Herbert R. (Herbert Ransom) Spencer.

A treatise on the law of marine collisions online

. (page 39 of 42)
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the master, for moneys taken up in a foreign port for sup-
plies or repairs or other necessaries for the voyage, without
any claim of miarine interest^ the libelant may proceed
either m rem^ or against the master or the owner alone in
personam.

18.

In all suits on bottomry bonds, properly so caUed, the suit
shall be in rem only against the property hypothecated, or
the proceeds of the property, in whosesoever hands the same
may be found, unless the master has, without authority,
given the bottomry bond, or by his fraud or misconduct has
avoided the same, or has subtracted the property, or unless
the owner has, by his own misconduct or wrong, lost or sub-
tracted the property, in which latter cases the suit may be
in personam against the wrong-doer.

19.

In all suits for salvage, the suit may be in rem against the
property saved, or the proceeds thereof, or in personcmi
Against the party at whdse request and for whose benefit
the salvage service has been performed.



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it be on land or on the high seas, or on navigable waters
within the admiralty and maritime jurisdiction of the United
States, and the district within which the property is brought
and where it then is. The information or libel of informa-
tion shall also propound in distinct articles the matters re-
lied on as grounds or causes of forfeiture, and aver the same
to be contrary to the form of the statute or statutes of the
United States in such case provided, as the case may require,
and shall conclude with a prayer of due process to enforce
the forfeiture, and to give notice to all persons concerned in
interest to appear and show cause at the return-day of the
process why the forfeiture should not be decreed.



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BULE3 OF PBACTIOB IK ADMIRALTT. 42$

23.

All libels in instance causes, civil or maritime, shall state
the nature of the cause; as, for example, that it is a cause,
civil and maritime, of contract, or of tort or damage, or of
salvage, or of possession, or otherwise, as the case may be;
and, if the libel be in rem^ that the property is within the
district; and, if in personam^ the names and occupations and
places of residence of the parties. The libel shall also pro-
pound and articulate in distinct articles the various allega-
tions of fact upon which the libelant relies in support of his
suit, so that the defendant may be enabled to answer dis-
tinctly and separately the several matters contained in each
article; and it shall conclude with a prayer of due process
to enforce his rights, in rem or in pei'sonam (as the case may
require), and for such relief and redress as the court is com-
petent to give in the premises. And the libelant may fur-
ther require the defendant to answer on oath all interrog-
atories propounded by him touching aJl and singular the
allegations in the libel at the close or conclusion thereof.

24.

In all informations and libels in causes of admiralty and
maritime jurisdiction, amendments in matters of form may
be made at any time, on motion to the court, as of course.
And new counts may be filed, and amendments in matters
of substance may be made, upon motion, at any time before
the final decree, upon such terms as the court shall impose.
And where any defect of form is set down by the defend-
ant upon special exceptions, and is allowed, the court may,
in granting leave to amend, impose terms upon the libelant.

25.

In all cases of libels m personam^ the court may, in its
discretion, upon the appearance of the defendant, where no
bail has been taken, and no attachment of property has been
made to answer the exigency of the suit, require the de-
fendant to give a stipulation, with sureties, in such sum as



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426 APPENDIX.

the court shall direct, to pay all costs and expenses which
shall be awarded against him in the suit, upon the final ad-
judication thereof, or by any interlocutory order in the

progress of the suit.

26.

In suits in rem the party daiming the property shall
verify his claim on oath or solemn affirmation, stating that
the claimant by whom or on whose behalf the claim is made
is the true and lonafde owner, and that no other person is
the owner thereof. And where the claim is put in by an
agent or consignee, he shall also make oath that he is duly
authorized thereto by the owner; or if the property be, at
the time of the arrest, in the possession of the master of a
ship, that he is the lawful bailee thereof for the owner.
And, upon putting in such claim, the claimant shall file a
stipulation, with sureties, in such sum as the court shall di-
rect, for the payment of all costs and expenses which shall
be awarded against him by the final decree of the courts or,
upon an appeal, by the appellate court.

27.

