said: "The court of prize is emphatically a court of the law of nations; and it takes neither its character nor its rules from the mere municipal regulations of any country."23 And it has at least been suggested that the principles of the common law as to process and proceedings have no application in courts of admiralty.2* § 3256. Evidence of usage-Sailing rules. From the earliest history of navigation there have existed certain regulations for the purpose of preventing collisions between ships sailing the seas and engaged in maritime commerce. These were called sea laws, and in the course of time recognized as settled usage having a binding and obligatory effect. Such usages existed and were recognized long before there was any legislative control upon this subject. The courts of both law and admiralty constantly refer to the established usages of the sea as furnishing the rule by which to determine whether any fault of navigation was committed and who was responsible. It is true that laws and regulations have since been enacted, and where they apply they must be looked to as furnishing the sole rule for guidance. But where they do not apply evidence of usage is admissible. The rule on this subject has been aptly stated as follows: "Sailing rules and other regulations have since been enacted; and it is everywhere admitted that such rules and regulations, in cases where they apply, furnish the paramount rule of decision; but it is well known that questions often arise in such litigations, outside of the scope and operation of the legislative enactments. Safe guides, in such cases, are often found in the decisions of the courts, or in the views of standard text-writers; but it is competent for the court, in such a case, to admit evidence of usage; and, if it be proved that the matter is regulated by a general usage, such evidence may furnish a safe guide as the proper rule of decision."25 § 3257. Judicial notice.-The general rule of judicial notice is applicable to courts of admiralty.26 According to adjudicated cases these courts take judicial notice of many natural phenomena as well 23 Adeline, The, 9 Cranch (U. S.) 244. 24 Clarke v. New Jersey &c. Co., 1 Story (U. S.) 531; Manro v. Almeida, 10 Wheat. (U. S.) 473; Harriet, The, Olcott (U. S.) 222, 11 Fed. Cas. No. 6096. 25 City of Washington, The, 92 U. S. 31. Planter, The, 7 Pet. (U. S.) 324, 342; Apollon, The, 9 Wheat. (U. S.) 362, 374. as geographical positions that affect navigation generally, and which enter as an element in the determination of their jurisdiction. For this purpose the courts will judicially notice that New Orleans and New York Bay are within the ebb and flow of the tide. Thus it has been held that the court would judicially notice the geographical position of Sandy Hook.27 And it has been held that the court would take judicial notice that the voyage of a vessel up the Mississippi River was above the ebb and flow of the tide and that wages arranged during such voyage could not be considered as earned in a maritime employment.28 The rule as to this jurisdiction was thus stated by Judge Story: "The true test of its jurisdiction in all cases of this sort is, whether the vessel be engaged, substantially, in maritime navigation, or in interior navigation and trade, not on tide waters. In the latter case, there is no jurisdiction. So that, in this view, the district court had no jurisdiction over the steamboat involved by the present controversy; as she was wholly engaged in voyages on such interior waters."20 § 3258. Foreign laws-When proof required.-The general rule that a foreign law to be available must be pleaded and proved prevails generally in the courts of admiralty.30 But it seems that this rule of practice has certain marked exceptions in the admiralty courts which are so pronounced as to make it practically a new rule. This general rule of proof in admiralty courts is limited to the pleading and proof of such laws of foreign nations as are designed only for the direction of their own affairs. But courts of admiralty will take judicial notice of the public laws of a foreign nation on subjects of common interest and concern to all nations and especially so when such laws are promulgated by the governing powers or the executive officers of any country. Chief Justice Marshall in an early case in speaking of the authorities on this subject said: "Several have been quoted (and such seems to have been the 27 United States v. La Vengeance, How. (U. S.) 400; Liverpool &c. Co. 3 Dall. (U. S.) 297. v. Phenix Ins. Co., 129 U. S. 397; Dainese v. Hale, 91 U. S. 13; Pierce v. Indseth, 106 U. S. 546; Pawashick, The, 2 Low. (U. S.) 142; 28 Thomas Jefferson, The, 10 Wheat. (U. S.) 428; Planter, The, 7 Pet. (U. S.) 324, 342. 29 Orleans, The, 11 Pet. (U. S.) Lloyd v. Guibert, L. R. 1 Q. B. 115, 175. 