Imágenes de páginas
PDF
EPUB

Where an exception admitted the signature of a corporation to a contract pleaded by the libelant, it was presumed that the corporation executed this either as principal or surety.11 Where exceptions to an answer were drawn with several specifications, the failure to sustain any specification was fatal to the exception.12

§ 579. Amendments. Great freedom of amendment is allowed in admiralty by the rules. "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, on motion, at any time before the final decree, on such terms as the court shall impose. And where any defect of form is set down by the respondent or claimant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms on the libelant. 112 "When the respondent or claimant in his answer, alleges new facts, these shall be considered as denied by the

Salem, 10 Fed. 843; Morgan L. &
T. S. S. Co. v. De Arrotegui, 25
Fed. 624.

11 Downs v. Wall, C. C. A., 176 Fed. 657.

12 The Intrepid, 42 Fed. 185. $ 579. 1 The Adeline, 9 Cranch, 244, 284, 3 L. ed. 719; Clinton v. Smith & Terry, C. C. A., 249 Fed. 119.

2 Adm. Rule 49. By S. D. N. Y. Rule 2. "Amendments, or supplementary matters, must be connected with the libel or other pleadings by appropriate references, without a recapitulation or restatement of the pleading amended or added to.' Where exceptions to a libel against a vessel and its owner were tained, on the ground that they could not be sued jointly, the libelant was permitted to amend so as to declare against the vessel alone. The San Rafael, 141 Fed. 270. See supra, § 563. Amendments have

sus

been permitted to show that a libelant had the legal title to part of a vessel. The Olga, 254 Fed. 439; to join as libelants the partners of the man who originally filed the libel. The D. J. Sawyer, C. C. A., 236 Fed. 913; to transfer one of several claims for damages from a libel in a suit in rem against a boat, to a libel in personam against the owner. The Benefactor, 242 Fed. 582. For cases when amendments to libels were disallowed, see the Iona, C. C. A., 80 Fed. 933; The Keystone, 31 Fed. 412; New Haven S. D. Co. v. The Mayor, 36 Fed. 716. See supra, §§ 211, 567. For a case where an amendment to an answer was disallowed, see The Horace v. Parker, C. C. A., 74 Fed. 640. For a case where leave to file an amended answer was denied upon terms, see Munson S. S. Line v. Glasgow Navigation Co., C. C. A., 211 Fed. 1021.

libelant, and no replication or reply, 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 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 respondent or claimant shall answer such amendment.3

4

A libel in rem may be changed by amendment into one in personam, by adding a prayer for relief in personam, and a monition will then be issued against the owner; but, it has been said, not when prayers for these two kinds of relief could not have been joined.5 In a suit to recover damages for causing death, the libelant may be changed by amendment from the widow to the administrator of the deceased. Where a case has been tried upon a theory not properly pleaded in the libel an amendment to conform the pleadings to the evidence will almost always be allowed." The failure of the libelant or his agent to sign the libel is a defect curable by amendment.

Notice of an application for an amendment should be served upon any party that has appeared. An amendment which is permitted during the trial should be written out and entered on the record before the entry of final decree.10 When an amendment to a libel is allowed, the respondent will usually be permitted to amend his answer so as to insert a denial of the new matter.11

§ 580. Cross-libel. A defendant cannot recover an affirmative judgment without filing a cross-libel.1 The practice of

3 Adm. Rule 28.

4 The Monte A, 12 Fed. 331, 336, 337, 338; One Hundred and Eighteen Sticks of Timber, 10 Benedict 86, 18 Fed. Cas. 10,519; The Susquehanna, C. C. A., 267 Fed. 811.

