No. 9948.United States Court of Appeals, Third Circuit.Argued October 14, 1949.
Decided August 30, 1950. Rehearing Denied November 15, 1950.
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Herman Moskowitz, Philadelphia, Pa., for appellant.
Timothy J. Mahoney, Jr., Philadelphia, Pa. (Thomas E. Byrne, Jr., and Krusen, Evans Shaw, all of Philadelphia, Pa., on the brief), for appellee.
Before McLAUGHLIN and KALODNER, Circuit Judges, and FEE, District Judge.
JAMES ALGER FEE, District Judge.
Dowling, a seaman, sued the Isthmian Steamship Corporation to recover wages, statutory penalties and subsistence. Isthmian noticed deposition of Dowling, which he moved to vacate. This was denied. An appeal taken from this order was dismissed because not a finality. Thereafter, the District Judge ordered Dowling to appear for oral examination at a time and place to be agreed upon between the parties. Dowling appeared according to the terms of the order, but upon advice of counsel, refused to be sworn or to submit to examination. Judgment was thereafter “entered against the Libellant and in favor of the Respondent by reason of the failure of the Libellant to submit to an oral examination by the Respondent, as required by the Order and Decision of this Court.” Appeal was taken from this order.
The chief question is whether a federal court, sitting in admiralty, has the power to compel a party orally to answer questions regarding matters involved in a libel filed therein?
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The question of whether discovery can be obtained from a party, although debated, is really not raised, since libelant refused to testify at all. The question of whether witnesses can be examined by deposition is not strictly relevant, since examination of a party is sought. The question of whether the testimony of a party by oral deposition, rather than by written interrogation, can be taken alone is involved. Finally, what may be done under the Admiralty Rules does not necessarily come before us, since here the party was directed to answer by order of court.
The key postulate might well be disposed of by saying that due process has been granted and that rulings upon practice and procedure are within the sound discretion of the Admiralty Court.[1] However, since these matters have been seriously urged in argument, all will be discussed.
It is passing strange that such a point should be debated at this period of history, in admiralty and in respect to jurisdiction. For now, it is accepted, contrary to what had been thought previously,[2] that power of discovery, limitless except by protective orders of the court, can be permitted by rule as of course in common law actions. To old admiralty procedure, our modern systems are in debt for characteristic features and customs of extreme liberality and flexibility.[3]
It is surprising to find an attempt made to effect a spasticity more crippling than that now in the course of common law.[4]
Finally, an attack upon the power of a court to discipline a litigant for failure to obey an order to submit to examination
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far transcends a claim of error for receiving in evidence a deposition taken contrary to rule. Such a claim strikes at the jurisdiction of the tribunal itself.[5]
Some courts and textwriters seem to proceed upon the theory that Congress and the Supreme Court of the United States have attempted to limit the power of the Admiralty Courts to follow traditional and customary procedure by the adoption of the Admiralty Rules of Procedure, 28 U.S.C.A. While recognizing the traditions of the courts of instance jurisdiction, some of these seem to feel that the present text of the Admiralty Rules is a rigid legislative limitation of the power of the courts, and that therefore the tribunals acting under express rules are less constrained. This criticism fails to recognize the effect of both legislation and court rule.[6]
The Constitution of the United States vests admiralty and maritime jurisdiction in the federal courts.[7] It is to be noted that this jurisdiction was very well understood both as to substantive and adjective law by the founders, and was recognized as embracing “a system of procedure known and established for ages.”[8] The first judiciary act[9] contained the clause: “* * * the forms and modes of proceedings in causes of equity, and of admiralty and maritime jurisdiction * * * shall be according to the course of the civil law.”[10]
Although the nomenclature of the legislation was changed, the great body of procedure of the civil law was continued in effect by the statute of 1792,[11] which provides: “That the forms of writs, executions and other process, * * * and the forms and modes of proceeding in suits * * * shall be the same as are now used * * * in those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts * * * of admiralty * * * as contradistinguished from courts of common law; except so far as may have been provided for by the act to establish the judicial courts of the United States, subject however to such alterations
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and additions as the said courts respectively shall in their discretion deem expedient, or to such regulations as the supreme court of the United States shall think proper from time to time by rule to prescribe to any circuit or district court concerning the same: * * *.”
In order to provide for uniformity in certain basic procedures, the Congress in 1842 gave to the Supreme Court of the United States the power to regulate the practice, including the obtaining of discovery by general rules binding upon the lower federal courts. This statute does not indicate any attempt to circumscribe the power of the lower courts themselves to follow the traditional procedure theretofore recognized by the statutes above quoted. The act[12] in part provides that: “* * * the Supreme Court shall have full power and authority * * * to prescribe * * * in suits * * * in admiralty * * * the forms and modes of taking and obtaining evidence, and of obtaining discovery * * * and generally to regulate the whole practice of the said courts, so as to prevent delays, and to promote brevity and succinctness in all pleadings and proceedings therein, and to abolish all unnecessary costs and expenses in any suit therein.”
