Holmes

367 of the Oregon Civil Code. v. Oregon & C. Ry. Co. (D. C. 1880) 5 Fed. 75.

Gen. St. Minn. p. 825, § 2, providing that, "when death is caused by the wrongful act or omission of any party, the personal representatives of the deceased may maintain an action, if he might have maintained an action had he lived," etc., does not confer upon the United States district court jurisdiction of a libel in rem, filed by the administratrix of an injured person to enforce a marine tort, as in case of death from such a tort the action does not survive in admiralty. Oleson v. The Ida Campbell (D. C. 1888) 34 Fed. 432.

Under Comp. St. Or. §§ 371, 3690, giving a right of action to an administrator for the death of his intestate, and giving a lien on a vessel navigating the waters of the state, for any injury caused thereby, a suit in admiralty may be maintained in the United States district court for such death. The Oregon (D. C. 1891) 45 Fed. 62, decree reversed (1895) 15 S. Ct. 804, 158 U. S. 186, 39 L. Ed. 943.

An action to recover damages for death caused by a collision on navigable waters is for a tort which by its nature and locality is maritime, and as such is within the ancient jurisdiction of the United States district court, and equally so whether the right of action is given by state or by federal legislation. The City of Norwalk (D. C. 1893) 55 Fed. 98, decree modified (1894) 61 Fed. 364, 9 C. C. A. 521.

The steamer Bertha engaged to tow the schooner Dora B. to Lituya Bay, but owing to rough weather passed that port and steered for Yakutat. Before reaching Yakutat, and while off the coast of Alaska, the hawser parted. Instead of returning to the tow and rendering further assistance, the Bertha kept on her course, abandoning the Dora B., which was carried on the coast and wrecked, and the deceased lost his life. Held that it is immaterial that the parting of the hawser happened over three miles off shore and out of the jurisdiction of the court; it appearing that the disaster which caused the decedent's death happened upon the shore within the three-mile limit and within the jurisdiction of the court. Williams v. Alaska Commercial Co. (1903) 2 Alaska, 43.

A suit in admiralty cannot be maintained in a court of the United States, either under the general maritime law or any act of Congress, to recover damages for the death of a person caused by negligence on the high seas. Id.

27. Limitation of liability of shipowners.-See note, ante, as to "Collisions," and see, also, § 8022 et seq., and notes thereunder, and notes under §§ 1233, 1536, post, and under Const. art. 3, § 2, cl. 1, as to "Cases of Admiralty and Maritime Jurisdiction."

The United States district courts, sit

ting in admiralty, have jurisdiction of cases arising under the Act of March 3, 1851, limiting the liability of owners of vessels, for loss or damage to cargo. Norwich Co. v. Wright (1871) 80 U. S. (13 Wall.) 104, 20 L. Ed. 585.

Jurisdiction is not affected by the fact that there has been a decree in a proceeding in rem for libelant's entire damage to his cargo sunk by a collision, since the district court still had juris. diction, after the decision on appeal, to entertain a petition for limitation of liability, and to order a new appraisement of the steamer to ascertain her value when lying sunk. Place v. Norwich & N. Y. Transp. Co. (1886) 118 U. S. 468, 6 Sup. Ct. 1150, 30 L. Ed. 134.

The district court of the United States cannot take jurisdiction in admiralty of a petition for limitation of liability under the Revised Statutes of the United States, where it would not have had cognizance in admiralty, originally, of the cause of action involved. Ex parte Phenix Ins. Co. (1886) 7 S. Ct. 25, 118 U. S. 610, 30 L. Ed. 274, denying writ of prohibition In re Goodrich Transp. Co. (D. C. 1886) 26 Fed. 713.

The court in proceedings to limit liability does not lose jurisdiction by allowing the steamship, after giving a stipulation for her value, to go into another district in the ordinary course of her business, since the proceeding to limit liability is an equitable action, and not one against the vessel and her freight. In re Morrison (1892) 147 U. S. 14, 13 Sup. Ct. 246, 37 L. Ed. 60.

