examines into the question, and expresses a decided opinion that the American courts of admiralty possess this power, and that it belongs essentially to their jurisdiction. And upon the whole, we cannot doubt that our courts would, generally at least, adopt similar views.

After a sale is made by order of a court of admiralty, the court will not, except in a very peculiar case, set the sale aside,2 and it is doubtful whether they would do so in any case.

1 Story on Partnership, § 438.

2 Pease v. The Propeller Napoleon, 1 Newb. Adm. 37.

CHAPTER X.

OF THE EQUITY JURISDICTION AND PRACTICE OF COURTS OF ADMIRALTY.

COURTS of admiralty are not, strictly speaking, courts of equity; thus, if a libellant disclose that his case rests upon a trust, he, in general, destroys his own right of action in admiralty, because the court cannot take cognizance of a bill in equity in the disguise of a libel in admiralty.1 But they have still very general and extensive powers, analogous to those which belong to courts of equity, and in general govern themselves by similar principles.2 Thus no party prevails there who does not come into court with clean hands and make out a case ex æquo et bono.3 So a condemnation against one party in

1 Davis v. Child, Daveis, 71, 80. In Andrews v. Essex Fire & Marine Ins. Co., 3 Mason, 6, it was held, that although a court of admiralty had jurisdiction over a contract of insurance, yet it could not reform the policy, that being the province of a court of equity. Mr. Justice Story said: "To be sure, in a certain sense, and in the exercise of their general jurisdiction, courts of admiralty may be said to be courts of equity, that is, courts proceeding ex æquo et bono, and not confined to the narrow notions of the common law. But courts of admiralty have no general jurisdiction to administer relief as courts of equity. They cannot entertain an original bill or libel for specific performance, or to correct a mistake, or to grant relief against a fraud, though they may perhaps sometimes, like courts of law, perform what may be deemed analogous functions. They may give the same benefit, as if there were no fraud or mistake, or omission of performance; but this can be in a few cases only, which fall in all their circumstances completely within their general jurisdiction." See also, Dean v. Bates, 2 Woodb. & M. 87, 92; Kellum v. Emerson, 2 Curtis, C. C. 79. In this latter case the rule is said to be, that a court of admiralty has not the equitable jurisdiction of a court of chancery, but merely applies principles of equity to subjects within its jurisdiction. And in Kynoch v. The S. C. Ives, 1 Newb. Adm. 205, the court refused to decree the specific performance of a contract for the sale of a ship.

2 In Brown v. Lull, 2 Sumner, 443, 449, the court said concerning mariners' contracts: "Courts of admiralty are not, by their construction and jurisdiction, confined to the mere dry and positive rules of the common law. But they act upon the enlarged and liberal jurisprudence of courts of equity; and, in short, so far as their powers extend, they act as courts of equity."

8 In The Schooner Boston, 1 Sumner, 328, 341, Story, J., said: “I take it to be very VOL. II. 55

default or contumacy does not prejudice the rights of any other party to make defence on the same facts. And an agreement made under a clear mistake will be set aside.2 And after a case has been closed, it may be reopened for sufficient cause; but this, the court have said, it would be very reluctant to do.3 In general, a far less rigorous strictness prevails in the construction of maritime contracts in courts of admiralty than in those of common law.4

Customs and mercantile usages are greatly regarded; but not those of a particular port or place, for these are seldom allowed

clear, according to the course of admiralty proceedings, that no person can come into that court and ask its assistance, unless he can, ex æquo et bono, make out a case fit for its interposition. A court of admiralty is, to the extent of its jurisdiction, at least in cases of this sort, a court of equity; and the same rule applies here, as in other courts of equity, that the party who asks aid must come with clean hands." This was said in reference to embezzlement by salvors, which, we have seen, forfeits their claim. 1 The M ry, 9 Cranch, 126.