This power has been continued by Congress in the most recent statute,[13] which provides in part: “The Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs, pleadings, and motions and the practice and procedure in admiralty and maritime cases in the district courts of the United States * * *.”
It thus appears that there was a great body of procedure and practice which was adopted for the Admiralty Courts by statute and which these follow today. For a hundred years then, the Supreme Court has had express authority to prescribe and regulate the forms and modes of taking and obtaining evidence and of obtaining discovery. The fact that this power has not been exercised does not indicate that there were no methods of obtaining discovery by the procedure of civil law. It merely indicates that the Supreme Court was satisfied with the existing flexible practice which then obtained.
What then were the modes of proceeding of the Admiralty Courts according to the course of the civil law, which the musty statutes give the tribunals of today the right to follow?
As is well known, the admiralty and marine doctrines, adopted by the early English courts, had roots in the foundations of law and custom, and were drawn from sources widely separated in time and space, as Rhodes, Wisby, Oleron and the Hanse Towns,[14]
but in the course of centuries the practice was developed from the civil law tribunals and the ecclesiastic courts and widely differentiated from the procedure in the courts of common law.
When we speak of history, care must be exercised that all events be taken into consideration and that our interpretation accords with the spirit of the time of which we speak and not merely with the crabbed letters of the ancient text. Particularly is this true of practice and procedure of Admiralty. The civilians were a learned profession, who constituted a close-knit body.[15] In the struggle over jurisdiction, owing to purely local causes, the courts of the common law prevailed in England, and the scope of action allowed to tribunals of Civil and Canon law, of which Admiralty was one, became extremely restricted.[16] For this and other reasons, there were until very late no reports in admiralty. The permissible
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steps in a proceeding were shrouded in mystery to the uninitiated, for these often depended upon an unverified oral tradition carried in memory or at most committed to secret notes for the practitioner’s own eye.[17] The gulf which separated the technical environs of the Court of Chancery and the common law courts was not nearly as forbidding as that which cut off either of these from the procedural domain of the civilians. In the darkness[18] of these difficulties, the surviving indicia will be reviewed.
From very early times, the Admiralty Court of England, in its instance jurisdiction, took proof from witnesses in foreign lands by issuance of letters rogatory or of commissions.[19] These commissions were sent out on court order where the witness was absent from the jurisdiction and other now familiar conditions. In these courts, proofs were customarily taken in the jurisdiction immediately upon the initiation of the proceeding because of the nature of the situation and the tendency of witnesses to disperse.[20] Since “some of the parties or witnesses * * * are pressing to go to sea with the next tide,”[21] commissions were issued under order in the jurisdiction for other good cause, in the discretion of the court. These proofs, taken by commission upon direction of the court, were often initiated by filing of interrogatories. The answers were paraphrased by the commissioners for filing in court. Such examinations were held in secret and the transcription thereof constituted the proofs, since testimony was never taken in open court, but presented to the judge by the proctors. These were the paper proofs decried by Coke,[22] with tongue in cheek, in the battle for jurisdiction. Difficulties were, of course, encountered in taking proof before the issues were made up, and it is apparent that any matters connected with the subject matter of the controversy or the transaction were inquired into.
Of critical interest to us is the fact that Admiralty could and did, by order of court (dedimus potestatem) “examine the parties themselves.”[23] As to them, there was almost
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unlimited latitude. The libelant or the defendant had a right to demand the personal oath of the other party to the allegations of the latter’s own pleading. Either party had the right, at any time after the opening of the proceeding, to appeal to the conscience of the opposing party. At the time of the arrest of defendant in a proceeding in personam, he was directed by the magistrate and was sworn by God and the Holy Evangels to undergo examination as to the subject matter of the libel and warned as to the consequences of contumacy, which involved imprisonment until he did submit to examination. The same result was obtained by other means from libelant. Since Admiralty could not use the sanction of excommunication, as did the ecclesiastical courts, reliance was placed upon the process of arrest and bail.[24] It is probable these proceedings could be had immediately upon the presentation of the libel. These courts thus permitted proofs from witnesses to be taken immediately.[25] Interrogatories might be attached to the libel and to the answer, to which the opposite party was required to respond. Finally, a complete examination of the other party as to any fact material to the issues could be had under penalty.
These various approaches may have been but phases of the same method. The liberality of the civil law procedure was such that any process which would accomplish the end was permissible. The striking circumstance is that each phase is for the purpose of obtaining specific information by
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searching the conscience of the party. Discovery was then the specific end of all such examinations. These devices were for the purpose of allowing the other party to obtain admissions and to supply proof so that he would be relieved from the necessity of proving essential parts of his case.[26]
It was proper for the moving party to give warning after the appearance of the principal adverse party, that he would make an effort to obtain personal answers of the latter to the positions of the libel. The purpose of this was that, if he could by examination discover the truth of the facts alleged, the admission of his adversary would stand for proof and he would not be required to call witnesses. Partial confession of the truth elicited by this method of discovery served pro tanto. The party was sworn truly and accurately to answer of his own knowledge as to those things which he had done himself and as to his belief concerning the doings of others.[27]
But the process was not confined to the libelant, as each party had the right to search the conscience of the other.
