mony of witnesses shall be taken under a commission to be issued from this court, or from any district court of the United States, under the direction of any judge thereof; and no such commission shall issue but upon interrogatories, to be filed by the party applying for the commission, and notice to the opposite party or his agent or attorney, accompanied with a copy of the interrogatories so filed, to file cross-interrogatories within twenty days from the service of such notice: Provided, however, that nothing in this rule shall prevent any party from giving oral testimony in open court in cases where by lay it is admissible." & The Admiralty Rules of the Circuit Courts of Appeals in the First, Second, Sixth,5 and Ninth Circuits, provide for the taking of additional testimony in admiralty only by leave of the court, and by deposition only, and regulate the practice upon the subject." On an appeal from a decree in admiralty in a prize case, further proof may be received by the order of the appellate court. It is the practice of the Supreme Court in prize cases to hear the cause in the first instance upon the evidence transmitted from the court below; and then to decide upon that evidence whether it is proper to allow further proof.9 2 S. C. Rule 12. 3 Adm. Rule 14, First Ct., 150 Fed. 4 Adm. C. C. A. Rule, Second Ct., VIII.; infra, appendix. 5 C. C. A., Sixth Ct., Rule 35; infra, appendix. 6 Adm. Rule, Ninth Ct., VIII., infra, appendix. 7 The Stonington, 25 Fed. 621; The Gypsum King, C. C. A., 172 Fed. 1022; The Philadelphia, C. C. A., First Ct., 60 Fed. 423, 9 C. C. A. 54; The Nyack, C. C. A., Seventh Ct., 199 Fed. 383, 387. The deposition of a member of the crew of a vessel run down by a steamer as to his discovery of the presence of the steamer, although a similar statement was contained in the deposition of another witness, is not cumulative within the meaning of the rule in the First Circuit exclud ing further proof which is cumulative upon appeal. The Sagamore, C. C. A., 247 Fed. 743. 8 The Lady Pike, 21 Wall. 1, 22 L. ed. 499; The Samuel, 1 Wheat. 9, 4 L. ed. 23; The Mary, 8 Cranch, 388, 3 L. ed. 599; The Adeline, 9 Cranch, 244, 3 L. ed. 719; The Atalanta, 3 Wheat. 409, 4 L. ed. 422, supra, § 592. 9 The London Packet, 2 Wheat. 371, 4 L. ed. 264. An order for further proof is always made with extreme caution, and only where the ends of justice clearly require it. The Gray Jacket, 5 Wall. 342, 18 L. ed. 646. Upon a motion for further proof in the appellate court, some excuse satisfactory to the court should be shown for the failure to offer the proof in the court Further proof cannot be admitted until the cause is heard, but where upon the opening it appears to be a case for further proof, further proof may be admitted immediately, unless it appears that the other party should be allowed to produce further proof also.10 New proof may be allowed in support of a supplemental libel filed in the Circuit Court of Appeals.11 A party is not per below. The Mabey, 10 Wall. 419, 19 L. ed. 963; The Beeche Dene (C. C. A.), 55 Fed. 526; Red River Line v. Cheatham, 60 Fed. 517; Re Hawkins, 147 U. S. 486, 37 L. ed. 251; supra, $592. Where the evidence as it stood was not in the opinion of the court susceptible of any satisfactory explanation by the party desiring an order for further proof, the order was refused. The Hazard v. Campbell, 9 Cranch, 205, 3 L. ed. 706. Where the court looked into the further proof offered, and on comparing it with the evidence already in the case was of the opinion that it would be totally incompetent to make out a title in the party, his application for further proof was rejected. The Euphrates, 8 Cranch, 385, 3 L. ed. 598. The suppression of papers, where it appears to have been intentional and fraudulent and attended with other suspicious circumstances, is good cause for refusing further proof; but where the suppression appears to be owing to accident or mistake, and no other suspicious circumstances appear in the case, further proof may be allowed. The St. Lawrence, 8 Cranch, 434, 3 L. ed. 615; The Fortuna, 2 Wheat. 161, 4 L. ed. 209; The Fortuna, 3 Wheat. 236, 4 L. ed. 379. The claimant forfeits all right to offer further proof by a guilty concealment of the same in his first affidavit and claim. The Gray Jacket, 5 Wall. 342, 18 L. ed. 646. Further proof will usually be ordered by the Supreme Court in a prize cause, where the national character and proprietary interest of goods recaptured do not distinctly appear. The Adeline, 9 Cranch, 244, 3 L. ed. 719; The Atalanta, 3 Wheat. 409, 4 L. ed. 422. Affidavits to be used as further proof in a prize cause are usually taken by commission. The London Packet, 2 Wheat. 371, 4 L. ed. 264. On further proof the affidavit of the claimant is indispensably necessary. The Venus, 5 Wheat. 127, 5 L. ed. 50. Where affidavits were presented to show that the testimony of witnesses on which the decree was rendered was obtained by a corrupt agreement to pay them money, of which the appellant had no knowledge at the time of the trial; a commission was ordered to take the testimony of those witnesses. The Western Mortepolis, 12 Wall. 389, 20 L. ed. 394. Where an order for further proof is made, and the party disobeys the injunctions or neglects to comply with them, a court of prize will usually consider such neglect as contumacy, which leads to presumptions fatal to his claims. The La Nereyda, 8 Wheat. 108, 5 L. ed. 574. 10 The Venus, 1 Wheat. 112, 4 L. ed. 49. 