and convenience of commerce, the demands of public
policy, and, most especially, the analogies of the local laws of limi-
tation, are fully to be considered and carefully weighed.*

§ 606. Limitations in Criminal Cases. — In criminal and penal
cases, and cases of forfeiture, there are limitations fixed by the acts
of Congress. No person shall be tried for treason, or other capital
offence, wilful murder excepted, unless the indictment for the same
be found by a grand jury within three years next after the commis-
sion of the offence ; nor shall any person be prosecuted, tried, or
punished for any offence, not capital, [except offences under the
revenue or slave trade laws,] unless the indictment or information
for the same be found or instituted within three or two (see Rev.
Stat. §1044) years from the time of committing the offence: this
does not, however, extend to pei-sons fleeing from justice.'

§ 606 a. Limitation on Seizures. — For a large number of offences
against the revenue laws, ships and vessels and other property are
specifically forfeited, and the forfeiture is enforced by proceedings
in rem in admiralty.

[The limitation of time within wliich such prosecutions for for-
feitures must be brought has now been fixed at five years, as has
alijo the limitation for the prosecution of crimes under revenue or
slave trade laws.] *

mer v. Bell, 22 Eng. Law & Eq. 72:
Saunders v. Buckup, Blatohf. <feH. 264;
The Robert Gaskin, 9 F. R. 02; The
Lauretta, 9 id. 622; ScuU r. Raymond,
18 id. 547; Coburn r. F. & T. Ins. Co.,
20 id. 044; The Alaska, 33 id. 107; South-
ard r. Brady, 36 id. 560; The Amboy, 36
id. 925; The Key City, 81 U. S. (14
WaU.) 412.

•Crimes Act of April 30, 1790, §31.
(now Rev. Stat. § 1043 to 1047); Adams
c. Woods, 6 U. S. (2 Cranch), 336; The
U. S. c. Alayo, 1 Gal. 397.

* Rev. Stat. § 1047.

2 Brown v. Jones, 2 Gall. 477; Willard
V. Dorr, 3 Mason, 91 ; The Rebecca, 5
C. Rob. 90; The Mentor, 1 C. Rob. 180;
The Huldah, 3 id. 235; The Susanna,
id. 51; The Jonge Jan, 1 Dod. 453;
The Sarah Ann, 2 Sumn. 200; Coppin
tj. Gray, 1 Yo. & C(»L 200; Ferguson v.
Fyflfe, 8 Clark & Fin. 121; The John, 2
Dod. 338; The Eastern Star, Ware, 186;
Edw. Jur. 149; Stat. 4 Anne, C. 16;
The Clifton, 3 Hag. 117; The Rapid, id.
419; Wagner v, Baird, 48 U. S. (7 How.)
234; Coote's Frac. 6; The Saracen, 2
W. Rob. 451; S. C, 6 Moore, 56; Har-

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§ 607. Changes in the Law. — [The Aet of Congress of March 3,
1891, (26 U. S. Stat, at L. p. 826), which established the Circuit
Courts of Appeals, substituted a new system for the previous mode
of review in admiralty causes, which Tiad been by an appeal, first to
the Circuit Cfourt of the district and then to the Supreme Court of
the United States. Under the new system the final decrees of the
District Courts in Admiralty are reviewed by appeal to the Circuit
Court of Appeals, unless the question of jurisdiction is involved, in
which case an appeal lies directly to the Supreme Court of the
United States. No appeal lies from the decisions of the Circuit
Court of Appeals to the Supreme Court, but that court may, if it
will, issue a certiorari to review such a decision. This change of sys-
tem has made it necessary to substitute for the last two chapters of
previous editions of this work chaptera upon the practice under the
new system.

§ 608. Appeals to the Supreme Court.— Confnsion in the Stat-
ute. — Before the passage of the Act of 1891, all admiralty causes,
except prize causes, were taken by appeal to the Circuit Court.
Under the Act of 1891 a division is made in the appellate jurisdic-
tion, and now in some cases an appeal may be taken from the Dist-
rict Court to the Supreme Court.

There is a regrettable confusion in the statute in regard to these

The fifth section of the act provides that an appeal may be taken
from the District Court *' direct to the Supreme Court " . . . " in
any case in which the jurisdiction of the court is in issue."

