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§ 574. Petition to bring in additional parties. "In any, suit, whether in rem or in personam, the claimant or respondent (as the case may be) shall be entitled to bring in any other vessel or person (individual or corporation) who may be partly or wholly liable either to the libelant or to such claimant or respondent by way of remedy over, contribution or otherwise, growing out of the same matter. This shall be done by petition, on oath, presented before or at the time of answering the libel, or at any later time during the progress of the cause that the court may allow. Such petition shall contain suitable allegations showing such liability, and the particulars thereof, and that such other vessel, or person ought to be proceeded against in the same suit for such damage, and shall pray that process be issued against such vessel or person to that end. Thereupon such process shall issue, and if duly served, such suit shall proceed as if such vessel or person had been originally proceeded against; the other parties in the suit shall answer the petition; the claimant of such vessel or such new party shall answer the libel; and such further proceedings shall be had and decree rendered by the court in the suit as to law and justice shall

Y. is regulated by Adm. Rule 24 as follows: "In case of seizure of property in behalf of the United States, an appraisement for the purpose of bonding the same may be had by any party in interest, on giving one day's previous notice of motion for the appointment of appraisers. If the parties or their proctors and the district attorney are present in court, such motion may be made instanter, after seizure, and without previous notice. Orders for the appraisement of property under arrest or attachment at the suit of a private party may be entered as of course, by the clerk, at the instance of any party interested, or upon the consent of the proctors for the respective parties. Only one appraiser is to be appointed, unless otherwise ordered, and, if the respective par

ties do not agree in writing upon
the appraiser to be appointed, the
clerk shall forthwith name him,
either party having a right to ap-
peal instanter to a judge from such
nomination. Appraisers, before ex-
ecuting their trust, shall be sworn
or affirmed to its faithful discharge
before the clerk, or his deputy, a
United States commissioner, or no-
tary public, and shall give one
day's notice of the time and place
of making the appraisement, by no-
tifying the proctors in the cause and
by affixing the notice in
spicuous place adjacent to the
United States court rooms, where
the marshal usually affixes his no-
tices, to the end that all persons
concerned may be informed there-
of; and the appraisement, when
made, shall be returned to the
clerk's office."

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appertain. But every such petitioner shall, upon filing his petition, give a stipulation, with sufficient sureties, or an approved corporate surety, to pay the libelant and to any claimant or any new party brought in by virtue of such process, all such costs, damages, and expenses as shall be awarded against the petitioner by the court on the final decree, whether rendered in the original or appellate court; and any such claimant or new party shall give the same bonds or stipulations which are required in the like cases from parties brought in under process issued on the prayer of a libelant."1

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The former rule upon the subject 2 was adopted by the Supreme court in consequence of a decision of the District court for the Southern District of New York in a collision case, and was limited to cases of damage by collision; but the proceeding was extended by the courts to other cases. Thus, in a suit for damage to cargo, the charterers of a vessel have been made respondents upon the petition of the owners and the managing owner at the petition of the charterer. In a suit in rem to enforce a lien for supplies, the charterer may be brought in upon the owner's petition. Upon a libel for breach of a charter party a corporation which had obtained possession of the vessel under a junior charter." Wharfingers have been brought in on the petition of the claimants of a steamship sued for negligence in discharging cargo on a wharf which was insufficient. In a suit against a boat for failure to deliver cargo, the respondent may bring in another vessel to which it delivered the cargo under a bill of lading giving the right of transhipment. The motion may be granted after the trial has begun.10 The

$ 574. 1 Adm. Rule 561. C. F. Harms Co. v. Upper Hudson Stone Co., 225 Fed. 630; The Sarnia; The Robert Palmer; The E. T. Dalzell, C. C. A., 2nd et., 261 Fed. 900. See supra, § 563.

2 Former Adm. Rule 59.

3 The Hudson, 15 Fed. 162.

4 The Alert, 40 Fed. 836; The Barnstable, 181 U. S. 464, 45 L. ed.

954.

5 Cuneo Importing Co. v. American Importing & Transportation Co., C. C. A., 247 Fed. 413.

Fed. Prac. Vol. III-61

6 The Louis Dolive, 211 Fed. 782; S. C., 236 Fed. 279.

7 N. Y. & Bebmudez Co. v. Mowinckel, 227 Fed. 950.

8 The City of Lincoln, 25 Fed. 835.

9 The Cetriana, 232 Fed. 175. See Otts v. I. M. Ludington's Sons, 229 Fed. 454.

10 Otts v. I. M. Ludington's Sons, 229 Fed. 454.

denial of a motion to bring in a third party is usually treated as made without prejudice to its renewal,11 and a party against whom the libel has been dismissed may be again brought in.12

§ 575. Answer. The answer should be filed upon the return day, unless further time is allowed by the court or the libelant's proctor. "If the respondent or claimant shall omit or refuse to make due answer to the libel upon the return day of the process, or other day assigned by the court, the court may pronounce him to be in contumacy and default and thereupon shall proceed to hear the cause ex parte, and adjudge therein as to law and justice shall appertain. But the court may set aside the default and upon the application of the respondent or claimant admit him to make answer to the libel on such terms as the court may direct." 2

"In all libels in causes of civil and maritime jurisdiction, whether in rem or in personam, the answers of or on 'behalf of the respondent or claimant to the libels and interrogatories shall be on oath or solemn affirmation; and all answers shall be full and explicit and distinct to each separate article and separate allegation in the libel, in the same order as numbered in the libel, and shall also answer in like manner or except to each interrogatory propounded by the libelant. But this rule shall not apply to cases where the sum or value in dispute does not exceed fifty dollars, exclusive of costs, unless the District court shall be of opinion that the proceedings prescribed herein are necessary for the purposes of justice in the case before the court."

