the libelant's proctor. It must be full, explicit, and distinct to each separate allegation of the libel in the same order as numbered in the libel. It must be verified, except where the amount involved is less than $50.1

The answer may set up defenses by way of counter-claim, but no affirmative judgment can be obtained by the claimant or respondent without filing a cross-libel.2

Contributory negligence is not a bar to a recovery in admiralty. In collision cases, where both vessels are found guilty of fault contributing to the collision, and only one of them is injured, the libelant recovers one-half of his damages; where both vessels are injured, the damages suffered by the two vessels are added together and equally divided, and the vessel which suffers most recovers one-half the difference between the amounts of their respective losses. In cases of tort other than collision the same rule has frequently been applied; but, although the Supreme Court has held that in such cases contributory negligence does not bar a recovery, it has not determined whether the decree should be for exactly one half of the damages sustained, or might, in the discretion of the court, be for a greater or less proportion of such damages.5

There is no statutory limit of time in which suits in admiralty must be brought. Laches is, however, a valid defense, the delay which will defeat a suit depending in every case upon the peculiar equitable circumstances of the case."

$408. 1 Adm. Rules 27 and 48. In the Southern District of New York all answers must be verified. See Burrill v. Crossman (C. C. A.), 69 Fed. R. 747; Virginia Home Ins. Co. v. Sundberg, 54 Fed. R. 389. After general appearance and an answer upon the merits it is too late to move for a dismissal because of a misnomer in the libel and monition. Mina v. I. & V. Florio S. S. Co., 23 Fed. R. 915. A plea to the jurisdiction may be combined with an answer to the merits. Inman v. The Lindrup, 70 Fed. R. 718. New matter set up as a defense should be articled and pleaded separately and not blended with the response to any article of the libel. The Whistler, 13 Fed. R. 295.

2 The Reuben Doud, 3 Fed. R. 520. It was held, under a plea that the libelant, a pilot, after signaling an offer of services, had pulled down } his signal and sailed away, that the' respondent could not prove that other pilots had offered their services at the same time, and that it would have put the vessel to serious inconvenience if it had taken the libelant. Marshall v. The Earnwell, 68 Fed. R. 228. See also White v. The Renaier, 45 Fed. R. 773.

3 The Max Morris, 137 U. S. 1. 4 The North Star, 106 U. S. 17. 5 The Max Morris, 137 U. S. 1. 6 The Key City, 14 Wall. 653; Southard v. Brady, 36 Fed. R. 560. Courts of Admiralty are not bound by the

"When the defendant, in his answer, alleges new facts, these shall be considered as denied by the libelant, and no replication, general or special, shall be filed unless allowed or directed by the court on proper cause shown. But within such time after the answer is filed as shall be fixed by the District Court, either by general rule or by special order, the libelant may amend his libel so as to confess and avoid, or explain, or add to, the new matters set forth in the answer; and within such time as may be fixed, in like manner, the defendants shall answer such amendments."7

$409. Tender.-A tender made before suit is of no avail as a defense unless, on suit brought, it is deposited in court. When a tender is first made after suit brought, it must include interest up to the next term of the court and the taxable costs then accrued.

§ 410. Exceptions - Amendments.- Pleadings may be excepted to for surplusage, irrelevancy, impertinence, or scandal. Either party may also except to the sufficiency, fullness, or definiteness of the pleading. Exceptions should specify clearly the

State Statutes of Limitation. Pacific Coast S. S. Co. v. Bancroft-Whitney Co. (C. C. A.), 94 Fed. R. 180. In the absence of special circumstances they will usually follow the analogy of the rule prevailing in courts of common law; and they will not dismiss a libel in personam for a delay of less than six years. Bailey v. Sundberg (C. C. A.), 49 Fed. R. 583. Where, however, a vessel had been in the possession of innocent purchasers for two years, it was held too late to file a libel in rem because of a collision four years before. See also The Robert Gaskin, 9 Fed. R. 62; Nesbit v. The Amboy, 36 Fed. R. 925. But see The Alaska, 33 Fed. R. 107; Metcalfe v. The Alaska, 130 U. S. 201; Pacific Coast S. S. Co. v. Bancroft-Whitney Co. (C. C. A.), 94 Fed. R. 180; Jones v. The Carrie, 46 Fed. R. 796. Libels in personam were held to have been barred after nine years. Coburn v. Factors' & Tr. Ins. Co., 20 Fed. R. 644. And after eight and

a half years. Scull v. Raymond, 18 Fed. R. 547. A delay of less than a year was held to bar a libel in rem for supplies, when, in the mean time, the vessel had been bought by strangers in good faith and without notice, and the vendor had become insolvent. Magee v. The Lyndhurst, 48 Fed. R. 839. Laches may be a ground for postponing the lien of a materialman to that of subsequent creditors of the boat. The Thomas Sherlock, 22 Fed. R. 253. But see Starin v. The John Dillon, 46 Fed. R. 527. It has been said that the defense of laches cannot be raised unless pleaded in the answer. The Shadyside, 23 Fed. R. 721.

