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against the vessel. In some the vessel is arrested under the first libel, and the others come in by petition. In some districts, after a certain time all the claims are referred to a commissioner, to ascertain and report their relative rank. In others, in the event of no contest, a decree is entered at the return day, or as soon thereafter as possible, giving petitioners a judgment against the vessel, and directing a sale. It is impossible to lay down any rule on the subject. In the Eastern district of Virginia the practice is that all claims filed up to the answer day are paid according to their relative character, it matters not which libels first. But all claims after the answer day, though otherwise prior in dignity, come in subject to those already filed. In that district the rule has been that claims coming in after a decree has been entered, and an order of sale made, are subject to the others, the reason being that the rules of that district allow nearly three weeks between the libel day and the answer day, which therefore give ample time for coming in, and it being further thought that bidders at the sale ought to know their relative rights in order to enable them to decide upon their bids. Those creditors who stay out until others more diligent than themselves bring suit, secure a sale, attend the sale, and make the vessel bring a good price, are not permitted to intervene then, and displace those who have borne the heat and burden of the fray.

In the absence of special equities, the rule of practice in the Eastern district of Virginia would certainly seem a fair one, well calculated to make vessels bring their full value, and to make marine claimants assert their claims seasonably, without allowing them to prejudice the rights of oth

ers.44

44 See, also, Saracen, 2 W. Rob. Ad. 453; Bradley v. Corn Exchange, Inland Navigation & Fire Ins. Co., 5 Wall. 87, 18 L. Ed. 517; Dode (D. C.) 100 Fed. 478; James G. Swan (D. C.) 106 Fed. 94.

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204.

Enforcing Decrees.

205. The Fifty-Ninth Rule.

206. The Courts having Admiralty Jurisdiction.

207. The Process of Appeal.

208.

Questions of Fact on Appeal.

209. New Evidence.

SIMPLICITY OF ADMIRALTY PROCEDURE

189. Admiralty procedure is like chancery pleading in simplicity and flexibility.

Admiralty pleading and practice are simple; more so even than proceedings in chancery, though governed largely by the liberal principles which prevail in that forum.1

§ 189. 1 Richmond v. New Bedford Copper Co., 2 Low. 315, Fed. Cas. No. 11,800; Toledo S. S. Co. v. Zenith Transp. Co., 184 Fed. 391, 106 C. C. A. 501; U. S. v. Cornell Steamboat Co., 202 U. S. 184, 26 Sup. Ct. 648, 50 L. Ed. 987.

By this it is not meant that an admiralty court has any chancery jurisdiction. It has no jurisdiction, for instance, of matters of account, except incidentally, where an account is necessarily involved in exercising jurisdiction conferred on some other ground."

Nor has it jurisdiction of controversies arising from titles merely equitable.3

190. PROCEEDINGS IN REM AND IN PERSONAM

Admiralty proceedings fall under two great classes-proceedings in rem and proceedings in personam. In the first, the thing itself against which the right is claimed or liability asserted is proceeded against by name, as a contracting or offending entity, arrested or taken into legal custody, and finally sold to answer the demand, unless its owner appears and releases it by bond or stipulation.

A proceeding in personam is an ordinary suit in admiralty against an individual. The process upon it is a monition, which substantially corresponds to an ordinary summons in a common-law suit, or it may be accompanied in proper cases by a process of foreign attachment, or it may also have a warrant of arrest of the person in cases where the state law permits an arrest.*

The distinction between a proceeding against the res itself to enforce its own obligation and a proceeding against the owner to enforce his own obligation, whether connected with the res or not, and whether accompanied by an attachment as incidental to the owner's liability or not is vital." Whether to proceed in rem or in personam in a given case

2 Grant v. Poillon, 20 How. 162, 15 L. Ed. 871; H. E. Willard (C. C.) 52 Fed. 387.

8 ECLIPSE, 135 U. S. 599, 10 Sup. Ct. 873, 34 L. Ed. 269.

§ 190. 4 Admiralty rule 48 (29 Sup. Ct. xliv); Atkins v. Fiber Disintegrating Co., 18 Wall. 272, 21 L. Ed. 841.

