23 F. Cas. 1355 | E.D. Mich. | 1873
Rule S3, under which the question presented arises, reads as follows: “Whenever a cross-libel is filed upon any counter-claim arising out of the same cause of action for which the original libel was filed, the respondents in the cross-libel shall give security, in the usual amount and form, to respond in damages as claimed in the said cross-libel, unless the court, on cause shown, shall otherwise direct: and all proceedings upon the original libel shall be stayed until such security shall be given.” Timothy Crowley, master of the scow Snow Bird, filed his libel in rem against the propeller Toledo, for 'Collision. The propeller having been seized, the Union Steamboat Company, a corporation organized and existing under the laws of the state of New York, owner of the propeller, put in its claim and answer, admitting the collision as alleged, but denying that the propeller was in fault, and alleging that the collision was caused solely by the fault of the scow, and setting up a counter-claim for damages on account of the same collision, in the sum of $700, for the recovery of which the respondent filed therewith its cross-libel against the scow, and prayed for a stay of proceedings upon the said original libel, until security should be given as required by the said rule 53. No process has been issued upon the cross-libel, but an order was granted staying proceedings upon the original libel, conditionally, as prayed in the answer, and to vacate which this motion is now made.
The ground of the motion is that rule 53 applies to libels and cross-libels in personam only, and not to those in rem. The language of the rule used in describing the subject-matter to which it relates is certainly broad enough to cover both classes of cases; and. looking to that, and to the evil which the rule was evidently intended to remedy, it does not seem to me to admit of a doubt that such is the scope and effect of the rule. Before the rule, no security could be obtained, or proceedings had upon a cross-libel without the issuing and service of process. On this account, it often resulted that any remedy by cross-libel was impossible, on account of the libellant in the original libel, in an action in personam, or the vessel rep-presented by the libellant in an action in rem. being and remaining beyond the same jurisdiction. This often resulted in the grossest injustice and oppression, equivalent in some cases to an absolute failure of justice. The respondeat or claimant in the 'Original suit in such cases, was obliged to : follow the libellant, or the vessel, into otb- . er, and often foreign jurisdictions, involving ! ruinous outlays and delays. And often, when . arrived where the libellant or the vessel was, he found there was no admiralty jurisdiction of the particular cause of action in question, on account of which he was deprived of the power to obtain security by a seizure of the vessel, and was obliged to resort to an action at common law, or fore-,go any remedy whatever; and that, too, while his opponent had the full benefit of security by seizure under our admiralty jurisdiction. For instance: In the British American provinces, the admiralty and maritime laws of England prevail. By those laws there is no admiralty jurisdiction beyond tide-water, and hence none upon the waters of the great lakes, and their connecting waters, and the St. Lawrence above tidewater — which are nearly equally divided between those provinces and the United States, •and constitute the boundary between the two countries to a vast extent, being not far from 1,500 miles in all. All the waters , named being public navigable waters, and it • being now well settled that the English rule ' as to tide-water, does not obtain in this ‘country, and that the jurisdiction of the United States admiralty courts extends over all public navigable waters, our courts have and entertain jurisdiction over the waters named. Now, in case of a collision between an American and a Canadian vessel on some of those waters (which is exactly the present case), the Canadian owner may libel the American vessel in our courts (just what was done in this case), and obtain security for the damages he may recover by a seizure of the vessel — a privilege which is denied the American owner in the Canadian courts, notwithstanding the collision may have been caused in part, or even wholly, by the fault of the Canadian vessel. In my opinion it was to remedy this class of evils that rule 53 was made. If 1 am correct in this, then it would deprive the rule of its chiefest virtue to limit it to actions in per-sonam alone. And I can see no good reason in the nature of the cases to which it relates for so limiting it in its application. The cases to which it relates are described in the rule as being those of cross-libels filed upon any counter-claim arising out of the same cause of action for which the orig. inal libel was filed. It must be, then, a cross-libel filed upon a claim arising out of a contract, tort, or other cause of action of which the court already has jurisdiction by the original libel. In case of a counter-claim being set up, a cross-libel is necessary, not to give the court jurisdiction of the subject-matter — it already has thqt — but in order to entitle the party setting up such claim to affirmative relief; such relief, when granted, however, must, from the nature of the
I entertain a high respect for the learning and ability of the judge who delivered the opinion above referred to, and have derived much aid in the past, as 1 expect to in the future, from his published opinions. It is very-seldom I .have occasion -to differ ¡with him, and when I do so it is with the greatest reluctance. In this case, for the reasons given, I am compelled to do so. I hold, therefore, that rule 53 applies to suits in rem as well as to suits in personam. Motion denied.