2 The Hiram, 1 Wheat. 440.

8 In The Fortitudo, 2 Dods. 58, two suits had been commenced on two bottomry bonds, the first of which was on the ship, and the second on the ship, cargo, and freight. The warrants of arrest were executed in the usual manner, and the average account between the ship, freight, and cargo made out by a third person. The bondholders objected to the amount charged for the freight. The master then consented to take their own account of freight, upon which they withdrew their actions, and a supersedeas was decreed. The master then chartered the ship anew, and she was again arrested on the same bonds. The court said: "These are the circumstances stated by the master in his affidavit, and they do not, in my apprehension at least, render it necessary that I should inquire how far the permission again to open a case which has once been closed, comes within the range of that large discretion with which this court is, by its commission, intrusted. It might, perhaps, within the limits of that very extended equity which it is in the habit of exercising, deem it not improper, in some cases, to suffer a cause to be reopened. But it certainly would not do so, unless there existed very strong reasons to show the propriety of the measure. I feel no hesitation in saying, that mere negligence or oversight would not be a sufficient ground for such an extraordinary interposition of the authority of the court. A direct case of fraud, or something equivalent to it, must be made out before I can suffer such a step to be taken." In this case the bondholders were condemned in costs and two months demurrage.

The cases which show that admiralty courts give a liberal and equitable construction to the contracts which come before them, are innumerable. Most of these cases are cited, in this work, under various heads. Among them, we may refer again to the following. As to the wages of seamen and their contracts, see The Minerva, 1 Hagg. Adm. 347; The Prince Frederick, 2 Hagg. Adm. 394; The Cypress, Blatchf. and H. Adm. 83; The Triton, id. 282; The Crusader, Ware, 437; The Betsey and Rhoda, Daveis, 112; Ellison v. Ship Bellona, Bee, Adm. 106. As to salvage, and agreements extorted in distress, see T e Henry Ewbank, 1 Sumner, 400, and The Louisa, 2 W.

to control the general maritime law, unless they are such, and so proved that they must be taken to be a part of the contract.1

Rob. 22, where an agreed apportionment was set aside. As to bottomry bonds, see The Heart of Oak, 1 W. Rob. 204, 213. As to the lien of material-men, see Ramsay v. Allegre, 12 Wheat. 611. And as to the discretion of the court in deciding, by the maritime law, forfeitures of seaman's wages, see The Crusader, Ware, 447, and Cloutman v. Tunison, 1 Sumner, 373, 379.

1 See ante, p. 56-61.

CHAPTER XI.

OF THE LAW OF ADMIRALTY IN CASES OF TORT AND TRESPASS.

THAT torts, committed upon the high seas, are within the jurisdiction of admiralty, is certain.1 The principal cases in which it has been carried into effect, are those in which passengers have sought for compensation for ill-treatment by the captain, and similar actions by mariners, against the officers of the vessel,2 and those in which actions have been maintained for the abduction or ill-treatment of minors.

In the first case, it is held, that passengers have a legal right, not merely to ship room, and suitable and sufficient food, but to kind and proper treatment, and a due regard to the courtesies and decencies of life; and if these are violated, the offence may be reached and damages recovered by libel in admiralty.3

In regard to cases of the third class, it seems to be quite certain, that a parent may maintain a libel for the abduction of his minor child, against the master, or the ship-owner; even though the latter has no personal knowledge of the fact, the act of the master being held to be within the scope of his authority, as agent for the owners.5

1 But this jurisdiction in civil cases seems to be confined by Mr. Justice Story, to acts done on the high seas, or on waters within the ebb and flow of the tide. Thomas v. Lane, 2 Sumner, 1. But under the decisions of our supreme court, the rule of tide waters no longer exists, and our admiralty courts have jurisdiction over some cases of tort certainly, such as collision, on all waters navigable from the sea, and on the lakes and navigable waters connecting the same. See ante, p. 502, n. 1. But whether they have jurisdiction over all torts, such as assaults, etc., to the same extent, is yet a subject for adjudication.

2 See ante, Vol. I. p. 464, n. 2.

8 Chamberlain v. Chandler, 3 Mason, 242. See also, cases ante, Vol. I. p. 394,

n. 3.

4 Steele v. Thatcher, Ware, 91.

5 Sherwood v. Hall, 3 Sumner, 127; Luscom v. Osgood, U. S. D. C., Mass., 7 Law Reporter, 132; Walcott v. Wilcutt, same court, 1858; The Platina, same court, 21 Law Reporter, 397.