covered evidence is a common ground for such applications by the parties to the controversy and it is not unusual for the court to order further proofs on its own motion.5 Since an admiralty case is heard de novo on appeal, there is the same power to order further proofs in the appellate as in the district court. § 1289. Final record to contain what. In admiralty causes, only the process, pleadings, and decree, and such orders and memorandums as may be necessary to show the jurisdiction of the court and regularity of the proceedings, shall be entered upon the final record. R. S. § 750, U. S. Comp. Stat. 1901, p. 591. This provision was first enacted in 18537 and specifies also equity causes. 8 Final record as provided for by it is intended to answer the purpose of the enrollment of the decree under the former chancery practice. No final record is required where there has been no adjudication between the parties except in cases where there has been an adjudication of costs to the officers; in such cases record should be made.9 The provision should be complied with strictly and the fact that the process, pleadings and decrees are recorded in the district court is no reason for omitting them from the record of the circuit court on appeal.10 The final record must correspond with the judgment record of the common law.11 Provisions as to record on appeal in admiralty are given in a subsequent chapter.12 5 See The Francis Wright, 7 Ben. thaler, 93 Fed. 307. See also Blain 88, Fed. Cas. No. 5,044. v. Ins. Co. 30 Fed. 667. 7Act, Feb. 26, 1853, c. 80, § 1, 10 Stat. 163. 8 Ante, § 1100. Consolidated, etc. Co. v. Detten 10 The Thomas Fletcher, 24 Fed. 481. 11The Thomas Fletcher, 24 Fed. 481 Blain v. Ins. Co. 30 Fed. 667. 12See post, 1958 et seq. CHAPTER 40. PROCEEDINGS FOR LIMITATIONS OF LIABILITY. § 1298. In what district limitation of liability proceedings to be had. § 1299. Libel or petition for limitation of liability. Order for payment of owners' interest into court or equivalent. § 1300. § 1301. § 1302. Order restraining further prosecution of suits. § 1303. Proof of claims and pro rata payment. § 1304 Legal liability for claims presented, or right to exemption, may be contested. § 1305. Preceding rules to apply on appeal. § 1298. In what district limitation of liability proceedings to be had. The said libel or petition [i. e. for limitation of liability as provided in rule 541] shall be filed and the said proceedings had in any district court of the United States in which said ship or vessel may be libeled to answer for any such embezzlement, loss, destruction, damage, or injury; or, if the said ship or vessel be not libeled, then in the district court for any district in which the said owner or owners may be sued in that behalf. When the said ship or vessel has not been libeled to answer the matters aforesaid, and suit has not been commenced against the said owner or owners, or has been commenced in a district other than that in which the said ship or vessel may be, the said proceedings may be had in the district court of the district in which the said ship or vessel may be, and where it may be subject to the control of such court for the purposes of the case as herein before provided. If the ships have already been libeled and sold, the proceeds shall represent the same for the purposes of these rules. Fifty-seventh Admiralty Rule, as amended April 22, 1889.2 The 57th rule was originally promulgated May 6, 1872.3 The amendment of 1889 consisted in the addition of the sentence beginning "When 1Post, § 1299. 2130 U. S. 705. 313Wall. xiv. the said ship or vessel has been libeled," etc. The rules regarding limitation of liability are undoubtedly valid. The court of the district in which the vessel is found or libelled or owners are sued, is the proper one in which to obtain the limited liability decree.5 An owner who fails to institute proceedings until after a suit has been brought by the loser must commence them in the same district court as that in which such suit is brought. In case of total loss at sea where no district court has or can have any fund to distribute, resort may probably be had to the courts of the district in which the owners reside, or where the vessel perished, if within any district. In case where a vessel was lost at sea and part of the wreckage washed ashore the filing of a libel in the district of the port to which the vessel was bound was held sufficient to give the court jurisdiction, although it did not appear that the remnants of the wreck were within that district.9 The proceedings may be instituted in a district where a fund representing the lost vessel is in litigation, although the petitioners reside in another district. 10 While the statute provides that “any court of competent jurisdiction"11 may take cognizance of the proceedings, this means any district court; 12 and not the circuit courts.13 The latter have no jurisdiction in such cases except formerly on appeal.14 The Supreme Court, however, on reversing a decree of the circuit court directed that further proceedings for securing a limited liability be had in the circuit instead of the district court.15 Jurisdiction under the section is conferred by the filing of the libel or petition by the owners, with offer to give stipulation; 19 and is in its nature exclusive. 20 The presence of the vessel is not necessary to the court's jurisdiction. Nor is jurisdiction lost when the vessel has been released on stipulation and has gone out of the jurisdiction of the court.2 Limitation of liability may be allowed although the liability sought to be enforced by the losers arises under a State law.3 Where the ship owners seeking to limit their liability, have surrendered only one of two vessels held by the court to be liable, the court has power to seize the other, and such is the proper and only equitable course when the suits by the libel 4 Providence, etc. S. S. Co. v. Hill. Mfg. Co. 109 U. S. 578, 27 L. ed. 1038. 