Although the prize jurisdiction had different roots,[28] it was vested in the same tribunal and judges. There, immediately when the prize came into court, those found aboard were examined under process of Admiralty upon a stock set of written interrogatories usually established by rule of
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court, but designed to elicit by the method of discovery all incriminating facts.[29]
Owing to the prohibitions issued by the courts of common law, instance jurisdiction was confined almost exclusively to proceedings in rem.[30] With the practical extinction of libels in personam, the opportunity and occasion, after arrest of the principal, for discovery by commission or dedimus potestatem were lacking. The conflict caused the decline in business of the court at which Pepys gazed in wonderment, and occasioned the “dosey, old-fashioned, time forgotten, sleepy-headed little family” parties which Dickens saw with jaundiced eye. But it must not be forgotten that in this forum were laid the foundations of admiralty substantive law and procedure, and that disuse did not spell loss of highly developed technical procedure.[31] Among these we have seen were the power of the court to direct by order that a party disclose, upon a search of his conscience, any fact relevant to the controversy.
This system of admiralty procedure, so established in England, was adopted by the Constitution of the United States and the federal statute, as above noted. There were significant changes, however, made by express statutory provisions. No better proof of the complete adoption of the system could be found than the fact that Congress was impelled by necessity to change the existing procedure by definite enactment. On the other hand certain ancient devices such as the oath of calumny and suppletory oath were discarded as burdensome inconveniences of the older procedure.[32] A definite Act[33] required that testimony in admiralty cases be taken in open court viva voce.
It is difficult to understand the contention of appellant that this law, which changed
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the ancient practice, will not authorize a court to require a party to answer orally instead of answering formal interrogatories.
Congress extended the ancient practice of depositions de bene esse under the familiar conditions to all the courts of the United States,[34] and by the same statute, lest confusion should arise, expressly preserved[35] the power of appropriate courts to order testimony taken in memoriam rei perpetuandum and under dedimus potestatem,[36] and to issue letters rogatory. The
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statute permitting taking of depositions de bene esse was not a limitation upon the power of the federal courts to have testimony taken in other ways.[37] Thereafter testimony was taken of parties and witnesses on interrogatories before commissioner and otherwise, and by deposition viva voce under varying conditions. The methods were never mutually exclusive,[38] but, by the express terms of the law, existed side by
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side. The statute requiring proof to be taken by word of mouth was long ago repealed,[39] but this mode of procedure has remained constant in the federal courts, both on trial and on either deposition or commission. Now, within recent months, the enactment confirming the use of dedimus potestatem and letters rogatory has been repealed.[40] But that establishes no barrier to the customary practices of the Admiralty Court.[41] The courts of instance jurisdiction could be deprived of authority to require a party to answer orally according to the accustomed modes of procedure only by express prohibition,[42] established by acts of Congress or Rule of the Supreme Court.
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It is urged that the Supreme Court of the United States has evinced an intention to withhold from District Courts the power to require parties to undergo examination by oral deposition. But the inference is only that the Supreme Court has been satisfied with the exercise of traditional powers of the Admiralty Courts, and has not seen fit to interfere.[43]
There is a violent conflict among the ultra-modern opinions, written since the adoption of the recent statute and the amendments to the Admiralty Rules by the Supreme Court of the United States.[44] These decisions will not be considered. In general, these seem to depend upon the feeling of the judge as to whether the particular discovery should or should not be permitted. Of course, this is the vital test upon practice questions. The formulation of practice and procedure is accomplished by bench and bar by feel. But the conclusions of these opinions should have been formulated in terms of empiricism rather than in terms of power of the court.
The Supreme Court did adopt Rule 44½ of Admiralty Rules, providing for pre-trial conferences in admiralty cases, with a view to clarifying the issues and obtaining admissions.[45]
Since, at that time, a great many of the federal courts were requiring the presence and examination of parties on oath as an incident of framing the issues at pretrial conferences, in civil cases it must be believed this Rule, in the same terms, was adopted for admiralty courts by the Supreme Court in the light of these facts cum onere. The practice was adopted with the text of the Rule when later incorporated into the admiralty system.
If the matter were to be judged upon the text of the Rules alone, still the classic canon announced by the Supreme Court, speaking through Mr. Justice Brandeis in Washington-Southern Navigation Company v. Baltimore Philadelphia Steamboat Company, 263 U.S. 629, 632, 635, 44 S.Ct. 220, 221, 68 L.Ed. 480, is still valid. There it was said:
“To ascertain the true meaning of the rule, it must be read, also, in the light of the established admiralty jurisdiction, of the general principles of maritime law, and of the appropriate function of rules of court.
