Page:Federal Reporter, 1st Series, Volume 2.djvu/95

 88 FEDBRAIi EBPOETEB. �The question intended to be raised by the first reason assigned, in support of the motion to dismiss the present libel, is whether the proceedings authorized by the statute are the exclusive remedy for a seaman suing the vessel for his wages, or can he, without resorting to thia preliminary nieas- ure, apply to the court, and upon such application obtain ordinary process in admiralty against the vessel ? ïhis ques- tion has not hitherto been raised in this court, although the records show a number of instances where the same course was pursued in suits in rem for wages, as in the present case. The question, however, has reoeived the careful consideration of district judges of learning and large experience in admiralty cases, -who have held that the remedy conferred by the statute is not exclusive, but cumulative; and that the right of the seaman to arrest the vessel is not dependent upon a previous resort to the statutory proceeding, but that it is optional with him whether to pursue the preliminary measure of summon- ing the master, or make direct application for admiralty pro- cess. The Ship William Jarvis, (per Sprague, J.,) Sprague'a Decisions, 485; The M.-W. Wright, (per Longycar, J.,) 1 Brown's Ad. Eep. 290; The Waverly, (per Dyer, J.,) 7 Bissell, 465. The first two of the above cited cases arose under the act of 1790; the latter, under sections 4546 and 4547 of the Bevised Statutes. These are well considered cases, and they adopt as applicable to remedies, under the maritime law, the well settled rule of construction that where a statute providea a new remedy it is cumulative, unless the statute expressly or by necessary implication takes away the common law remedy. Sedgwick on Cons. of Stat. and Com, Law, 75. �In the foot note to the report of the case of The William Jarvis, supra, it is said that in many reported cases it seems that no such preliminary summons issued, e. g. The Martha, Bl. & How. 156, and Judge Dyer says, (7 Bissell, 471:) "It has long been the practioe of this court, and the praetice of the district courts of other districts, to treat these provisions as fumishing rather an optional and cumulative remedy, than one which excludes the seaman from the right or privilege, ����