interest,17 but not the appointment of receivers of the property of the owners because of insolvency when the insurers are the real parties in interest.18 § 602. Answer in proceedings for the limitation of liability. The owner may contest his liability, or the liability of his vessel, on the merits, for the damage claimed, independently of the limitation provided by the statutes. In such case he must state in his libel or petition the facts and circumstances by reason of which he claims exemption from liability and give a bond for costs. Any person claiming damages who has presented his claim to the commissioner pursuant to the monition may file an answer to the petition contesting the right of the petitioner either by an exemption or to a limitation of liability.2 No answer can be filed until the claim has been filed.3 The answer must be full and explicit and distinct to each separate article and separate allegation. If the party answering is uninformed in the premises, he may so state, and thus raise an issue without admission or denial; but a denial must be founded on information, and, possessing this the pleader must state the facts accordingly, either positively or upon information and belief." Since the ship-owner has the burden of proving that the act of negligence of those in charge of his vessel, which caused the damage, was without his privity or knowledge, it has been said that a denial of such an allegation is unnecessary, but it is the safer practice to include one. Where the claimant interposes such a denial with the intention of raising an issue of fact and offering evidence thereupon, he should specify the acts which he contends established the privity or knowledge of the petitioner. In the absence of such an allega tion, the respondents are entitled to cross-examine any witnesses called by the petitioner to prove seaworthiness or want of privity or knowledge. The question whether a subsequent statute, such as the Employers' Liability Act, has removed a class of persons from the previous statutory right, must, it has been said, he raised by a plea in bar and is waived by an answer upon the merits.10 The respondents have been allowed. to raise affirmative issues between themselves upon questions of negligence. Interrogatories may be annexed to the answer; but it has been held that the petitioner may refuse to answer when the purpose of an interrogatory is to show that he violated a statute, which imposes a penalty.13 12 § 603. Trial of proceedings for limitation of liability. On the issues thus joined, the parties proceed to trial. The liability of the petitioner may be denied in toto. The court first tries the case on the merits, and if it finds the petitioner liable for the loss or damage claimed, then tries the question of the petitioner's right to a limitation under the statutes.2 The issue of a vessel's liability to the claimants must be raised by separate issues, in conformity with the general requirements applicable # to" claimant's intestate, which chinery, and equipment" were SO 9 35 St. at L. 65. 10 The Passaic, 190 Fed. 644, 649. 11 The Adah, 245 Fed. 378. 12 La Bourgogne, 104 Fed. 823, a most inequitable decision. See supra, § 581. 18 Ibid. § 603. 1 The O'Brien Bros., 252 Fed. 185. 2 Re Davidson S. S. Co., 133 Fed. 411. See La Bourgogne, 106 Fed. 232, 233. By Adm. Rule 57, S. D. N. Y., the issues are not heard until the publication of the monition, unless otherwise ordered. 6 to pleadings in admiralty. The petitioner has the burden of proof to establish his lack of knowledge or privity; but proof upon this point may be waived by the respondents. He has the burden of proof to establish seaworthiness, including overloading. The proof, required in support of the petition, that any liability incurred with, or without the privity or knowledge of the petitioner does not reach the subsequent issue of liability of the vessel for individual claims sought to be proved. The right to contest this is reserved to the petitioner. This issue should be presented by appropriate pleadings conforming to the general practice in admiralty. The claimant is required to allege and prove a cause of action as in an original suit. Where a decree dismissing a petition for the limitation of liability was reversed and the cause remanded with instructions to adjudicate the rights of the parties and to take such proceedings as were not inconsistent with the opinion of the court of review; it was held that this merely established the right to limitation and that the claimant must prove that she had a right to recover and to what extent. Where the liability of the petitioner has been adjudicated in a previous suit, that cannot be contested in a proceeding for a limitation of the same.10 A judgment upon a claim, entered before the proceedings are instituted, is res adjudicata; 11 but a verdict previously rendered is merely advisory; 12 although it has been said that it should be followed by the court, unless it appears to be excessive.1 Re Davidson S. S. Co., 133 Fed. 411, 412. 4 The Benjamin Noble, C. C. A., 244 Fed. 95, affirming 232 Fed. 382. This may be established by circumstantial evidence. The Annie Faxon, C. C. A., 75 Fed. 312, 317. 