7 Adm. Rule 51, as amended January 27, 1896; 160 U. S. 693.

§ 410. Adm. Rules 28, 30. An affidavit cannot be considered upon the hearing of an exception to a libel. Prince Steam Shipping Co. v. Lehman, 39 Fed. R. 704. The courts will, however, then consider facts not

parts excepted to. The party against whom the exceptions are taken should notify the other side that he submits to them, or else notice them for hearing before the court. If the defendant's exceptions are overruled, he must file his answer within such time as the court allows. Where exceptions are peremptory, as, for example, to the jurisdiction, if they are sustained, judgment may be entered in favor of the successful party; if not peremptory, the pleading excepted to must be amended. Exceptions to a libel should be filed on return of process. The time within which exceptions to an answer must be filed is determined by the rules of practice of the several districts.2

Great freedom of amendment is allowed in admiralty In matters of form, pleadings may be amended at any time, on motion, as of course; in matters of substance they may be amended at any time before the final decree upon such terms as the court shall impose.3

§ 411. Cross-libel.- A defendant cannot recover an affirmative judgment without filing a cross-libel;1 and the practice of stipulating that the answer in the original suit operate as a cross-libel has been expressly disapproved by the Supreme Court.2

Whenever a cross-libel is filed upon any counter-claim arising out of the same cause of action as that for which the orig

pleaded of which they may take judicial notice. The Seminole, 42 Fed. R. 924; supra, §§ 106, 264. See also U. S. v. The Haytian Republic, 57 Fed. R. 508.

2In the New York districts the libelant has four days from the filing of the claim or answer in which to except thereto. It has been held that where exceptions to an answer were drawn with several specifications, the failure to sustain any specification was fatal to the exception, The Intrepid, 42 Fed. R. 185; and that exceptions to an answer for insufficiency and impertinence cannot be taken to the same matter either conjunctively or disjunctively. The Whistler, 13 Fed. R. 295. As to exceptions to answers, see Todd v. Tul

chen, 2 Fed. R. 600; The Dictator, 30 Fed. R. 699; The City of Salem, 10 Fed. R. 843; Morgan L. & T. S. S. Co. v. De Arrotegui, 25 Fed. R. 624.

3 For cases when amendments to libels were disallowed, see The Iona (C. C. A.), 80 Fed. R. 933; The Keystone, 31 Fed. R. 412; New Haven S. D. Co. v. The Mayor, 36 Fed. R. 716. For a case where an amendment to an answer was disallowed, see The Horace V. Parker (C. C. A.), 74 Fed. R. 640.

§ 411. 1 The Reuben Doud, 3 Fed. R. 520; The Nadia, 18 Fed. R. 729. As to the matters which may be set up by a cross-libel, see The Highland Light, 88 Fed. R. 296.

2 Ward v. Chamberlain, 21 How. 572.

inal libel was filed, the respondents or claimants, as the case may be, must give security in the usual amount and form to respond in damages as claimed in the cross-libel, unless the court on cause shown shall otherwise direct.3 Upon application to the court, all proceedings upon the original libel will be stayed until such security is given.*

§ 412. Interrogatories.- Interrogatories may be annexed either to the libel1 or to the answer. They must be answered under oath by the adverse party, unless to answer them would expose him to prosecution or penalty for crime, or to forfeiture of his property for a penal offense. The party interrogated may object to the interrogatories on the ground of irrelevancy or impertinence, or on any ground for which exceptions to a pleading are permitted. The defendant must answer the interrogatories at the same time that he files his answer. The time within which the libelant must answer interrogatories annexed to an answer is determined by the rules or practice of the several districts. In default of due answer to interrogatories the court may adjudge the party in default, or compel his answer by attachment, or take the subject-matter of the interrogatory pro confesso in favor of the other party. Answers to interrogatories are parts of the pleadings and do not stand as evidence for the party answering.7

§ 413. Trial. In many of the districts, as in New Jersey and Pennsylvania, the evidence is taken before the clerk, as in equity, and the court merely hears the case summed up. The proofs are taken subject to objections, which are renewed upon

3 Adm. Rule 53; Genther v. Wiley, 85 Fed. R. 797; Empresa Maritima v. N. & S. Am. St. Nav. Co., 16 Fed. R. 502; Old Dominion S. S. Co. v. Kufald, 100 Fed. R. 331; Lochmore S. S. Co. v. Hagar, 78 Fed. R. 642.

