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for its enforcement." Whether this affects the exclusive jurisdiction previously given to consuls by treaties has not been decided. It is constitutional, and certainly applies to all other foreign ships and seamen.10 Ordinarily, a court of admiralty will not take jurisdiction of the claim of a foreign seaman against a foreign vessel, on which he is enrolled, unless it is necessary to prevent a failure of justice.12 It may in its discretion refuse to entertain a suit by foreign seamen against a foreign ship for short allowance and bad provisions in foreign waters, 18 and for wages when their employment has not terminated and the result would be a detention of the vessel.14 But where the libelant was a citizen of the United States, who signed in one of our ports after his discharge, the libel will be entertained.15 Where one of several sailors was a citizen of the United States, the court of admiralty took jurisdiction of the claims of all, when they were entitled to a discharge which had not been given them, the duration of their employment being a disputed question.16

§ 561. Libel. The first step in an admiralty suit is the filing of the libel with the clerk of the District Court. Until this is done process will not issue.1

The form of the libel varies in the several districts with the methods of pleading adopted in the respective States, not by force of any rule of law or statute, but by a natural process of adaptation. The Supreme Court, in its Admiralty Rules, has, however, laid down certain positive rules of pleading. "All libels in instance causes, civil or maritime, shall be on oath or solemn affirmation and shall state the nature of the cause, as, for example, that it is a cause, civil and maritime, of contract, or a tort or damage, or of salvage, or of possession, or otherwise, as

8 The Epsom, 227 Fed. 158.

9 Ch. 153, § 4, 38 St. at L. 1164. 10 Strathearn S. S. Co. v. Dillon, 252 U. S. 348.

11 The Albani, 169 Fed. 220; The Ester, 190 Fed. 216.

12 Ibid; The Bank Lillian M. Vigus, 10 Benedict 385, 7 Fed. Cas. 8,346.

13 The Gloria de Larrinaga, 196 Fed. 590.

14 Slocum v. Western Assur. Co., 42 Fed. 235. But see The August Belmont, 153 Fed. 639.

15 The August Belmont, 153 Fed. €39.

16 The Falls of Keltie, 114 Fed. 357.

§ 561. 1 Adm. Rule 1.

the same may be; and, if the libel be in rem, that the property is within the district; and, if in personam, the names and places of residence of the parties so far as known. The libel shall also propound and allege in distinct articles the various allegations of fact upon which the libelant relies in support of his suit, so that the respondent or claimant may be enabled to answer distinctly and separately the several matters contained in each article; and it shall conclude with a prayer for due process to enforce his rights in rem, or in personam, as the case may be, and for such relief and redress as the court is competent to give in the premises." 2

Libels of information are regulated by a different rule 3 and are discussed in a subsequent section. The libel must expressly state the facts upon which the jurisdiction in admiralty depends. These need not be stated in such clear and positive language as to defy technical or hypercritical attacks. If the language is sufficiently clear to convey to men of average intelligence engaged in the particular artcraft, profession or business to which it relates the idea sought to be expressed, it is sufficient to meet the legal requirements. It was held, that an averment, that a boat was discharging freight consigned to a place, was equivalent to an allegation that this freight was then being discharged thereat.8 It is the safer practice to allege specifically that the waters where the cause of action arose are navigable.9

2 Adm. Rule 22.

3 Adm. Rule 21. The Falls of Keltie, 114 Fed. 357. See The August Belmont, 153 Fed. 639, and supra, § 25.

4 Infra, § 606.

5 The Whisper, 268 Fed. 464, 466. As to the insufficiency of allegations showing that the libelant had an interest in the property injured which entitled him to recover. See Minturn v. Alexandre, 5 Fed. 117. Allegations that the owner of a dredge hired another dredge and a barge from libelant to assist such dredge in its work and failed to pay the hire, and that through the negligence of such charterer the

barge was sunk, do not establish a maritime lien. which will, support à suit in rem against the dredge. The Dixie, 236 Fed. 607.

6 The Whisper, 268 Fed. 464, 466. For what is required to identify goods that have been damaged. See The Anchoria, 9 Fed. 840. As to what is a sufficient allegation of negligence by the master. See The Anaces, 93 Fed. 240.

7 The Whisper, 268 Fed. 464, 466. 8 Ibid.

9 Admiralty Rule 22. But see Lands v. A Cargo of Two Hundred and Twenty-seven Tons of Coal, 4 Fed. 478.

If the proceeding is in rem, the libel must allege that the property proceeded against is within the. district.10 This does not oust the court of jurisdiction where the vessel was within the district when the libel was verified, departs before it is filed, returns after the filing, and is then seized on an alias monition.11 Where the persons charged in a libel in personam reside in different districts of the same State, the suit may be brought in either district.12 When the libelants are all foreigners the nationality of the ship should ordinarily be stated.13 If in personam, it must set forth the names, occupations, and places of residence of the parties.14

Naming the libelant by the initials of his Christian name was held not to be a defect in the libel.15 Where a party is a corporation, that fact should be stated in the libel.16

In its substantial, as distinguished from formal, allegations the libel follows the analogies of equity. The general rules of pleading apply to suits in admiralty.17 It is sufficient for the libel to allege with reasonable certainty the essential facts which show a legal duty, a default therein and a result of injury, of which the default is a proximate cause.18 Where the cause of action arises from a written contract it has been said that the contract should be annexed to the libel or a legal excuse given for its omission.19 A libel in personam, for a collision or other tort, should state specifically that the respondent was the owner or in control of the vessel at the time when the libelant was injured.20 A libel for damages, because of a breach of contract,

10 Adm. Rule 22.

11 The Queen of the Pacific, 61 Fed. 213; s. c., Bancroft-Whitney Co. v. The Queen, 78 Fed. 155.

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

13 The Falls of Keltie, 114 Fed. 357, 359.

14 Adm. Rule 22.

15 Hardy v. Moore, 4 Fed. 843.

16 Sun Mut. Ins. Co. v. Missis

sippi V. Tr. Co., 14 Fed. 699.

