interest to trustee with out appraisement. a stipulation, with sureties, for payment thereof into court whenever the same shall be ordered; or, if the said owner or owners shall so elect, the said court shall, without such May order transfer of appraisement, make an order for the transfer by him or them of his or their interest in such vessel and freight, to a trustee to be appointed by the court under the fourth section of said act; and, upon compliance with such order, the said court shall issue a Monition, how served. monition against all persons claiming damages for any such embezzlement, loss, destruction, damage, or injury, citing them to appear before the said court and make due proof of their respective claims at or before a certain time to be named in said writ, not less than three months from the issuing of the same; and public notice of such monition shall be given as in other cases, and such further notice served through the post office, or otherwise, as the court, in its discretion, may direct; and the said court Further prosecution of shall also, on the application of the said owner or owners, make an order to restrain the further prosecution of all and any suit or suits against said owner or owners in respect of any such claim or claims. suits restrained. Decisions In a proceeding claiming the benefit of the limitation of liability provided for in sec. 4,282 and sec. 4,284, Rev. Stats. (U. S. Comp. Stats. 1901, p. 2943), Held, that the value of the vessel or interest of the party may be judicially ascertained primarily without a hearing of the persons interested adversely, and that such ex parte appraisement is not void, though irregular. In re Morrison, 147 U. S. 14-34, 37 L. ed. 60. The Supreme Court in providing by Rule 54 for the making by the District Court of an order to restrain the prosecution of suits against shipowners in respect to the claims mentioned in that rule, intended that persons prosecuting suits in State courts should be restrained. No provision for notice of application for a restraining order has been made. In re Providence & N. Y. S. S. Co., 6 Ben. 124; Fed. Cases, 11,451. The Supreme Court had power to make Rule 54 notwithstanding the provisions of the Act of Mar. 2, 1793, sec. 5, that an injunction should not be granted to stay proceedings in any State court. Ib. Where upon an appraisement under Rule 54 the privilege is granted to the original libellant of being heard on the appraisement, it is proper that the court should direct a stay of his proceedings while the pre liminary steps are being taken to put into the hands of the court a sum of money or stipulation, representing the interest of the defendants, owners of the vessel libelled. Ib. The rule of limited responsibility applies to foreign ships as well as domestic, and as well in favor of foreign shipowners as against them. The Scotland, 105 U. S. 24–31, 26 L. ed. 1001. Where a rule adopted by Congress is the same as a rule of the general maritime law, its efficacy as a rule depends upon the statute and not upon any inherent force of the maritime law, and must be interpreted and administered as statute law. The code or system of laws by which the mutual rights of the parties are to be determined, stated. Ib. 29. Shipowners may avail themselves of the Act of Congress limiting their liability by plea or answer instead of the methods prescribed by Rule 54. Rule 54 was not intended to restrict but to aid in consolidating claims against the owners arising from the acts of the master or crew. Ib. 33. Two modes are given for securing to the owner a limitation of liability to the amount or value of his interest in the vessel or freight, one by sec. 4,284, Rev. Stats., and the other by sec. 4,285, Rev. Stats. (U. S. Comp. Stats. 1901, p. 2944). Ib. 34. Where the benefit of the limited liability law is pleaded to the libel a decree may be made against the respondents for the amount of their liability, and the amount paid into court distributed among the parties entitled to it. It is not necessary that the shipowner should surrender the ship and freight, which is but one of the two proceedings to claim relief. He may insist upon the benefit of the law while denying liability, and if found liable the decree may go against the value of the property saved, including the freight or passage money realized. Ib. 35. In a collision cause the owner of the vessel is not precluded from thereafter claiming the benefit of the limited liability act by denying all liability whatever. The Benefactor, 103 U. S. 239–243, 26 L. ed. 351. Where in proceedings for damages for collision a decree has been rendered in favor of the libellants, and the owners thereafter file a petition for limited liability, the libellants may be restrained from enforcing their decree, until final action had upon the petition, in any other manner than by pro rata distribution of the fund standing by stipulation in place of the ship and freight. Ib. 246. The extent of the liability of the owner is the value of the ship and freight after the injury has occurred, so that if the ship was destroyed the liability is gone, and if not destroyed the owners may surrender the ship in discharge of their liability. Ib. 246. Proceedings for the limitation of a liability not instituted until after a party has obtained satisfaction of his demand are ineffectual as to him. A return of the money should not be compelled, nor in general should relief be granted, except upon condition of compensating the party for costs and expenses by reason of delay in filing the petition. Ib. 245. A libel for damages in a collision case may be ordered to be stayed until the owners of the offending vessel have an opportunity of filing a petition or libel under the Act of Congress limiting their liability. The Maria and Elizabeth, 11 Fed. R. 520-521. The owner of the vessel before suit brought against him or the vessel may institute proceedings to obtain the benefit of the Act of Congress limiting liability. Ex parte Slayton, 105 U. S. 451-452, 26 L. ed. 1066. Where a vessel has been attached by process from a State court, and afterward the cause removed into the United States court, the possession of the vessel by the marshal or trustee is not necessary