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Before rule 53 was adopted, the general practice in admiralty concerning the giving of security had long been settled. * * *
“Most rules are merely a formulation of the previous practice of the courts. Occasionally, a rule is employed to express, in convenient form, as applicable to certain classes of cases, a principle of substantive law which has been established by statute or decisions. But no rule of court can enlarge or restrict jurisdiction. Nor can a rule abrogate or modify the substantive law. This is true, whether the court to which the rules apply be one of law, of equity or of admiralty. It is true of rules of practice prescribed by this court for inferior tribunals, as it is of those rules which lower courts make for their own guidance under authority conferred.”
But too much emphasis cannot be laid upon the factor that practically all the present day cases deal with an attempt to act under the procedure permitted by the text of the Admiralty Rules or the statutes, which still permit the taking of depositions de bene esse.[46] To the exact contrary, in the case at bar there was not any necessity to use the provisions of the Rules. The Court ordered the party to submit to examination as the ancient Admiralty Courts would have done — thereby exercising a power which was accorded to the courts of instance jurisdiction by common usage under the Constitution at the beginning of this government, confirmed by a declaratory statute, which was in effect for a century and a half and which represents a liberality of procedure far in advance of even the modern Rules of Civil Procedure.
It must be here observed that, since the statutes which permitted such examinations have been repealed,[47] there are but three possible positions. Either the Admiralty Rules must be construed to permit examination of a party before trial, or the District Courts have the power to pass rules or orders permitting such inquiries, or a common usage of these courts confirmed by statute for over one hundred fifty years has been lost.
But even if it be conceded that the Supreme Court has not amended the text of the Admiralty Rules since the statutes have been repealed and thereby laid down procedure whereby depositions may be taken as of course, this fact would not prevent an Admiralty Court from ordering a party to give testimony before trial, if according to common usage.
An early statute granted to the District Courts, sitting in Admiralty, the power to “regulate the practice of the said courts respectively, as shall be fit and necessary for the advancement of justice, and especially to that end to prevent delay in proceedings.”[48] This statute[49] is still in effect, with changes in verbiage.[50] In truth, the Supreme Court expressly confirms that power in the District Courts by Rule 44: “In suits in admiralty in all cases not provided for by these rules or by statute, the District Courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules.” This Rule has been in effect since 1844.
The District Court, under the above Rule, could adopt a local regulation reinstating
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the old practice,[51] since there has never been a specific Rule nor a statute upon the subject of examination of a party before trial. Inasmuch as the statutes regulating the conditions upon which depositions may be taken under dedimus potestatem, letters rogatory and commissions in perpetuam rei memoriam have been repealed and there is no express rule upon the subject, each District Court has the power under the Rule above set out to pass a local regulation.[52] Such a local rule must, of course, accord with common usage of the Admiralty Courts and fall within the limitations of due process, and controvert neither a statute nor a Supreme Court Rule. But what a District Court may do for all cases generally
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by rule, it may also do in the individual case by order,[53] if the same limitations are observed.
It may be agreed that discovery from a party upon commission, which was once a common practice but which was less used in England,[54] owing to the factors which have been noted, was also apparently somewhat less exercised by practitioners in American courts.[55] Our belief
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is that the explanation lies in the fact that, since the answer came to be a formal document, verified by the party, and discovery by persistent interrogatories was available, and the party usually gave evidence on his own behalf, either in open court or by voluntary appearance before a commissioner, where he was available for cross-examination, it was not usual to seek to have an examination dedimus potestatem before trial. By a curious circumstance, this tendency to allow the practice to fall into disuse was accelerated by a perverse doubt as to the additional weight the testimony of a party obtained if so taken.[56] If the party, however, were otherwise unavailable, his testimony was often taken de bene esse, and then was usually given orally and transcribed. This, together with the fact that most procedures were in rem,[57] as above noted, caused disuse of this efficient device. The circumstance that the practice fell into desuetude does not detract from the power of the Court to act according to common usage adopted by the Constitution and statutes, unless it has been forbidden by Rule or express enactment. So, at least, the Admiralty Courts have proceeded. To their practice, we now turn.
The American Admiralty Courts adopted the ancient procedural flexibility, liberality and originality. At a time in this country when common law procedure was hidebound by technicality, the proceedings in admiralty were noted for “comprehensive brevity, celerity and simplicity.”[58] The practice was almost exclusively “judge made” under the mandates above noted, and was based upon a “wisely administered convenience.”[59] A jurist of our own time has said the procedure was “a liberal and enlightened one and should be interpreted with the same spirit of liberality.”[60] But the daring originality of the practitioners and judges did not permit procedural hurdles[61]
to
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handicap the quest for appropriate relief unduly. This untrammeled spirit was early exemplified here in a case where a statute established a right, but provided no machinery to carry it to completion. The procedure was established by the court. It was there said: “For the admiralty creates its own forms of proceedings, and adapts methods of its own to the varied necessities which present themselves to its consideration. The power to do this is part, and the important part, of the jurisdiction of the admiralty. * * * They accomplish this by ways unknown to other courts, and for many of which it were vain to look in any statute. Stripped of the power to pursue these methods, there would be little left to distinguish a court of admiralty from a court of equity or of law.” The Epsilon, 8 Fed.Cas. page 744, 748, No. 4,506, 6 Ben. 378, 389.
