Erastus Cornelius Benedict.

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

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sofiam wherein publication is required by law, such publication by the marshal
shall, except as othei-wise ordered, be made in the newspaper designated for that
pui*pose by the couit by general order.

32.

Notice of the aiTest of property' in suits in rem other than in behalf of the
United States, shall be published and affixed as required in case of seizures on the
part of the United States, unless the judge by special order directs a shorter notice
than 14 days ; the publication need contain only the title of the suit, the cause
or nature of the action, the amount demanded, the time and place of the return
of the monition, with notice to all persons interested to appear, or that default
and condemnation will be oixiered, with the names of the marahal and proctor.

33.

Where the res remains in the custody of the marahal, the cause will not be
heard until after publication of pix)cess shall have been made in that cause, or
in some other pending cause in which also the property is held in custody ; but
no final decree shall be entered after hearing or by default, or on consent of
paities, ordering the condemnation and sale of property not perishable, arrested
on process in rem, unless publication of process in that cause shall have been
duly made ; nor except on default or by consent of the parties appearing, will
any sale of the res be ordered by interlocutory decree before the sum chargeable
thei*eon is fixed by the court, unless by the express order of the court because
of the perishing or perishable condition of the res.

34.

In any admiralty proceeding in rem where no proctor has appeared for any
claimant, a vendiiioni exponas will not be issued, nor a decree entered, unless



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436 APPENDIX.

proof be furnished of actual notice of the action to an owner or agent of the ves-
sel proceeded against, or to the master in command thereof, in addition to the
proof of publication of the notice of arrest of the vessel or unless it be made to
appear on special application to the court that such actual notice is unnecessary.

35.

Notice of sale of property after condemnation in suits in rem (except under
the revenue laws and on seizure by the United States,) shall be daily for at
least six days before sale unless otherwise directed in the decree ; and shall be
published in manner directed by Act of Congress on condemnation under the
revenue laws, § 939 Rev. Stat.

36.

A tender inter partes before suit shall be of no avail in defence or in discharge
of costs unle^ on suit brought and before answer, plea or claim filed, the same
tender is deposited in the court to abide the order or decree to be made in the
matter.

At any time not less than 14 days before tnal the respondent or claimant may
serve upon the libellant^s proctor a written offer to allow a decree to be taken
against him for the sum of money therein specified, with costs to the date of the
offer to be t^ixed, which the libel Ian t may within ten days thereafter accept and
enter judgment accordingly ; if not so accepted, and the libellant fail to obtain
a more favorable decree, he cannot i-ecover costs from the time of the offer; but
if the respondent or claimant deposits the amount of his offer, or tender, and the
clerk^s fees for paying out the same, with the clerk, the respondent shall recover
costs from the time of deposit if the libellant does not recover a more favorable
decree.

37.

At any time after an interlocutory decree in favor of the libellant, the claim-
ant or respondent without admitting liability and without prejudice as to th6
right to appeal, may sei've upon libell ant's proctor a written offer to allow li-
bellant^s damages to be assessed at a sum of money therein specified, and unless
the libellant shall finally obtain a decree for a larger sum, besides interest, he
shall not recover any subsequent costs and expenses upon any reference after
the offer.

38.

The libellant may at any time on notice take order for the withdrawal of so
much of the tender or amount deposited as the court may allow, without preju-
dice to his subsequent litigation for a larger amount, leaving in the registry a
sum sufficient to cover the defendant's costs, in case the amount deposited should
be held in this couit, or in any Appellate Couit, to be sufficient to meet the li-
bellant's demand.

If the respondent serves on the proctor of the libellant written notice of con-
sent that the whole, or any specific part, of the tender deposited be paid over to



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DISTRICT COURT RULES. 437

the libellant, the respondent shall not in any event be liable thereafter for in-
terest on so much of the libellant^s claim.

39.

No claim can be made without proof of a subsisting interest of the claimant
in the subject matter of the claim. This proof may, in the first instance, be
the oath of the claimant ; but subject to denial and disproof on the part of the
libellant or any other pai1y to the suit, on issue thereto if allowed by the court,
or on summary petition.

