  One of the reasons for the continued vitality of the admiralty lies in the efficiency of the remedies which it affords. If it were not for these it is quite possible that it would long since have been absorbed by the common law as was the law merchant many years ago. Parties having rights to enforce will usually resort to the admiralty in preference to any other court if the selection is open to them. This is not so much by reason of any difference in the law as in the methods of its application. Admiralty remedies may be divided into proceedings, in rem, in personam, and under the Limited Liability Act. 1. Proceedings in Rem.—This procedure is peculiar to the American admiralty and does not exist in the common law. As the name indicates, it is directed against the thing itself to enforce property rights which inhere in it, mainly maritime liens. It belongs to the courts of admiralty exclusively and similar remedies attempted to be given by state statutes are unconstitutional and void. The characteristic feature of this proceeding is that the vessel or thing proceeded against is itself seized and impleaded as the defendant and is judged and sentenced accordingly. Sales made under it are good against all the world while at common law it is only the title of the defendant which is affected and the title conveyed can never be better than his own. The nature of the proceeding is more apparent when it is noted that the admiralty personifies the ship and considers her capable of incurring legal obligations entirely irrespective of her owner's personal responsibility therefor. There is no such doctrine in the common law. American courts of admiralty—that is to say, the United States district courts—take jurisdiction in rem not only of domestic vessels but of ships flying foreign flags, and of controversies originating on the high seas and in foreign waters. The test is, whether the subject matter is within admiralty jurisdiction. The admiralty courts are not bound to take jurisdiction of controversies Foreign governments sometimes own or operate merchant vessels, and a serious question arises, as yet undetermined by the Supreme Court, whether such vessels are, like naval vessels, exempt from maritime liens, or whether they are subject to the process in rem of the admiralty courts. By the act of March 9, 1920, Shipping Board vessels are immune from arrest, but provision is made for suit in personam against the government. Vessels of the Panama Railroad, although it is a government agency, are subject to suits in rem. 2. When Proceedings in Rem Will Lie.—Generally speaking, every maritime lien includes the right to enforce it by a proceeding in rem. The person who has a maritime lien upon a vessel is entitled to proceed directly against her in a court of admiralty for the locality in which she happens to be. Thus in all suits by materialmen for supplies, repairs, or other necessaries; in all suits for mariners' wages, pilotage, collision, towage, hypothecation, bottomry, salvage, and the like, the process may be in rem. 3. The Libel.—No process or writ can be issued by a court of admiralty before a libel is filed in the clerk's office. A libel is the statement of the party's claim and the relief or remedy which he desires. It states the nature of the cause, for example, that it is of contract, or of tort or damage, or salvage, as the case may be; the ship, or property, against which the claim is made and that it is, or soon will be, within the district; the facts upon 4. The Writ or Process.—Upon a libel being properly filed in the office of a clerk of a district court of the United States, a writ of attachment is prepared and delivered to the marshal which commands him to arrest and take the ship, goods or other things into his possession for safe custody; and to cause public notice thereof, and of the time fixed for the return of the writ and the hearing of the cause, to be given in such newspaper within the district as the court shall order. It is then the duty of the marshal to obey the writ, arrest the property and give due notice according to law. 5. Owner's Rights.—The owner whose vessel is seized in admiralty is entitled to release her immediately by giving a bond to secure payment of the libellant's claim. This bond may be in double the amount of the claim, or for such smaller amount as may be agreed upon between the parties, or for the appraised value of the ship. In practice, such bonds are usually arranged between the parties and their proctors[32] without the expense and delay incident to an actual seizure. It is not unusual to notify the owner of the commencement of the suit before process is issued and he will generally agree to appear and bond accordingly. This, however, is only courtesy and not a matter of right. At the same time the amount of the bond can be arranged and, when filed, the suit proceeds as if there had been an actual arrest and bonding. The bond takes the place of the ship for all legal purposes and she proceeds about her business entirely freed from the lien in suit. The owner must establish his status with the court by filing a claim. This is a formal statement on oath of his title to the property. If he desires to contest the libellant's demand, he must file an answer to the libel. The cause is then at issue and will be disposed of by the judge in due course. The time will depend largely on the parties. 6. Default.—If the owner does not claim and bond his ship on the return-day named in the writ, the libellant may take his default. The court then investigates the demand ex parte and 7. Interlocutory Sales.—When the property remains in the custody of the marshal and is subject to undue expense or risk of loss, the court may order its immediate sale for the benefit of all concerned. The proceeds are paid into the registry of the court and represent the ship for all purposes up to the time of the sale. The purchaser at such a sale, as well as at a sale under a final decree, obtains a clear and perfect title, if the proceedings have been in accordance with law. All claims and liens are relegated to the proceeds. 8. Intervenors.—All persons legally interested in a ship are entitled to appear and be heard by the court when she is in the custody of a court of admiralty. Such are parties having other maritime liens upon her and mortgagees. Their claims are presented, pursuant to the public notice given by the marshal, by intervening libels or petitions and they are called intervenors. The form of such petitions is substantially like that of an original libel. Generally when an owner will not bond his ship, she has become heavily in debt and all her creditors will be obliged to intervene in the proceeding in order to protect their accounts. A sale is accomplished and the proceeds brought into court as soon as possible. Distribution is then made between the various lienors according to their rank and priority. Any surplus will belong to the owner and he may obtain it at any time before it is covered into the Treasury of the United States as unclaimed funds. 9. Costs and Expenses.—These are largely within the control of the parties and become heavy only to the extent that the court is burdened with the care of the property or its proceeds. If promptly bonded, the necessary costs are very small. If the marshal remains in possession, his costs will include ship-keeper's charges and all other expenses which the situation occasions. If he sells, there will be his commission on the amount realized, 2½ per cent. on sums under five hundred dollars and 1½ per cent. on sums in excess; the clerk will be entitled to a commission of 1 per cent. for handling the proceeds. His other necessary costs are small. Where, however, there is prolonged litigation, the expenses may become very heavy, especially in respect of stenographer's accounts and the fees of commissioners to whom matters of detail may be referred. 10. Proceedings in Personam.—Suits may also be brought against a defendant personally in the admiralty, where the subject matter is maritime and a personal liability exists. Such a liability always attaches to the person who made the contract or did the wrong for which the action is brought. In a few instances of maritime torts, like assaults and beatings on the high seas, the remedy is in personam only. 11. Process in Personam.—The writ here is usually a simple monition or summons to appear and answer the libel, like the ordinary writ in an action at law, but where the defendant cannot be found within the district, it may contain a clause for the attachment of his goods and chattels, or garnishment of his credits and effects. This proceeding is often very effective in obtaining security for the judgment when the proceeding in rem cannot be employed. 12. Proceedings in Limitation of Liability.—The shipowner is entitled to limit his liability on account of the ship to its value in many cases and the General Admiralty Rules promulgated by the Supreme Court provide a very valuable proceeding for this purpose. In substance, whenever an owner is threatened with a multiplicity of suits on account of damage done by his ship, or by a claim or claims in excess of her value, and he is not personally liable on such account, he may file a petition in the proper court and surrender the ship to a trustee or give a bond for her appraised value. All other suits are thereupon stayed and all creditors must present their claims in the proceeding which he has so instituted. In effect, it is a maritime bankruptcy by which the ship, or her value, is surrendered to creditors for pro rata division and the owner goes free from further claims. It is the application of one of the underlying doctrines of the maritime law by which a shipowner, on abandoning the ship, can protect himself from further responsibility on her account. [32] In admiralty an attorney is called a proctor. The term is being generally abandoned. APPENDICES |
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