In cases like these, the admiralty is inclined to follow the rule of the famous donkey case (Davies v. Mann., 10 M. & W. 546), where the owner of the animal had fettered its forefeet and, in that helpless condition turned it into a narrow highway; then the defendant's wagon came along very fast and carelessly and the donkey was crushed; the defendant had to pay for it because, if the driver of the wagon had been decently careful, the consequences of the negligence of the owner of the donkey would have been averted. Any vessel not "under way," as when aground, moored, or at a wharf, is in the position of anchored vessel and subject to similar rights and liabilities.
CHAPTER XVII
ADMIRALTY REMEDIES
One of the reasons for the continued vitality of the admiralty lies in the efficiency of the remedies which it affords. If it were not for these it is quite possible that it would long since have been absorbed by the common law as was the law merchant many years ago. Parties having rights to enforce will usually resort to the admiralty in preference to any other court if the selection is open to them. This is not so much by reason of any difference in the law as in the methods of its application. Admiralty remedies may be divided into proceedings, in rem, in personam, and under the Limited Liability Act.
1. Proceedings in Rem.—
This procedure is peculiar to the American admiralty and does not exist in the common law. As the name indicates, it is directed against the thing itself to enforce property rights which inhere in it, mainly maritime liens. It belongs to the courts of admiralty exclusively and similar remedies attempted to be given by state statutes are unconstitutional and void. The characteristic feature of this proceeding is that the vessel or thing proceeded against is itself seized and impleaded as the defendant and is judged and sentenced accordingly. Sales made under it are good against all the world while at common law it is only the title of the defendant which is affected and the title conveyed can never be better than his own. The nature of the proceeding is more apparent when it is noted that the admiralty personifies the ship and considers her capable of incurring legal obligations entirely irrespective of her owner's personal responsibility therefor. There is no such doctrine in the common law.
American courts of admiralty—that is to say, the United States district courts—take jurisdiction in rem not only of domestic vessels but of ships flying foreign flags, and of controversies originating on the high seas and in foreign waters. The test is, whether the subject matter is within admiralty jurisdiction. The admiralty courts are not bound to take jurisdiction of controversies between foreigners, but they may exercise it in their discretion and frequently do so, applying the principles of international law or the lex loci contractus. In the exercise of their discretion to take jurisdiction of suits between foreigners, the courts give consideration to the wishes of consuls of the nations involved, though they are not bound to do so. The United States courts have jurisdiction in rem for supplies furnished American ships in foreign ports and foreign ships in American ports. They may in their discretion take jurisdiction of claims for wages by foreign seamen against foreign ships in American ports, and, of course, of claims of American seamen against foreign ships. The principle upon which the court is to determine whether to exercise jurisdiction is whether the rights of the parties would best be served by retaining the cause or remitting it to the foreign court.
Foreign governments sometimes own or operate merchant vessels, and a serious question arises, as yet undetermined by the Supreme Court, whether such vessels are, like naval vessels, exempt from maritime liens, or whether they are subject to the process in rem of the admiralty courts. By the act of March 9, 1920, Shipping Board vessels are immune from arrest, but provision is made for suit in personam against the government. Vessels of the Panama Railroad, although it is a government agency, are subject to suits in rem.
2. When Proceedings in Rem Will Lie.—
Generally speaking, every maritime lien includes the right to enforce it by a proceeding in rem. The person who has a maritime lien upon a vessel is entitled to proceed directly against her in a court of admiralty for the locality in which she happens to be. Thus in all suits by materialmen for supplies, repairs, or other necessaries; in all suits for mariners' wages, pilotage, collision, towage, hypothecation, bottomry, salvage, and the like, the process may be in rem.