This spirit is accurately expressed by one of the modern local rules: “In any matter not provided for in the Admiralty Rules of the Supreme Court of the United States or in these Rules, the court shall take such action and make such orders as may be just and equitable.”[62]
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In accordance with this freedom to mold procedure pursuant to ancient practice, most of the District Courts of maritime standing recently adopted by rule, at the suggestion of the Solicitor General of the United States, standing interrogatories[63] to be propounded for the purpose of discovery to persons found on vessels taken as prizes in the latest war. No statute or Rule of the Supreme Court justified this resurrection of a long disused practice.
The function of interrogatories has been to continue the appeal to the conscience of either party.[64] The Rule of the Supreme
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Court, adopted in 1844, indicated that its purpose was to permit discovery of all relevant facts from the principal party,[65]
thus continuing the early English practice.
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In its present form, discovery is certainly not excluded. Although the language has undergone change, it is said the current rule carries on the sense of its predecessors.
If the modern regulations of the District Courts be examined, it will be discovered most of these contain a rule which specifically permits discovery from a party, although the means of proceeding are not specified but left to the practice.
“Discovery, inspection and taking of a photograph of any article, property or place under the control of a party may be had by any other party, upon order of the court.”[66]
But we are not without other guidance in this particular field. A case[67] was filed in the Southern District of New York. Immediately after libel was filed, interrogatories were proposed by one claimant to the claimant of another vessel involved. Specific objection was taken upon the ground that the right to file interrogatories does not exist except where there are pleadings creating issues between the parties. Judge Woolsey, who then adorned the District Court, wrote an able and scholarly opinion upon the subject. Therein the jurist reaffirmed the power of instance courts to mold the practice to the situation. He further laid down the principle, in the absence of rule, statute or order, that discovery from a principal party before trial was an essential of admiralty practice. He said:
“Either of the claimants * * * under the present practice of this court, may, with leave of court, put interrogatories to the other party independent of its pleading.
“The utmost freedom of discovery before trial, compatible with allowing to a
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party certain necessary reticences in respect of his oral evidence, is of the essence in any enlightened procedure.”
It is true he spoke of essential safeguards of reticences of the party. But the right to search the field is affirmed. We take it that the Court of Appeals of the Second Circuit still follows the principle with the same reservations. Cf. Cleary Brothers v. Christie Scow Corporation, 2 Cir., 176 F.2d 370. If this be law, can it be doubted that the Admiralty Court, which has the power to permit the search of the conscience of a party by interrogatory as of course before the pleadings are made up, cannot by order require a party to undergo oral examination? It could hardly be contended that interrogatories could not be used for discovery in view of this history. A like contention as to depositions is unsound.
Pursuant to the historic practice outlined above, and pursuant to the power granted by the statutes and the Supreme Court Rules, at least three important admiralty courts, those of California, Southern District, of Ohio, Northern District, and New York, Western District, have each adopted a local rule[68] which confirms the use of oral deposition for discovery from a party as well as written interrogatories. The text of this rule is in each instance: “After joinder of issue, and before trial, any party, by leave of the court granted on notice, may examine orally the opposite party, his agents or representatives, or deliver interrogatories in writing, for the examination of such party, his agents or representatives, with regard to any fact material to the issue.”
This text incorporated the very words themselves of the rule which was in force in the Southern District of New York in 1920 and for many years prior thereto. The existence of this express crystalization of customary usage indicates that the admiralty bar of the district in which most causes were tried in comparatively recent times acquiesced in the interpretation which is here put forth.
It is interesting to note that the admiralty practice in regard to oral depositions for discovery had a quite modern reverberation. The opinion of Judge Ward, of the Southern District of New York, based upon the rule then in existence there, held that, since the libelant would not be bound by the testimony of the master and lookout, no longer employed by the claimant, these persons were not within the rule which was, in the court’s opinion, “no doubt, adapted in analogy to the principles of discovery in chancery, and must be understood to apply to parties only.” The court points out that no harm was done because the deposition of this master could be taken under the parallel procedure of deposition de bene esse. U.S.Rev.Stat. § 863, 28 U.S.C.A. § 869 [see note preceding revised 28 U.S.C.A. § 1781]. The alternative position of the “examination” and the “interrogatories” supports the older authorities. The opinion is a complete refutation of every argument here urged, if oral discovery is sought from a party.[69]
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The conclusions which are to be drawn from this resume of the practices of the Admiralty Courts is that discovery from a party before trial was always a permissible practice, but that there was a shift of emphasis wherein the personal response of the party to the positions of the libel or answer fell into disuse and the practice of searching the conscience by written interrogatories had vogue for a time. But there was always opportunity at the court’s discretion to take testimony by word of mouth. After the Judiciary Act in Admiralty, viva voce testimony became the rule in court, and this custom, although severely criticized, extended to depositions de bene esse. The modern tendency would seem to indicate any such distinction is unrealistic and evanescent.[70]
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But if the court can issue an order for the examination of a party as to any material fact upon interrogatories, there would seem to be no doubt of the power to issue an order for examination in open court, orally or in a pretrial conference, for the purpose of obtaining admission, or before a designated person.[71] If the party fears matters of private concern are to be invaded or privacy destroyed, he may appeal to the court for a limitation by the original order or may follow the procedure of objecting to the particular question and refusing to answer it until the ruling of the judge be obtained thereon. Through the whole course of history, admiralty judges have required special circumstances for discovery and have imposed severe limitations upon its scope and content.[72] The protection of essential reticences of a party
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or of his privacy has always been maintained.