5 White v. Island Transportation Co., 233 U. S. 346. 6 The Benjamin Noble, C. C. A., 244 Fed. 95. 7 Ibid. 8 Re Davidson S. S. Co., 133 Fed. 411. 9 The Tommy, 168 Fed. 563. 10 The Maria and Elizabeth, 12 Fed. 627; Monongahela River Con 13 sol. Coal & Coke Co., C. C. A., 200 12 The City of Boston, 159 Fed. 257, 182 Fed. 174; The Revere, 191 Fed. 253. 18 The City of Boston, 159 Fed. 257, 182 Fed. 174. A motion to consolidate proceedings for the limitation of lia bility, begun independently by the owners of each of two vessels in collision, was denied, 14 but it was held that upon the appointment of a commissioner to take proofs of claims for damages in the proceedings, the owner of the other vessel should be brought in by notice, since he was liable to contribution if the claim was established and enforced.15 Where a District court has acquired jurisdiction of a prcceeding for limitation of liability for a claim for damages on which the owner has sued in another district, the claimant cannot defeat such jurisdiction by appearing specially and offering or attempting to reduce the amount of his claim below the appraised value of the vessel and her pending freight.16 A decree in admiralty in proceedings for limitation of liability adjudging the rights of the parties and referring the cause to a commissioner to take testimony on claims for damages is reviewable on an appeal taken after the entry of a final decree on the commissioner's report although the time for taking an appeal from the first decree has expired, such decree being in its nature interlocutory.17 It has been held that when the petition is denied the court must dismiss the proceeding leaving the claimants free to pursue their remedies elsewhere or in other proceedings and has no jurisdiction to proceed further.18 § 604. Summary proceedings to collect sailors' wages. The Revised Statutes provide that "the master or owner of every vessel making voyages from a port on the Atlantic to a port on the Pacific, or vice versa, shall pay to every seaman his wages within two days after the termination of the agreement, or at the time such seaman is discharged, whichever first happens; and in the case of vessels making foreign voyages within three days after the cargo has been delivered, or within five days after the seaman's discharge, whichever first happens; and in all cases the seaman shall, at the time of his discharge, be entitled to be paid on account a sum equal to one-fourth part of the balance 14 The City of Boston, 182 Fed. 171. 15 Ibid. 16 The John K. Gilkinson, 150 Fed. 454. 17 La Bourgogne, 210 U. S. 95, 52 Fed. 973, affirming on this point C. C. A., 139 Fed. 433. See § 695, infra. 18 Quinlan v. Pew, C. C. A., 56 Fed. 111; The Erie Lighter 108, 250 Fed. 490, 493. due to him. Every master or owner who neglects or refuses to make payment in manner hereinbefore mentioned, without sufficient cause, shall pay to the seaman a sum not exceeding the amount of two days' pay for each of the days, not exceeding ten days; during which payment if delayed beyond the respective periods; which sum shall be recoverable as wages in any claim. made before the court. But the section shall not apply to the masters or owners of any vessels the seamen on which are entitled to share in the profits of cruise or voyage.' 11 "No wages due or accruing to any seaman or apprentice shall be subject to attachment or arrestment from any court; and every payment of wages to a seaman or apprentice shall be valid in law, notwithstanding any previous sale or assignment of wages, or of an attachment, incumbrance, or arrestment thereon; and no assignment or sale of wages, or of salvage, made prior to the accruing thereto, shall bind the party making the same, except such advantage securities as are authorized by this Title." "No sum exceeding one dollar shall be recoverable from any seaman, by any one person, for any debt contracted during the time each seaman shall actually belong to any vessel, until the voyage for which such seaman engaged shall be ended.' "Whenever the wages of any seaman are not paid within ten days after the time when the same ought to be paid according to the provisions of this Title, or any dispute arises between the master and seaman touching wages, the district judge for the judicial district where the vessel is, or in case his residence be more than three miles from the place, or he be absent from the place of his residence, then any judge, or justice of the peace, or any commissioner of a Circuit court, may summon the master of such vessel to appear before him, to show cause why process § 604. 1 U. S. R. S., § 4536. See The Ocean Spray, 4 Sawyer, 105; Covert v. The Brig Wexfords, 3 Fed. 577; Moore v. Neafle, 3 Fed. 650; The Minna, 11 Fed. 759 and note; The Ole Oleson, 20 Fed. 384; The Modoc, 20 Fed. 398; The Wanderer, 20 Fed. 655; Thorson v. Peterson, 14 Fed. 742; Boulton Moore, 14 Fed. 922; The Pacific, 18 Fed. 703; Marsland v. The Yose V. mite, 18 Fed. 331; Black v. The Louisiana, 2 Pet. Adm. 268. In S. D. N. Y., Adm. Rules 51 and 52 authorize summary proceedings in all cases where the matter in demand does not exceed fifty dollars and regulate the practice of the same. 2 U. S. R. S., § 4536. |