causes of action. Vaughan v. Six Hundred and Thirty Casks of Sherry Wine, 7 Ben. 506. 80. (July, 1875.) A libel against a canal-boat alleged that she was engaged in transporting goods on the navigable waters of the port of New York, and was in need of advances to enable her to prosecute her business; and that the libellant, at the request of her master and owner, advanced money to pay necessary towage bills and bills for materials, whereby the boat was enabled to earn freight. The owner excepted to the libel for insufficiency. Held, that the libel did not state facts sufficient to entitle the libellant to a lien on the boat. The Canal-Boat William A. Harris, 8 Ben. 210. 81. Mere advances of money to the owner of a vessel do not create a lien on her in favor of the lender, in the absence of any agreement for a lien upon the vessel, though the money be applied to the payment of liens upon the vessel. 1b. 82. (Dec., 1879.) Although the libel did not allege that the master had made efforts without success to procure advances on the credit of the vessel, yet, as it averred that he, having no other means of procuring the money, borrowed the money on bottomry after duly and publicly advertising therefor, and the libel had not been excepted to, the objection to the libel for not containing that allegation had been waived. The Bark Edward Albro, 10 Ben. 669. 83. (May, 1841.) The libel should always show the jurisdiction of the court. Boon v. The Hornet, Crabbe, 426. 84. (1856.) Where a libel is filed to enforce a lien upon a domestic vessel, it must be distinctly set forth in the libel by what municipal regulation or state law such lien is conferred. Parmlee v. The Propeller Charles Mears, Newb. Adm. 197. 85. Where a libel is filed to enforce a lien under the general maritime law, such facts must be set forth in the libel as, if proven, would satisfy the court that the vessel was a foreign vessel at the time the lien attached. Ib. 86. When a libel is filed to enforce a lien against a vessel before she is actually employed in navigation, the libel must show that the vessel is of the size and build fitted for maritime employment, and that her business was to be maritime navigation upon. the lakes or high seas. Ib. 87. Whatever are deemed material and sufficient averments in a libel upon the seaboard to give jurisdiction would be considered the same upon the lakes. Ib. 88. (June, 1854.) Parties to suits in admiralty must be bound by their allegations and proofs, and the former, to be effectual, must be sustained by the latter. Kramme v. The Ship New England, Newb. Adm. 481. 89. When the allegations of the libel are not sustained by proof, the libel will be dismissed. Ib. 90. (March, 1855.) The case presented by the pleadings in a cause is the only one to which testimony can be directed, and the only one upon which the court can be called to adjudicate. Soule v. Rodocanachi, Newb. Adm. 504. 91. In a case of damage to cargo, where the libel alleges the fault of the master to be, (1) that he falsely represented his vessel to be tight, staunch, and seaworthy, and (2) that the damage resulted from the master's carelessness, negligence, and improper conduct, the libellant cannot claim another specific ground of complaint not set up in the libel, as that the damage was caused by the fault of the master in not putting into some other port to repair his vessel and take measures to preserve his cargo. Ib. 92. (June, 1874.) The allegations and proofs must coincide; and the court cannot consider evidence not in accordance with the issues made by the parties. The Morton, 1 Brown, 137. 93. (Sept., 1873.) An omission to state in the libel a material fact peculiarly within the knowledge of the opposite party, as that one of the colliding vessels was improperly manned, will not. be allowed to work an injury to the libellant, if the court can see that there was no design on his part in omitting to state it. The Coleman & Foster, 1 Brown, 456. 94. (Aug., 1873.) A libel which is sufficient under the general maritime law is sufficient in cases arising upon the lakes, and no averment is required to bring it within the Act of 1845. The Illinois, 1 Brown, 497. 95. It is unnecessary to aver that the vessel in question is engaged in navigation, or capable of being so employed. Ib. Rule 24.- Amendment of Informations and Libels. 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, upon motion, at any time before the final decree, upon such terms as the court shall impose. And where any defect of form is set down by the defendant upon special exceptions, and is allowed, the court may, in granting leave to amend, impose terms upon the libellant. 1. (Feb., 1813.) An informal libel or information in rem may be amended by leave of the court. Brig Caroline v. United States, 7 Cranch, 496. 2. (Feb., 1813.) A libel may be amended after reversal for want of substantial averments. Schooner Anne v. United States, 7 Cranch, 570. 3. (Jan., 1841.) An amendment in a case in the admiralty before the Court of Appeals cannot introduce a new subject of controversy, although the most liberal principles prevail in such cases. Houseman v. Schooner North Carolina, 15 Pet. 41. 4. (Dec., 1865.) A libel in rem against a vessel and personally against her master, may properly, under the present practice of the court, be joined. And if the libellant have originally proceeded against vessel, master, owners, and pilot, the libel may, with leave of the court, be amended so as to apply to the vessel and master only in the way mentioned. Newell v. Norton & Ship, 3 Wall. 257. 