court in York v. Texas, 137 U. S. 15 [11 Sup. Ct. 9, 34 L. Ed. 604]; followed in Kauffman v. Wooters, 138 U. S. 285 [11 Sup. Ct. 298, 34 L. Ed. 962]."

The court proceeds:

"A nonresident party against whom a personal action is instituted in a state court without service of process upon him may, if he please, ignore the proceeding as wholly ineffective, and set up its invalidity if and when an attempt is made to take his property thereunder, or when he is sued upon it in the same or another jurisdiction. Pennoyer v. Neff, 95 U. S. 714, 732, 733 [24 L. Ed. 565]; York v. Texas, 137 U. S. 15, 21 [11 Sup. Ct. 9, 34 L. Ed. 604]. But if he desires to raise the question of the validity of the proceedings in the court in which it is instituted, so as to avoid even the semblance of a judgment against him, it is within the power of the state to declare that he shall do this subject to the risk of being obliged to submit to the jurisdiction of the court to hear and determine the merits, if the objection raised to its jurisdiction over his person shall be overruled. This prevents a defendant from doing what plaintiff in error has attempted to do in the present case that is, to secure, if possible, the benefit of a binding adjudication in its favor upon the merits, through the exercise of the court's jurisdiction, while depriving its adversary of any possibility of success by reserving an objection to the jurisdiction of the court to render any judgment against it."

In the federal courts, however, it has been held that defendants appearing in the court under protest, with the sole purpose of denying the jurisdiction of the court, do not waive their rights, if such question be decided adversely to them, by then contesting the case on the merits. Western Indemnity Co. v. Rupp, supra; Harkness v. Hyde, 98 U. S. 476, 25 L. Ed. 237; Southern Pac. Co. v. Denton, 146 U. S. 202, 206, 13 Sup. Ct. 44, 36 L. Ed. 942; Mexican Central Ry. Co. v. Pinkney, 149 U. S. 194, 13 Sup. Ct. 859, 37 L. Ed. 699; Galveston, etc., Ry. v. Gonzales, 151 U. S. 496, 14 Sup. Ct. 401, 38 L. Ed. 248; Citizens' Savings & Trust Co. v. Illinois Cent. R. R. Co., 205 U. S. 46, 27 Sup. Ct. 425, 51 L. Ed. 703; Davidson Marble Co. v. Gibson, 213 U. S. 10-19, 29 Sup. Ct. 324, 53 L. Ed. 675.

This ruling, however, has been made in cases where the objection lay to the entire lack of jurisdiction of the court to hear the cause, either by reason of its inability to serve a nonresident defendant within the jurisdiction, or by reason of the statutory limitation of jurisdiction in the court affecting its power to assert jurisdiction; for as the Supreme Court adds in the case of Western Indemnity Co. v. Rupp, supra, on page 273 of 235 U. S., on page 41 of 35 Sup. Ct. (59 L. Ed. 220):

"As appears from Southern Pacific Co. v. Denton, and other cases of the same class above cited, the distribution of original and appellate jurisdiction in the federal courts is such as to sometimes give an advantage of this kind to defendants."

The cases in the federal courts in which the rule has been applied have been as to one class upon cases begun in state courts and then removed from the state court to the federal court where it has been sought to procure personal judgments against parties who, by reason of extraterritorial residence, were completely beyond the jurisdiction of the state court. There the defendant has been allowed to appear and deny the power of the court to have any right to take jurisdiction at all over him, and to reserve that question when decided against him, and notwithstanding that reservation to also contest the cause on its merits. The other class of cases have been cases in which, by the express terms of the act of Congress defining the jurisdiction of the federal court, it had no jurisdiction to entertain the cause except in the districts of the residence of the plaintiff or defendants. Coe v. Armour Fertilizer Works, 237 U. S. 413, 35 Sup. Ct. 625, 59 L. Ed. 1027.

The case at bar presents no such question. Here defendant is a domestic corporation with its residence and principal office within the court's territorial jurisdiction. Both the subject-matter of the cause and the persons of all the parties are within the court's power to act, and within its territorial jurisdiction. The question presented is not really one of competent jurisdiction in any sense as denying the court's power to take jurisdiction over either the cause or the parties. It is one of due service of process, i. e., of due process of law, of lack of due procedure to give the party cited his legal day in court. The defendant's contention is that it was not served with process as required by law so as to compel it to appear and have its day in court.

