year.16 Where the proceeds are insufficient to satisfy all claims, any claimant with a lien may upon suitable terms as to costs be permitted to answer and resist another claim or oppose the right of the holder thereof, to a priority, although the latter has been previously allowed and even after an interlocutory decree.17

§ 590a. Costs in admiralty. The subject of costs in admiralty has been previously discussed.1 Since this discussion in the preceding volume the following Admiralty Rules have been promulgated: "If costs shall be awarded by the court to either or any party then the reasonable premiums or expense paid on all bonds or stipulations or other security given by that party in that suit shall be taxed as part of the costs of that party.' "Traveling expenses of any witness for more than one hundred miles to and from the court or place of taking the testimony shall not be taxed as costs." 3

72

§ 591. Libel of review. A court of admiralty may entertain a libel of review to correct its decree after the expiration of the term, where the petitioner is shown to be free from fraud or negligence, and the decree was entered through such fraud, accident or mistake, as would entitle the party to relief in equity.1 It has been said that mere negligence or oversight will not be sufficient; but that a direct case of fraud, or something equivalent thereto, must be shown. This relief was granted where the clerk, without the knowledge of the judge or counsel, entered a decree dismissing the libel, in accordance with an oral statement by the judge that he intended to dismiss the same, and the time for appeal had expired before discovery of the entry of

16 The John J. Freitus, 252 Fed. 876.

17 The Samuel Little, 206 Fed. 687; The Priscilla, 215 Fed. 282. "A judgment entered on a decision of the Circuit Court of Appeals, sustaining as a preferred lien the claim of the salvor of a vessel as against the claims of personal representatives of those who lost their lives in the accident, is not a conclusive adjudication against the claims of life salvors, who saved life at the time of the accident."

§ 590a. 1 Supra, §§ 411, 418. 2 Adm. Rule 7. See supra, § 419c. 3 Adm. Rule 47. See supra, § 419. $591. 1 Snow V. Edwards, 2 Lowell, 273, Fed. Cas. No. 13,145; Munks v. Jackson, 66 Fed. 571, 13 C. C. A. 641; The Columbia, 100 Fed. 890; Hall v. Chisholm, C. C. A., 117 Fed. 807. See supra, § 451. See § 568.

2 The New England, 3 Sumner, 495, Fed. Cas. No. 10,151; N. W. Car Co. v. Hopkins, 4 Bissell, 51, Fed. Cas. No. 10,334.

that decree. When the proceeds of a sale are still in the registry of the court, in a proper case a libel of review may be filed to reach them.4

§ 592. Appeals. Since the Evarts Act of March 3, 1891, an appeal may be taken from the final decree of a District Court in admiralty to the Circuit Court of Appeals irrespective of the amount involved. The decision of the Circuit Court of Appeals is final in all admiralty cases, except that it may certify to the Supreme Court any questions of law concerning which it desires instruction, or the Supreme Court may itself require by certio rari or otherwise such a case to be certified to it for review and determination.2 From the final sentences and decrees in prize cases, irrespective of the amount involved, appeals are taken immediately to the Supreme Court of the United States. What are final decrees is discussed in the concluding chapter. When a dispute which was not within the jurisdiction of admiralty

3 Hall v. Chisholm, C. C. A., 117 Fed. 807.

4 U. S. v. One Case Chemical Compound, 203 Fed. 63.

§ 592. 1 Jud. Code, § 128, 36 St. at L. 1087, re-enacting 26 St. at L. 826, 6; The Robert W. Parsons, 191 U. S. 17, 33, 48 L. ed. 73, 80. See Chapter on Writs of Error and Appeals, infra.

2 Ibid. The writ is frequently issued in cases of admiralty. See § 689, infra.

3 Jud. Code, § 238, 36 St. at L. 1086, re-enacting 26 St. at L. 828, 85; The Paquete Habana, 175 U. S. 677, 44 L. ed. 320.