5. (May, 1812.) Amendment by inserting a new substantive. offense disallowed, the statute of limitations having run against it. Schooner Harmony, 1 Gall. 123. 6. (Sept., 1859.) In admiralty the name of any party who has lost his interest in the suit can, on a proper application, be stricken from the record. The Falcon, 4 Blatchf. 367. 7. (Oct., 1819.) The court, proceeding under the civil law, will not allow a party to be surprised by evidence materially variant from the case stated in the pleadings, but will allow an amendment; yet, if the statement of the case be not such as can mislead the party, the court will proceed to a decree. Crawford v. The William Penn, 3 Wash. 484. 8. (1870.) The District Courts have an undoubted power, in the exercise of a sound judicial discretion, to permit a libel to be amended. United States v. One Hundred and Twenty-three Casks of Distilled Spirits, 1 Abb. U. S. 573. 9. If an application to amend a libel proposes to introduce a new cause of action, it is usual to allow the amendment when the new cause of action corresponds in character and is kindred innature to that presented in the original libel; but if the amendment introduces a new substantive cause of action and a new charge against the defendant, it is disallowed. Ib. 10. A libel of information was filed under a section of the statute imposing punishment for disposing of property subject to internal revenue tax in fraud of the revenue laws. The government applied for leave to amend by adding a count founded on another section of the statute, which imposed punishment on a manufacturer, &c., who should neglect to make returns of his manufactures to the proper revenue officer. Held, that this was substantially a new charge and that the leave must be refused. Ib. 11. (Sept., 1827.) A libel may be amended on motion by striking out unnecessary and impertinent allegations. American Ins. Co. v. Johnson, 1 Blatchf. & H. Adm. 9. 12. (April, 1846.) The case of Reed v. Canfield (1 Sumn. 202), considered and doubted. When objections are made, at the hearing, to the want of proper form in the pleadings or proceedings, apparent upon their face, the court will permit an amendment to be made therein instanter. Nevitt v. Clarke, Olc. Adm. 316. 13. The court can also, at discretion, allow amendments to the merits in the pleadings at any stage of the cause prior to a final decree. Ib. 14. (Jan., 1848.) After a full hearing and the decision of the court that the action is not sustained by the proofs as the pleadings stand, it is competent for the court to permit parties to amend their pleadings so as to embrace the merits of the case. Davis v. Leslie, Abb. Adm. 123. 15. (Feb., 1849.) In answer to a libel for wages, the claimants set up a stipulation in the shipping articles in bar of the recovery. The libellant served a replication in the usual form, but contended, upon the trial, that the stipulation relied upon was void. Held: 1 See Rule 51. (1.) That, so far as the claim to treat the stipulation as void might rest upon any matters outside the stipulation itself, the question was not raised by the general replication; but the libellant ought, either by an amendment of the libel or by a special replication,2 to have introduced into the pleadings averments contesting or avoiding the apparent bar contained in the stipulation. (2.) That the question whether the stipulation was void in point of law in itself considered, and apart from any extraneous facts might be raised on the general replication, and should be considered as if it had arisen upon demurrer or exception to the answer. The Atlantic, Abb. Adm. 451. 16. (Feb., 1868.) Where a libel had been dismissed on exception, but leave had been given to amend, and a new libel was filed setting out a valid cause of action, but adding a second cause of action, which was substantially a repetition of the first libel which had been dismissed, - Held, that this was an irregular and improper mode of pleading, and the libel must be dismissed, as not within the spirit of the order giving leave to amend. The Steamship Circassian, 2 Ben. 171. 17. (Nov., 1870.) A libel against a tug for sinking a barge by towing her on a sunken pier charged that the existence of the sunken pier was known to the tug, and that, instead of avoiding it, the tug towed the barge upon it, but did not aver that it was done negligently, and the answer averred that the accident was not the result of any negligence on the part of the tug, and the case was tried on those pleadings. Held, that the libellant might amend the libel by averring negligence, and thus accepting the issue tendered by the claimant, and the issue which was in fact tried. The Steamboat Deer, 4 Ben. 352. 18. (Aug., 1878.) The master of a vessel filed a libel against the cargo to recover freight and demurrage claimed under a charter and bill of lading. The consignee of the cargo, who had sold the cargo and had no interest in it, intervened and gave bonds for the cargo when it was seized under the process. The cargo had been delivered to the purchaser without notice of any claim of lien for freight, and after the consignee had signed an agreement to pay $150 demurrage, and the consignee in his answer admitted that he was liable for the amount of freight due, 1 See Rule 51. 2 Ib. 3 Ib. |