40.

When an answer is required, in a suit in rem, of a party having no interest
in the subject matter, he may file an exceptive allegation or disclaimer, and no-
tice the same instatUer for hearing. If the decree of the court is in affirmance
of his plea, he shall be discharged the action.

41.

If separate answers or claims are put in by the same proctor, or by different
proctors connected in business, all costs thereby imnecessarily incuiTed shall be
disallowed on taxation.

42.

The defendant may before filing his answer except to the jurisdiction or to
the sufficiency of the libel, and if the exception is sustained and the libel is not
amended within such time as the court shall allow, it shall be dismissed.

Exception to the libel or answer may be heard on any motion day on four
days^ notice.

43.

Exceptions to the answer shall be taken within four days after notice of the
filing of same, which exceptions shall briefly specify the paits excepted to or
the grounds of exception, whereupon the paity answeiing or claiming shall in
four days either give notice of his submitting to the exceptions, or set down
the exceptions for hearing and give four days' notice thereof for the next mo-
tion day. In default whereof the like order may be entered as if tlie exceptions
had been allowed by the court.

44.

If a party submit to exceptions he shall amend his pleadings within four days
after notice of his submitting. If the exceptions are allowed on hearing, he
shall amend his pleadings within such time as the court shall direct; and if the
hearing of the exceptions shall not bo duly brought on, or the amendment duly
put in, the libel, claim or answer excepted to shall, if the exception was for
insufficiency, be treated as a nullity and the default of the party be entered ; if
the exceptions were for irrelevancy the matter excepted to may be stiicken out
by the clerk.



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438 APPENDIX.

45.

Answers to interrogatories may be excepted to in the same manner as an-
swers l>r claims pat in by a defendant, and shall, in all respects, be subject to
the provisions of the rules in relation to exceptions ; and, if the libellant mak-
ing answers shall not perfect the same after exception allowed, the libel shall
be dismissed for want of pros^bution. But this rule shall not in any case be
deemed to require answers to interrogatories on the part of the United States,
in suits brought in their behalf.

46.

In suits in rem in collision cases, if one of the colliding vessels be wholly
lost so that no cross libel against her could be maintained, the defendant, if he
shall desire to recoup or offset any damage to his own vessel in case it shall be
determined on the ttial that the collision occurred through the fault of both ves-
sels, must in his answer state the facts and his own damages, in like manner as
upon filing a cross libel ; and such statement of damage shall be without preju-
dice to any defence he may make tliat the collision was wholly the fault of the
other vessel.

47.

Commissions for taking testimony shall be moved for in fourteen days after
tlie claim or answer is filed and perfected (if the same shall have been excepted
to) ; but, if inten'ogatories shall be propounded for the other party, by the
party who moves for a commission, he shall have fourteen days for moving
after the answers to the inteiTogatories shall be perfected ; otherwise such com-
mission shall not operate to stay proceedings ; but, on a proper case shown, ap-
plication for a commission and for a stay of proceedings may be made at any
time before final decree.

Affidavits on which a motion for a commission is made shall specify the facts
expected to be proved, together with the names of the witnesses, and the short-
est time within which the paity believes the testimony may be taken and the
commission returned. On special cause shown, an order for the examination
of parties not named may be applied for on notice to the adverse party.

48.

A commission will not be allowed to stay proceedings, except by order of
court, if the opposite paity admits in writing that the witnesses will depose to
the facts stated iq such affidavits; such affidavit, with the admission, may be
read on the trial or hearing, and will have the same effect as a deposition to
those facts by the witness or witnesses named.

49.

Interrogatories for the direct and cross-examination in case the paities dis-
agree respecting them, shall be presented to the judge for his allowance at one



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DISTRICT COUBT RULES. 439

time, and one day's notice of settlement shall be given the party objecting to
the opposite interrogatories ; such inten'ogatories or cross interrogatoiies may
be allowed provisionally, subject to objection at the trial.