30 Church v. Hubbart, 2 Cranch (U. S.) 187; Ennis v. Smith, 14 6 B. & S. 100; Cridland, Ex parte, 3 Ves. & B. 95. general practice), in which the marine ordinances of a foreign nation are read as law, without being proved as facts. It has been said, that this is done by consent; that it is a matter of general convenience, not to put parties to the trouble and expense of proving permanent and well-known laws which it is in their power to prove; and this opinion is countenanced by the case cited from Douglas. If it be correct, yet, this decree having been promulgated in the United States as the law of France, by the joint act of that department which is entrusted with foreign intercourse, and of that which is invested with the powers of war, seems to assume a character of notoriety which renders it admissible in our courts."31 31 Amelia, The, 1 Cranch (U. S.) 1, 38; Bernardi v. Motteux, 2 Doug. 574; Maria, The, 1 Rob. Adm. 340; Scotland, The, 105 U. S. 24; Liverpool &c. Co. v. Phenix Ins. Co., 129 U. S. 397; Maggie Hammond, The, 9 CHAPTER CLX. PLEADING AND PROOF. Sec. Sec. 3259. Proof must come within the 3267. Amendments-Hearing on ap § 3259. Proof must come within the issues.-The strict technical rules of pleading adopted and practiced in common law courts are not strictly adhered to in courts of admiralty. Yet the rule in admiralty practice is that the matters in controversy must be distinctly propounded, and each party must set forth by plain and precise allegations the grounds on which he asks for the judgment of the court in his favor, as well to disclose to the adverse party the points to which he must direct his proof, as to enable the court to see what is in controversy between them. The issues are determined by the distinct allegations on one side and the contradictions on the other, and a court of admiralty will not go outside of the issues thus formed. This rule has been more aptly stated as follows: "The rules of pleading in the admiralty do not require all the technical precision and accuracy which is necessary in the practice of the courts 1 Orne v. Townsend, 4 Mason (U. S.) 541; Soule v. Rodocanachi, Newberry Adm. 504; Boston, The, 1 Sumn. (U. S.) 328, 3 Fed. Cas. No. 1673; Treadwell v. Joseph, 1 Sumn. (U. S.) 390; Sarah Ann, The, 2 Sumn. (U. S.) 206; Confiscation of common law. But they require that the cause of action should be plainly and explicitly set forth, not in any particular and sacramental formula, but in clear and intelligible language, so that the adverse party may understand what is the precise charge which he is required to answer, and make up an issue directly upon the charge. The evidence must be confined to the matters put in issue by the parties, and the decree must follow the allegations and proofs." In a somewhat later case the rule was thus stated: "A cardinal principle in admiralty proceedings is, that proofs cannot avail a party further than they are in correspondence with the allegation of his pleadings, and that the decree of the court must be in consonance with the pleadings and the proofs." The general rule is that no evidence is admissible unless it comes within the issues made by the pleadings and there must be a substantial agreement between the pleadings and the proofs.* § 3260. Parties bound by allegations. Following the practice in all other courts parties are bound by their allegations and proofs, and the former must be sustained by the latter." "The libelants must recover on the allegations in their libel; and the respondents 2 Jenks v. Lewis, 1 Ware (U. S.) 51. Davis v. Leslie, 1 Abb. Adm. 123; Hoppet, The, 7 Cranch (U. S.) 389; Fashion, The, v. Ward, 6 McLean (U. S.) 195; Rhode Island, The, Olc. (U. S.) 505; Boston, The, 1 Sumn. (U. S.) 328, 11 Am. Jur. 21, 3 Fed. Cas. No. 1673; Sarah E. Kennedy, The, 29 Fed. 264; Morton, The, 1 Brown Adm. 137, 17 Fed. Cas. N. 9864; Sarah Ann, The, 2 Sumn. (U. S.) 206, 21 Fed. Cas. No. 12342. Davis v. Leslie, 1 Abb. Adm. 123, 7 Fed. Cas. No. 3639; Washington Irving, The, Abb. Adm. 336, 29 Fed. Cas. No. 17243; Morton, The, Brown Adm. 137, 17 Fed. Cas. No. 9864; Kellum v. Emerson, 2 Curt. (U. S.) 79, 14 Fed. Cas. No. 7669; Campbell v. Uncle Sam, The, 1 McAll. (U. S.) 77, 4 Fed. Cas. No. 2372; Turner v. Black Warrior, 1 McAll. (U. S.) 181, 24 Fed. Cas. No. 14253; Kramme v. New England, Newb. Adm. 481, 14 Fed. Cas. No. 7930; Rhode Island, The, Olc. 505, 20 Fed. Cas. No. 11745; Sarah Ann, The, 2 Sumn. (U. S.) 206, 21 Fed. Cas. No. 12342; United States v. Hunter, Pet. (U. S.) 10, 26 Fed. Cas. No. 15428; Reppert v. Robinson, Taney 492, 20 Fed. Cas. No. 11703; William Harris, The, 1 Ware 373, 29 Fed. Cas. No. 17695; McKinlay v. Morrish, 21 How. (U. S.) 343; Pope Catlin, The, 31 Fed. 408; Hays v. Pittsburgh &c. Co., 33 Fed. 552; Earnwell, The, 68 Fed. 228. |