Where shipowners have invoked the jurisdiction of a court of admiralty by a petition to limit their liability, under R. S. §§ 4283, 4284, post, §§ 8021, 8022, and, having thereby secured the stay of proceedings by libelants, surrender but one of two vessels held by the court to be liable, the court, having full equitable powers to adjust the rights of all parties interested, is not bound to dismiss the proceedings for that reason, but may by its own process, or its own order, seize the other vessel, and make distribution of the entire fund which it was the duty of the petitioners to tender by their petition; and such is the proper, and only equitable, course, where by reason of the proceedings suits by libelants have been delayed for a number of years, during which the shipowners have become insolvent. Oregon R. R. & Nav. Co. v. Balfour (1898) 90 Fed. 295, 33 C. C. A. 57.

Where a British ship has been proceeded against in a federal district court for a collision happening on the high seas, and the parties affected have appeared, such district court has jurisdiction to decree the owners of such ship to be entitled to the benefit of a rule of the general maritime law permitting them to abandon their vessel and freight, and thereupon to be exempted from further responsibility.

Churchill v. The British America (D. C. 1878) Fed. Cas. No. 2,715.

Proceedings to limit the liability of shipowners must originate in the district court. The Mary Lord (C. C. 1887) 31 Fed. 416.

The circuit courts have no jurisdiction by bill in equity, or otherwise, to enforce proceedings for limiting the liability of shipowners under the provisions of R. S. §§ 4282, 4284, 4285, post, §§ 8020, 8022, 8023. The statute embodied in these sections created a new right, and by implication prescribed that it should be enforced in the district courts, and the remedy is confined to the jurisdiction provided by the statute which gave the right. Elwell v. Geibei (C. C. 1887) 33 Fed. 71.

Jurisdiction of proceedings for limiting the liability of shipowners is in the district courts. Id.

It is not necessary to jurisdiction that the court should have possession of the vessel or her proceeds, or of a fund representing the proceeds, over which the court had already obtained control through the exercise of its ordinary jurisdiction. The City of Norwich (D. C. 1873) Fed. Cas. No. 2,762. And see The Mendota (D. C. 1882) 14 Fed. 358.

Act March 3, 1851, to limit the liability of shipowners, confers no power on the court to discharge the vessel from all liens upon her, on the filing of a stipulation by the owners in the full value of the vessel and freight, for the benefit of all parties having claims upon her. But this may be done under the general admiralty powers of the court. The City of Norwich (D. C. 1866) Fed. Cas. No. 11,202.

The American schooner J. M. L. and her cargo were totally lost in a collision at sea with the British steamer A. On a libel in personam in district court an interlocutory decree had adjudged the owners of each vessel to pay onehalf the damages, and pending a reference thereon the owners of the schooner filed a petition to limit their liabilities in respect to half the cargo lost. Held that, as the amount to be paid by the owners of the steamer for the loss of the schooner equitably represented so much of the schooner, and as that fund would be in this court, the court had jurisdiction of the proceeding, and was the most appropriate court to determine whether the fund derived from the steamship for the loss of the schooner should be paid over to the trustee to be appointed in the limited liability proceeding, or retained by the owners of the schooner, or secured to the owners of the lost cargo by provisions in the final decree in the former suit to the extent of their claim, or to the extent necessary to save the steamer from liability for lost cargo beyond the terms of the interlocutory decree. Leonard (D. C. 1882) 14 Fed. 53. The act of congress limiting the lia

In re

bility of shipowners in certain cases is not referable to that clause in the constitution giving power to regulate interstate commerce, but is a rule of admiralty procedure enacted under the clause granting admiralty jurisdiction, and therefore the district court has jurisdiction of a proceeding to limit the liability of the owners of a ship for a maritime tort, customarily employed within the navigable waters of a state. The Tolchester (D. C. 1890) 42 Fed. 180.

Where a district court had in its control the only fund to which claimants for damages by a collision had a right to resort for payment of their claims under the limiting liability act, being the only court competent to administer the admiralty rule for the limitation of the liability of the owners of the vessel, it has the authority and jurisdiction to issue an order restraining the further prosecution of suits by claimants in the state courts. Id.

Where actions have been brought against the owners of a boat for the death of persons by wrongful act (Code Civ. Proc. Cal. § 377) occurring on the high sea within the state jurisdiction, the United States district court has jurisdiction in admiralty to stay such actions, determine the liabilities of such owners under the limited liability act (R. S. § 4282 et seq., post, § 8020 et seq.) and enforce the rights of the parties. In re Humboldt Lumber Manufacturers' Ass'n (D. C. 1894) 60 Fed. 428, judgment affirmed, Humboldt Lumber Manufacturers' Ass'n v. Christopherson (1896) 73 Fed. 239, 19 C. C. A. 481, 46 L. R. A. 264.

