The Illinois

12 F. Cas. 1177, 6 Chi. Leg. News 398

• Court: District Court, E.D. Michigan
• Decided: August 15, 1874
• Status: Published

Opinion

LONGYEAR, District Judge.

The libel is in the usual form of libels in personam under the general maritime law. 2 Conk. Adm. 478 et seq., 482, 488; Ben. Adm. 484, No. 83. The allegations, the absence of which constitute the first three grounds of demurrer, were necessary in order to confer jurisdiction under the act of congress of February 26, 1845 (5 Stat. 726), entitled “An act extending the jurisdiction of the district courts to certain cases upon the lakes and navigable waters connecting the same” (2 Conk. Adm. 491, and note a). But the supreme court in the case The Eagle, 8 Wall. [75 U. S.] 15, adopting the only logical conclusion from their earlier decision in the case of The Genesee Chief, 12 How. [53 U. S.] 443, authoritatively decides that general admiralty jurisdiction was not limited in this country to tide waters, but extended to the lakes and the navigable waters connecting them, and hence that the act of 1845 was inoperative and ineffectual, with the exception of the clause which gives either party the right of trial by jury when requested. Since that decision the limitations as to jurisdiction imposed by the act of 1S45, have had no existence, and the necessity of inserting in the libel the allegations in question has ceased; and consequently, a libel which is sufficient under the general maritime law is now sufficient in cases upon the lakes and their connecting waters. See The General Cass [Case No. 5,307]. The first, second and- third grounds of demurrer are therefore not well taken.

As to the fourth ground of demurrer, I find no adjudications or opinions of text writers upon the point; but judging from the forms adopted and universally used from an early period in admiralty jurisprudence down to the present time, it seems to have always been considered sufficient to describe a vessel in a libel, whether in rem or In personam, as the ship, hark, sloop, schooner, steamboat, steamer, harge, or as the case may be, giving her name, without further specification or qualification. See 2 Conk. Adm. 490, note a. These terms seem always to have been considered sufficient to denote the maritime character of the subject. In their ordinary meaning they signify maritime things, and, independently of the consideration of long usage, the use of those terms alone is no doubt sufficient to confer jurisdiction without further description or qualification. The rest follows by necessary implication. . If the fact be different, it must be taken advantage of by way of special allegation, and cannot be by way of demurrer. The fourth ground of demurrer is, therefore, also not well taken. The demurrer must be overruled, with costs of the demurrer to libellant, with leave to respondent to answer the libel, on condition of payment of the costs of the demurrer, including a counsel-fee of $10. Demurrer overruled.