CHAPTER 35.

ADMIRALTY PROCEDURE IN GENERAL-THE LIBEL AND PROCESS.

§ 1195.

Forms and proceedings in admiralty-how prescribed.

Supreme Court to prescribe practice and procedure.

§ 1196. $1197.

§ 1198.

Power of circuit and district courts to prescribe procedure.
The libel.

Libel and information for seizure.

Exceptions to libel and allowance thereof.

§ 1199.

§ 1200.

§ 1201.

$ 1202.

When process issued and by whom served.

$ 1203.

§ 1204.

§ 1205.

§ 1206.

§ 1207.

§ 1208.

Amendment of libels and informations.

Process of arrest, attachment and monition in suits in personam.
In general warrant of arrest not issued for more than five hun-

dred dollars.

Bail in cases of arrest, stipulation and execution thereon.
-to be taken whenever required by laws of State.
-result where imprisonment for debt abolished.
-reduction of bail.

§ 1209.

Duties and liabilities of garnishees on foreign attachment.
Process by arrest of ship, etc. in suits in rem.

§ 1210.

§ 1211.

-now possession of ship's tackle, etc., to be obtained from third persons.

§ 1212. -how freight money and other property brought into court in suits in rem.

§ 1213. Form of process in petition and possessory suits.

§ 1195. Forms and proceedings in admiralty-how prescribed.

The forms of mesne process and the forms and modes of proceeding in suits. of admiralty and maritime jurisdiction. in the circuit and district courts shall be according to the principles, rules, and usages which belong to courts

miralty, except when it is otherwise provided by statute or by rules of court made in pursuance thereof; but the same shall be subject to alteration and addition by the said courts,

and to regulation by the Supreme Court, by rules prescribed, from time to time, to any circuit or district court, not inconsistent with the laws of the United States.

The section also specifies equity causes.1 As is elsewhere shown it was first enacted in 1789, and amended several times thereafter before its incorporation in the Revised Statutes.2 An act of August 23, 1842, gave the Supreme Court power to regulate the admiralty practice by rules of court, in yet ampler form.3 Admiralty courts proceed according to principles of admiralty as distinguished from common law. It was early decided that while the principles of admiralty adopted by this section were English in their origin, yet if a variation had grown up in the American practice this section intended that such practice should be followed.5 In other words it was the existing admiralty practice of the American courts that was adopted. Great flexibility is a distinguishing feature of the admiralty practice and it enables the courts in most cases, so to shape their proceedings as to obtain justice between the parties.7

§ 1196. Supreme Court to prescribe practice and procedure.

The Supreme Court shall have power to prescribe, from time to time, and in any manner not inconsistent with any law of the United States, the forms of writs and other process, the modes of framing and filing proceedings and pleadings, of taking and obtaining evidence, of obtaining discovery, of proceedings to obtain relief, of drawing up, entering, and enrolling decrees, and of proceedings before trustees appointed by the court, and generally to regulate the whole practice, to be used, in suits in miralty, by the circuit and district courts.

R. S. § 917, U. S. Comp. Stat. 1901, p. 684.

ad

The above section was originally enacted in 18428 and carried forward into the Revised Statutes. It covers equity as well as admiralty procedure.9 The Supreme Court promulgated the admiralty rules which constitute a virtual code of admiralty practice, pursuant to the power conferred by the above provision. Originally there were forty-six rules. In all thirteen additional rules have since been added making a total of fifty-nine. They have the operative effect and binding force of law.10

1 Ante, § 936.

2See ante, § 936. Post, 1196.

4United States v. Ames, 99 U. S. 36, 25 L. ed. 295. The law administered in admiralty, see ante, § 11.

5 Manro v. Almeida, 10 Wheat. 490, 6 L. ed. 369; Steam Stonecutter Co. v. Sears, 9 Fed. 10, 20 Blatchf. 23; Gardner v. Isaacson, 1 Abb. 148, Fed. Cas. No. 5,230.

tegrating Co. 18 Wall. 304, 21 L. ed. 845; Van Hook v. Pendleton, 2 Blatchf. 86, Fed. Cas. No. 16,852; The Delaware, 1 Olc. 240, Fed. Cas. No. 3,762.

The Benefactor, 103 U. S. 244, 26 L. ed. 351; Oregon, etc. Co. v. Balfour, 90 Fed. 299, 33 C. C. A. 57.

8 Act Aug. 23, 1842, c. 188, § 6. 5 Stat. 518.

Ward v. Chamberlain, 2 Black, 440, 17 L. ed. 325; Atkins v. Disin- L.

9 See ante, § 802.

10 The Sabine, 101 U. S. 388, 25 ed. 982.

§ 1197. Power of circuit and district courts to prescribe pro

cedure.

In all cases not provided for by the foregoing rules [i. e., the admiralty rules of the Supreme Court], 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.

46th admiralty rule promulgated 1844.