Cross interrogatories shall be served within four days aft^r the direct have
been received, unless further time shall be ordered. If no notice of settlement
before the judge is given within five days after both direct and cross interroga-
toiies have been served, each party shall be deemed to have assented to the in-
terrogatories served. The inten'ogatories, direct and cross, as agreed to by
the parties, or settled by the judge, shall be annexed to the commission. Di-
I'ections as to the execution and return of the commission signed by the clerk
shall accompany the commission.

50.

Depositions taken under commission, or otherwise, shall be forwarded to the
clerk immediately after they are taken, and be filed on their return to the clerk's
ofiSce, in term or vacation, and notice thereof shall be forthwith given by the
party for whom they were taken to the proctor of the opposite party, and they
shall be opened by order, of coui*se, on notice by either party to the other.
And all objections to the form or manner in which they were taken or returned
shall be deemed waived, unless such objection shall be specified in wnting and
filed within four days after the same are opened, unless further time shall be
granted by the judge.

51.

All reports of commissioners, assessors, adjusters, etc., in all matters referred
by the court shall be filed in the ofSce of the clerk of the com*t,.and prompt no-
tice thereof given by them to the proctoi*s of the parties appearing. But such
commissioners, etc., are not required to file such reports until their proper fees
and charges thereon are paid. The same may be taxed by the clerk if required
by either party ; and the proctoi-s of the party procurino^ the reference shall be
personally liable to the commissioner^ etc., for the payment of fees as taxed.

52.

After the filing of a commissioner's report, either party may except thereto,
and either party may set down such exceptions 4ov hearing on two days' notice
for the first motion day thereafter.

53.

Upon filing of the report an order of confirmation nisi may be entered of
course without notice, unless otlierwise ordered by the court, or the report shall
be excepted to ; and if no exceptions be filed within four days after service of
notice) of such confirmation nisi on the proctors of the other parties, decree final
may b6 ttitered.



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440 APPEajiDix.

54.

If the libellant takes no proceedings upon the report within four days after
notice of the filing thereof given by the respondent, the respondent may move
the court on two days^ notice to dismiss the libel for want of due prosecution.

55.

For services rendered by commissioners acting under Rule 44 of the Supreme
Court in Admimlty. compensation for which is not otherwise provided by law,
a reasonable compensation shall be allowed and taxed.

56.

All bills of costs and of charges to be paid under any order or decree of this
court shall be taxed and filed with the clerk before payment thereof; and, if
the same shall include charges for disbursements other than to the officera of
the court, the proper and genuine vouchers, or an affidavit thereof (in case of
loss of voucbei*s), shall be exhibited and filed ; and, if such bill shall be taxed
without two days' notice to all parties concerned, it shall be subject to a retax-
adon, of course, on application by any such party not having had notice, and
at the charge of the paity obtaining such taxation. The clerk's costs of enter-
ing satisfaction of judgment and issuing execution may be taxed as a disburse-
ment.

Any party aggineved by taxation of costs or the exaction of fees by an officer
whose office is in the same building with the court, may apply to the court for
relief instanter^ upon notice to the officer taxing the costs or exacting the fees.
»

57.

Where proceedings on a decree shall not be stayed by an appeal, and the de-
cree shall not be fulfilled or satisfied in ten days after notice to the proctor, if
there be any, of the party against whom it shall be rendered, it shall be of
course to enter an oi*der that the sureties of such party cause the engagement of
their stipulation to be performed, or show cause in four days, or on the first
day of jurisdiction afterwards, why execution should not issue against them,
their lands, goods and chattels, accoixling to their stipulation ; and, if no cause
be then shown, due service having been made on the proctor of the party, if
there be any, a summary decree shall be rendered against them on their stipu-
lations, and execution issue ; but the same may be discharged on the pei-fomi-
ance of the decree and payment of all costs and clerk's charges. This rule
does not apply to sureties on bonds given under § 941 of the Revised Statutes
of the United States.

58.

Whenever after judgment or decree for a sum certain and before execution
issued thereon, any party shall pay into court the amount thereof, with interest,
costs, and the clerk's statutory charges for receiving and paying out the money :



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DISTRICT COURT RULES. 441

or whenever the marshal (or the proper officer) shall return process of execu-
tion full}' executed, and shall pay the said amounts into court, including the
said charges of the clerk, which shall also be collected on execution, the clerk
shall forthwith and without other authorization, enter satisfaction of record on
such judgment or decree, at the charge of the paity in whose favor such judg-
ment or decree may be rendered.