4 §695, infra. It has been held that the following decrees in admiralty are final and appealable. A decree dismissing a claim for a portion of the property libeled. Withenbury v. U. S., 5 Wall. 819, 18 L. ed. 613. An order dismissing a petition by the claimant of a vessel, libeled and sold for salvage, which prayed the petitioner's right to the fund be summarily determined under Adm. Rule 43 and

that he be allowed to withdraw the same upon substituting a bond. The Chief, C. C. A., 142 Fed. 349. An order denying a motion to set aside and satisfy a decree in favor of a libelant against a steamer, its claimant and a surety on a bond for the release of the res. Carroll v. Davidson, C. C. A., 152 Fed. 424. An order releasing a vessel from arrest under a libel in rem. The Attualita, C. C. A., 238 Fed. 909. A decree adjudging that the petitioner was entitled to a limitation of liability, declaring that one class of claims could not be proved against the fund and referring all other claims to the commissioner for proof. La Bourgogne, 210 U. S. 95, 112, 52 L. ed. 973, 982; s. c., C. C. A., 144 Fed. 781. An order granting a decree against the charterer upon a libel by the subcharterer of a boat and dismissing a petition by the latter to bring in a man who had executed the charter party as managing owner who had answered setting up res adjudicata. Cuneo Importing Co. v. American

was tried before an admiralty court without objection the decree was treated upon appeal as a decree in admiralty where the facts could be reconsidered and not as a trial at common law before a judge without a jury."

All parties against whom a joint decree is entered must join in the appeal except such as have been asked so to do and have refused, in which case such request and refusal must appear upon the record. Such was held to be the case where joint and several decrees had been entered against the claimant and the surety upon its bond."

Importing & T. Co., C. C. A., 247 Fed. 413. An order in such a proceeding enjoining claimants of damage from bringing suits where it appeared that the appellant's claim would be barred by the State Statute of Limitations before the petitioner's right to a limitation of liability could be determined. Oceanic Steam Navigation Co., C. C. A., 204 Fed. 259. An order in such a proceeding denying a petition to establish a preferred lien. Great Lakes Towing Co. v. St. Joseph-Chicago S. S. Co., C. C. A., 253 Fed. 635.

Re

The following decrees in admiralty were held not final, and consequently not appealable: A decree of restitution with costs and damages, when the court had taken no action on the report of the commissioners appointed to ascertain the damages before the appeal was taken. The Palmyra, 10 Wheat. 502, 6 L. ed. 376. A decree on a libel in personam, for damages to be recovered, which appointed commissioners to ascertain the amount of the damages. Chace v. Vasquez, 11 Wheat. 429. A decree stating that the sum claimed by a petitioner was due from the fund in court, but that since the fund might not satisfy all claims, no order for payment would be made until further

advised. Montgomery v. Anderson, 21 How. 386. A decree upon a libel claiming the condemnation of a schooner and cargo, which condemned the schooner, but made no mention of the cargo. Dayton v. U. S., 131 U. S. lxxx., and 18 L. ed. 169. A decree dismissing a crosslibel when jurisdiction was retained over the original libel and the questions arising thereupon was not determined, Bowker v. U. S., 186 U. S. 135, 46 L. ed. 1090. A decree dismissing a petition to bring in another party as indemnitor when there has been no determination of the issue as the claimant's liability. Oneida Nav. Corp. v. Job & Co., 252 U. S. 521. An order in a proceeding for limitation of liability which denied a motion to dismiss the petition and to vacate an order restraining the prosecution of action in a State court. The Transfer No. 21, C. C. A., 218 Fed. 636. But see supra, § 300.

5 U. S. v. James W. Elwell & Co., C. C. A., 250 Fed. 939. See supra,

474.