District Court rules have been promulgated pursuant to the power thus conferred, in probably all of the districts where there is any considerable admiralty practice. The rules in the Southern district of New York are especially worthy of note in view of the large volume of admiralty business in that district. The practitioner should advise himself as to local rules in any particular district. District court rules at variance with any of the admiralty rules of the Supreme Court are necessarily nugatory.13 But the district courts may safely prescribe a practice which really carries out the spirit of the admiralty rules. Thus, rule 46 has been relied on in one case which appplied by analogy, the specific provision of rule 614 regarding new sureties in personam, to a suit in rem.15 In several cases the district courts have felt free under rule 46, to adopt the practice of permitting joinder of suits in rem and in personam on charter parties and contracts of affreightment. 16

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.[a] The libel shall also propound and articulate in distinct articles the various allegations of fact upon which the libelant relies in support of his suit, so that the defendant may be enabled to answer distinctly and separately the several matters contained in each article;[b] and it shall conclude with a prayer of due process to enforce his rights, in rem or in personam (as the case may require), and for such relief and redress as the court is competent to give in the

13 See The Edwin Baxter, 32 Fed. Fed. Cas. No. 18.208; Vaughan v. 630 296. Casks, 7 Ben. 507, Fed. Cas. No. 16,900; The Monte A. 12 Fed. 336; The J. F. Warner, 22 Fed. 343; The Director, 26 Fed. 711.

14See post. § 1216.

15 See The City of Hartford. 11 Fed. 89.

16 The Zenobia, 1 Abb. Adm. 48.

premises.[c]-[a] And the libellant may further require the defendant to answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel at the close or conclusion thereof.[e]

23rd admiralty rule promulgated 1844.

[a] Libel in general.

The libel in admiralty corresponds with the bill in equity and the declaration or complaint at law. It is the first pleading of the party who invokes the jurisdiction of admiralty, such party being variously termed libellant, actor. It must be filed before process can issue and hence the filing of libel in the district court is the first step to be taken. Since Federal jurisdiction should affirmatively appear,17 it is always necessary to show facts making out a case within the admiralty jurisdiction; 18 and the usual practice is to insert an averment that the cause is within "the admiralty and maritime jurisdiction of this honorable court." While the rule requires an averment that property libeled is within the district the claimant cannot prove the averment in fact false so long as the property came subsequently within the district and was then actually seized.19

[b] Form and contents.

The subject matter of the libel should be stated with certainty and precision, and with averments admitting of distinct answers. 20 Thus, move ments and courses of vessels in case of collision should be stated; 1 time and place should appear; 2 and a detailed description of a contract sued on.3 But an omission to state some facts which prove material will not prejudice libellant if the omission was unintentional and in fact did not injure the opposite party. The interest of libellant in the subject matter of the suit should be stated.5 Where name of a party having no interest is inserted in the libel, it may be disregarded.? It is not necessary in a libel to state any fact which constitutes a matter of defense.8 Libel for damages for abandonment of towage contract, should point out manner in

3 The Anchoria, 9 Fed. 840.

4The Quickstep, 9 Wall. 670, 19 L. ed. 767; The Syracuse, 12 Wall. 173, 20 L. ed. 382.

5 See Minturn v. Alexandre, 5 Fed.

117.

20 Schooner Boston, 1 Sum. 328, Fed. Cas. No. 1.673; The Bark Havre, 1 Ben. 285, Fed. Cas. No. 6.232; Pettingill V. Dinsmore, Davies, 209; Fed. Cas. No. 11,045; 36, Fed. Cas. No. 13.731. McWilliams v. The Vim, 2 Fed. 874. 8 Aurora v. United States, 7 Cranch.

7Talbot v. Wakeman, 19 How. Pr.

1 MeWilliams v. Steam Tug Vim. 382, 3 L. ed. 378.

which alleged damage arose.9 Libel need not allege matters of which the court can take judicial notice.10 Failure to aver that the respondent was the owner of vessel at the time of collision makes libel in personam defective.11 Where parties joined as libellants are corporations, the libel should so aver12 where the cause of action has arisen from the violation of a written contract of affreightment the libel should so state and the contract should be annexed to the libel, or a legal excuse for its absence given. 13 So in an action on a charter party, a copy thereof should be filed with the libel.14 Where the libel contains other allegations stating a cause of action in rem, those relating to such claim may be disregarded as surplusage and the misjoinder will not be fatal.15 Libel in rem should state the nationality of the vessel proceeded against but such allegation is not indispensable when libellant alleges that he is a citizen of the United States.16 There are no technical admiralty rules as to variance. and amendments of the libel are liberally allowed.17 Liberal treatment is generally accorded to pleadings though this liberality will not be exercised to the prejudice for the other party.18 Alternative relief properly pleaded may be prayed.19

[c] Prayer.

There appear to be no technical rules as to the prayer in a libel in admiralty, but where libelant propounds distinctly the substantial facts, and prays generally or specially for relief, the court may award any relief, which the law applicable to the case warrants.20

[d] Signing and verification

The proper practice apparently is for each libellant to sign and verify the libel. But the signature and verification by the proctor has been allowed in the case of certain libellants who were absent from the State. This practice, however, is not to be commended.21

[e] Interrogatories and discovery.

The importance of the interrogatories and their value to a libellant have largely dissappeared, just as in the case of discovery in equity, 22 since the passage of laws now universally in force, permitting parties to be called as witnesses. The 30th admiralty rule excuses the respondent from answer