tered, the defendant submitting to such further orders and terms in the premises as the court may direct. Fortieth Admiralty Rule, promulgated December term, 1844. Costs will usually be imposed as a condition of opening a decree.1 § 1271. Dismissal for non-appearance of libelant. If, in any admiralty suit, the libelant shall not appear and prosecute 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 dismissed with costs. Thirty-ninth Admiralty Rule, promulgated December term, 1844. § 1272. Cross libel. The 53rd admiralty rule requires the giving of stipulation for costs by the respondent on the cross libel, but the Supreme Court has not otherwise provided the practice respecting cross libels. They correspond generally to the cross bill of courts of equity, are permissible where the claim set up grows out of the same fact or transaction as is involved in the original libel, and necessary to the granting of an affirmative decree. Author's section. The cross libel of admiralty is similar to the cross bill in equity.5 The claim on which the cross libel is founded must arise out of the same cause of action as the libel itself; 6 but not necessarily the same legal demand. The rule has been held broad enough to allow all matters in dispute which must necessarily be considered in the determination of the original cause, to be passed upon by the court and the rights of both parties thus to be settled in one suit.8 There exists in admiralty as at common law, a right of recoupment which permits a respondent to set off damages or loss without the necessity for filing a cross libel.10 But an affirmative decree 1 Jepson v. The American, 56 Fed 1021. 4Ante, § 1226. 5 Bowker v. United States, 186 U. S. 140, 46 L. ed. 1092, 22 Sup. Ct. Rep. 802. See ante, § 963. The C. B. Sanford. 22 Fed. 863; see also. The Ping-On v. Blethen, 11 Fed. 612, 7 Sawy. 482; The Frank Gilmore, 73 Fed. 686. 7Crowell v. Schooner Theresa Wolf. 4 Fed. 152. Vianello v. Credit, Lyonnais, 15 Fed. 637. 10 Ebert v. The Doud, 3 Fed. 520. 9 Biss. 458; Gillingham v. Charleston Co. 40 Fed. 650: The Sapphire. 18 Wall. 51, 21 L. ed. 814; The Tom Lysle, 48 Fed. 692. 1167 in respondent's favor in excess of what may be adjudged to libelant, can never be entered without a cross libel.11 A cross libel is not maintainable which sets up the breach of a former separate contract because it does not arise out of the same cause of action within the meaning of the rule.12 So in a suit to recover damages for collision a cross libel to recover damages for a different collision is improper.13 Nor can a cross libel be sustained for salvage on account of services rendered to the injured vessel in a suit for damages caused by a collision.14 The proceeding on the cross libel is against the plaintiff or other defendants or both, but none other than the parties to the original libel can be joined. 15 The orignal and the cross libel may be tried together or separately16 but adismissal of the latter does not affect the respondent's rights in the former and every defense is still open to him.17 § 1273. Right of claimant or respondent in collision case to implead new parties or vessels. In a suit for damage by collision, if the claimant of any vessel proceeded against, or any respondent proceeded against in personam, shall, by petition, on oath, presented before or at the time of answering the libel, or within such further time as the court may allow, and containing suitable allegations showing fault or negligence in any other vessel contributing to the same collision, and the particulars thereof, and that such other vessel or any other party ought to be proceeded against in the same suit for such damage, pray that process be issued against such vessel or party to that end, such process may be issued, and, if duly served, such suit shall proceed as if such vessel or party had been originally proceeded against; the other parties in the suit shall answer the petition; the claimant of such vessel or such new party shall answer the libel; and such further proceedings shall be had and decree rendered by the court. in the suit as to law and justice shall appertain. Part of 59th Admiralty Rule, promulgated March 26, 1883.1 The remainder of the 59th rule provides for the stipulation in such a proceeding.2 Prior to the adoption of this rule, the district court for the 11The Dove, 91 U. S. 384, 23 L. ed. 354. See also The Tom Lysle, 48 Fed. 691; Ebert v. Schooner, 3 Fed. 534; Gillingham v. Charleston, etc. Transportation Co. 40 Fed. 651: Bow ker v. United States, 186 U. S. 141, 46 L. ed. 1092, 22 Sup. Ct. Rep. 802. 12The Zuave, 29 Fed. 296. 13The Frank Gilmore, 73 Fed. 686. 