The object of the service of process is to bring the party into court, and, after due opportunity to him to defend, then to award judgment for or against him. If the receipt of that notice is admitted, and the party comes into court, and due time is given, and no snap or hasty judgment attempted, then it would appear that all the purposes of serving process have been accomplished.

The spectacle that would be here presented, if the contention of the appellant were sustained, would be that of a domestic corporation actually admitting receipt of the notice, and appearing in court, receiving its due time for preparation, filing its answer on the merits, proceeding to trial, cross-examining and examining at length its own and its adversary's witnesses, doing everything any other litigant could do in a court of justice, and then, after a solemn and final judgment rendered, upsetting and rendering naught all that has been done, simply because the notice delivered to it, and which it received, was delivered to its secretary and not to one of its directors, or its cashier, or president.

It seems to us that the rule with regard to nonresidents does not apply to residents in the position of the respondent below, and that its filing its answer to the merits, and appearing and contesting the cause on the merits, was a waiver of the alleged irregularity in the service of the monition.

We might add that, in the jurisdictions which permit such reservations of such preliminary questions, it is strictly required that the party protesting shall not solicit or ask or seek to procure any action of any kind on the merits until the decision of his protest. In the present case the respondent not only asked that the service be quashed so as to leave the cause still pending for another service, but sought to procure a dismissal of the libel and termination of the suit, which would have ended it for this suit so far as the merits were concerned, and not merely leave it open for another service of process.

The facts of the case appear to be that the deceased, Alonzo Skinner, was a longshoreman or dock hand employed by the appellant about its docks at Berkley, on the southern side of the Elizabeth river, at Norfolk. His labor was to work trucking around the dock, and on barges, carrying trucks from the dock to the barges and back. On 22d August, 1913, a barge lying at the dock of appellant loaded with goods was about to be transferred across the Elizabeth river to the dock of the Old Dominion Steamship Company. The chief clerk of appellant on its dock called Skinner and directed him to go on the barge and carry the package of waybills across to the Old Dominion Steamship Company's dock. Skinner, in pursuance of instructions, went on the barge. He appears to have been the only person on the barge, as the barge had no crew. It was operated when towed by the crew of the appellant's tug, which did the towing. The barge was about 100 feet long and 30 feet wide and was then drawing not over 12 to 15 inches of water. It was a barge with a closed cabin or house built upon the deck of the barge. Between the sides of the house and the gunwale or side of the hull of the barge was a walkway or runway about 12 to 13 inches wide. For the support and protection of persons on this runway a line, called in the testimony the lifeline, was stretched along the side of the house two or three feet above the surface of the runway, and held to the side of the house by supports or fastenings at proper intervals; so that any one walking along the runway could hold this line to steady and support himself against falling off the barge. The appellant's tug Lynnhaven approached to tow over the barge about 5:10 p. m. The mate was off duty eating his supper. The captain was at the wheel of the tug, and the deck hand was handling the lines near the forward bitts of the tug. The captain called to Skinner, who was on the barge, apparently at one end of the barge, to put his hawser over a bolt on the corner of the barge, which Skinner did, and the tug then hauled the barge clear of the dock out into the stream, and the captain, wishing to make fast alongside the barge, slackened up on the hawser, and told Skinner to slip the hawser over the bolt and up to the bitt about amidships of the barge. This required Skinner to walk along the runway on the edge of the barge. He slipped the hawser over the bolt and attempted to carry it to the other bitt. The captain saw that, with the tug and barge drifting apart, Skinner was in danger of being pulled overboard, called to him to let the hawser go, and then backed the tug off the barge. He backed away some distance, and then went ahead again, in order to get up to the barge, which was drifting in the stream, so as to fasten his hawser to the barge. As he approached the barge, Skinner was standing on the runway of the barge. The tug struck the barge, shoving or swinging the barge away for several feet, and, from the force of the impact, causing Skinner to lose his balance, or his hold on the lifeline, and be precipitated over the side of the barge into the stream, when, after some ineffectual efforts on the part of the crew of the tug to rescue him, he was drowned. The libel charges that the drowning resulted from two acts of negligence on the part of the tug's crew, viz.: (1) That the tug in approaching the barge carelessly and negligently struck the barge with great and extraordinary force and violence, by reason of which the deceased was thrown overboard; (2) that no reasonable or proper efforts were made by the crew of the tug to save him, and had such efforts been made he would have been saved.