3 Sup. Ct. Rep. 379, 617. 5 Providence, etc. S. S. Co. v. Hill Mfg. Co. 109 U. S. 598, 27 L. ed. 1038, 3 Sup. Ct. Rep. 379, 617; see also In re Morrison. 147 U. S. 33, 37 L. ed. 67, 13 Sup. Ct. Rep. 246. 6The Alpena, 8 Fed. 280, 10 Biss. 9Ex parte Slayton, 105 U. S. 451, L. ed. 60, 13 Sup. Ct. Rep. 246. 26 L. ed. 1066. 10In re Leonard, 14 Fed. 53. 3 Butler v. Boston, S. S. Co. 130 U. S. 527, 32 L. ed. 1017, 9 Sup. Ct. Rep. 612. ants have been delayed, and the ship's owners have become insolvent.4 The fact that the claimant has been paid less than the stipulated value of the vessel does not oust the court of jurisdiction, where claimant's original claim was greater than its value.5 So also where the claims have been subsequently reduced, so that the amount stipulated for by the owners is less than the total claims, the court still has jurisdiction.6 § 1299. Libel or petition for limitation of liability. When any ship or vessel shall be libeled, or the owner or owners thereof shall be sued, for any embezzlement, loss, or destruction by the master, officers, mariners, passengers or any other person or persons, of any property, goods, or merchandise shipped or put on board of such ship or vessel, or for any loss, damage or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture done, occasioned, or incurred, without the privity or knowledge of such owner or owners, and he or they shall desire to claim the benefit of limitation of liability provided for in the third and fourth sections of the act of March 3, 1851, entitled, "An act to limit the liability of shipowners and for other purposes," now embodied in §§ 4283 to 4285 of the Revised Statutes, the said owner or owners shall and may file a libel or petition in the proper district court of the United States, as hereinafter specified, setting forth the facts and circumstances on which such limitation of liability is claimed, and praying proper relief in that behalf.[a]-[c] First part of 54th Admiralty Rule, as amended Jan. 26, 1891.7 [a] Procedure in general. The 54th rule was originally promulgated May 6, 1872.8 The amendment changed the portion of the rule given above, only in the mode in which the limited liability act is referred to and identified. The remainder of the rule is given in the three following sections.9 The power of the Supreme Court to promulgate this and the following rules regarding limitation of liability has been frequently affirmed.10 The owner may institute proceedings to obtain limited liability without waiting for suit,11 and the right exists whether the suit be in rem or in personam, and irrespective of subsequent reclaiming and repair of ship.12 Limitation of liability may be claimed in the answer to a pending suit; 13 or it may be claimed by an independent proceeding for surrender of ship or payment into court of the value thereof.14 If set up as a defense in the answer there is no need of payment of money into court or surrender of the vessel, but the owners may plead exemption and have decree taken against them for the then value of the ship and freight.15 In cases of total loss the pleading of the limitation by way of answer is generally the best mode of proceeding.16 When two or more more parties having distinct claims against the owners of the vessel, are brought into proceedings for limitation of liability a decree awarding different claims to the several claimants is several as to them, and any of them may appeal without making the others parties or notifying them.17 [b] Time for commencing action. Just how long the owner may wait after suit is brought against him is difficult to determine.18 Certainly relief should not be granted to him under the limited liability act except on the condition of his compensating the other party for losses caused by his delay.19 Suit to limit liability may be commenced after suit for damages has been filed,20 and even after decree has been rendered. In such case, however, the question of liability of the ship owner is res adjudicata and cannot be revived.2 Where full satisfaction has been obtained against the owner proceedings to limit liability will not be allowed.3 In collision cases where both vessels are in default proceedings to limit liability cannot be brought until the balance of damage has been struck.4 [c] Knowledge and privity. In general knowledge and privity of the person in charge of the vessel is not such knowledge and privity within the meaning of the above section as will effect the right of the owner to limited liability. The master's knowledge of defective rigging cannot be imputed to the owner so as to effect his right to limited liability; 8 nor can employee's negligent in 13 The Scotland, 105 U. S. 34, 26 L. ed. 1001; Craig v. Continental Ins. Co. 141 U. S. 645, 35 L. ed. 888, 12 Sup. Ct. Rep. 99; The Rosa, 53 Fed. 135. 14 The Great Western, 118 U. S. 525, 30 L. ed. 156, 6 Sup. Ct. Rep. 1172. See post, § 1300. 15 The Doris Eckhoff, 41 Fed. 156; The Scotland, 105 U. S. 34, 26 L. ed. 1001; The Rose Culkin, 52 Fed. 328. 16 Providence S. S. Co. v. Hill Mfg. Co. 109 U. S. 594, 27 L. ed. 1038, 3 Sup. Ct. Rep. 379, 617. 17 Short v. The Columbia, 73 Fed. 226, 19 C. C. A. 436. 18 The Benefactor, 103 U. S. 245, 26 L. ed. 351. 19 The Benefactor, 103 U. S. 245. 26 L. ed. 351. See also The Ocean Spray, 117 Fed. 971. 20In re Meyer, 74 Fed. 881. 1The City of Norwich, 118 U. S. 489, 30 L. ed. 134, 6 Sup. Ct. Rep. 1150; Gleason v. Duffy, 116 Fed. 298, 54 C. C. A. 100. 2The Mary and Elizabeth, 12 Fed. 627. 4 The North Star, 106 U. S. 17, 27 L. ed. 91, 1 Sup. Ct. Rep. 41. 7 Craig v. Continental Ins. Co. 141 U. S. 646, 35 L. ed. 886, 12 Sup. Ct. Rep. 97. 8Quinlan v. Pew, 56 Fed. 115, 5 C. C. A. 438. |