Presently, as has been insistently pointed out, no such problem as to scope of examination is presented. The libelant did not object to giving testimony at all because discovery was sought. The only question is whether a party is bound to submit to oral examination before trial upon any feature when ordered to do so by the court. Even without this elaborate review, the answer is plain.
It is not intended by this discussion to say or even to intimate that such an order should be adopted in any particular case[73] or that discovery should ever be allowed. The matter should be left to the determination of the admiralty judge.
The District Court in this case was acting strictly in accordance with the authority thus granted in passing the order requiring the party to make answer on oath and undergo examination concerning the matters involved in the cause. The same thing could be accomplished by rule applicable in all such causes. The history and expressions of the writers show that this is no novel procedure, but is sanctioned by time and authority. Therefore, the order did not violate the due process clause.
There was then no excuse for the failure of the libelant to give any testimony whatever,[74] notwithstanding the direction of the Court. So long as the attempt was in good faith to develop the issues, the procedure is in common usage as a part of conferences pretrial in many courts. If discovery were pressed, the witness could have refused to answer, and an authoritative ruling could have been obtained from the Trial Court. But recalcitrant and contemptuous violation of the Court’s order was not proper. The risk of dismissal was thereby courted.[75]
Whether
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the present attempt was to get a ruling of this Court on a minor point of technical procedure, with which we should not deal,[76] we can but guess. In any event, we disapprove of such a practice of allowing a case to be dismissed and the interests of a client jeopardized upon technical minutia which should be in the discretion of the Trial Court. Such practice leads in fact, although not in theory, to multiple appeals.
We are not sure the order in this case is a dismissal but have treated it as if it were, because the parties have done so. In any event, the cause must be remanded. While no doubt is entertained as to the power of the Court,[77] on its own account,
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to dismiss a cause at any time upon failure of a party to obey routine orders, to the prejudice of speedy and proper administration of justice, it appears no notice was given to libelant of the intention of the Court to proceed to such lengths. Of course, if libelant had failed to appear in Court for pretrial conference or trial, the cause might have been dismissed summarily. But here the refusal to testify was a matter which occurred outside of court. Therefore, there should have been no dismissal without special notice of the intention. On remand, any claimed error in the lower Court should be raised upon appeal from the merits after trial.
Reversed and remanded with the directions to proceed in accordance with this opinion.
“If the party decreed and cited to give in a personal answer doth not obey that citation or order, a citation viis Modis issues; * * * If the party appear, he is sworn to give in his personal answer before a day assigned, which if he omits to do, he will be attached, and Clarke says may be liable to fine and pecuniary penalties.” (Vol. 2, pp. 416-7). In the later editions, both of these works cite Oughton, Ordo Judiciorum, which was printed in Latin, London, 1738. It is a treatise upon the practice of ecclesiastical courts and is in dramatic form. A short excerpt will suffice (Titulus LXV): “II. Actor: Domine Judex, super Positionibus Libelli (per me, in hac Causa, dati) produco hanc Partem principalem, et peto, eam Juramento onerari, de fideliter respondendo Positionibus ejusdem: III. Tunc Judex dicat Reo: Manum Libro appone; Tu Jurabis (c), quod, omni Affectione, quam propriae tuae Causae geris, post posita, fideliter, et vere respondebis Positionibus Libelli, contra te [per talem, in tali Causa] in hoc Judicio, dati; de Scientia tua, in his quae proprium tuum factum concernunt, et de Credulitate (d) tua, in facto alieno: Ita te Deus adjuvet, et Sacra Dei Evangelia:” This likewise seems to be the implication of the passage contained in a treatise entitled “Ordo Judiciorum,” which passage occurs on pages 190, 191, Vol. I, of the Black Book of the Admiralty, edited by Sir Travers Twist, London, 1871. In the limited material available to us in this country, we find one form of the commission for answers issued in the instance court. The direction is as follows: “We do therefore authorize and empower you * * * that you cause to come and appear judicially before you the before-named * * and that you give him his corporal oath upon the Holy Evangelists, in the form indorsed on these presents, to answer to the articles of the allegation before-mentioned, and effectually examine him thereupon and cause his full answers to be faithfully reduced into writing * *.” It has theretofore been recited in the document that, at the petition of one of the proctors, the Lieutenant of the High Court of Admiralty of England of George III had ordered that a commission be issued to require the party on oath “faithfully to answer to the positions or articles of an allegation * * * given in and admitted against him” in the cause. This document appears at pages 305-308 of the Formulare Instrumentorum, London, 1802, “Perused and Approved as Correct, by Sir James Marriott, Late Judge of the Said Courts.”