28. Seizures, forfeitures, and penalties in general.-See, also, note, ante, as to "Torts in general."

See, also, notes under § 1233 and under Const. art. 3, § 2, cl. 1, as to "Cases of admiralty and maritime jurisdiction."

The district court of the district in which the seizure was made, and not that in which the offense was committed, has jurisdiction of proceedings in rem for an alleged forfeiture. U. S. v. The Betsey (1808) 8 U. S. (4 Cranch) 443, 2 L. Ed. 673; Keene v. U. S. (1809) 9 U. S. (5 Cranch) 304, 3 L. Ed. 108; The Ann (1815) 13 U. S. (9 Cranch) 289, 3 L. Ed. 734; The Merino (1824) 22 U. S. (9 Wheat.) 391, 6 L. Ed. 118; The Octavia (C. C. 1813) Fed. Cas. No. 10,422.

Under the ninth section of the judiciary act of 1789, the district court had jurisdiction of a seizure of a vessel of more than 10 tons burden made on navigable waters for violation of Act Feb. 28, 1806, entitled "An act to suspend the commercial intercourse between the United States and certain parts of the island of St. Domingo." U. S. v. The Betsey (1808) 8 U. S. (4 Cranch) 443, 2 L. Ed. 673.

Under the judiciary act of 1789, the admiralty jurisdiction of the district

courts, in cases of seizure for forfeitures, does not attach until after a seizure made, and there must be a subsisting seizure when the libel is filed. If the seizure be abandoned, and the property restored, before any proceedings are had, the jurisdiction is devested, and cannot be reinstated except by a new seizure. The Ann (1815) 13 U. S. (9 Cranch) 289, 3 L. Ed. 734.

In revenue cases, the court has jurisdiction, though the property seized may never have come into the possession of its officers. The Ann (1815) 13 U. S. (9 Cranch) 289, 3 L. Ed. 734; The Bolina (C. C. 1812) Fed. Cas. No. 1,608.

In cases of seizures made under the revenue laws, on waters navigable from the sea by vessels of 10 or more tons burden, the district court sits as a court of admiralty. The Sarah (1823) 21 U. S. (8 Wheat.) 391, 5 L. Ed. 644.

As originally enacted, section 9 of the Judiciary Act of 1789, c. 20, marked out the general jurisdiction of the district courts and of the several district courts in relation to each other in cases of seizures on waters of the United States, and, if made within the waters of one district, the jurisdiction attaches to the court of that district, but, where seizure is made on the high seas, the jurisdiction is conferred on no particular district court, and it may be exercised by the court of any district into which the property is carried, and there proceeded against. The Merino (1824) 9 Wheat. 391, 401, 6 L. Ed. 118.

This provision, as originally enacted by Judiciary Act of 1789, c. 20, includes all seizures for forfeitures made under laws of impost, navigation, and trade on waters navigable from the sea by vessels of ten tons burden and upwards as cause of admiralty and maritime jurisdiction triable by the court, and not by jury. The Margaret (1824) 9 Wheat. 421, 427, 6 L. Ed. 125.

The clause in the Judiciary Act of 1789, § 9, which includes within the admiralty jurisdiction all seizures made on waters navigable from the sea by vessels of 10 or more tons burden was limited to the cases there stated. The Thomas Jefferson (1825) 10 Wheat. 428, 429, 6 L. Ed. 358.

Under R. S. § 563, and R. S. § 734, post, 1027, defining the admiralty jurisdiction of the district courts, and the act of May 17, 1884, establishing the district of Alaska, the district court of Alaska has jurisdiction to declare a forfeiture of vessels guilty of taking fur seal, in violation of R. S. § 1956, post, 8850, in any of the navigable waters acquired from Russia by the treaty of March 30, 1867, over which the United States may lawfully exercise dominion. Ex parte Cooper (1892) 12 Sup. Ct. 453, 459, 143 U. S. 472, 36 L. Ed. 232.