59.

When any moneys shall come to the hands of the marshal under or by virtue
of any order or process of the court, he shall forthwith pay over the gross
amount thereof to the clerk, with a bill of his charges thereon and a statement
of the time of the receipt of the moneys by him ; and, upon the iiling of such
statements, and the taxation of such charges, the same shall be paid to the
marshal out of such moneys ; and an account of all propeity sold under the
order or decree of this court, shall be returned by the mai*shal and filed in the
clerk's office, with the execution or other process nnder which the sale was made.

60.

In proceedings in rem, after a sale of the property under a final decree,
claims upon the proceeds of sale, except for seamen's wages, will not be admit-
ted in behalf of lienors -filing libels or petitions after the sale, to the prejudice of
lienors under libels filed before the sale, but shall be limited to the remnants
and surplus.

61.

A party shall not bo held to enter his appeal from any decree or order of the
com*t as final, unless the same is in a condition to be executed against him with-
out further proceedings therein in court.

62.

In appealable cases, ten days from the time of service of a copy of the decree
on the opposite proctor, with notice of its entry, shall be allowed to enter an
appeal, witliin which time the decree shall not be executed.

63.

The clerk is authorlBed to tax or certify bills of costs, and to sign judgment«i,
and also take acknowledgments of the satisfaction of judgments, and all affi-
davits and oaths out of court, as in open court, in all cases where the same are
not required by law to be taken in open couit.

64.

The deputies (or chief clerks) of the clerk, not exceeding two in number,
named and designated by an appointment filed in the office of said clerk, are



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442 APPENDIX.

each authorized to perform all dutied appertaining to the clerk which are nd
required by law to be performed by the clerk in person.

65.

The clerk is authorized to enter satisfaction of record of any judgment on be-
half of the United States on filing acknowledgment of satisfaction thereof by
the U. S. attorney ; in other cases, upon filing due acknowledgment of satis-
faction made by the judgment creditor or his proctor or proctors, within two
yeai-s from the entry of the judgment, and thereafter upon acknowledgment .
made by the judgment creditor or by his legal representatives or assigns with
evidence of their representative authority.

66.

proctors, attorneys, counsellors and advocates of any Circuit or District Court
of the United States or of the Supreme Court of this state, may be admitted to
this court on motion of an attorney or proctor of this court, upon signing the
roll and taking the oaths presciibed by the constitution and laws of the United
States.

67.

In admiralty and maritime causes, wherein the matter in demand does not
exceed fifty dollars, the proceedings for recovery thereof may be summaiy.

The monition or citation, or attachment, in such suit, may be made returaable
on the first day of a stated or special session of court next succeeding the ser-
vice thereof, at least three days intervening between the semce and return of
process in rem in suits by individuals.

68.

In suits in personam for wages, where the amount sworn to be due, in the
libel, is less than fifty dollars, the clerk shall not issue process without the usual
stipulation for costs, unless the libel be accompanied by satisfactory proof that
the respondent is about to leave the district; or by an allocatur of the judge, or
by a certificate of a commissioner of the Circuit Court, that, upon due service
of a summons to the respondent to appear before him, sufficient cause of com-
plaint whereon to found process appeared. Such summons shall be served at
least one day previous to the day of hearing therein mentioned, and if it shall
appear, on the hearing, to the satisfaction of the commissioner, that the wages
claimed have been paid or forfeited, he shall refuse the certificate. And if a
reasonable offer of compromise shall be made on such hearing, by either party,
"^ and be rejected by the other, the commissioner shall add a certificate of such
fact. In case of final recovery by the paity rejecting such offer, he shall recover
no costs. No costs shall be taxed for the proceeding, unless tlie commissioner
shall certify that a demand of wages was made by the seamen a reasonable time
previous to taking out the summons. No costs shall be taxed for fees of marshal,
clerk or witness on such proceedings, unless by special mandate of the judge



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DISTRICT COURT RULES. . 443

ft subpoena or attaohment is issued to compel the attendance of witnesses. The
commissioner's fees for his services thereon shall not exceed one dollar for a
single sitting, and every adjournment granted shall be at the expense of the
party obtaining it ; if, however, it is required by the parties that the commis-
sioner take down in writing the testimony heard on the summons, he shall be
allowed thei*efor the customary fees for like semces. Proof so taken in writ-
ing may be used by either party, on the hearing in court, in case the suit is fur-
ther prosecuted.