In all libels in causes of civil and maritime jurisdiction,
whether in rem or in personam^ the answer of the defend-
ant to the allegations in the libel shall be on oath or solemn
affirmation ; and the answer shall be full and explicit and
вАҐdistinct to each separate article and separate allegation in
the libel, in the same order as numbered in the libel, and
shall also answer in like manner each interrogatory pro-
pounded at the close of the libeL

28.

The libelant may except to the sufficiency, or fullness,
or distinctiveness, or relevancy of the answer to the articles
and interrogatories in the libel ; and, if the court shall ad-
judge the same exceptions, or any of them, to be good and
valid, the court shall order the defendant forthwith, within,
such time as the court shall direct, to answer the same, and



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BtJLES OF PKACnCE IN ADMIRAiTT. 427

may further order the defendant to pay such costs as the
court shall adjudge reasonable.

29.

If the defendant shall omit or refuse to make due answer
to the libel upon the return-day of the process, or other day
assigned by the court, the court shall pronounce him to be
in contumacy and default; and thereupon the libel shall be
adjudged to be taken pro confesso against him, and the court
shall proceed to hear the cause ex parte j and adjudge therein
as to law and justice shall appertain. But the court may,
in its discretion, set aside the default, and, upon the appli-
cation of the defendant, admit him to make answer to the
libel, at any time before the final hearing and decree, upon
his payment of all the costs of the suit up to the time of
granting leave therefor.

30.

In all cases where the defendant answers, but does not
answer fully and explicitly and distinctly to aU the matters
in any article of the libel, and exception is taken thereto by
the libelant, and the exception is allowed, the court may, by
attachment, compel the defendant to make further answer
thereto, or may direct the matter of the exception to be
taken pro confesso against the defendant, to the full purport
and effect of the article to which it purports to answer, and
as if no answer had been put in thereto.

31.

The defendant may object, by his answer, to answer any

allegation or interrogatory contained in the libel which will

expose him to any prosecution or punishment for crime, or

for any penalty or any forfeiture of his property for any

penal offense.

32.

The defendant shaU have a right to require the personal
answer of the libelant upon oath or solemn affirmation to
4iny interrogatories which he may, at the close of his an-



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428 APPENDIX.

swer, propound to the libelant touching any matters charged,
in the libel, or touching any matter of defense set up in the .
answer, subject to the like exception as to matters which
shall expose the libelant to any prosecution or punishment,
or forfeiture, as is provided in the thirty-first rule. In de-
fault of due answer by the libelant to such interrogatories,
the court may adjudge the libelant to be in default, and
dismiss the libel, or may compel his answer in the premises,
by attachment, or take the subject-matter of the interrog-
atory pro confe990 in favor of the defendant, as the court,
in its discretion, shall deem most fit to promote public justice.

33.

Where either the libelant or the defendant is out of the
country, or unable, from sickness or other casualty, to make
an answer to any interrogatory on oath or solemn affirma-
tion at the proper time, the court may, in its discretion, in
furtherance of the due administration of justice, dispense
therewith, or may award a commission to take the answer
of the defendant when and as soon as it may be practicable.

34.

If any third person shall intervene in any cause of ad-
miralty and maritime jurisdiction in rem for his own inter-
est, and he is entitled, according to the course of admiralty
proceedings, to be heard for his own interest therein, he
shall propound the matter in suitable allegations, to which,
if admitted by the court, the other party or parties in the
suit may be required, by order of the court, to make due
answer; and such further proceedings shall be had and de-
cree rendered by the court therein as to law and justice shall
appertain. But every such intervener shall be required,
upon filing his allegations, to give a stipulation, with sure-
ties, to abide by the final decree rendered in the cause, and
to pay all such costs and expenses and damages as shall be
awarded by the court upon the final decree, whether it is.
rendered in the original or appellate court.



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KULES OF PRACTICE IN ADMIRALTY. 429

35.

The stipulations required by the last preceding rule, or on
appeal, or in any other admiralty or maritime proceeding,
shall be given and taken in the manner prescribed by rule
fifth as amended.

36.