11 The Wilhelmina, C C. A., 232 Fed. 430.

12 The Teaser, C. C. A., 246 Fed. 219.

§ 575. 1 By Adm. Rule 14, S. D. N. Y., "In cases where process has not been issued, but a claim or notice of appearance has been filed, the answer or exceptions shall be filed within two weeks thereafter, or within such further time as may be allowed by the court, or by consent."

2 Adm. Rule 28. Where, after a libel in admiralty had been filed,

respondent made default, and settled the case out of court, it was held that he was not entitled to have a release executed on such settlement filed in satisfaction of a judgment recovered against him by default, except on payment of costs. Naretti v. Scully, 133 Fed. 333.

3 Adm. Rule 26. O'Keefe Staples Coal Co., 201 Fed. 133, 137. "The seventh exception objects to the statements in the fourth article of each answer that, if the tug's helm was in fact ported, she did not respond, and her subsequent

"Where either the libelant or the respondent or claimant is out of the country, or unable, from sickness or other casualty, to make an answer to any interrogatory on oath or solemn affirmation at the proper time, the court may, in its discretion in furtherance of the due administration of justice, dispense therewith, or may award a commission to take the answer of the respondent or claimant when and as soon as it may be practicable or may receive a verification by agent or attorney with like force and effect as if made by the party." "In all cases where the respondent or claimant answers, but does not answer fully and explicitly and distinctly to all the matters in any article of the libel, and exception is taken thereto by the libelant, and the exception is allowed, the court may, by attachment or otherwise, compel the respondent or claimant to make further answer thereto; or may make such other order in the cause as it shall deem most fit to promote justice." 5

course and speed forbade the supposition that her helm had been ported. This seems to me neither admission nor denial, nor new matter set up in defense, but argument only, and improper in an answer. The eighth exception objects to denials, in the same article of each answer, that the tide, at the time, was such as to put the tug in danger of being carried broadside to the bridge, forcibly enough to endanger her or those on board, if her helm had been seasonably ported. This I consider improper for similar rea

sons.

"The twelfth exception objects to denials in the seventh article of each answer that the county accepted and undertook the control of the bridge, or employed and paid those who opened or controlled it, 'in such legal effect as to constitute liability,' or 'personal liability.' This seems to me objectionable on similar grounds."

In a suit to enforce a maritime

lien a failure to deny that the libelant has such a lien may be treated as an admission that it exists. The Hattie Thomas, C. C. A., 262 Fed. 943. In such a suit it is insufficient to allege that credit was not given to the vessel without an averment that the debt was contracted solely upon the personal credit of the owner. The Transit, 217 Fed. 87. A denial of the correctness of the libelant's account should aver what items are incorrect. The Transit, 217 Fed. 87. A failure to answer a petition setting up claims for wages concedes the correctness of the allegations therein and of the liens asserted; but does not preclude the respondent from contesting any claim of priority when the petition is silent in that respect. The Samuel Little, 221 Fed. 308.

4 Adm. Rule 33, 29.

5 In a suit for collision against a. tug and her tow, the two considered as one vessel and an an

A defense in the disjunctive is improper. 5a New matter set up as a defense should be articled and pleaded separately and not blended with the response to any article of the libel. Although it seems that a plea to the jurisdiction may be combined with an answer to the merits," it has been said that an objection to the jurisdiction of a court of admiralty over a cause should be made by plea, or, where the want of jurisdiction is palpable, by demurrer.8 Under the former rules where answers were indefinite, bills of particulars have been ordered providing for the penalty of not permitting testimony concerning the point as to which the particulars were omitted.9

Where a party is not informed as regards allegations, he may so state and raise the issue thereupon without a positive denial; 10 but not unless he pleads ignorance.11 A positive denial, or a denial upon information and belief, of allegations concerning seaworthiness, proper manning and equipment, must set forth the facts upon which the respondent relies.12 In a collision suit, the allegation in the libel that the libelant's vessel was without fault, should be answered by either a denial, an admission or an averment of want of knowledge.13 The answer may set up equitable, as well as legal, defenses.14 The impossibility of a performance of a charter may be recognized as a

swer by the claimant of the tug was held to be insufficient unless it also answered the charges against the tow. The Teaser, 188 Fed. 721. 5a Allegations that a collision and the sinking of a boat, was caused by the fault and want of care of the owner or from causes within the privity and knowledge of the owner and its managing officers, or careless and improper navigation, or permitting engines, machinery, appliances and equipment to be insufficient and defective, was set aside upon exceptions. The Pere Marquette 18, 203 Fed. 127, 130. See Re Davidson S. S. Co., 133 Fed. 411.

6 The Whistler, 13 Fed. 295.

7 Inman v. The Lindrup, 70 Fed. 718.

8 The August Belmont, 153 Fed. 639.

9 Foster v. Compagnie Francaise de Navigation a Vapeur, 219 Fed. 351. See supra, §§ 242-246.

10 Re Davidson S. S. Co., 133 Fed. 411.

11 O'Keefe v. Staples Coal Co., 201 Fed. 133, 137.

12 Re Davidson S. S. Co., 133 Fed. 411; The Pere Marquette 18, 203 Fed. 127, 130. See The Commander in Chief, 1 Wall. 43, 17 L. ed. 609.

13 The Teaser, 188 Fed. 721. 14 Texas Co. v. Hogarth Shipping Co., 265 Fed. 375.

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