as they may be bound through their vendors or other parties in privity."1

191. THE ADMIRALTY RULES OF PRACTICE

In 1842 Congress passed an act directing the Supreme Court to prepare and promulgate rules to govern the procedure and practice in admiralty. In pursuance of this statute, the court promulgated the rules to regulate the admiralty practice in the inferior courts now known and cited as the "Admiralty Rules." They form an admirably simple and harmonious system, and have worked so well that they are to-day practically in the form of the original draft, the only material change being the addition of a few to regulate limited liability proceedings, and one to authorize bringing in the other vessel where only one of two colliding vessels is libeled.

An admiralty court is not a court of terms, but is always open for the transaction of business.

192. THE LIBEL

The first step in an admiralty suit is to file the libel. This is the written statement of the cause of action, corresponding to the declaration at common law and the bill in equity. It must be properly entitled of the court; addressed to the judge; must state the nature of the cause; that the property is within the district, if in rem, or the parties, their occupation and residence, if in personam; must then state the facts of the special case in separate articles clearly and concisely, and conclude with a prayer for process and a prayer for general relief. It may propound interrogatories. to the adversary.12

11 ECLIPSE, 135 U. S. 599, 10 Sup. Ct. 873, 34 L. Ed. 269; Cushing v. Laird, 107 U. S. 69, 2 Sup. Ct. 196, 27 L. Ed. 391.

§ 192. 12 Admiralty rule 23 (29 Sup. Ct. xli).

The libel should be in the name of the real party in interest, not in the name of one for the benefit of another. But the better opinion is that it may be amended by inserting the names of the real parties, or that, if they come in by supplemental libel, the proceedings will thereby be made regular.18

This principle does not prevent suits in a representative capacity. For instance, the master has wide powers as agent of all concerned, and may sue on behalf of owners of ship and cargo, and frequently on behalf of the crew.11

All parties entitled to similar relief on the same state of facts may join as libelants, in order to avoid multiplicity of suits. And for the same reason distinct causes of action may be joined in one libel. The practice in this respect is very liberal.15

In stating the facts of the special case, useless verbiage and archaic terms, may safely be omitted. The narration. may be made as simple as possible, provided, always, that those essentials common to any civilized system of pleading be observed to state the case with sufficient detail to notify the adversary of the grounds of attack, so that he may concert his defense. For instance, a libel in a collision case must specify the acts of negligence committed by the other vessel, though, if it does not do so, but merely charges neg

13 Ilos, Swab. 100; Minna, L. R. 2 Ad. & Ec. 97; Fretz v. Bull, 12 How. 466, 13 L. Ed. 1068; Burke v. M. P. Rich, Fed. Cas. No. 2,161; Anchoria (D. C.) 9 Fed. 840; Beaconsfield, 158 U. S. 303, 15 Sup. Ct. 860, 39 L. Ed. 993; Eastfield S. S. Co. v. McKeon (D. C.) 186 Fed. 357 (reversed on another point 201 Fed. 465, 120 C. C. A. 249; the court however stating-page 470-that it concurred with the District Court on this point).

14 Commander in Chief, 1 Wall. 51, 17 L. Ed. 609; Blackwall, 10 Wall. 1, 19 L. Ed. 870; Mercedes (D. C.) 108 Fed. 559.

15 Queen of the Pacific (D. C.) 61 Fed. 213; Pacific Coast S. S. Co. v. Bancroft-Whitney Co., 94 Fed. 180, 36 C. C. A. 135, reversed Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419, but not on this question; Oregon, 133 Fed. 609, 68 C. C. A. 603.

ligence in general, and no exceptions are filed, it will not prevent the case from proceeding.18

193. AMENDMENTS

In case the libel is thought defective, great latitude is allowed in amendments. Formal amendments are a matter of course, and amendments in matters of substance are in the discretion of the court. They may be made even on appeal, but not to the extent of introducing a new subject of litigation.17

But the power of the court to allow amendments is a judicial discretion, not a mere caprice. It will not be so exercised as, under the guise of liberality to one party, to do injustice to the other. Hence, after the cause is at issue, and evidence has been taken, or the witnesses scattered, a court would be chary in allowing amendments, especially of matters known to the applicant for any length of time before the application is made.

"The propriety of granting this privilege in any particular case will depend on the circumstances by which it is attended. The application is addressed to the sound discretion of the court, and this discretion is to be exercised with a just regard to the rights and interests of both parties; care being taken that for the sake of relieving one party injustice shall not be done to the other." 18

16 MARPESIA, L. R. 4 P. C. 212; Vim (D. C.) 2 Fed. 874; II. P. Baldwin, 2 Abb. U. S. 257, Fed. Cas. No. 6,811; Barber v. Lockwood (D. C.) 134 Fed. 985.