An information in rem on the admiralty side of the district court for forfei

ture under the impost laws is proper. Clark v. U. S. (C. C. 1811) Fed. Cas. No. 2,837.

Where, in case of a seizure for violation of the nonimport law, the vessel and part of her cargo were seized in the Delaware river, and part of the cargo after it had been landed, the district court in admiralty has jurisdiction. Id.

After a vessel has been seized and libeled for forfeiture, the court does not lose jurisdiction to condemn by losing possession of her. U. S. v. The Little Charles (C. C. 1818) Fed. Cas. No. 15,612.

The district courts, as courts of admiralty, have jurisdiction of the question who are entitled to the proceeds of a seizure as informers or otherwise. Robinson v. Hook (C. C. 1826) Fed. Cas. No. 11,956.

The want of a seizure prior to the commencement of proceedings in a cause of seizure under the laws of impost, navigation, and trade, under Act 1789, § 9, is fatal to the jurisdiction, though the objection be first taken upon appeal. The Fideliter (C. C. 1870) Fed. Cas. No. 4,755.

Seizure of the res, before filing of the libel, is essential to jurisdiction under a libel for a penalty or forfeiture. The May (C. C. 1874) Fed. Cas. No. 9,330, affirming (D. C. 1873) Fed. Cas. No. 9,329.

The district court has exclusive jurisdiction, under Judiciary Act 1789, § 9, of a libel for forfeiture against a vessel for carrying away timber reserved for naval purposes which has been cut from public lands, in violation of Act March 2, 1831. U. S. v. The Helena (D. C. 1850) Fed. Cas. No. 15,341.

Correspondence between the collector, secretary of the treasury, and district attorney, and directions to the latter to file a libel, while the vessel is lying within the collector's district, do not constitute a seizure by him which will support a libel. The Silver Spring (D. C. 1854) Fed. Cas. No. 12,858.

The restriction in the judiciary act of 1789, confining jurisdiction to waters navigable from the sea by vessels of 10 tons burden or more, applies exclusively to seizures under the laws of impost, navigation, or trade in matters of revenue only. Western Transp. Co. v. The Great Western (D. C. 1862) Fed. Cas. No. 17,443.

Under 1 Stat. 77, § 9, giving exclusive original cognizance of all admiralty causes to the federal courts, the district court has exclusive jurisdiction of a libel in rem based on Acts July 4, 1864, giving a penalty for a neglect to post up in a steamer a synopsis of the laws relating to the carriage of passengers. The Lewellen (D. C. 1868) Fed. Cas. No. 8,307.

The admiralty jurisdiction of the district court in revenue cases extends only to seizures for forfeitures under duty

laws, as conferred by Act 1789, § 9. U. S. v. Five Hundred Boxes of Pipes (D. C. 1870) Fed. Cas. No. 15,116.

A libel in rem may be maintained in the district court in admiralty for the penalty imposed by R. S. § 4469, post, § 8239, for overcrowding a passenger vessel. The Arctic (D. C. 1881) 11 Fed. 177.

It is not to be supposed that the general rule and test of jurisdiction of the district courts in cases of penalties and seizures as prescribed by R. S. § 563, was intended to be changed and a peculiar and impracticable test substituted by R. S. § 4499, post, § 8275, for the recovery of the penalty thereby imposed. The Idaho (D. C. 1886) 29 Fed. 187, 191.

29. Seizures on land. The court in cases of seizures on land proceeds, not as a court of admiralty, but as a court of common-law jurisdiction on a trial by jury. The Sarah (1823) 8 Wheat. 391, 394, 5 L. Ed. 644; U. S. v. George Spraul & Co. (1911) 185 Fed. 405, 107 C. C. A. 569.

A libel charging a seizure to have been made on waters navigable by vessels of ten tons burden and upwards, when in fact it was made on land, will not support a verdict and judgment thereon, but the libel must be amended or dismissed. The Sarah (1823) 8 Wheat. 391, 394, 5 L. Ed. 644.

Where a seizure under the Confiscation Acts was made on land, the claimants were entitled to a jury trial, though the suit was in form a libel of information. Morris' Cotton (1869) 8 Wall. 507, 511, 19 L. Ed. 481.

