defense,15 but without an amendment testimony should not be received in support of a defense not pleaded.16

The answer may set up defenses by way of counter-claim, but no affirmative judgment can be obtained by the claimant or respondent without filing a cross-libel.17 It has been held that a set-off in admiralty is cognizable only so far as it relates to the particular transaction which is the subject of the libel and goes to reduce or overcome the original demand.18

Contributory negligence is not a bar to a recovery in admiralty.19 Where an injury is caused by the concurrent negligence of two ships, the custom is to divide the damages in accordance with the equitable considerations.20 In collision cases, where both vessels are found guilty of fault contributing to the collision, and only one of them is injured, the libelant recovers one-half of his damages; where both vessels are injured, the damages suffered by the two vessels are added together and equally divided, and the vessel which suffers most recovers onehalf the difference between the amounts of their respective losses.21 It has been said that the rule in admiralty for the divi

15 Ibid.

16 See The Solveig, 217 Fed. 805. The Reuben Doud, 3 Fed. 520. "It was held, under a plea that the libelant, a pilot, after signaling an offer of service, had pulled down his signal and sailed away, that the respondent could not prove that other pilots had offered their services at the same time, and that it would have put the vessel to serious inconvenience if it had taken the libelant."

17 Marshall v. The Earnwell, 68 Fed. 228; Howard v. 9,889 Bags of Malt, 255 Fed. 917. See also White v. The Renaier, 45 Fed. 773; Am. Steel Barge Co. v. Chesapeake & O. Coal Agency Co., C. C. A., 116 Fed 857; infra, § 580. Where in a suit in rem in a collision case, one of the vessels is so wholly lost that no cross-libel against her can be maintained, the defendant, if he

desires to recoup or offset any damage, must state the facts in his answer in the same manner as upon filing a cross-libel, and such statement of damage is without prejudice to any defense he may make that the collision was wholly the fault of the other vessel. Adm. Rule 41, S. D. N. Y.

18 Roney v. Chase, Talbot & Co., 160 Fed. 268; United Transp. & Lighterage Co. v. N. Y. & Baltimore Transp. Line, 180 Fed. 902; S. C., C. C. A., 185 Fed. 386.

19 The Max Morris, 137 U. S. 1, 34 L. ed. 586.

20 The North Star, 106 U. S. 17, 27 L. ed. 91; The Max Morris, 137 U. S. 1, 34 L. ed. 586.

21 The North Star, 106 U S. 17, 27 L. ed. 91; J. T. Morgan Lumber Co. v. West Kentucky Coal Co., 181 Fed. 271. In cases of tort other than collision the same rule has

sion of damages may be enforced in any case where the loss results from acts of negligence of both parties, without regard to the issues raised by the pleading.22 The rule of the English common law as to imputed negligence 23 does not apply in admiralty.24

The rule that the owner is not responsible for the negligence of an independent contractor is usually followed.25 A decree upon a claim made by the owner through his agent is res adjudicata upon a second libel in which the owner appears personally.26 So is a decree upon a claim against a charterer in a subsequent proceeding between the latter and the managing owner 27

"When the respondent or claimant, in his answer, alleges new facts these shall be considered as denied by the libelant, and no replication, general or special, shall be filed unless ordered by the court on proper cause shown. 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 void, 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 respondent or claimant shall answer such amendments.' 28

§ 576. Laches in admiralty. There is no statutory time within which an ordinary suit in admiralty must be instituted.1 By the Act of August 15, 1913, "A suit for the recovery of remuneration, assistance, or salvage services shall not be main

frequently been applied; although the Supreme Court has held that in such cases contributory negligence does not bar a recovery, it has not determined whether the decree should be for exactly one-half of the damages sustained, or might, in the discretion of the court, be for a greater or less proportion of such damages. The Max Morris, 137 U. S. 1, 34 L. ed. 586.

22 J. T. Morgan Lumber Co. v. West Kentucky Coal Co., 181 Fed 271.

23 Thorogood v Bryan, 8 C. B. 115.

24 The Bernina, 12 Prob. Div. 58; Little v. Hackett, 116 U. S. 366; Robinson v. D. & C. Nav. Co., 73 Fed. 883.

25 The Satilla, C. C. A., 235 Fed. 58.

26 Sullivan v. Nitrate Producers' S. S. Co., 254 Fed. 361.

27 Cuneo Importing Co. v. Am. Importing & Transp. Co., 241 Fed. 421. See supra, §§ 186s, 186y. 28 Adm. Rule 48; The Claveresk, C C. A., 264 Fed. 276.

tainable if brought later than two years from the date when such assistance or salvage was rendered, unless the court in which the suit is brought shall be satisfied that during such period there had not been any reasonable opportunity of arresting the assisted or salved vessel within the jurisdiction of the court or within the territorial waters of the country in which the libelant resides or has his principal place of business."' 2

The statute limiting the time for suits upon claims for death is previously quoted.2a Courts of admiralty are not bound by the State Statutes of Limitation, except in so far as the limitation is by statute made a condition of the right sought to be enforced.4

Laches is a valid defense to a suit in admiralty and depends in every case upon the peculiar circumstances.5 Previous unsuccessful litigation may be a sufficient excuse. The same rules apply to claims against a fund on property in the possession of the Admiralty Court."

In the absence of special circumstances, such courts will usually follow the analogy of the State Statute of Limitations.8 This was done even when the respondent was a foreign corpora

237 St. at L. 268, Comp. St., § 7993.

2a See supra, § 560e.