The following cases, relating to the methods of pleading and discovery in the ecclesiastical field may throw light upon the problem here involved: Jehen v. Jehen (1753), 1 Lee 161, 161 Eng. Rep. 101; Winchlow v. Smith (1753), 1 Lee 417, 161 Eng.Rep. 153; Robbins v. Sir William Wolseley (1754), 1 Lee 616, 161 Eng.Rep. 225; Mayo v. Brown (1754), 1 Lee 570, 161 Eng.Rep. 210; Dalrymple v. Dalrymple (1811), 2 Hagg. 54, 161 Eng.Rep. 665; Best v. Best (1814), 2 Phill. 161, 161 Eng.Rep. 1107; Clutton v. Cherry (1816), 2 Phill. 373, 161 Eng.Rep. 1173; Clarke v. Dauce (1816), 2 Phill. 335, 161 Eng.Rep. 1132; Morgan v. Hopkins (1818), 2 Phill. 582, 161 Eng.Rep. 1238; Oliver v. Heathcote (1824), 2 Add. 35, 162 Eng. Rep. 208; Maclas v. Ewing (1828), 1 Hagg. 317, 162 Eng.Rep. 598; Swift v. Swift (1832), 4 Hagg. 139, 162 Eng.Rep. 1399; Dysart v. Dysart (1843), 3 Curt. 543, 163 Eng.Rep. 819; Saunders v. Saunders (1847), 1 Rob. 549, 163 Eng. Rep. 1131; King v. King (1850), 2 Rob. 153, 163 Eng.Rep. 1275; Geils v. Geils (1851), 10 Eng.Rep. 108; Lowe v. Lowe (1855), 1 Deane 130, 164 Eng.Rep. 525.
before any justice or judge of any of the courts of the United States, or before any chancellor, justice or judge of a supreme or superior court, mayor or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, * * *.” Act of September 24, 1789, ch. 20, § 30, 1 Stat. 88-89.
Howland’s Reports (1833), pp. 390, 394-6. Subsequently this procedure was less in use, owing to the practice of filing formal answers under oath in writing. The practice of filing written responses to interrogatories, appended to the libel or the answer, alleviated the necessity of a commission or dedimus potestatem to take the deposition. But throughout the history, the latter has remained a favored method. “The issues in the case are not complicated nor unusual in their nature. I am of the opinion, therefore, that an ordinary commission with interrogatories will be entirely adequate and will protect the rights of both parties. This is in accordance with `common usage’ under section 866 of the Revised Statutes * * * as established by rules 31 to 40 of the Admiralty Rules of this court, adopted * * * 1901, and is in accordance with rule 46 of the new Admiralty Rules promulgated by the Supreme Court, to take effect March 7, 1921 * * * which provide for the taking of testimony orally in open court, except as otherwise provided by statute or agreement of parties.” The Sun, D.C. E.D.Pa., 1921, 271 F. 953, 954. Benedict, writing in 1850, says: “By the proviso to the 30th section of the Judiciary Act, every Court of the United States is clothed with the power to grant a dedimus potestatem, or commission to take depositions, according to the common usage, when it may be necessary to prevent a failure or delay of justice. This remedial proviso, with its beneficial purpose fully and distinctly set forth, cannot be construed otherwise than to give the courts the fullest power, in every manner usual in courts of justice, to depute their own power to take testimony in a cause where the ends of justice will be promoted by doing so.” Thereupon the classic author clearly and succinctly states that the limitations upon the exercise lie entirely within the discretion of the Admiralty Courts: “The circumstances under which, and the mode in which the application may be made to the Court, may be regulated by standing rules of the Court, or left to the discretion of the Court in each particular case.” Benedict Adm., 1st Ed. (1850) § 531. It is nowhere in the American authorities, so far as we have been able to find, that there is a lack of power of the Court to order a party examined for purposes of discovery, prior to the ultramodern phase of opinion.