5 The Steamship Zodiac, 5 Fed. 220; The Young America, Brown Adm. 462, 30 Fed. Cas. 18,178.

6 The Horsa, 232 Fed. 993.

7 Kelley Island Lime & Transport Co. v. City of Cleveland, 144 Fed. 207.

8 Haddy v. Moore, 4 Fed. 843.

9 The Monte A, 12 Fed 331, 336. 10 The D. J. Sawyer, C. C.A., 236 Fed. 913. 11 Ibid. § 580. 1 The Reuben Doud, 3 Fed. 520; The Nadia, 18 Fed. 729. As to the matters which may be set up by a cross-libel, see The Higland Light, 88 Fed. 296; The Walrus, C. C. A., 261 Fed. 676.

stipulating that the answer in the original suit operate as a cross-libel has been expressly disapproved by the Supreme Court. A cross-libel cannot be maintained unless it arises out of the same cause of action as that propounded in the original libel. New and distinct matters, not included in the original libel, but arising out of separate transactions, cannot be made the subject-matter of a cross-libel in admiralty. Cross-libels may be filed by respondents against each other, and by a third party against a respondent who has brought him into the suit." In a suit begun by a libel in rem, a cross-bill in personam may be filed. It has been held that upon a cross-libel the court has power to order a monition in personam, to be served upon the proctors of the original libelants who are nonresidents.8

§ 580a. Security by cross libelant. The court may require a cross libelant to give a stipulation, similar to that required of an original libelant, to pay all costs and expenses which shall be awarded against him by the final decree, or by any interlocutory order or upon appeal.1

§ 580b. Security for damages of cross libelant. "Whenever a cross-libel is filed upon any counterclaim arising out of the same contract or cause of action for which the original libel was filed, and the respondent or claimant in the original suit shall

2 Ward v. Chamberlain, 21 How. 72, 16 L. ed. 219.

3 United Transp. & Lighterage Co. V. New York & Baltimore Transp. Line, 180 Fed. 902, s. c., C. C. A., 185 Fed. 386.

4 George D. Emery Co. v. Tweedie Trading Co., 143 Fed. 144. Cf. $ 197, supra. To a libel for services in lighterage the respondent cannot plead as a set-off or by way of cross-libel, a claim to recover money paid for similar services under previous contact, which are charged to have been exorbitant and fraudulently contracted for. United Transp. & Lighterage Co. v. New York & Baltimore Transp. Line, 180 Fed. 902; s. c., C. C. A., 185 Fed. 386. See The Alliance, 236 Fed. 361. Nor, it has been held, can a

claim for damages because of the detention be the subject of a crosslibel to a libel in rem for damage to the cargo. The Jane Palmer,

270 Fed. 609.

5 The Eliza Lines, 61 Fed. 308; The Lysefjord, 262 Fed. 623.

6 The Lysefjord, 263 Fed. 623.
7 The Arlyn Nelson, 243 Fed. 415.
8 The Eliza Lines, 61 Fed. 308.

§ 580a. 1 Adm. Rule 24, supra, §§ 562, 570. See Vianello v. The Credit Lyonnais, 15 Fed. 637; Empresa Maritima a Vapor v. N. & S. Am. St. Nav. Co., 16 Fed. 502; Genther v. Wiley, 85 Fed. 797; Empresa Maritima v. N. & S. Am. St. Nav. Co., 16 Fed. 502; Old Dominion S. S. Co. v. Kufald, 100. Fed. 331; Lochmore S. S. Co. v. Hagar, 78 Fed. 642.

have given security to respond in damages, the respondent in the cross-libel shall give security in the usual amount and form to respond in damages to the claims set forth in said cross-libel, unless the court, for cause shown, shall otherwise direct; and all proceedings on the original libel shall be stayed until such security be given unless the court otherwise directs."1 This rule does not apply to an answer which, although called a crosslibel, is not accompanied by a citation and cannot afford a basis. for affirmative relief; 2 nor to a case where the libel was filed in personam without security and without attachment; nor to a case where the cross respondent was the original libelant and had obtained no security. Security for costs and for damages is not usually required of a cross libelant when the libelant is a receiver or trustee in bankruptcy.5 A motion to compel the filing of such security may be denied for laches. The assignment by the libelant of his claims to third persons is no ground for requiring security from them; nor for requiring from him security which otherwise would not be required.8