The sixth section of the act gives jurisdiction to the Circuit
Court of Appeals to review the final decision of the District Court
" in all cases other than those provided for in the previous section
of the act."

It also provides that the judgments or decrees of the Circuit
Courts of Appeals shall be final ** in admiralty cases."


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It is open to argue from this that the words " any case in which
the jurisdiction of the court is in issue," in the fifth section of the
act, do not include an}^ such admimlty case, and that all admiralty
cases, even those in which the juiisdiction of the court is in issue,
must be taken by appeal to the Circuit Courts of Appeals. But it
seems more reasonable to hold that the sixth section makes the de-
crees of the Circuit Courts of Appeals final only in such admiralty
cases as are not provided for by the words of the fifth section, and
therefore that admiralty cases "in which the jurisdiction of the
court is in issue,'* and possibly in which the matter in controversy
shall exceed one thousand dollars besides costs, are appealable to
the Supreme Court, like other such cases.

§ 609. When Appeals to the Supreme Court can be taken. — But

aside from the question here suggested whether an admiralty case
in which the jurisdiction of the court is in issue can be appealed to
the Supreme Court at all, there is also a question as to the time and
scope of such an appeal to the Supreme Court, if it can be taken,
arising out of the addition, to the clause of the 7th section which
gives such an appeal in such cases, of the words, "In such cases
the question of jurisdiction alone shall be certified to the Supreme
Court from the court below for decision." Under that provision,
the District Court having overruled a demurrer which raised the
question of its jurisdiction, the defendant insisted that he was en-
titled to a writ of error to take up that question to th^ Supreme
Court, and that the District Court must not proceed with the cause
to final judgment meanwhile. But the Supreme Court decided that
the writ of error or appeal could only be taken after final judgment
(except in cases specified in the 7th section of the act), and that
wjien final judgment was rendered the party must elect whether
he would go to the Supreme Court on the question of jurisdiction
alone, or to the Circuit Court of appeals ** uj.on the whole case," in
which case, it was added, "the Circuit Court of Appeals may, if it
deem proper, certify the question of jurisdiction to this court." ^

The attention of the Supreme Court does not seem to have been
specially called to the language of the sixth section, under which it
would seem that the Circuit Court of Appeals would have no power
to review the decision of the District Court in a case in which the
jurisdiction of that court was in issue, because such a case is one
iMcLish ». Roflf, 145 U. S. 661.

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APPBAL8. 361

provided for in the fifth section and therefore covered by the ex-
ception in the sixth.* If such is the proper construction of those
sections, then, in a case in Admiralty where the jurisdiction of the
court was involved and also the merits, the party desiring to appeal
could only appeal to the Supreme Court on the question of jurisdic-
tion, abandoning his question on the ments, or appeal to the Circuit
Court of Appeals on the merits, abandoning his question on the
jui'isdiction.'* And in the latter case it is difficult to see how the
Circuit Court of Appeals could certify to the Supreme Court the
question of jurisdiction after it had been deliberately abandoned.

§ 610. Doubt as to Appeals. — Here is plainly need of an amend-
ment of the statute to cui-e the difficulty. Till then the party who
wishes to appeal from a decision of the District Court on the ques-
tion of the jurisdiction and also on the merits, is in a most awkward
dilemma. If he chooses to abandon his question on the merits, then
clearly he may appeal directly to the Supreme Court. If he wishes
to have both questions reviewed, his best chance of doing so, would
seem to be by an appeal to the Circuit Court of Appeals. And there
he might be met by a motion to dismiss his appeal on the ground of
lack of jurisdiction in that court to hear the appeal because " the
jurisdiction of the District Court is in issue."

One party may appeal to the Supreme Court on the question of
jurisdiction, and the other party to the Circuit Court of Appeals on
the merits.*

§ 611. Practiee on Appeal to the Supreme Court.— The practice
on an appeal to the Supreme Court from a decree of the District
Court is left entirely unprovided for in the statute. In the absence
of any such provision, or of any rule of the Supreme Court on the
subject, it would probably be safe to follow, in taking such an appeal,
the same practice as in appealing to the Circuit Court of Appeals.

Appeai^ to the Circuit Court of Appeals.

§ 612. The General Rules and the Admiralty Rules.— Shortly
after the passage of the act, the Supreme Court of the United States

«See Badaracco v, Cerf, 53 P. R. 170; ♦ U. S. v. Sutton, 47 F. R. 129; N. Pac.