Previous seizure under an order of the president under the Abandoned and Captured Property Act of July 17, 1862 (12 Stat. 820), was essential to give jurisdiction to adjudge forfeiture and decree condemnation. U. S. v. Winchester (1878) 99 U. S. 372, 376, 25 L. Ed. 479.

A district court of the United States is without authority to condemn property captured on land by the navy during the rebellion as prize; and a decree to that effect will not defeat the right of the owner to recover the proceeds of the captured property by a suit under the abandoned or captured property act, though the fund, once paid into the treasury, has been distributed pursuant to the decree. Cook v. U. S. (1873) 9 Ct. Cl. 288.

A district court of the United States has no jurisdiction, as a court of admiralty, over property, seized as prize, on land, by the crew of a private-armed vessel; and a decree of condemnation by such court is no bar to an action of trespass by the owner of the property against the captors, who had no authority to seize it. Slocum v. Wheeler (1816) 1 Conn. 429.

30. Detention of cargo belonging to government.-The district courts of the

United States have not jurisdiction to detain a cargo belonging to the government, and, where such a cargo has been libeled under a bottomry bond, it must be discharged from the custody of the marshal. Goodwin v. U. S. (1870) 6 Ct. Cl. 146.

31. Prize. See note, ante, as to "Seizures on land."

See, also, notes under Const. art. 3, § 2, cl. 1, as to "Cases of admiralty and maritime jurisdiction."

A district court has jurisdiction of questions of prize by virtue of its general admiralty and maritime jurisdiction. The Amiable Nancy (1818) 16 U. S. (3 Wheat.) 546, 557, 4 L. Ed. 456; Jennings v. Carson (D. C. 1792) Fed. Cas. No. 7,281; The Amy Warwick (D. C. 1862) Fed. Cas. Nos. 341, 342.

As the jurisdiction of the district courts extends to all civil causes of admiralty and maritime jurisdiction, such courts possess all the powers of a court of admiralty, whether considered as an instance or prize court, and may award restitution of property claimed as a prize of war by a foreign captor. Glass v. The Betsey (1794) 3 U. S. (3 Dall.) 6, 1 L. Ed. 485; Novion v. Hallett (N. Y. 1819) 16 Johns. 327.

District courts possess all the powers of courts of admiralty, both instance and prize, and may award restitution of property claimed as prize of war by a foreign captor. Glass v. The Betsy (1794) 3 U. S. (3 Dall.) 6, 1 L. Ed. 485.

District courts as courts of admiralty had power to carry into effect the decrees of the former court of appeals in prize cases. Penhallow v. Doane (1795) 3 Dall. 54, 80, 1 L. Ed. 507.

A prize court when a proper case is made for its interposition will proceed to adjudicate and condemn captured property, or award restitution, although it is not actually in the control of the court. Jecker v. Montgomery (1851) 13 How. 498, 515, 14 L. Ed. 240.

The District Court of the United States, sitting as a prize court, may hear and determine all questions respecting claims arising after the capture of a vessel of the United States guilty of a maritime tort. The Siren v. U. S. (1868) 7 Wall. 152, 161, 19 L. Ed. 129.

The jurisdiction of a prize court is strictly in rem, and usually confined to the adjudication of the question of prize or no prize; and the relative rights of rival claimants will not be settled further than may be necessary to the determination of the main question. A decree, therefore, ordering restitution to the claimant, will not estop a third person from showing, as against attaching creditors of the claimant, that he himself is the rightful owner, and that claimant held the vessel in trust for him. Cushing v. Laird (1883) 2

Sup. Ct. 196, 107 U. S. 69, 27 L. Ed. 391.

Where the United States brings into a prize court a vessel that was captured by the co-operation of the army and navy, and as to which there can be no distribution of prize money, it is a submission to the jurisdiction of the court, and a decree for damages may be rendered against it. U. S. v. The Nuestra Senora De Regla (1883) 108 U. S. 92. 2 Sup. Ct. 287, 27 L. Ed. 662.

Where the subject of litigation depends upon the question of prize or no prize, it is completely and exclusively within the cognizance of the district court. U. S. v. Bright (C. C. 1809) Fed. Cas. No. 14,647.

A court of prize will take cognizance, not only of all questions of prize, but of every incident thereto, until a final adjustment of all claims arising from the capture. It will therefore entertain a supplemental suit for the distribution of prize proceeds. The St. Lawrence (C. C. 1814) Fed. Cas. No. 12,233.