8 The Key City, 14 Wall. 653, 659; Southard v. Brady, 36 Fed. 560.

4 Pacific Coast S S. Co. v. Bancroft-Whitney Co., C. C. A., 94 Fed. 180. See supra, § 182.

5 The Key City, 14 Wall. 653, 20 L. ed. 896; Southard v. Brady, 36 Fed. 560; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., C. C. A., 94 Fed. 180, 189. See § 182, supra; Bartleson v. Fiedler, 149 Fed. 299; The Alabama, C. C. A., 242 Fed. 431.

6 Fill v. Cunard S. S. Co., 217 Fed. 854; Lincoln v. Cunard S. S. Co., 221 Fed. 623.

7 The Samuel Little, 221 Fed. 308; U. S. v. One Case Chemical Compound, 203 Fed. 63.

8 Nesbit v. Amboy, 36 Fed. 925; Bailey v. Sundberg, C. C. A., 49 Fed. 583, a libel in personam; the Southwark, 128 Fed. 149; Davis v. Smokeless Fuel Co., 182 Fed. 1004, a libel in personam; Lincoln v. Cunard S. S. Co., 221 Fed. 623, a libel in personam. In Seull v. Raymond, 18 Fed. 547, a libel in personam was barred after eight and one-half years. In Coburn v. Factors' & Tr. Ins. Co., 20 Fed. 644, after nine years. Contra, Pacific Coast S. S. Co. v. Bancroft-Whitney Co., C. C. A., Ninth Ct. 94 Fed. 180, 189, 190, where, in a suit in rem for damages to cargo, the court refused to follow the State statute making four years the period of limitation.

tion, which could not take advantage of the statute in the State courts. A less period of time has been held to constitute laches.10 Because of laches, interest, or costs, may be denied the successful party; 11 or payment of the costs of a suit in the State court may be required before relief is given in admiralty.12

It has been said that the defense of laches cannot be raised unless pleaded in the answer. 13 A stipulation to enter an appearance and to give security for the payment of any recovery may be a waiver of a short period of limitation contained in a bill of lading.14

§ 577. Tender. A tender made before suit is of no avail as a defense unless, on suit brought, it is deposited in court. When a tender is first made after suit brought, it must include interest up to the next term of the court and the taxable costs then accrued.1

§ 578. Exceptions. "Either party may except to the sufficiency, fullness, distinctness, relevancy or competency of any of the pleadings or interrogatories filed by the other party; and if the court shall so adjudge on a hearing on the exceptions, and shall order further pleadings or answers to be filed by either party, such pleadings or answers shall be filed within such time and on such terms as the court may direct."1 "Exceptions may

9 Davis v. Smokeless Fuel Co., 182 Fed. 1004.

10 Magee v. The Lyndhurst, 48 Fed. 839, where a delay of less than a year was held to bar a libel in rem for supplies, when, since the lien was incurred, the vendor had become insolvent and the vessel was in the hands of bona fide purchasers. See, also, The Thomas Sherlock, 22 Fed. 253.

11 The James McWilliams, C. C. A., 240 Fed. 951. But see Metcalfe v. The Alaska, 130 U. S. 201, 32 L. ed. 923; The Alaska, 33 Fed. 107; Starin v. The John Dillon, 46 Fed. 527; Jones v. The Carrie, 46 Fed. 796; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., C. C. A., 94 Fed. 180.

be taken to any libel, allegation, answer or other pleading for surplusage, impertinence or scandal; and if on hearing the matter excepted to shall be held to be so objectionable it shall be expugned on such terms as the court may direct." Exceptions correspond to special demurrers. They must clearly specify the parts to which exceptions are taken. Exceptions to a number of interrogatories "for the reason that they are each and all open to one or more of the following objections," followed by a statement of a number of objections, were held to be bad.5

The party against whom the exceptions are taken should notify the other side that he submits to them, or else notice them for hearing before the court. An affidavit cannot be considered upon the hearing of an exception to a libel. The courts will, however, then consider facts not pleaded of which they may take judicial notice.7

Upon the allowance of exceptions, the court fixes the time for the amendment. If the defendant's exceptions are overruled, he must file his answer within such time as the court allows. Where exceptions are peremptory, as, for example, to the jurisdiction, if they are sustained, judgment may be entered in favor of the successful party. If not peremptory the pleading excepted to must be amended. Exceptions to a libel should be filed on return of process. The time within which exceptions to an answer must be filed is determined by the rules of practice of the several districts.9

Where allegations in an answer are unnecessary and not responsive, they are not subject to exception for insufficiency.10

2 Adm. Rule 35. It has been held that exceptions to an answer for insufficiency and inpertinence cannot be taken to the same matter either conjunctively or disjunctively. The Whistler, 13 Fed. 295.

3 Erie & Western Transp. Co. v. Great Lakes Towing Co., 184 Fed. 349.

4 Ibid.

5 Ibid.

6 Prince Steam Shipping Co. v. Lehman, 39 Fed. 704.

7 The Seminole, 42 Fed. 924;

supra, §§ 329, 366. See also U. S. v. The Haytian Republic, 57 Fed. 508.

8 Prince Steam Shipping Co. v. Lehman, 39 Fed. 704.

9 In the Southern District of New York, the libelant has five days from the filing of the claim or answer in which to except thereto. S. D. N. Y., Adm. Rule 35.

10 The Teaser, 188 Fed. 721. As to exceptions to answers, see Todd v. Tulchen, 2 Fed. 600; The Dictator, 30 Fed. 699; The City of