for the purpose of proceeding for limitation of liability; but where further proceedings in the State court have been enjoined, the vessel may be ordered sold by the United States court on application by the trustee on cause shown, and the attachment transferred to the proceeds of the sale. The Mendota, 14 Fed. R. 358–363. In a proceeding for the limitation of liability, the decree adjudging the rights of the parties and referring the cause to a commissioner to take testimony on claims for damages, may be reviewed, upon an appeal from the final decree, made after the master's report is in disposing of the whole cause, although that appeal is taken long after the entry of an interlocutory decree. La Bourgogne, 139 Fed. R. 433-435. RULE LV Proof of all claims which shall be presented in pursuance Proof before commis- of said monition shall be made before sioner and report of same. a commissioner, to be designated by the court, subject to the right of any person interested to question or controvert the same; and upon the completion of said proofs, the commissioner shall make report of the claims so proven, and upon confirmation of said report, after hearing any exceptions thereto, the moneys paid or secured to be paid into court as aforesaid, or the proceeds of said ship or vessel and freight (after payment of costs and expense), shall be divided pro rata amongst the several Pro rata distribution of claimants in proportion to the amount of their respective claims, duly proved and confirmed as aforesaid, saving, however, to all parties any priority to which they may be legally entitled. moneys. Decisions Rule 55 contemplates the payment of all costs and expenses necessarily incident to the sale of the vessel and the proof of the claims, including the clerk's commission upon the money paid into court. The Vernon, 36 Fed. R. 113-114. Where the fund still remains in court the filing of claims may be permitted after the time fixed by the monition therefor has expired by those seeking to share in the fund secured by the stipulation furnished under Rule 54. The Argos, 100 Fed. R. 142-144. The pro rata distribution of the fund where the amount was not sufficient to pay off the claims in full provided for by sec. 4,284, Rev. Stats. (U. S. Comp. Stats. 1901, p. 2944), relates to a distribution among those whose losses arise from the collision, and has no reference to other liens of an inferior grade against the vessel. A decree for damages on the cause of collision overrides all prior liens, even the wages of seamen. The Maria and Elizabeth, 12 Fed. R. 627–630. RULE LVI In the proceedings aforesaid, the said owner or owners shall be at liberty to contest his or their Libel or petition contesting liability to state liability, or the liability of said ship or facts. vessel for said embezzlement, loss, destruction, damage, or injury (independently of the limitation of liability claimed under said act), provided that, in his or their libel or petition, he or they shall state the facts and circumstances by reason of which exemption from liability is claimed; and any person or persons claiming damages as aforesaid, and who shall have presented his or their claim to the commissioner under oath, shall and may answer such who may answer libel libel or petition, and contest the right of the owner or owners of said ship or vessel, either to an exemption from liability, or to a limitation of liability under the said Act of Congress, or both. Decisions and contest. Where a petition under the Limited Liability Act is brought after the vessel has been decreed to be liable for damages sustained by a collision the question of liability is res adjudicata, and is in no way involved in the application of the owners for the benefit of the act. The losing party cannot revive and retry the case upon its merits on such petition. The Maria and Elizabeth, 12 Fed. R. 627-630. A person claiming damages may contest the jurisdiction of the court without presenting his claim to the commissioner as provided in Rule 56, but not the right of the shipowners to exemption from liability. In re Providence and N. Y. S. S. Co., 6 Ben. 258; Fed. Cases, 11,425 Rule 56 was intended to relieve shipowners from the English rule requiring them to confess a ship to have been in fault in a collision when they seek the benefit of the law of limited liability. Under Rule 56 a party seeking such limitation is allowed to contest any liability whatever. The Benefactor, 103 U. S. 239-243, 26 L. ed. 351. This rule was not intended to abrogate the rule of law that a matter once regularly decided between parties in a competent tribunal cannot be again opened by either of them except in appellate proceedings. Rule 56 allowing contestation of all liability cannot be applied where the question of general liability has already been adjudicated. Nor do proceedings under the rule for limitation of liability prevent the due prosecution of an appeal on a primary cause of collision. Ib. 243. filed. RULE LVII The said libel or petition shall be filed and the said proWhere libel or petition ceedings had in any District Court of the United States in which said ship or vessel may be libelled to answer for any such embezzlement, loss, destruction, damage, or injury; or, if the said ship or vessel be not libelled, then in the District Court for any District in which the said owner or owners may be sued in When ship not libelled, that behalf. When the said ship or or suit begun in district other than where ship vessel has not been libelled to answer is, where proceedings to be had. the matters aforesaid, and suit has not been commenced against the said owner or owners, or has been commenced in a district other than that in which the said ship or vessel may be, the said proceedings may be had in the District Court of the district in which the said ship or vessel may be, and where it may be subject to the control of such court for the purposes of the case as hereinbefore provided. If the ship have already been libelled and sold, the proceeds shall represent the same for the purposes of these rules. Decisions The owners' liability is limited to such loss or damage as occurs on the last voyage preceding the filing of the petition or in which the vessel |