Gambar halaman
PDF
ePub

VOL. 2.

upon failure of the party to comply with the order, may award an attachment or other compulsory process to compel obedience thereto."

To those not familiar with admiralty jurisprudence, this rule may not be altogether intelligible; but it is not supposed to have been intended to introduce any new, or essentially to modify any existing form of procedure. Maritime privileges or liens are not restricted to the particular thing to which they originally attached, but adhere to and may be enforced against its proceeds. There may be ground to apprehend that these will become dissipated, or that the person in whose hands they may happen to be may become insolvent. It may on this account be the interest both of the libellant and of the claimant to have such proceeds brought into court; and this is equally true of freight in the hands of the shipper or consignee, when that is the fund out of which payment is sought. There are instances in which the freight or proceeds "are bound by the suit." It often happens, moreover, that the same thing is subject to several coexistent liens; and where an admiralty suit is resorted to for the enforcement of any one of them, all other persons having similar liens are entitled to intervene for the purpose of obtaining satisfaction; but the property originally arrested may be insufficient for this purpose, and it may be necessary to bring under power of the court "freight, or other proceeds of property, attached to the suit." Justice to the libellant, as well as, at other times, to those who intervene for their interest, may require this to be

the

done; for it may happen that their claims are of CHAP. 5. a nature entitling them to priority over his.

It is proper to add, that the form of proceeding specified in this rule is resorted to for the enforcement of a final decree, when it is to be satisfied out of freight or proceeds. Thus in a case in the English admiralty, where three bottomry bonds had been given, one on the ship and freight, and two on the ship, freight and cargo, the court, in pronouncing judgment in favor of the bondholders, decreed "a monition against the several owners of the cargo, to bring in their proportions of the freight and accounts of the value of their goods(a)."

Rule applicable also to final process.

enforced.

The proper mode of "requiring the party charged How to appear and show cause," in all cases, is by decreeing a monition to that effect(b).

One of the powers exercised by courts of admiralty, in proceedings in rem, is that of decreeing a sale, pendente lite, of the thing proceeded against, when from its nature or condition it is likely to become worthless or of greatly diminished value, if kept under arrest until the termination of the suit; and vessels have always been considered to be subject to this power. The process in virtue of which such sales are made, is a warrant of sale; and as it is issued in pursuance of an interlocutory order of the court, it properly falls under the denomination of mesne process. This power in regard to perishable goods, is declared by the tenth rule as follows: "In

(a) The Radamanthe, 1 Dodson's R., 201, 209.

(b) See Sheppard v. Taylor, 5 Peters's R., 675 (9 Curtis's Decis. S. C., 531).

Sale, pengoods, and

dente lite, of perishable

of vessels.

[ocr errors]

VOL. 2. all cases where any goods or other things are arrested,

Sale of ships, pendente lite.

if the same are perishable, or are liable to deterioration, decay or injury, by being detained in custody pending the suit, the court may, upon the application of either party, in its discretion order the same, or so much thereof to be sold, as shall be perishable or liable to depreciation, decay or injury, and the proceeds, or so much thereof as shall be a full security to satisfy the decree, to be brought into court, to abide the event of the suit."

The sale, pendente lite, of property seized and prosecuted in behalf of the United States for infractions of the revenue laws is expressly provided for by an act of Congress passed April 5, 1832(a). The rule was unnecessary, therefore, for this purpose. The cases most likely to call for its application, in this form of action, are those of salvage.

The tenth rule does not appear to have been intended to embrace vessels; but this species of property is separately provided for by the next succeeding rule, as follows: "In like manner, where any ship shall be arrested, the same may, upon the application of the claimant, be delivered to him upon a due appraisement to be had under the direction of the court, upon the claimant's depositing in court so much money as the court shall order, or upon his giving a stipulation with sureties as aforesaid; and if the claimant shall decline any such application, then the court may in its discretion, upon the application of either party, upon due

(a) 4 Stat. at Large, ch. 66.

cause shown, order a sale of such ship, and the CHAP. 5. proceeds thereof to be brought into court, or otherwise disposed of as it may deem most for the benefit of all concerned."

It will be seen that ships are subject to the power of sale without reference to their particular condition. This distinction is in accordance with long established usage, although the proceeding for the purpose of obtaining the order or decree of sale is commenced in the English admiralty by what is denominated a perishable monition. All vessels are in fact subject to constant deterioration by time, and it is moreover for the interests of commerce that they should be actively employed. "Ships,"" it is said, "are made to plough the ocean, and not to rot at the dock."

SECTION III.

PROCESS IN REM AND IN PERSONAM.

When the right of action is against the master as well as against the ship, a suit in the admiralty may, in some cases, be maintained jointly against both. It seems to be a familiar practice in the High Court of Admiralty of England, to proceed in this form for the recovery of seamen's wages; and by the Rules of Practice in cases of admiralty and maritime jurisdiction, it is declared that for mariners' wages, for pilotage, and for damage by collision, the libellant may proceed against the ship and master(a).

(a) See Appendix; Rules XIII., XIV., XV.

VOL 2.

To be by warrant

of arrest in personam.

In one of the precedents given in Marriott's Formulary, the warrant of arrest against the ship contains a further command to arrest also the master(a).

The usual practice in the English High Court of Admiralty, as described by BROWNE, is, as we have seen(6), to insert in the monition which accompanies the warrant of arrest, the name of the master, and to direct the marshal to summon him in particular; although the precedent given in Marriott's Formulary of a warrant against the ship, when the suit is against that alone, contains no command to cite the master specially, but only the general one to cite "all persons in general (c)." The form mentioned by BROWNE is, however, in use in this country, especially in suits for seamen's wages; and sometimes there is a special citation to the owners also. But in speaking of this practice, the learned judge of the United States for the District, of Maine justly observes: "Yet the master does not become technically a party in the cause, but by appearing, answering, and taking upon himself the defence. It is sometimes said, in a loose sense, that all the world are parties to a libel in rem; but by this general language, nothing more is meant than that all who have an interest in the thing may make themselves parties by filing their claims, and are therefore bound by the decree so far as they have an interest in the thing. None, however, are parties,

(a) Marriott's Formulary, 328.

(b) Vide supra, p. 150.

(c) Marriott's Formulary, 326.

« SebelumnyaLanjutkan »