CHAPTER XXXIV.

Petitions-Motions-Orders-Rules-Notices.

563. There are proceedings of an independent character connected with the powers of a Court of Admiralty, which are not properly actions or suits. These are originally commenced by petition, and carried to their final determination by the simple orders of the court, without any formal suit or process. (a)

Such are proceedings for a survey, on the application of seamen alleging unseaworthiness-or, on the application of a master to authorize a sale by him, as master, or other proceedings, where a final decree or adjudication, inter partes, is not sought for, but where the aid of the court is sought, to authenticate, or give solemnity and impartiality to proceedings authorized by statute and by the general Admiralty law. And whenever a party desires the order of the court, regulating, correcting, modifying, or arresting the proceedings in the cause -or authorizing any incidental, ancillary, or provisional proceeding, he may apply to the court by petition or motion.(b)

564. If a petition be resorted to, the petitioner must state briefly and clearly the facts on which the demand for the relief are founded, either by a full statement, or by reference to the pleadings, depositions, or other documents, and must close with a prayer for the relief desired, so framed as to inform the court and the opposite party, if there be one, of the relief demanded in the premises. The petition must be sworn to by the petitioner. A copy must be served on the Proctor of the opposite party, with such notice of the time of presenting the same, as is required by the rules of the court.

(a) Dunlap's Prac. 129.

(b) Seaman's Act, § 3.

Betts' Prac. 117, 119.

Ante, § 299. Betts' Prac. 117. Dunlap's Prac. 129.

565. In case a motion is resorted to, the facts must be brought before the court in affidavits, or by proper reference to the pleadings, depositions, or other documents.

Copies of the affidavits must be served, with a notice containing, like the prayer of the petition, an intelligible statement of the relief or order which the party desires.

The other party produces, at the hearing, without service of copies or notice, such proofs by affidavits or other documents, as may best answer his purpose.

On these two sets of papers, the court usually disposes of the matter, unless in the exercise of a sound discretion, time and liberty are given, by the court, to the moving party, to introduce rebutting for explanatory proofs. This is rarely done except in cases of urgent equity, of hardship or of surprise.

Wherever circumstances authorize or require an ex parte motion or petition, as is sometimes the case, the court always requires not only full proofs to justify the order asked for, but also proof of diligence in endeavoring to give notice to the other party, if it be a matter of which he is entitled to notice.

566. In the English Admiralty, the court, in most cases, gives its directory orders, the form of a writ, under seal of the court. They are sometimes called commissions, and sometimes warrants—thus, there are commissions to take bail-to appraise, to sell, &c.—which are moved for by the party, ordered by the court, and issued by the clerk. In the American Admiralty Courts, with more simplicity and directness, the order of the court, made on motion or petition, takes the place of the commission or warrant a copy certified by the clerk being sufficient evidence of the direction of the court.(a)

There is, however, no legal objection to the more cumbrous and expensive forms of the English practice.

567. There are no common motions, orders and rules, in Admiralty. The rules of court may sometimes authorize orders, of course, but they are always to be entered by the clerk,

(a) Betts' Prac. 43, 44. Dunlap, 177.

as made in court, either as of the stated term of the court, or as of a special court of that day. There are many chamber orders, mere mandates of the Judge-staying proceedings for a provisional purpose-extending or enlarging time-directing the issue of process-fixing the amount of bail, &c. These are made ex parte by the Judge, on affidavit showing the necessitythey are not entered in the minutes of the court, but are served on the opposite party, by delivering him a copy. If he be of opinion that the order has been granted improvidently, or on mistaken suggestion, he may apply for a hearing upon it, on an ex parte order to show cause why it should not be vacated.(a)

568. Each court prescribes what notice shall be given of the various steps in a cause to be brought before it. The different systems of common law and equity practice, in the courts of the States, which prevail in the Courts of the United States, in common law and equity causes, have caused, in some proceedings, diversity, where it ought not to exist. In the New York districts, no causes are put upon the docket or calendar, at any term of the court, except such as the parties shall notify the clerk to put upon the docket, and shall also notify the opposite party that they are to be so put on. In other districts, the clerk, from his own registers, entries, and files, makes up a docket or list of all the causes at issue, and no notices are given, by or to any one, on the subject. Each party is expected to attend court, and when his causes are called, either bring them on for trial, or, by the order of the court, or the consent of his adversary, have them continued; or if his adversary be not present, have them dismissed or decided by default. This latter practice is the proper Admiralty practice. It prevails in the Supreme Court of the United States, and might well be prescribed by that court for all the District and Circuit Courts in Admiralty causes.

All notices in the Southern District of New York, are notices of four days. In all matters except the hearing of causes, al

(a) Vid. Precedents in the Appendix.

though the regular notice is four days, the court will, on sufficient cause shown, order a shorter notice.(a)

All notices and other papers to be served in a cause, are to be served on the proctor instead of the party, if a proctor have appeared in the cause.

$569. Each District Court and each Circuit Court may, by general rules, regulate their practice, in such manner as they shall deem most expedient for the due administration of justice, in suits in Admiralty, in all cases not provided for by the General Admiralty Rules of the Supreme Court and such rules exist in most, if not all the districts, both in the Circuit Courts and the District Courts. Those of both courts, in the Southern District of New York, in Admiralty cases, will be found in the Appendix.(b)

(a) Vid. the Rules.

(b) Ad. Rule 46. Process Act of 1792, § 2.

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CHAPTER XXXV.

Admiralty and Maritime Crimes.

570. The grant in the Constitution, of judicial power, to the government of the United States, in all cases of Admiralty and maritime jurisdiction, is without limitation, and, of course, embraces criminal as well as civil cases. It is under this grant alone, that the federal government have the right to punish a large class of offences whose punishment is provided for, in the acts of Congress in relation to crimes and offences on the high seas. In these acts, the various offences are not classed of described as Admiralty cases, but they are indiscriminately arranged with other descriptions of crimes subject to the federal jurisdiction. They will be found in the crimes acts of 1790, of 1804, of 1820, of 1825, and of 1835, in various sections, providing for the punishment of crimes and offences committed "on the high seas, or in any arm of the sea, or in any river, harbor, creek, basin or bay, or in any other waters within the Admiralty and maritime jurisdiction of the United States." The power of the federal government to punish these offences, is derived from the Admiralty and maritime grant in the Constitution; and of all of them which are not capital, the District Court has jurisdiction. If committed within any district, the trial must be in that district; and if upon the high seas, out of a district, then in the district where the offender is apprehended, or into which he may be first brought. (a) Those who contend for the narrow jurisdiction of the Admiralty, have not always considered what would be its effect upon the criminal jurisdiction of the General Gov

ernment.

571. Under the general provisions that, in Admiralty and

(a) Const. art. 3, § 2. 1 Stat. at Large. 4 id. 115, 777. 5 id. 517. 6 Amend to the Const. U. S.