Exceptions may be taken to any libel, allegation or an-
swer for surplusage, irrelevancy, impertinence or scandal;
and if, upon reference to a master, the exception shall be re-
ported to be so objectionable and allowed by the court, the
matter shall be expunged at the cost and expense of the
party in whose libel or answer the same is found.

37.

In cases of foreign attachment the garnishee shall be re-
quired to answer on oath or solemn affirmation as to the
debts, credits or effects of the defendant in his hands, and
to such interrogatories touching the same as may be pro-
pounded by the libelant ; and if he shall refuse or neglect so to
do, the court may award compulsory process in jpersonam
against him. If he admits any debts, credits or effects, the
same shall be held in his hands, liable to answer the ex-
igency of the suit.

38.

In cases of mariners' wages, or bottomry, or salvage, or
other proceedings in rem^ where freight or other proceeds of
property are attached to or are bound by the suit, which
are in the hands or possession of any person, the court may,
upon due application by petition of the party interested, re-
quire the party charged with the possession thereof to ap-
pear and show cause why the same should not be brought
into court to answer the exigency of the suit; and if no
sufficient cause be shown, the court may order the same to
be brought into court to answer the exigency of the suit,
and, upon failure of the party to comply with the order, may
award an attachment, or other compulsive process, to com-
pel obedience thereto.



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430 APPENDIX.



39.



If, in any admiralty suit, the libelant shall not appear
and proseoute his suit, according to the course and orders-
of the court, he shall be deemed in default and contumacy;,
and the court may, upon the application of the defendant,,
pronounce the suit to be deserted, and the same may be dis-
missed with costs.

40.

The court may, in its discretion, upon the motion of the^
defendant and the payment of costs, rescind the decree in
any suit in which, on account of his contumacy and default,^
the matter of the libel shall have been decreed against him,
and grant a rehearing thereof at any time within ten days^
after the decree has been entered, the defendant submitting
to such further orders and terms in the premises as the court
may direct.

41.

All sales of property under any decree of admiralty shall
be made by the marshal or his deputy, or other proper oifi-
cer assigned by the court, where the marshal is a party in
interest, in pursuance of the orders of the court; and the
proceeds thereof, when sold, shall be forthwith paid into the^
registry of the court by the oflBcer making the sale, to be
disposed of by the court according to law.

42.

All moneys paid into the registry of the court shall be
deposited in some bank designated by the court, and shall
be so deposited in the name of the court, and shall not be
drawn out, except by a check or checks, signed by a judge^
of the court and countersigned by the clerk, stating on
whose account and for whose use it is drawn, and in what
suit and out of what fund in particular it is paid. The clerk
shall keep a regular book, containing a memorandum and
copy of all the checks so drawn and the date thereof.



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BXTLES OF PRACTICE IN ADMIBAXTY. 431

43.

Any person having an interest in any proceeds in the
registry of the court shall have a right, by petition and
summary proceeding, to intervene pro mteresse suo for a
delivery thereof to him; and upon due notice to the adverse
parties, if any, the court shall and may proceed summarily
to hear and decide thereon, and to decree therein according
to law and justice. And if such petition or claim shall be
deserted, or, upon a hearing, be dismissed, the court may, in
its discretion, award costs against the petitioner in favor of
the adverse party.

44.

In cases where the court shall deem it expedient or neces-
sary for the purposes of justice the court may refer any mat-
ters arising in the progress of the suit to one or more com-
missioners, to be appointed by the court, to hear the parties
and make report therein. And such commissioner or com-
missioners shall have and possess all the powers in the prem-
ises which are usually given to or exercised by masters in
chancery in reference to them, including the power to ad-
minister oaths to and to examine the parties and witnesses
touching the premises.

45.

All appeals from the district to the circuit court must be
made while the court is sitting, or within such other period
as shall be designated by the district court by its general
rules, 6r by an order specially made in the particular suit ;
or in case no such rule or order be made, then within thirty
days from the rendering of the decree.

46.

In all cases not provided for by the foregoing rules, the
district and circuit courts are to regulate the practice of the
said courts respectively, in such manner as they shall deem
most expedient for the due administration of justice in suits
in admiralty.