Vessels used merely as transports for troops and neither armed nor commanded by government officers do not bring within the prize jurisdiction a capture by military forces. U. S. v. Two Hundred and Sixty-Nine and One-Half Bales of Cotton (C. C. 1868) Fed. Cas. No. 16.583.

The jurisdiction of the district court does not extend to the case of a capture on the high seas, by a privateer lawfully commissioned, of the property of an enemy to the sovereign issuing the commission. The case is not altered though the capture should have been originally made by a prescribed privateer. Castello v. Bouteille (D. C. 1794) Fed. Cas. No. 2,504.

The federal district courts will not assume jurisdiction of prize matters of foreign nations occurring upon the high seas flagrante bello. Hernandez v. Aury (D. C. 1818) Fed. Cas. No. 6,413.

The confiscations provided for by Act July 3, 1861, § 6, and Act Aug. 6, 1861, can be carried into effect by the prize courts of the United States, as respects property captured at sea. The Sarah Starr (D. C. 1861) Fed. Cas. No. 12,352.

Where the captured vessel was destroyed because unfit to be sent in for adjudication, but the cargo was sent in, held, that the court had jurisdiction. The Zaralla (D. C. 1862) Fed. Cas. No. 18,203.

Where the captured vessel is appraised by a naval survey, and appropriated to the United States, she may be proceeded against in a prize court, where her papers and crew, together with the appraisal, are sent in. Advocate (D. C. 1862) Fed. Cas. No. 94.

The

The district courts have prize jurisdiction in case of property, recently water-borne, captured on a wharf by man-of-war's men in boats. Six Hun

dred and Eighty Pieces of Merchandise (D. C. 1863) Fed. Cas. No. 12,915.

No court of the United States is empowered to decree final distribution in prize except the court which first acquires jurisdiction over the res, or its representative proceeds. Winchester v. U. S. (1878) 14 Ct. Cl. 13.

Proceedings against a prize ship are to be had in the district court of the United States. (1798) 1 Op. Atty. Gen. 85.

When the courts have acquired jurisdiction of cases of maritime capture the political department of the government should postpone the consideration of questions concerning reclamation and indemnification until the judiciary has finally performed its functions in those cases. (1864) 11 Op. Atty. Gen. 117.

Prize courts are, in a sense, governed by the law of nations relating to war, and in all countries must have some, if not the same rules concerning the manner of presenting claims. (1899) 22 Op. Atty. Gen. 327.

No action at common law lies for an illegal capture on the high seas as prize of war; and no irregularity or misconduct of the captor in the disposition of the prize will confer jurisdiction as to the original taking, or be in itself a ground of action at common law. Novion v. Hallett (N. Y. 1819) 16 Johns. 327; Hallett v. Lamothe (1819) 7 N. C. 279.

A prize court proceeds in rem, and cannot exercise jurisdiction unless it have possession of the subject. Wheelwright v. Depeyster (N. Y. 1806) 1 Johns. 471, 3 Am. Dec. 345.

and

32. Objections or exceptions waiver thereof.-A plea to the merits in a case of seizure waives any exception to the jurisdiction. The Abby (C. C. 1818) Fed. Cas. No. 14.

A stipulation filed to obtain the release of a vessel is not a waiver of the question as to its original liability to seizure in admiralty. The Fidelity (C. C. 1879) Fed. Cas. No. 4,758, affirming (D. C. 1878) Fed. Cas. No. 4,757.

A plea to the jurisdiction can only be interposed by defendant himself in propria persona, and on oath. Teasdale v. The Rambler (D. C. 1794) Fed. Cas. No. 13,815.

Want of jurisdiction appearing on the face of the libel should be taken advantage of by demurrer, not by plea. Knight v. The Attila (D. C. 1838) Fed. Cas. No. 7,881.

Exception to the jurisdiction of the court, in a civil action brought by a private suitor against an armed ship of a friendly power, is properly taken by suggestion filed in the name of the United States by the United States attorney. The Pizarro v. Matthias (D. C. 1852) Fed. Cas. No. 11,199.

At any stage of a proceeding in admiralty until final hearing, the question of jurisdiction is open. Ward V.