6 Masterson v. Herndon, 10 Wall. 416, 19 L. ed. 953; The Bylanders, C. C. A., 231 Fed. 101; infra, § 697.

7 The Bylands, C. C. A., 231 Fed. 101. Contra, The Glide, C. C. A., 72 Fed. 200.

An order or decree disallowing a claim against the proceeds of a sale cannot be reviewed, except on an appeal by the claimant. In a suit for wages by the master of a vessel against the owner and insurers, the only controversy was as to the ownership of the vessel during the time libelant's services were rendered; the owner claiming to have abandoned her to the insurers, and the insurers denying such abandonment. The court dismissed the libel as to the insurers and entered a decree in favor of libelant against the owner, who alone appealed. It was held that he was entitled to maintain such appeal and to a review of the decision as between himself and his correspondents.9 Where cross-suits between the same parties, one in the Circuit Court and one in the District Court in admiralty, were by agreement tried together on the same evidence, but separate judgments were entered in each court, it was held that a subsequent order of the trial judge finding that the causes were consolidated into admiralty case was not sufficient to effect a nunc pro tunc consolidation, and the judgment which remained of record in the Circuit Court was not reviewable on an appeal taken in the admiralty suit.10 Although a decree dismissing a libel in admiralty by a charterer to recover damages for breach of charter party was erroneous, it was not reversed, further than to award costs to the libelant, where with his acquiescence a portion of the damages claimed by him were proved and allowed as a set-off in a cross-action brought against him by the owners in another court, and no proceedings have been prosecuted to review the judgment in such action.11

Appeals must be taken within six months after the entry of the final decree.12 But the rules of the District Courts fix the time in which if the appellant wishes to stay execution, an appeal must be taken.18

8 Henderson V. Kanawha Dock Co., C. C. A., 185 Fed. 781. Part of the claimants for damages who have intervened in a proceeding cannot ordinarily maintain a separate appeal from a decree limiting liability without procuring a severance from the others. Short v. The Columbia, C. C. A., 67 Fed. 942.

9 Hume v. Frenz, C. C. A., 150 Fed. 502.

10 S. P. Shotter Co. v. Larsen, C. C. A., 134 Fed. 705.

11 Ibid.

12 Act of March 3, 1891, ch. 517, § 11, 26 St. at L. 829.

13 In the New York and New Jersey districts 'the appellant has

An appeal is usually taken by the service of a brief notice in writing on the clerk of the District Court and the proctor for the adverse party of the intention of the appellant to appeal. The practice on appeals in admiralty is now analogous to the former practice on appeal from the Circuit Courts to the Supreme Court, rather than from the District to the Circuit Courts. The rules of the Circuit Courts of Appeals as to supersedeas and cost bonds, citations, docketing cases, dismissals of appeals, printing records and briefs, motions, arguments, rehearings, costs, and mandates apply as well to admiralty as to equity.14

The findings of the trial judge will not be disturbed by an appellate court upon mere questions of fact depending upon the credibility of witnesses who testify before him, unless there is found to be a decided preponderance of evidence to the contrary.15 Findings based solely on the preponderance of the evidence are open to review and consideration de novo by the appellate court.16 Where the testimony was taken by deposition, the former rule does not apply.17 When an award for salvage is proper, its amount will rarely be reviewed.18 Questions of discretion, such as the reopening of a case for further proof, are rarely reviewed.19 Where the decree directed the payment of

ten days from the entry of the final decree. In Connecticut twelve.

14 The Admiralty rules of the Court of Appeals for the Second Circuit, provide that an appeal may be taken by filing in the clerk's office and serving on the proctor of the adverse part a simple notice of appeal, security in the sum of two hundred and fifty dollars for costs to be given within ten days after filing the notice (I, II). They allow the appellant to appeal from a part only of the decree (III). They also regulate the contents and form of the apostles or transcript, and the briefs (IV, XV).

15 Reed v. Weule, C. C. A., 176 Fed. 660; Peterson v. Larsen, C. C. A., 177 Fed. 617; Philadelphia & G. S. S. Co. v. McCauldin, C. C. A.,

202 Fed. 734; Philadelphia, B. & W. R. Co. v. Southern Transp. Co., 205 Fed. 732; The Samson, C. C. A., 217 Fed. 344; Louisiana Excursion Co. v. Gidionsen, C. C. A., 217 Fed. 751; The Elenore, C. C. A., 217 Fed. 753; The A. G. Brower, C. C. A., 220 Fed. 648. But see The Mason, C. C. A., 249 Fed. 718. 16 The Fin MacCool, C. C. A., 147 Fed. 123. See infra, §§ 503,

582.

17 The Santa Rita, C. C. A., 30 L.R.A. (N.S.) 1210, 176 Fed. 890; Oelwerke Teutonia v. Erlanger, 248 U. S. 521.

18 The Kia Ora, C. C. A., 252 Fed. 507; The Kanawha, C. C. A., 254 Fed. 762.

19 The I. F. Chapman, C. C. A., 241 Fed. 836.