HamUton v. Brown, 53 id. 757. R. Co. v, GlasspiH, 49 id. 482; 5 U. S

s That is, if Uie question of jiirisdic- App. 238.
tion can ever be abandoned.

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caused to be prepared and proposed to the various Circuit Courts of
Appeals for adoption a set of rules, which were thereafter adopted
by most, if not all of the Circuit Courts of Appeals. No distinction
between admiralty and other causes was made in those rules. In
some of them admiralty causes were specifically mentioned. Others
of them were as applicable to admiralty as to other causes, while
others were inapplicable to admiralty causes.

Shortly after the organization of the courts, on the application of
u committee of the Admiralty Bar of New York, the Circuit Court
of Appeals for the Second Circuit appointed a committee of the bar
to propose Admiralty Rules. And after the report of that commit-
tee, the court ordered the adoption of such rules, which went into
effect on July 1, 1892, and were subsequently amended, and which
will be found in the Appendix, as will also the Genei-al Rul^ of the

By the last of these Admiralty Rules it was specified which of the
General Rules are to be deemed to be Admiralty Rules.

The practice on appeals to the Circuit Court of Appeals is there-
fore, in the Second Circuit at least, governed by the act of 1891, and
by the Admiralty Rules adopted by that court. These rules will be
the rules referred to in this chapter, unless where other rules are

§ 613. The Appeal is an Admiralty Appeal. — The language of
the Act of 1891, § 6, is that the Circuit Courts of Appeals " shall ex-
ercise appellate jurisdiction to review by appeal or by writ of error
final decision in the District Court ... in all cases other than those
provided for in the preceding section of this act, unless otherwise
provided by law."

The " preceding section "did not mention any admiralty cases ex-
cept prize causes and those causes "in which the jurisdiction of the
court is involved." And as it Ls not *' otherwise provided by law," it
follows that the Circuit Courts of Appeals have the jurisdiction to
review the decision of the District Courts in other admiralty cases,
" by appeal." And as no limitation is put upon the appeal, it must
be, in admiralty cases, an admiralty appeal.^

§ 614. Tlie Same. — The act of 1875® took away from the review

» McLlsh r. Roff, 141 U. S. 605.
^ 18 Stat at Large, p. 315.

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of a,dmiralty causes by the Supreme Court of the United States the
character of an admiralty appeal which it had had since the founda-
tion of the government. It assimilated such review to the review
of common law actions, by providing that such review should be
confined to a consideration of questions of law, arising upon findings
of fact, which the Circuit Court was directed to make. The Supreme
Court held in the case of The Francis Wright (105 U. S. 884) that
this limitation of the right of appeal was not contrary to the Consti-
tution of the United States. It did not however commend itself to
the Admiralty Bar, by its working.

When the new system of review by appeal to the Circuit Court
of Appeals was established, the point was raised, that by reason of
the language of the 11th section of the Act of 1891 the appeal from
the District Court to the new court must be subject to the same
limitations as had been applied to appeals from the Circuit Court
to the Supreme Court, by the Act of 1875. But the Circuit Court
of Appeals in the Second Circuit in the case of The Havilah ^ (the
firat case which came before it) held otherwise. And the effect of
that decision would seem to be that an appeal from the decree of the
District Court in an admiralty case to the Circuit Court of Appeals
has the same force, effect and scope as formerly pertained to an ap-
peal from such a decree to the Circuit Court. In any question now
arising as to such an appeal, the decisions regarding such former
appeals are to be considered.

§ 615. Effect of an Appeal. — In an admiralty case the appeal
from the final decree brings up for review all the orders, decrees,
and proceedings in the cause.^

And it has been the well settled practice of the admiralty, that
on an appeal the parties are permitted to allege what was not al-
leged, and to prove what wtw not proved, in the court below. This,
however, must be taken with the limitation that new causes of ac-
tion cannot thus be introduced in the appellate court, otherwise an
appeal might be made the means of giving original jurisdiction to
an appellate court.®

7 4S F. R. 084; 1 U. S. App. p. 1; See
Boston To^boat Co. v, Pettie, 1 U. S.
App. 57.