11 Munson S. S. Line v. Glasgow Nav. Co., C. C. A., 235 Cal. 64. mitted deliberately to withhold evidence in the District Court, and after having failed there, to offer it in the appellate court.12 In a prize cause the captors are competent witnesses upon an order for further proof, where the benefit of it extended to both parties.18 A second order for further proof may be made when the further proof furnished in obedience to the first order is not satisfactory.14 Objections to the taking or admission of new proofs must be made promptly, and if the appellee has cause to show why new proofs should not be offered, he should give notice thereof to the Court of Appeals at the opening of the term, on affidavits stating the cause intended to be shown.15 § 593. Limitation of the liability of shipowners. By the general maritime law, a ship-owner is liable in full for all damages caused by the negligence of his employees.1 This liability has been limited by statute in Great Britain and in the United States. The statutes in force in the United States on the subject are as follows: "The liability of the owner of any vessel, for any 12 The Saunders, 23 Fed. 303; The Stonington, 25 Fed. 621. Cf. Re Hawkins, 147 U. S. 486, 37 L. ed. 251; supra, § 478. 18 The Anne, 3 Wheat. 435, 4 L. ed. 428. 14 The Frances, 8 Cranch 348, 3 L. ed. 585. 15 The Stonington, 25 Fed. 621. The Supreme Court of the United States refused to review this rule, although petitioned so to do by the leading members of the admiralty bar. Re Hawkins, 147 U. S. 486, 37 L. ed. 251. See The Nyack, C. C. A., Seventh Ct., 199 Fed. 383, 387. § 593. 1 The Wild Ranger, Lush. 553. Whether the Employers' Liability Act of April 22, 1908 (35 St. at L. 65, Comp. St. Supp, 1909, p. 1171), by implication, repeals so much of this statute as would otherwise apply to the vessels of a railroad company engaged in inter- embezzlement, loss, or destruction, by any person, of any property, goods, or merchandise, shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned or, incurred, without the privity, or knowledge of such owner or owners, shall in no case exceed the amount or value of the interest of such owner in such vessel, and her freight then pending." "It shall be deemed a sufficient compliance on the part of such owner with the requirements of this Title relating to his liability for any embezzlement, loss, or destruction of any property, goods, or merchandise, if he shall transfer his interest in such vessel and freight, for the benefit of such claimants, to a trustee, to be appointed by any court of competent jurisdiction, to act as such trustee for the person who may prove to be legally entitled thereto; from and after which transfer all claims and proceedings against the owner shall cease."4 "Whenever any such embezzlement, loss, or destruction is suffered by several freighters or owners of goods, wares, merchandise, or any property whatever, on the same voyage, and the whole value of the vessel, and her freight for the voyage, is not sufficient to make compensation to each of them, they shall receive compensation from the owner of the vessel in proportion to their respective losses; and for that purpose the freighters and owners of the property, and the owner of the vessel, or any of them, may take the appropriate proceedings in any court, for the purpose of apportioning the sum for which the owner of the vessel may be liable among the parties entitled thereto.5 "The charterer of any vessel, in case he shall man, victual, and navigate such vessel at his own expense, or by his own procurement, shall be deemed the owner of such vessel within the meaning of the provisions of this Title relating to the limita tion of the liabilty of the owners of vessels; and such vessel, when so chartered, shall be liable in the same manner as if navigated by the owner thereof.6 8 U. S. R. S., § 4283, 4 F. S. A. 839, Pierce's Fed. Code, § 2146. Comp. St., § 8021. 4 U. S. R. S., § 4285, 4 F. S. A. 850, Pierce's Fed. Code, § 2148. Comp. St., § 8023. 5 U. S. R. S., § 4284 amended Act of February 27, 1877, ch. 69, § 1, 19 St. at L. 251, Comp. St., § 8022. 6 U. S. R. S., § 4286, Comp. St., $ 8024. "The provisions of the seven preceding sections, and of section eighteen of an act entitled "An act to remove certain burdens on the American merchant marine and encourage the American foreign carrying-trade, and for other purposes," approved June twenty-sixth, eighteen hundred and eighty-four, relating to the limitations of the liability of the owners of vessels, shall apply to all sea going vessels, and also to all vessels used on lakes or rivers or in inland navigation, including canalboats, barges, and lighters.7 "The individual liability of a ship-owner, shall be limited to the proportion of any or all debts and liabilities that his individual share of the vessel bears to the whole; and the aggregate liabilities of all the owners of a vessel on account of the same shall not exceed the value of such vessels and freight pending: Provided, That this provision shall not affect the liability of any owner incurred previous to the passage of this act, nor prevent any claimant from joining all the owners in one action; nor shall the same apply to wages due to persons employed by said ship-owners." 8 The last statute did not repeal the previous provision making an exception of a loss caused by an act or on omission committed with the privity or knowledge of the owner.9 By the Admiralty Rules: "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, occasioned 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 7 U. S. R. S., § 4289, amended, Act of February 18, 1875, ch. 80, § 1, 18 St. at L. 320. Act of June 19, 1886, ch. 421, § 4, 24 St. at L. 80, Comp. St., § 8027. 8 Act of June 26, 1884, ch. 121, § 18, 23 St. at L. 57, Comp. St., $ 8028. Fed. Prac. Vol. III-64 9 Butler v. Boston & Savannah S. S. Co, 130 U. S. 527, 553; Richardson v. Harmon, 222 U. S. 96. 106; Capitol Transportation Co. v. Cambria Steel Co., 249 U. S. 334. |