69.

A guardian ad litem will be appointed on petition verified by oath, stating a
proper case for such appointment. Infants may sue by prochein ami, to be first
approved by the court ; the guardian or prochein ami shall give stipulation for
the costs in the same manner as if personally the paity in interest.

70.

The clerk shall provide a book in which he shall keep a full and particular
account, in each cause depending in the couit, of all moneys brought into couit,
and of the payment of the same, with the dates thereof ; and any particular ac-
count therein shall be open to the inspection of any person interested in the



71.

The commission allowed to the marshal shall be computed upon the gross
proceeds, in case of sale ; or upon the appraised or agi'eed value, if bonded ;
but the marshal, in case of an agreed valuation between the pailies, not assent-
ed to by him, may have an appraisement in the usual mode.

72.

In other than admiralty causes the marshal shall be entitled upon a settle-
ment by the parties of the debt or claim without a sale of the property, to the
like commissions as are provided for in admiralty causes by § 829 of the Re-
vised Statutes.

RULES IN PROCEEDINGS TO LIMIT LIABILITY.
73.

Petitions or libels to limit liability must state :

1. The facts showing that the application is properly made in this district.

2. The voyage on which the demands sought to be limited arose, with the
date and place of its termination ; the amount of all demands including all un-
satisfied liens or claims of liens, on contract or on tort, arising on that voyage,
so far as known to the petitioners, and what suits, if any, are pending thereon ;
whether the vessel was damaged, lost or abandoned, and if so, when and whei-e ;
the value of the vessel at the close of the voyage, or in case of wreck, the value



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444 APPENDIX.

of her wreckage, shippings or proceeds, if any, as nearly as the petitioners can
asceitain, and where and in whose possession they are ; also the amount of any
pending freight, recovered or recoverable. If any of the above particulars are
not fully known to the petitioner, a statement of such particulars according to
the best knowledge, infoi*mation and belief of the petitioner, shall be sufficient.

74.

If a surrender of the vessel is offered to be made to a trustee, the libel or pe-
tition must fuilher show whether tliere is any prior paramount lien on the ves-
sel, and whether she has made any, and if so, what voyage or trip since the
voyage or trip on which the claims sought to be limited arose, and any existing
lien or liens, maritime or domestic, arising upon any such subsequent voyage
or trip, with the amounts and causes thereof, and the names and addresses of
the lienors, so far as kn(»wn ; also the special facts on wliich the right to sur-
render the vessel is claimed, notwithstanding such subsequent trip or voyage,
and whether the vessel sustained any injuiy upon or by reason of, such subse-
quent voyage or trip.

Upon suiTender of the vessel no final decree exempting from liability will be
made until all such liens as may be admitted or proved, prior to such final de-
cree, to be superior to the liens of the claims limited, shaUl be paid or secured
independently of the property suiTendered, as may be oi-dered by the court ;
and the monition in cases of surrender, shall cite all persons having any claim
upon the vessel to appear on the return day or be defaulted, as in oi-dinary pro-
cess in rem,

75.

If, instead of a surrender of the vessel, an appraisement thei'eof be souorht
for the purpose of giving a stipulation for value, the libel or petition must state
the names and addresses of the principal creditors and lienors, whether on con-
tract or in toit, upon the voyage on which the claims are sought to be limited,
and the amounts of their claims, so far as they are known to the petitioner, and



Online LibraryErastus Cornelius BenedictThe American admiralty, its jurisdiction and practice, with practical forms and directions → online text (page 45 of 80)