17 Jolivet v. City of Seattle, 226 Fed. 963.

18 Ibid.

19 Sun Mut. Ins. Co. v. Missis

sippi V. Tr. Co., 14 Fed. 699; Card v. Hines, 33 Fed. 189. But see Chamberlain v. The Torgorm, 46 Fed. 202. Where a contract reserving shipping space was made by libelant as broker, and provided that he would furnish certificates of readiness of shipper, it was held that an amended libel for breach of contract, which alleged that libelant was the shipper was inconsistent with the contract, and did not state a cause of action. Overseas Shipping Co. v. Struthers & Dixon, C. C. A., 265 Fed. 612.

20 The Consair, 145 U. S. 335, 36

should point out the manner in which any special damages that are claimed arose.21 A libel which charges improper navigation is sufficient if it correctly states the essential facts, although it fails to give the proper interpretation thereof or the correct scientific reason for the result.22

A libel filed to enforce a lien or cause of action which does not then exist will be sustained after the lien or cause of action comes into existence.23 There will be no reversal for a misjoinder of causes of action in a libel, when one of the causes of action has been dismissed, either on exception or a final hearing 24

The libel should conclude with a prayer specifying the relief 25 and the form of process.26

Ordinarily, there is no objection to the recovery by the libelant of more damages than his libel claims; 27 and where the allegations in the answer, when considered in connection with those in the libel, show a cause of action different from that pleaded and prayed, the proper relief will be granted.28 In general, the testimony offered by the libelant must conform to the allegations in the libel.29 Courts of admiralty are always liberal in

L. ed. 727; Danace v. The Magnolia, 37 Fed. 367.

21 The Oscoda, 66 Fed. 347. 22 Kelley Island Lime & Transp. Co. v. City of Cleveland, 144 Fed. 207.

23 Clark v. Five Hundred and Five Thousand Feet of Lumber, C. C. A., 65 Fed. 236; s. c., 70 Fed. 1020; Munson S. S. Line v. Glasgow Nav. Co., C. C. A., 235 Fed. 64. 24 The S. L. Watson, C. C. A., 118 Fed. 445.

25 Adm. Rules 21, 22.

26 Adm. Rules 21, 22.

27 The Gazelle, 128 U. S. 474, 32 L. ed. 496.

28 Deming v. The Rapid Transit, 52 Fed. 320, where libelant was allowed to shift his claim, from damages upon a contract of affreightment to a demand for general average.

29 The Ogeecher, 248 Fed. 803. That upon a libel in rem by laborers claiming wages they cannot recover for services as salvors or lightermen, The Sarah E. Kennedy, 29 Fed. 264. That unless the libel is amended wages cannot be recovered for services performed at a date prior to that alleged in the libel. Pinkham v. Rutan, 31 Fed. 496. That demurrage for detention subsequent to the filing of the original libel may in a proper case be recovered under a supplemental libel, Eight Hundred and Forty-one Tons of Ore, 25 Fed. 864. And that when a penalty is demanded against a vessel upon grounds not set forth in the libel, the demand will be ignored. The Pope Catlin, 31 Fed. 408.

the construction of pleadings.80 It is immaterial whether the libel counts upon contract or tort.31 A description of the suit. as one for damages combined with allegations of negligence does not prevent a recovery upon contract.32 Evidence of negligence not specifically pleaded has been admitted.33

The libel should be signed by the proctor, as the attorney for the libelant is usually termed.34 The libel should be verified.35 It is the safer practice for all the libelants to verify the libel; 36 but a defect in the verification, when not objected to in the trial court, cannot be availed of upon appeal.37 If the libelant is absent from the district, his agent or attorney may verify the libel.38

§ 561a. Joinder of causes of action in libel. Great liberality is allowed in the joinder of different causes of action in the same libel in admiralty. A court of admiralty may, in its discretion, permit the joinder in the same libel of claims in contract and tort.1 It seems that causes of action in rem and in personam may be joined in a libel whenever they arise out of the same transaction or are otherwise so connected that it will promote the cause of justice or conduct to the convenience of the court and the party to have them tried together. It has been said. that in no case under the Admiralty Rules promulgated by the Supreme Court can proceedings, in rem and in personam be

30 The Gwynedd, C. C. A., 228 Fed. 177.

31 Rainey v. N. Y. & P. S. S. Co., C. C. A., 216 Fed. 449; Dittmar v. Frederick Starr Contracting Co., C. C. A., 249 Fed. 437. But it has been held: that there can be no recovery for tort upon a libel which sets up an express contract only, Hays v Pittsburgh G. & B. Packet Co., 33 Fed. 552.

32 Dittmar V. Frederick Starr Contracting Co., C. C. A., 249 Fed.

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Adm. Rule 1, S. D. N. Y. As to the practice in the Ninth Circuit, see Northwestern S. S. Co. v. Ransom, C. C. A., 174 Fed. 913.

36 Northwestern S. S. Co. v. Ransom, C. C. A., 174 Fed. 913. 37 Ibid.

38 But see Tibbol v. The Marion, 79 Fed. 104. As to signature by the libelant or his attorney, see Hardy v. Moore, 4 Fed. 843. Cf. § 494,

supra.

§ 561a. 1 Welch v. Fallon, 181 Fed. 875.

2 The St. David, 209 Fed. 985; The Dawn, 212 Fed. 564; Benedicton's Admiralty [3d ed.] § 397. See supra § 142.

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