^Act of March 3, 1808; Marine Ins.
Co. V, Hodgson, 10 U. S. (0 Cranch),

206; Welch v. Mandeville, 11 U. S. (7
Cranch), 162; The Apollon, 22 U. S. (9
Wheat.) 376; Chirac tJ. Reinicker, 24 U.
S. (11 Wlieat)280; Brockett v. Brockett,
43 U. S. (2 How.) 23S; The HoUen, 1

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And some modifications in this practice have been made by the
Admiralty Rules of the Circuit Court of Appeals, which will be
noticed hereafter.

§ 616. An Appeal most be from a Final Decree. — An appeal to
the Circuit Court of Appeals can only be from a " final decision "
of the District Court.^^ The previous statute used the words "final
decrees," but the word " decision " was probably intended to con-
vey the same idea. The following language from the previous edi-
tions of this work is therefore still pertinent :

" It is of great importance to the due administration of justice,
that causes should not be carried up in fragments, upon successive
appeals. It would occasion very great delays and oppressive ex-
penses. It was to prevent such a course, unquestionably, that Con-
gress limited appeals to final decrees ; and in the same spirit the courts
have always held, that if one party appeals and the other party does
not also appeal, he shall be bound by the decree of the court below,
and also of the court above, and will not be permitted to ask that
the decree be modified in his favor, nor to bring another appeal."

But the appellate court may of its own motion modify a decree
in favor of a party who has not appealed.^^

" We hence derive the true criterion of a final decree. The final
decree is not that which decides upon the substantial merits of the
action, but that which completes the decretal action of the court in
the cause ; and an appeal will bring up for review, at once, all that
the court has done in the cause, so far as it may injuriously affect
the appellants. We also perceive the proper function of an appeal,
which is to bring up for rehearing and read judication the whole ac-
tion of the court below, so that the court above may, in all things,
do what the court below should have done, or remand the cause,
with directions which shall render another appeal unnecessary. An
appeal is a new trial.^

MasoD, 431 ; Mordecai v, Lindsay, 60 U.
S. (19 How.f 199; Montgomery v, An-
derson, 62 U. S. (21 How.) 3S6.

• Ante, § 483; The Anonymous, 1 Gall.
22; The Boston, 1 Sum. 328; The Sarah
Ann, 2 id. 206 ; Cushman v, Ryan, 1 Story,
236; Carrigan v. The Charles Pitman,
1 WaU. C. C. 307; Gierke Prax. tit 60;
Hall. Ad. 110.

10 Act of 1891, § 6; 26 U. S. Stat at
L., p. 826.

» The Hesper, 122 U. S. 266.

1'^ Canter v. The American and Ocean
Ins. Cos., 28 U. S. (3 Pet) 318; The San-
ta Maria, 23 U. S. (10 Wheat) 431; The
Palmyra, id. 502; Chace v, Yasquez, 24
U. S. (11 Wheat) 429; Pettie v, Boston
Towboat Co., 49 F. R. 464.

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If, therefore, there remain to be made any order, — ^for costs, — for
confirmation of a report, — ^for distribution, or other order, which is
but a consequence of the decree on the merits, the appeal cannot
be entered before such order is made, that is, the decree is not final
till it is in a state for execution, without further action of the court
below." i«

§ 617. No Limitation on Amount.— Under the previous system
a decree of the District Court for less than $50 could not be ap-
pealed from. No such limitation of the right of appeal is found in
the Act of 1891, but the right to appeal to the Circuit Court of
Appeals is given in all cases except where an appeal is given to the
Supreme Court.'

§ 618. An Appeal suspends the Decree. — ''Pending an appeal to
the Circuit Court of Appeals, the enrolled decree remains in the
District Court, as the decree of that court, and, till reversed, it is
binding upon all the parties, as an adjudication of the right. It is
suspended, or stayed in operation, during the pending of the appeal.

It is properly said, in regard to admiralty cases, that an appeal
suspends the sentence below altogether, and the language of some
of tfie cases has been thought to justify the opinion, that an appeal
entirely destroys the effect, if not the operative existence, of the
decree appealed from. The extent of the principle, however, seems
to be that, notwithstanding the decree below, the cause is to l>e heard
and decided in the appellate court, according to the law, as it exists
at the time of the hearing, in the appellate court, in the same man-
ner as if no sentence had been pronounced. In other words, the

Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 37 of 80)