VOL. 2. Northern District of New-York. In several suits in rem for wages, instituted in the District Court for the Northern District of New-York, soon after the passage of the late act investing the district courts with a quasi admiralty jurisdiction in certain descriptions of cases arising out of the commerce and navigation of the lakes, applications were made and granted for the admission of co-libellants according to the above mentioned rules and practice of the District Court of the Southern District. But this is now no longer done; and seamen are left to their general right, sufficiently secured to them, in common with all others, by the established principles of admiralty procedure, and expressly recognized by the late rules of practice prescribed by the Supreme Court (a), of intervening for their interest, by the independent assertion of their claims against the vessel, or its proceeds in court, in suitable allegations to be admitted by the court and filed for that purpose. Unless the owner has interposed a claim, and thus already has a professional representative in court to protect his rights, a monition would of course be directed to issue, to show cause why the party should not be admitted to intervene for his interest, and have his demand allowed. Should the new allegation be given at a stage of the original suit, and under circumstances, requiring a consolidation; or should several mariners separately intervene, and a consolidation of their suits appear to be beneficial for the purpose of saving it would be the duty of the court to direct expense, (a) See Appendix, Rules xxxiv., XLIII. a consolidation (a). If, in any case, it should be CHAP. 2. shown that any of the parties had improperly refused or omitted to join in the original suit, and especially if it should appear that the omission had been prompted by a desire to subject the owners to unnecessary expense, or by advice given with a view to the increase of costs, it would be the duty of the court to withhold, or even to impose costs on this account. The learned judge of the District Court of the and regulation of seamen, commented on in the (a) I infer that the practice in the Southern District is attended with embarrassment, and sometimes leads to unsatisfactory results. Judge BETTS, in speaking of it, remarks, that "should the demands of those upon whose petition the arrest was made be satisfied, pending the suit, and a suggestion be made against the validity of the claims of the other libellants, the court would not detain the ship in custody in their behalf, without strong prima facie evidence of the justness of their demands. The owner or master might move the court for the immediate discharge of the vessel [without security, I presume], unless the libellants brought their cause to a hearing at once, or gave the court satisfactory proofs of a just balance due them." There would seem to be difficulties, therefore, in the way of treating these co-libellants as regular suitors in court, invested by law with certain defined rights as such; for they appear to be regarded rather as tenants at will, who may be turned out of court as unceremoniously as they got in. (b) Betts's Admirality Practice, 67. VOL. 2. The effect of this construction is to limit those provisions to vessels "bound from a port in the United States to any foreign port;" and vessels "of the burthen of fifty tons or upwards bound from a port in one state to a port in any other than an adjoining state." The act of February 26, 1845, ch. 20, extending the jurisdiction of the district courts to certain cases arising on the lakes, embraces all enrolled and licensed vessels of the burthen of twenty tons and upwards, employed in the business of commerce and navigation between ports and places in different states and territories, upon the lakes, etc. It comprises vessels, it will be seen, therefore, which, by this construction of the sixth section of the act for the government and regulation of seamen, would be excluded from its operation, viz., those between twenty and fifty tons burthen, and those employed in the business of commerce and navigation between ports and places in adjoining states. There is nothing in the language of the section which requires it to be thus restricted; and if this interpretation of it can be maintained, it must therefore be upon the ground that it is the only one in accordance with the general design and scope of the act; and upon this point, I cannot but think there is room for doubt. Be this, however, as it may, Judge BETTS appers not to have considered it to be incumbent on him to limit the preliminary inquiry required by the act exclusively to those cases which he supposes to be necessarily embraced by it; for he states that he "has been in the practice of allowing a summons to crews of coasting vessels, or those sailing on tide waters in this state, not coming within the statute, with a view to secure their prompt pay- CHAP. 2. ment, or to avoid the heavy expenses attending an arrest of the vessel, when it satisfactorily appeared that the mariner could have no convenient remedy in personam." He adds, however, that when the preliminary hearing did not result (as it generally did) in a settlement of the controversy satisfactory to both parties, it was not his practice to grant a certificate, but to leave the petitioners to pursue the remedy afforded, independently of the statute, by the maritime law; and that recently applications of this description had become so frequent, particularly by mariners navigating vessels on the Hudson river and on Long Island Sound, that he generally declined to take cognizance of them by way of summons at all. In the exercise of the admiralty jurisdiction conferred by the act of 1845, an attempt to discriminate in this respect between vessels of fifty or more tons burthen, and those of less burthen; and between vessels employed in the business of commerce and navigation between ports or places in adjoining states, would inevitably lead to great embarrassment. For this reason, and on account of what was supposed to be the doubtful construction of the act of 1790, the provisions of the sixth section have been applied, in the Northern District of NewYork, indiscriminately to all vessels embraced by the act of 1845(a). (a) For certain provisions of the act of 1813, "for the government of persons in certain fisheries," requiring agreements with seamen to be employed in the cod fisheries to be in writing and defining and regulating the remedy of such seamen for the recovery of their earnings in certain cases, vide supra, p. 123, note. VOL. 2. to issue, until a libel has been filled. CHAPTER III. COMMENCEMENT OF THE SUIT-LIBEL. IN the High Court of Admiralty of England, suits in personam and in rem are commenced, as the Roman action was, by the issue of process; and it is not until after the return of the process executed, that the plaintiff (or promovent, as he is denominated) is called upon to exhibit his libel(a). But in No process the admiralty courts of the United States, the in both forms of action, is preceded by a process, written statement of the cause of action, called a libel, corresponding to the bill in a suit in chancery. Such seems to have been the practice of the Colonial Courts of Admiralty (b); and it is now not only sanctioned, but expressly enjoined, by the Rules of Practice lately prescribed by the Supreme Court of the United States. The first rule ordains that " no mesne process shall issue from the district court, in any civil cause of admiralty and maritime jurisdiction, until the libel or libel of information (c) shall (a) 2 Bro. Civ. and Ad. Law, N. Y. ed., 349, 357-396, (b) Betts's Adm. Practice, 23. (c) Libel of information is the same given to a libel filed by the district attorney of the United States, who "gives the court to understand and be informed" of the breach of laws on which the suit is founded. |