have meant was that if the owner used due diligence to make the vessel seaworthy he should not be liable for damage resulting from unseaworthiness. But the Su

preme Court said no, that the act meant just what it said; and that the shipowner was still liable for unseaworthiness, no matter how diligent he was. And that is the law to-day, excepting that this section, as I understand it, has been construed as evidencing a change in the public policy of this country, so as to permit the shipowner, by contract, to stipulate for exemption from unseaworthiness not resulting from any lack of due diligence on his part. But the act of itself does not produce this result. It only permits the owner to make a contract to that effect.

The history of this act is rather interesting. My understanding is that it was passed at the instance of the Western millers and grain merchants, who complained bitterly that British shipowners were inserting clauses in their bills of lading that freed them from all responsibility, and that the poor shippers and consignees had no rights whatever. They got Congress aroused about it, and Congress passed this act. Now it seems that the British and other shipping interests were very ably, not to say adroitly, represented in Washington at this time, and they managed to steer the course of this legislation in a very clever way, with the result that the act really does not impose any new obligation upon the shipowner at all, but gives him exemptions which he never had before.

It has always been the public policy of this country that a common carrier could not exempt himself from liability for the negligence of his servants, and any contract purporting to do this was void. But this act, after solemnly stating in the first two sections that the shipowner cannot exempt himself from liability for certain kinds of negligence of himself and his servants (which he could not do anyway under the law as it then stood) goes on to provide that in certain other cases the shipowner shall

be exempt from the liability which previously rested upon him. Which, I think, was very clever work on somebody's part, in view of the way the law started. And this law has been the great bulwark of the foreign shipownerin fact, of all shipowners-in contesting liability for cargo losses; because there is no other law under which the shipowner can obtain exemption from liability for the negligence of his servants, and by complying with the conditions laid down in this law he can claim such exemption.

Now, this law differs from the Act of 1851 in a number of important particulars. In the first place, this law applies only to the shipowner's obligations to the cargo; it does not say so, but that is the meaning the courts have read into it, and that is what it means to-day as construed by the courts. The act of 1851, on the other hand, applies to damage or loss of whatsoever kind-personal injury, collision with another vessel, etc.

The second difference I have already adverted toi.e., that the Harter Act, in so far as it applies, gives an absolute exemption from liability instead of limiting the liability like the Act of 1851.

The third distinction, which is very important to bear in mind in connection with these two acts, is that the duties imposed upon the shipowner under the Act of 1893 cannot be delegated. In other words-to go back to the case I put a little while ago the fact that the owner appointed a competent servant to attend to the loading of the fuel oil on the ship does not help the owner under this act; it gives him a right to limitation under the Act of 1851 (in the absence of a personal undertaking on his part), but it does not help him under the Harter Act, because under the Harter Act the duties imposed must actually be performed by somebody. The due diligence must be actually exercised, not merely by a superior, but by the man who actually does the work.

A fourth difference, of some importance, is that under

the Act of 1893, the conditions laid down in the opening lines of the third section are an absolute condition precedent to the enjoyment of the benefits subsequently conferred. In other words, there need be no casual relation between any lack of due diligence and the damage complained of; and it does not help the owner to show that his lack of due diligence had no possible connection with the damage.

ADDRESS OF ROSCOE H. HUPPER

(of the New York Bar)

Pleadings and Procedure

GENTLEMEN: I was speaking with an old friend of mine the other day, and he said to me that he understood that I was going to say a few words up here some time this week, and I said yes. He wanted to know what it was about, and I said that the subject was pleading and procedure in admiralty. He remarked that there wasn't any such thing. I said that was almost true, I was bound to admit, but nevertheless, there was a method in admiralty to get your rights, and it was called pleading and procedure and there is just about enough to it to enquire about. Necessarily what I say will be only an outline.

There is one special thing which will characterize it, if you wish to compare it with common-law practice, and that is, that it is simple in comparison. The pleadings are simple and the motions we go through are few; the results are reached comparatively quickly and without over much pain or trouble. There is almost an entire absence of preliminary motions and appeals; the object of the practice and the inevitable result of it is that you get justice provided you once go to trial, and of course that can only be prevented by perverseness of your opponent or by crowded calendars.

My idea is to tell you something about the different pleadings and the course of trials. The very first thing we have is the libel. There is no sinister significance attached to that word. The word "libel" in this case comes from the Latin "libellus" meaning merely a little book,

and it holds exactly the same position that the complaint does at common law, or the declaration. There are certain rules laid down by the Supreme Court of the United States, what are called the Admiralty Rules, concerning the form of pleadings. With respect to libels they say that you must state the nature of the cause, whether it is a contract or damage, and it must be civil and maritime. If your libel is in personam, you must show where the libellant and respondent reside, and what their business is. If it is in rem, you must show that the vessel is within the district, which is a condition precedent to jurisdiction.

Libels, as I have indicated, are either in rem or in personam. A libel in rem you can bring only where there is a maritime lien, so-called, against the thing which you libel. The basis of the maritime lien is in some instances a little difficult to determine. But if you ever have difficulty on that point, you can consult Mr. Hickox. Without a maritime lien, you cannot proceed in rem. You should not libel a ship for breach of contract of affreightment if she has not entered upon the charter party or has not given a bill of lading.

The libel in personam is very simple. It lies in every contract case and you can libel in personam almost always where you can libel in rem. Your libel must allege the jurisdiction. You are exclusively in the federal courts, which are of limited jurisdiction. You must show that there is jurisdiction. The allegation is simple; namely, to the effect that all and singular the premises are true and within the admiralty and maritime jurisdiction of the United States and this honourable court.

The libel concludes with a prayer-in the case of a libel in rem that process may duly issue against the vessel or against the goods, and that the court will make a decree for the libellant and condemn the vessel or the goods. With the libel in personam, the prayer is that process shall issue citing the respondent to appear and answer on oath all and singular the premises.