14 Crowell V. Schooner Theresa Wolf, 4 Fed. 152. southern district of New York had required parties in a case before it to follow the practice which it outlines, declaring it best adapted to the ends of justice. The petitioner should answer the libel, the libelant should answer the petition; and the new party should answer both libel and petition. The rule permits the claimant to a vessel libeled to implead in personam, either the owners of other vessels alleged to be in fault, or a third person such as a wharfinger whose neglect is alleged to have caused the collision. So the owner may have the charterers impleaded. Where several libelants having distinct damage interest, recover in a cause of collision, the decree may be in form for recovery by all of the aggregate sum and directing a distribution to each of the sums respectively adjudicated to them.8 Where the owner of a vessel libeled in a collision case causes another party to be made codefendant under this rule, a decree may be rendered against the vessel, and the case may be continued as between the two defendants.9 See The Hudson, 15 Fed. 162, stable, 181 U. S. 467, 45 L. ed. 957, decided Feb. 7, 1883. 21 Sup. Ct. Rep. 684; The Venus, 113 Fed. 387. The Greenville, 58 Fed. 805. CHAPTER 39. TRIAL, PROOF AND REFERENCES. DECREE AND ENFORCEMENT. References to commissioners and their powers. § 1282. § 1283. § 1284. § 1285. § 1286. § 1287. § 1288. Enforcement of decrees. Power to carry foreign consul's award into execution. Correction and vacation of decree and further proof prior to de cree. $1289. Final record to contain what. § 1281. Mode of proof. The mode of proof in causes of admiralty and maritime jurisdiction shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein especially provided. R. S. § 862, U. S. Comp. Stat. 1901, p. 661. The above provision also applies to equity procedure1 and was originally enacted August 23, 1842.2 The clause "except as herein especially provided" refers to chapter 17 of title XIII. of the Revised Statutes, which deals with "Evidence" and provides for the taking and use of depositions under certain circumstances. 3 The power of Congress to authorize the courts to regulate the equity and admiralty practice by rules is well settled. Depositions de bene esse pursuant to R. S. § 863,5 are sometimes taken in admiralty.6 Depositions under a dedimus potestatem, as provided in R. S. § 866,7 are also used. But where the witnesses are within the jurisdiction of the court and can conveniently attend, it is of course usual to have their testimony taken orally either before the court, or before a commissioner to whom the court may, under rule 44,8 have referred the issues involved. The Supreme Court has but meagerly exercised the power of prescribing modes of proof conferred by the above section of the Revised Statutes. In consequence the practitioner must look to the rules of a particular district to ascertain the local practice. In some districts an order referring the issues to a standing commissioner of the court is made as matter of course when the answer is in. In others the practice of hearing proof orally in court is followed, though matters of account or computation of damages would probably never be so heard. July trials are allowed by Congress in certain cases if demanded by either party, but are probably not common even in such cases.9 Parties are not entitled to recover on a theory outside of or repugnant to the scope of the libel.10 § 1282. References to commissioners and their powers. In cases where the court shall deem it expedient or necessary for the purposes of justice, the court may refer any matters arising in the progress of the suit to one or more commissioners, to be appointed by the court, to hear the parties and make report therein,[a]-[b] And such commissioner or commissioners shall have and possess all the powers in the premises which are usually given to or exercised by masters in chancery in reference to them, including the power to administer oaths to and to examine the parties and witnesses touching the premises. Forty-fourth Admiralty Rule, promulgated December 4, 1844. [a] In general. In cases of further proof on appeal the Supreme Court has provided in its 12th rule for reference to commissioners.12 In some districts all causes are referred as of course, as soon as issue is joined. The rule vests a large discretion in the district court,13 and the order of reference need not assign the reasons therefor.14 When there is a dispute as to accounts, priority of liens and like matters, reference to a commissioner is usual and proper.15 Computation of damages may also be referred to them.16 An award of damages is not invalidated by the fact that the commissioner sat outside of the territorial jurisdiction of the court.17 [b] Proceedings on reference. The mode of proceeding before commissioners is not prescribed by the Post, § 1283. Fed. Cas. No. 12,718; Furniss v. Brig 10 Barber v. Lockwood, 134 Fed. Magoun, Olcott, 55, Fed. Cas. No. 985. 12 Post. §§ 2087-2089. 5,163. 16 See The State of California, 4 C. 13See Lee v. Thompson, 3 Wood, C. A. 393, 54 Fed. 404; The Shand, 167. Fed. Cas. No. 8.202. 14The Wavelet. 25 Fed. 733. 4 Fed. 925. 17The William H. Bailey, 111 Fed. 15Shaw v. Collier, 4 Blatchf. 370, 1006, 50 C. C. A. 76. 18 How. Pr. 238. |