Deas v. The Berkeley
| Decision Date | 18 November 1893 |
| Citation | 58 F. 920 |
| Parties | THE BERKELEY. v. THE BERKELEY. DEAS |
| Court | U.S. Court of Appeals — Fourth Circuit |
C. B Northrop, for libelant.
Ficken & Hughes, for respondent.
This is a motion to set aside a decree in admiralty. On 18th August 1893, the libel was filed for seaman's wages, and a warrant of arrest asked for. By the rule of this court, (rule 9,) process in rem may be issued without a mandate of the judge, except in foreign attachment or in suits for seaman's wages. The judge was absent from Charleston holding the court at Greenville, when this libel was filed. The clerk issued the warrant himself under the seal of the court, without the mandate of the judge. The marshal served the warrant, and arrested the vessel. In an hour or two after the arrest, the master and claimant went to the marshal, and with J. F. Hernholm as surety, entered into a stipulation in the sum of $100, under Rev. St. § 941. This stipulation ran in these words: 'Personally appeared [the claimant and his surety, naming them,] who, submitting themselves to the jurisdiction of this court, bind and oblige themselves,' etc. No formal appearance was entered, and no defense was put in. No advertisement of the vessel was made. On 17th October, 1893, proclamation was made, the respondent was found in default, decree was entered, and reference had to the clerk to ascertain the amount. His report was confirmed 26th October, 1893, and execution granted against the stipulators. They come in, and move to vacate the decree and all proceedings in the cause upon the ground that no warrant of arrest was legally issued, and upon the further ground that no advertisement was made, under rule 9, prescribed by the supreme court in admiralty.
There can be no doubt that the warrant of arrest was issued without authority. The rule expressly excepts cases for seaman's wages, when it allows a warrant to go without the mandate of the judge. This rule is founded on excellent reasons and sound policy. It is in close analogy with section 4546, Rev St., which provides for a prior examination by the judge into a claim for seaman's wages. The question is, has the respondent not waived this objection by entering into the stipulation? It is not essential to the validity of a stipulation of this sort that the vessel should be actually in arrest. The language of the section, 941, shows this: 'The marshal shall stay the execution of the warrant or discharge the property arrested if process shall have been levied' on receiving the stipulation. Judge Benedict, in The Roslyn and Midland, 9 Ben. 129, says it is a common practice, adopted for convenience and the saving of expense, to give a stipulation to secure a debt upon simple notice of the filing of the libel. A stipulation given under such circumstances is valid, although the vessel is not, and never was, in custody. Indeed, admiralty favors the stipulation. It serves all the purposes of security, and lets the vessel go free, fulfilling the purpose for which she was built; otherwise, she would lie idle at the wharf. But this is not precisely the case here. Respondents did not enter into the stipulation voluntarily on hearing of the libel filed, or to save expense. They stipulated because of the arrest, and to be free from it. The action was based on the belief that the warrant was good, and, as it bore the seal of the court, they had every reason to think so. The defect, the absence of the mandate of the judge, was not known to them, could not have been discovered by them on an inspection of the warrant, was probably not known to the marshal, and was known only to the clerk who affixed the seal of the court. Besides this, the judge was absent, was out of reach for several days, and the business of the steamer was interrupted. Under these circumstances, they entered into the stipulation. In this instrument they submit themselves to the jurisdiction of ...
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...requirements. First, the vessel must come into the possession of the court by seizure under adequate warrant of arrest. The Berkeley (D.C.) 58 F. 920. This gives jurisdiction of the subject-matter of the libel and over the res. Before the court has power to make a decree depriving the owner......
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