§ 580c. Abatement and revivor in admiralty. The rule of the common law that an action abates by the death of a party thereto is not followed in admiralty. By the Act of March 30, 1920, authorizing a recovery in the case of death caused by wrongful act, neglect or default occurring on the high seas beyond a marine league from the shore, "If a person die as the result of such wrongful act, neglect, or default as is mentioned in section 1 during the pendency in a court of admiralty of the United States of a suit to recover damages for personal injuries in respect of such act, neglect, or default, the personal repre

§ 580b. 1 Admiralty Rule 50, Genther v. Wiley, 85 Fed. 797; Empresa Maritima v. N. & S. Am. St. Nav. Co., 16 Fed. 502; Old Dominion S. S. Co. v. Kufald, 100 Fed. 331; Lochmore S. S. Co. v. Hagar, 78 Fed. 642. As to stay, see Vianello v. The Credit Lyonnais, 15 Fed. 637; Empresa Maritima a Vapor v. N. & S. Am. St. Nav. Co., 16 Fed. 502.

2 Mayer & Lage v. Prince Line, Ltd., 264 Fed. 854.

3 The Transit, 210 Fed. 575; Prince Line v. Mayer & Lage, 264 Fed. 856.

4 Ibid.

5 Chesbrough v. Boston El. Ry. Co., 750 Fed. 922.

6 Chesbrough v. Boston El. Ry. Co., 250 Fed. 922.

7 Ibid.
8 Ibid.

8 580. 1 U. S. v. Sampson, 187 U. S. 536, 47 L. ed. 248; The Student, 238 Fed. 937.

sentative of the decedent may be substituted as a party and the suit may proceed as a suit under this Act for the recovery of the compensation provided in section 2."2 A claim in rem for tort filed in proceedings for the limitation of the liability of a ship owner does not abate by the death of the claimant. The same rule applies to a suit for a personal injury which occurred within a marine league of the shore when the State statutes provide that there shall be no abatement. When a libel is filed by a person on his own behalf and on behalf of others upon his death the court may substitute another to continue the proceedings without bringing in his personal representative.5 Upon the death of the respondent his personal representative may be brought in upon a motion on his part or on the part of the adverse party.

§ 581. Interrogatories and discovery. Interrogatories may be annexed either to the libel1 or to the answer.2 "Either party shall have the right to require the personal answer of the other party or of its proper officer on oath or solemn affirmation to all interrogatories propounded by him, it, or them, in the libel, answer or otherwise as may be ordered by the court on cause shown and required to be answered. In default of due answer by either party to such interrogatories, the court may adjudge such party to be in default and enter such order in the cause as it shall deem most fit to promote justice." "Either party may object by proper pleadings to answering any allegation contained in any pleading or interrogatory filed by the other party, which will tend to expose him, it, or them, to any prosecution or punishment for crime, or for any penalty or any forfeiture of

2 The Lafayette, 269 Fed. 917. $ 5, Comp. St. § 12511⁄2d. supra, § 560e.

See

8 The Ticeline, 208 Fed. 670. 4 The Student, 238 Fed. 937. 5 U. S. v. Sampson, 187 U. S. 536, 47 L. ed. 248.

6 See The Gilbert R. Green, 243 Fed. 926. The practice is prescribed in S. D. N. Y. by the local Adm. Rule 5.

§ 581. 1 Admiralty Rule 31;

Scobel v. Giles, 19 Fed. 224; The Edwin Baxter, 32 Fed. 296. See § 596, infra. As to interrogatories addressed to corporations, see Bock v. International Nav. Co., 124 Fed. 711.

2 Admiralty Rule 31; Stoffregan v. The Mexican Prince, 70 Fed. 246.

8 Adm. Rule 31. But see The Fred E. Richards, The Mary L. Crosby, The Henry R. Tilton, 248 Fed. 956.

« AnteriorContinuar »