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432 APPENDIX,

47.

In all suits in personam^ where a simple warrant of arrest
issues and is executed, bail shall be taken by the marshal
and the court in those cases only in which it is required by
the laws of the state where an arrest is made upon similar
or analogous process issuing from the state courts.

And imprisonment for debt, on process issuing out of the
admiralty court, is abolished in all cases where, by the laws
of the state in which the court is held, imprisonment for
debt has been or shall be hereafter abolished, upon similar
or analogous process issuing from a state court.

48.

The twenty-seventh rule shall not aj^ly to cases where
the sum or value in dispute does not exceed $50, exclusive
of costs, unless the district court shall be of opinion that the
proceedings prescribed by that rule are necessary for the
purposes of justice in the case before the court.

All rules and parts of rules heretofore adopted, inconsist-
ent with this order, are hereby repealed and annulled.

49.

Further proof, taken in a circuit court upon an admiralty
appeal, shall be by deposition, taken before some commis-
sioner appointed by a circuit court, pursuant to the acts of
congress in that b^alf , or before some officer, authorized to
take depositions by the thirtieth section of the act of con-
gress of the 24th of September, 1789, upon an oral exami-
nation and cross-examination, unless the court in which such
appeal shall be pending, or one of the judges thereof, shall,
upon motion, allow a commission to issue to take such depo-
sitions upon written interrogatories and cross-interrogato-
ries. When such deposition shall be taken by oral exami-
nation, a notification from the magistrate before whom
it is to be taken, or from the clerk of the court in which
such appeal shall be pending, to the adverse party, to bo
present at the taking of the same, and to put interrogci-



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BULBS OF PRAOnCB IN ADMIEALTY. 433

tones, if he think fit, shall be served on the adverse party
or his attorney, allowing time for their attendance after
being notified, not less than twenty-fonr hours, and, in ad-
dition thereto, one day, Sundays excluded, for every twenty
miles' travel; provided, that the court in which such appeal
may be pending, or either of the judges thereof, may, upon
motion, increase or diminish the length of notice above re-
quired.

50.

When oral evidence shall be taken down by the clerk of
the district court, pursuant to the above-mentioned section
of the act of congress, and shall be transmitted to the cir-
cuit court, the same may be used in evidence on the appeal,
saving to each party the right to take the depositions of the
same witnesses, or either of them, if he should so elect

51.

When the defendant, in his answer, alleges new facts,
these shall be considered as denied by the libelant, and no
replication, general or special, shall be allowed. But within
such time after the answer is filed as shall be fixed by the
district court, either by general rule or by special order, the
libelant may amend his libel so as to confess and avoid, or
explain or add to, the new matters set forth in the answer;
and within such time as may be fixed, in like manner, the
defendant shall answer such amendments.

52.

The clerks of the district court shall make up the records
to be transmitted to the circuit courts on appeals, so that
the same shall contain the following:

1. The style of the court.

2. The names of the parties, setting forth the original par-
ties, and those who have become parties before the appeal,
if any change has taken place.

3. If bail was taken, or property was attached or arrested,
the process of the arrest or attachment and the service

28



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484 ATFwsnnx.

thereof; all baU and stipulations; and, if any sale has been
made, the orders, warrants and reports relating thereto.

4. The libel with exhibits annexed thereto.

5. The pleadings of the defendant, with the exhibits an-
nexed thereto.

6. The testimony on the part of the libelant, and any ex-
hibits not annexed to the libel.

7. The testimony on the part of the defendant, and any
exhibits not annexed to his pleadings.

8. Any order of the court to which exception was mada

9. Any report of an assessor or assessors, if excepted to,
with the orders of the court respecting the same, and the
exceptions to the report. If the report was not excepted to,
only the fact that a reference was made, and so much of the
report as shows what results were arrived at by the assessor,
are to be stated.

10. The final decree.

11. The prayer for an appeal, and the action of the dis-
trict court thereon; and no reasons of appeal shall be filed
or inserted in the transcript.