5 Knapp Stout & Co. Co. v. McCaffrey, 177 U. S. 638, 20 Sup. Ct. 825, 44 L. Ed. 921.

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is rather a question of substantive law than of practice. It depends on the question whether there is an admiralty lien, and the discussion under the previous subjects of these lectures must be adverted to in order to decide it. Admiralty rules 12-20 contain provisions when the suit may be in rem, when in personam, and when in both. But they are not intended to be exclusive, or to say that in cases not covered by their terms there shall be no remedy, whether in either form or in both combined."

"Proceedings in Rem Bind the World"

It is a maxim of the law that proceedings in rem bind the world. In such proceedings no notice is served on the owner. It is presumed that a seizure of his property will soon come to his knowledge, and cause him to take steps to defend it; and when he appears for that purpose he comes in rather as claimant or intervenor than as defendant. Hence, if he does not appear, the judgment binds only the property seized, and, if it does not satisfy the claim, no personal judgment can be given against him for the deficiency. In ordinary suits of foreign attachment in the state courts, the debtor is defendant by name, and, if he appears, a personal judgment may be rendered against him; but not so in admiralty suits in rem, for the real defendant there is the vessel or other property, and the owner appears not as defendant, but as claimant."

It follows from this principle that when an owner comes in for the purpose of protecting his interest in the res, he does not submit himself generally to the jurisdiction of the court so as to permit a judgment in personam against him for any deficit. This springs logically from the doc

• CORSAIR, 145 U. S. 335, 12 Sup. Ct. 949, 36 L. Ed. 727; Thomas P. Sheldon (D. C.) 113 Fed. 779; Samson (D. C.) 197 Fed. 1017.

Cooper v. Reynolds, 10 Wall, 308, 19 L. Ed. 931; O'Brien v.. Stephens, 11 Grat. (Va.) 610; Davis, 10 Wall. 15, 19 L. Ed. 875; Pleroma (D. C.) 175 Fed. 639.

HUGHES, ADM. (2D ED.)-26

trine applied in America that the res is the real contractor or offender, and that the owner's interest is incidental.

Herein is a sharp distinction between the American and English law. In England a respondent is really a defendant, and judgment goes against him for any deficiency.

This was because the procedure in rem in England was in its origin not based on any theory of direct responsibility attaching to the res, but as a means of compelling the owner's appearance. Their process to this day, though naming the ship and not the owners in terms, commands them to enter an appearance, and the arrest of the ship follows as an incident.1

When the maxim says that a proceeding in rem binds the world, it means that all having any interest in the res have constructive notice of its seizure, and must appear and protect their interest. Hence, as every obligation implies a correlative right, no one is bound to appear whose interest is of a character which does not permit him to appear; and such are not bound by the proceeding, except in so far

8 Monte A. (D. C.) 12 Fed. 331; Ethel, 66 Fed. 340, 13 C. C. A. 504; Lowlands (D. C.) 147 Fed. 986; Nora (D. C.) 181 Fed. 845. In the Minnetonka, 146 Fed. 509, 515, 77 C. C. A. 217, is a holding that a personal decree can be rendered against the claimant. It was a suit which might have been brought originally in rem and in personam, though it was apparently in rem. Hence an amendment adding the proceeding in personam and directing the issue of new process thereon would have been clearly allowable. But how this could have been done without such an amendment, or how it can be done in cases where the procedure could not have been in rem and in personam at the outset, is beyond the author's comprehension. CORSAIR, 145 U. S. 335, 12 Sup. Ct. 949, 36 L. Ed. 727. • Gemma, [1899] P. 285; Dupleix, [1912] P. 8.

102 Select Anglo-American Legal Essays (Mears' Essay) 345. In Mayer's Admiralty Law & Practice, 9 et seq., and also 26 et seq., is a thorough discussion of the difference between the English and American doctrine, and the reason therefor. In the appendix to Smith's Admiralty Law and Practice is a full collection of the English forms.

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