The learned judge who tried the case in the court below makes no specific findings as to the acts of negligence on which he bases his conclusion, but finds generally that "the deceased lost his life solely as the result of negligence of the defendant company and its servants and without fault on his part." There is another act of negligence claimed by the appellee as evidenced by the testimony, and which the appellee, in his argument, relies upon for affirmance of the decree below, viz.: That Skinner was an inexperienced person, who was directed by the captain of the tug to perform a piece of work he was entirely unfit and unqualified to perform, and lost his life in consequence; that the work he was required to perform was to walk along the narrow runway on the edge of the barge, and place a hawser over the bitt, that being a thing a green or inexperienced hand cannot perform with safety to himself.

The evidence does not seem to show that the blow struck by the tug on the barge when approaching for the purpose of making fast in the stream was of extraordinary or unusual violence. Neither the tug nor the barge appear to have been injured. The coming together of two such boats in midstream, both more or less in motion, is always accompanied by some jar or thump, and there is nothing in the testimony to show that the contact in this case was more violent than is usual in similar cases. There does seem to have been delay in the efforts to rescue Skinner due to the absence of the best facilities. The deck hand who endeavored to throw the line had a line apparently too heavy for him to fling far enough to reach Skinner where the latter was in the water, although a lighter line might have accomplished the purpose. There was no ring buoy or life preserver at hand at that juncture for the deck hand to fling to Skinner. The deck hand had to go up the side of the house of the tug to the deck above, near the pilothouse, and break open a box to get out a life preserver, and when he flung the life preserver the tug had drifted so far from Skinner the life preserver failed to reach him. From all the evidence it would appear that the drowning was the result of a chain of circumstances. Skinner was too inexperienced or too careless to handle himself on the runway of the barge, and the unexpected (to him) force of the jar and sheer caused by the tug striking the barge precipitated him overboard. He seems to have been unable to swim, and the lack of having at hand the proper facilities on the tug to rescue him caused a delay which made the efforts at rescue futile,

[4,5] Assuming that Skinner's ignorance and inexperience with the act of the captain in putting him in a dangerous position were not in issue as not having been alleged in the libel, then the decree of the court below, construed as being responsive to the libel, found as a conclusion of fact that the respondent was guilty of negligence in one or both of the particulars charged in the libel. It seems to this court that if an employer requires its employés to work in a place where they may be subjected to the danger and peril of being precipitated into the water, as in the present case, there should be provided devices and facilities reasonably fit and accessible to ward off a fatal eventuation by effecting a rescue if reasonably possible. It seems also that under the rather informal proceedings in admiralty, that unless the defendant pleads surprise, and procures a continuance for preparation, it is not improper for a court of admiralty, in its discretion, to allow testimony as to concurring circumstances, indicating negligence, and to base a decree thereon, although not particularly or specifically pleaded in the libel, especially when the circumstances are such as in the present case, the dangerous character of the work required to be done on the runway by Skinner if performed by an inexperienced man.

There seems to have been no one but Skinner on the barge. In obeying the captain's orders to make fast the tug to the barge, he was obeying the orders of one who he had a right to assume was, under the circumstances of this case, a superior employé of the common employer whose orders he was required to obey.

[6] The general rule is that the decision of the judge below in an admiralty cause on questions of fact, where there is conflicting testimony, or the credibility of witnesses is involved, and the witnesses have been examined before the judge below, will not be reversed unless manifestly contrary to the evidence. In the present case we do not find that the conclusions of the learned judge who tried the cause below and heard the testimony can be said to be manifestly against the evidence upon the questions of fact involved, but, on the contrary, that as a whole there is sufficient evidence to support them, and the decree below is accordingly affirmed.