The following shall be omitted:

1. The continuances.

2. All motions, rules and orders not excepted to which are
merely preparatory for trial

3. The commissions to take depositions, notices therefor,
their captions, and certificates of their being sworn to, unless
some exception to a deposition in the district court was
founded on some one or more of these; in which case, so
much of either of them as may be involved in the exception
shall be Set out. In all other cases it shall be sufficient to
give the name of the witness, and to copy the interrogatories
and answers, and to state the name of the commissioner, and
the place where and the date when the deposition was sworn
to; and, in copying all depositions taken on interrogatories,
the answer shall be inserted immediately following the ques-
tion.

2. The clerk of the district court shall page the copy of



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BULBS OF FBACnOB IN ADMIRALTY. 485

the record thus made np,^ and shall make an index thereto,
and he shall certify the entire document, at the end thereofi
under th^ nal d the oonrt^ to be a transcript of the record
cftbe district court in the cause named at the beginning of
the copy made up pursuant to this rule; and no other cer-
tificate of the record shall be needful or inserted.

3. Hereafter, in making up the record to be transmitted
to the circuit court on appeal, the clerk of the district court
shall omit therefrom any of the pleading, testimony or ex-
hibits which the parties by their proctors shall by written
stipulation agree may be omitted; and such stipulation shall
be certified up with the record.

53.

Whenever a cross-libel is filed upon any counter<;laim,

arising out of the same cause of action for which the original

libd was filed, the respondents in the cross-libel shall give

security in the usual amount and form to respond in dam-

ags, as claimed in said cross-Ubel, unless the court, on cause

shown, shall otherwise direct; and all proceedings upon the

original libel shall be stayed until such security shall be

given.

54.

When any ship or vessel shall be libeled, or the owner or
owners thereof shall be sued, for any embezzlement, loss or
destruction by the master, officers, mariners, passengers,
or any other person or persons, of any property, goods or
merchandise shipped or put on board of such ship or vessel,
or for any loss, damage or injury by collision, or for any
act, matter or thing, loss, damage or forfeiture done, occa-
sioned or incurred, without the privity or knowledge of such
owner or owners, and he or they shall desire to claim the
benefit of limitation of liability provided for in the third and
fourth sections of the said act above recited, the said owner
or owners shall and may file a libel or petition in the proper
district court of the United States, as hereinafter specified,
setting forth the facts and circumstances on which such



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^t^



436 APPBNDtX.

limitation of liability is claimed, and praying proper relief
in that behalf; and thereupon said court, having caused due
appraisement to be had of the amount or value of the inter-
est of said owner or owners, respectively, in such ship or
vessel, and her freight, for the voyage, shall make an order
for the payment of the same into court, or for the giving of
a stipulation, with sureties, for payment thereof into court
whenever the same shall be t>rdered; or, if the said owner
or owners shall so elect, the said court shall, without such
appraisement, make an order for the transfer by him or
them of his or their interest in such vessel and freight, to a
trustee to be appointed by the court under the fourth section
of said act; and, upon compliance with such order, the said
court shall issue a monition against all persons claiming dam-
ages for any such embezzlement, loss, destruction, damage
or injury, citing them to appear before the said court and
make due proof of their respective claims at or before a
certain time to be named in said writ, not less than three
months from the issuing of the same; and public notice of
such monition shall be given as in other cases, and such fur-
ther notice reserved through the postofBce, or otherwise, as
the court in its discretion may direct; and the said court
shall also, on the application of the said owner or owners,
make an order to restrain the further prosecution of all and
any suit or suits against said owner or owners in respect of
any such claim or claims.

55.

Proof of all claims which shall be presented in pursuance
of said monition shall be made before a commissioner, to be
designated by the court, subject to the right of any person
interested to question or controvert the same; and, upon the
completion of said proofs, the commissioner shall malce re-
port of the claims so proven, and upon confirmation of said
report, after hearing any exceptions thereto, the moneys
paid or secured to be paid into court as aforesaid, or the



Online LibraryHerbert R. (Herbert Ransom) SpencerA treatise on the law of marine collisions → online text (page 39 of 42)