193. 17 Admiralty rule 24 (29 Sup. Ct. xli); Graham v. Oregon R. & Nav. Co. (D. C.) 134 Fed. 692; Indiana Transp. Co., Ex parte, 244 U. S. 456, 37 Sup. Ct. 717, 61 L. Ed. 1253 (a case growing out of the Eastland disaster, and emphasizing the principle that an appearance to defend does not constitute a submission to jurisdiction for all purposes).

18 2 Conk. Adm. 258. As examples of the limit put upon this power of amendments, see Keystone (D. C.) 31 Fed. at page 416; Thom

194. THE PROCESS

On filing the libel in rem an order for process is filed. It recites, "On reading the libel, and otherwise complying with the rules of court, let process issue."

Thereupon the process of arrest issues. It is directed to the marshal, and instructs him to seize the vessel, and give notice to all interested that on a certain day, fixed by the rules of each district, the case will come on for hearing, when and where they are cited to appear, and interpose their claims, and to return his action thereunder to the court.

"Arrest" is nothing more than the term applied in admiralty parlance to a seizure of the res.19

The time fixed for hearing and set out in the warrant of arrest varies with the rules in different districts. It is usually about two weeks off, for the merit of admiralty proceedings is their rapidity.

In the Eastern district of Virginia the return day is Tuesday of the week next after filing the libel, and the hearing day is ten days after that, which makes it always fall on Friday.

The warrant of arrest is signed by the clerk, and under the court seal. The marshal, on receiving it, makes out three notices, signed by himself, reciting that by virtue of the warrant he has seized the said vessel, and has her in his custody, and that all persons are cited to appear on the hearing day, and show cause why a final decree should not pass as prayed. He takes the warrant of arrest and one of these proclamations, and starts out on a quest for his prey.

as Melville (D. C.) 31 Fed. 486; McKinlay v. Morrish, 21 How. 347, 16 L. Ed. 100; Lamb v. Parkman, 1 Spr. 343, Fed. Cas. No. 8,020; Coffin v. Jenkins, 3 Story, 108, Fed. Cas. No. 2,948; Philadelphian, 60 Fed. 423, 9 C. C. A. 54; O'Brien v. Miller, 168 U. S. 287, 18 Sup. Ct. 140, 42 L. Ed. 469; Circassian, 2 Ben. 171, Fed. Cas. No. 2,723. § 194. 19 Pelham v. Rose, 9 Wall. 103, 19 L. Ed. 602.

On finding her, he reads the warrant of arrest to the captain or other person in charge, and he pastes a copy of his proclamation on a conspicuous part of the vessel. Then he returns to the court-room door, and pastes another there. And then, by way of making it more widely known, he goes to the newspaper designated by court rule, and publishes a notice in substantially the same form. Meanwhile a ship keeper is in charge of the ship.

The marshal cannot serve process upon a ship in custody of an officer of a state court. Such an officer cannot sell the title clear of maritime liens, and so the admiralty claimant must wait till the other court lets go. As soon as its custody ends, the admiralty claimant may proceed against it, even in the hands of the state court purchaser.20

A vessel owned or in use by a Government is not subject to process.21

If the vessel owner wants possession of his ship, he is allowed, by section 941, Rev. St. (U. S. Comp. St. § 1567), to come in, give bond or stipulation in double the amount of libelant's claim, and release her. This is a substitute for the vessel, and no suit is necessary upon it, but judgment may be given against the obligors on it in the final decree.22

This bond or stipulation is so far a substitute for the vessel that it discharges the claim against her which is being asserted in the libel, and she cannot be re-arrested for the same cause of action, unless there have been circumstances of fraud or misrepresentation in giving it, or unless

20 TAYLOR v. CARRYL, 20 How. 583, 15 L. Ed. 1028; Moran v. Sturges, 154 U. S. 256, 14 Sup. Ct. 1019, 38 L. Ed 981; Resolute, 168 U. S. 437, 18 Sup. Ct. 112, 42 L. Ed. 533.

21 Siren, 7 Wall. 152, 19 L. Ed. 129; G. A. Flagg (D. C.) 256 Fed. 852; Broadmayne, [1916] P. 64; 32 T. L. R. 304; Porto Alexandre, 36 T. L. R. 28, 66. Since the text was written Congress has passed the act of March 9, 1920; authorizing suits against the United States. The act will be found in the Appendix, p. 506.

22 See post, p. 497.