In what cases permitted by the new rules of admiralty practice. ciple, prior to the promulgation of the rules of CHAP. 1. admiralty practice, already so often referred to; but the joinder of the two forms of action seems to have engaged the serious attention of the Supreme Court, in framing these rules; and they expressly authorize the joinder in the same libel, of a suit in rem and of a suit in personam, for mariners' wages, for pilotage, and for damage by collision(a); while they seem to discountenance it in suits by materialmen, suits for assault and beating, suits founded on a simple hypothecation by the master or on bottomry bonds, and in suits for salvage(b). But these provisions, and some others contained in the rules here referred to, require particular attention; and although those other provisions are not strictly pertinent to the particular subject under consideration, it is convenient, nevertheless, briefly to notice them in this place. This code of rules was prescribed in pursuance of ample authority for that purpose, conferred by an act of Congress. They have the force, therefore, of legislative enactments, and they require the application of similar rules of interpretation. The twelfth rule authorizes the libellant, in suits by material-men, to proceed against "the ship and freight in rem, or against the master and the owner alone in personam:" the thirteenth, in suits for mariners' wages, to proceed against "the ship, freight and master, or against the ship and freight, or against (a) See Appendix, Rules XII., XIV., XV. (b) Appendix, Rules, XII., XIV., XVII., XVIII., XIX, Suits against and th the ship, VOL. 2. the owner or the master alone in personam :" the fourteenth, in suits for pilotage, to proceed against "the ship and master, or against the ship, or against the owner alone or the master alone in personam:" the fifteenth, in suits for damage by collision, to proceed against the "ship and master, or against the ship alone, or against the master or owner alone in personam:" the sixteenth, in suits for an assault or beating on the high seas, or elsewhere within the admiralty and maritime jurisdiction, directs that "the suit shall be in personam only:" the seventeenth, in suits founded on mere maritime hypothecation, express or implied, without marine interest, authorizes the libellant to proceed "either in rem, or against the master or owner alone in personam :" the eighteenth, in suits on bottomry bonds, to proceed "in rem only against the property hypothecated," except in certain specified cases of misconduct on the part of the master or owner, in which cases "the suit may be in personam against the wrong-doer:" the nineteenth declares that suits for salvage "may be in rem against the property saved, or the proceeds thereof, or in personam against the party at whose request and for whose benefit the salvage service has been performed." First, then, as to the joinder in the same libel of a suit in personam with a suit in rem. It having been generally understood, previous to the adoption of the new rules, that wherever there is a personal liability arising from a contract in its nature maritime, or from a tort committed on the high seas or as No provi tide waters, such liability might, in this country, be CHAP. 1. enforced by an admiralty suit in personam, the provisions contained in the rules above cited for the prosecution of suits in this form may be regarded but a recognition of an existing principle. But while they expressly authorize the joinder of against the master in a suit against the ship, they are silent with respect to the right of proceeding in like manner against the owner. a suit If it had previously been an established principle, that wherever a party was entitled to a remedy in rem, and also in personam, he might lawfully pursue those remedies, whether against the master or the owner, conjointly in the same suit, the question would then be, whether it was by these rules intended to abrogate this right with respect to the owner; a question by no means devoid of difficulty. But the right, independently of the rules, to join the two forms of action in one suit, at all, we have seen to be at least extremely questionable; and conceding that the rules would not, by implication, have impaired a previous right to proceed against the ship and owner, the question now, therefore, is whether, as the right to proceed in this form had never before been recognized, the rules are not nevertheless to be considered as having been intended to define and limit it. Such would seem to be the reasonable and sound view of the subject. sion for suits against the ship, and the owner. I propose, in the second place, briefly to notice the other provisions already alluded to, of two of the above mentioned rules. The twelfth rule, as we have authorizes a suit by material-men against freight. seen, Suits against the ship and VOL. 2. the ship and freight; and the thirteenth, a suit by mariners against the ship, freight and master. Now, in each of these cases the party had an unquestionable right, prior to the rules, to proceed against the ship alone; and as it was rarely necessary to resort to the less simple, and generally far more troublesome remedy against the freight, this was rarely done. Was it intended to compel the libellant, when he proceeded against the ship, to proceed against the freight? The objections to such a construction are so obvious and weighty as to render it wholly inadmissible, if it can be avoided; and it seems incredible, therefore, that such could have been the design of these rules: and yet, it may be pertinently asked, if this was not their object, what was it? Perhaps a sufficient answer to this question may be found in the obvious desire of the Supreme Court, in prescribing the forms of remedies in the admiralty, to avail itself of the occasion, as far as could conveniently be done, incidentally, also to declare and make known what it deemed to be sound principles, which might otherwise be doubted, affecting the rights to be enforced by these remedies. And the learned reader will recollect, that while the right of the material-man and mariner to proceed against the ship has never been questioned, it is otherwise with his right to resort to the freight. CHAP. 2. CHAPTER II. PROCEEDINGS PRELIMINARY TO THE COMMENCEMENT OF SUITS THIS seems to be the proper place to notice certain Suits in the admiralty, like suits at common law or in equity, may in general be instituted at the pleasure of the party claiming a right to remuneration or redress, as soon as this right accrues; but to this general rule suits for the recovery of seamen's wages form, to some extent, an exception. In regard to these, the interests of commerce, and a just regard to the welfare of a class of men proverbial for their rashness and proneness to error when on shore, have been supposed to require certain restrictions as a security against vexatious or unnecessary litigation. These restrictions are imposed by the sixth section of the "Act for the government and regulation of seamen," passed July 20, 1790(a), by which it is enacted, "That every ch. 29, 56. seaman or mariner shall be entitled to demand and receive from the master or commander of the ship (a) Ch. 29; 1 Stat. at Large, 131. Act of 1790, |