4 Vianello v. The Credit Lyonnais, 15 Fed. R. 637; Empresa Maritima a Vapor v. N. & S. Am. St. Nav. Co., 16 Fed. R. 502. It has been held that upon a cross-libel the court has power to order a monition in personam thereupon, to be served upon the proctors of the original libelants who are non-residents. The Eliza Lines, 61 Fed. R. 308.

§ 412. 1 Adm. Rule 23; Scobel v. Giles, 19 Fed. R. 224; The Edwin Baxter, 32 Fed. R. 296.

2 Adm. Rule 32; Stoffregan v. The Mexican Prince, 70 Fed. R. 246.

3 Adm. Rules 31, 32; Pollock v. The Sea Bird, 3 Fed. R. 573; Pollock v. Bridgeport St. Co., 114 U. S. 411; supra, §§ 109, 134, 281.

4 Adm. Rule 28.

5 In the New York districts, within four days from the filing of the answer and interrogatories.

6 Adm. Rule 32.

7 Cushing v. Laird (Blatchford, J.), 6 Ben. 408; The Serapis, 37 Fed. R. 436.

the trial and then passed on by the court. In other districts, as in Massachusetts, New York, and Connecticut, the witnesses are examined in open court. The judge is the trier of the facts as well as the law. In some of the districts experts are at times called by the court to sit with it in order to pass upon questions of navigation, like the Trinity masters in the English practice. On the trial, a motion should not be made to dismiss the libel on the libelant's proofs alone, except where the defendant does not intend to introduce any evidence in his own behalf. He cannot move to dismiss the libel on the libelant's proofs, and then, if the motion is denied, proceed with his own proofs.

The Revised Statutes provide for a jury trial in causes relating to any matter of contract or tort arising upon or concerning any vessel of twenty tons burden or upwards enrolled and licensed for the coasting trade, and at the time employed in the business of commerce and navigation between places in different States and Territories upon the lakes and navigable waters connecting the lakes. The verdict of the jury, in such a case, is reviewable by appeal, and not by writ of error.3

§ 413. 1 The Empire (E. D. Mich.), 19 Fed. R. 558. After a decree pro confesso in admiralty the damages must still be proved. Cape Fear T. & Tr. Co. v. Pearsall (C. C. A.), 90 Fed. R. 435; supra, §§ 103, 104. Where a case was submitted upon the pleadings, it was held that averments of new matter in the answer, and allegations in the libel which the answer denied, must both be disregarded, except in so far as they were admissions against interest. North Am. Dr. & Imp. Co. v. The River Mersey, 48 Fed. R. 686.

2 The Erie Belle, 20 Fed. R. 63. A trial by jury is not necessary upon a libel for a penalty for the failure to report a vessel from a foreign port to the consul and to enter the required manifest. The Paolina, 11 Fed. R. 171. Nor to a vessel engaged in commerce exclusively between ports of the same State. Sanderson v. The City of

Toledo, 73 Fed. R. 220. Nor to a vessel engaged in commerce upon the rivers Ohio and Monongahela. Bigley v. The Venture, 21 Fed. R. 880. It seems that the verdict of the jury is merely advisory. The Empire, 19 Fed. R. 558; Sanderson v. The City of Toledo, 73 Fed. R. 220; supra, §§ 300-304.

3 U. S. R. S., § 566; Boyd v. Clark, 13 Fed. R. 908. Ordinarily new trials and amendments cannot be ordered unless a motion is made at the term at which the decree is entered. The Comfort, 32 Fed. R. 327; The Annex, 38 Fed. R. 669. But see The Madgie, 31 Fed. R. 926. In an extraordinary case a new trial was ordered by the District Court upon a libel of review filed by a surety after the term. Jackson v. Munks, 58 Fed. R. 596; S. C. (C. C. A.), 69 Fed. R. 571. But see The Annex, 38 Fed. R. 620; Mainwaring v. The Carrie Delap, 1 Fed.