The fact that depositions de bene esse could be taken ex parte made them quite unsatisfactory in certain situations. “Depositions de bene esse. — The provision made by the act of Congress, for taking testimony de bene esse, in cases in the Courts of the United States, without a commission, dedimus potestatem, or letters rogatory, greatly promotes the convenience of suitors. The depositions are often taken ex parte, and they are for that reason exposed to criticism. * * *” Benedict, Admiralty, 1st Ed., § 520. The dedimus potestatem was therefore entirely distinct from depositions de bene esse. “The depositions taken by commission from the courts of the United States are not considered as taken de bene esse, but are evidence in chief, and absolute, whether the witness be within or beyond the process of the Court.” Dunlap, 2nd Ed., p. 225. “The only question then is, whether depositions taken a dedimus potestatem according to common usage, are, under any circumstances, to be considered as taken de bene esse? And it is the opinion of this court, that they cannot be so considered.” Sergeant’s Lessee v. Biddle, 4 Wheat. 508, 17 U.S. 508, 510, 4 L.Ed. 627. In fact, it was held that a dedimus potestatem would not be granted to take testimony which could be taken by deposition de bene esse. Turner v. Shackman, C.C., 27 F. 183. The fact that depositions de bene esse could be taken ex parte probably led to the use of this device under circumstances where permissible. But where discovery was sought from a party, the commission, on order of court, was the only possible method. The distinction between depositions de bene esse and examinations upon commissions is carefully observed in The Sisilina, D.C., 212 F. 1022, infra.
Judge Learned Hand, who is well acquainted with all the traditions of the admiralty practice, and possesses an extremely accurate knowledge of the history of the procedure, says: “The procedure in the admiralty was taken from the civil law, and, as in equity, in early days evidence was by deposition. The original Judiciary Act (section 30 of the Act of September 24, 1789 [1 Stat. 88]), changed this as to both, and while the ancient practice became optional in equity after 1802 (section 25, Act of April 29, 1802 [2 Stat. 166]), the statute remained unchanged as to admiralty until the whole procedure was put into the hands of the Supreme Court in 1842.” The P.R.R. No. 35, The Eugenia Moran, 2 Cir., 48 F.2d 122, 124, certiorari denied Pennsylvania R. Co. v. Shamrock Towing Co., 284 U.S. 636, 52 S.Ct. 19, 76 L.Ed. 541. This case is cited by Mr. Justice Brandeis, dissenting in Crowell v. Benson, 285 U.S. 22, 78, 52 S.Ct. 285, 303, 76 L.Ed. 598, where he says: “In federal equity suits, the taking of evidence on any issue in open court did not become common until 1913, * * * and in admiralty it was not required by the rules of this Court until 1921 * * *. On appeals in admiralty, further proof is now taken by a commission.” And in a footnote the following appears: “Subsequent to 1842, when the procedure in admiralty became subject to rules promulgated by this Court, and prior to 1921, no rule specifically required that evidence be taken orally in open court, and the practice in some districts appears to have been to take proofs by a commission.”
Discovery depositions of witnesses were ruled upon in The Tug Christine Foss, D.C.W.D.Wash., 15382.*
* No opinion for publication.
The liberality of the modern practice appears from the following excerpts from the Rule: “The Court or a judge may, in any cause or matter where it shall appear necessary for the purposes of justice, make any order for the examination upon oath before the Court or judge or any officer of the Court, or any other person, and at any place, of any witness or person, and may empower any party to any such cause or matter to give such deposition in evidence therein on such terms, if any, as the Court or a judge may direct.” Roscoe’s Admiralty Jurisdiction and Practice (1903), London, 3rd Ed. p. 355, Order 37, Rule 5 (1875). “Causes may be proved by affidavits, by written depositions, or by oral examination of witnesses in open Court, or partly by one mode, partly by another. [As to affidavits, see Order 148 and the following Orders.]” “Written depositions may be taken either before an Examiner appointed by order of the Court under the Act, or before a Commissioner appointed under a Commission. [See the Act, ss. 51, 60.]” “In case of an examination before an Examiner or Commissioner of the Court, the Examiner or Commissioner may put any questions to the witnesses for the purpose of eliciting the truth as to him shall seem fit.” Boyd, The Law and Practice of the High Court of Admiralty of Ireland (1868), General Orders 92, 94, 97 (1867).
Although the language is different, the present Rule 31 amalgamates both the rules set out above, and continues them in effect. “While the new rules do not expressly provide that either party may require disclosure of matters touching the case or defense of the opposite party, yet there is nothing in the new rules to show that it was intended to deny such right provided by the old rules, but rather that the court was given a wider discretion in requiring disclosures on such points. New rule 32 seems to sanction this view. The Admiralty Rules in this particular differ from equity rule 58. * * * The reason for the broader right in this respect given by the Admiralty Rules may, in part, rest upon the fact that the testimony of those witnesses upon the ship having knowledge of the transaction may be lost to either side by reason of the nature of the employment and the roving manner of life of the ship’s crew * * *.” The Henry S. Grove, D.C., 287 F. 247, 249-50.
The Rule, as adopted in the Southern District of New York and construed in The Sisilina, D.C., 212 F. 1022, appears as XXXVIII probably first in 1912, Bender’s Lawyers Diary and Directory (1915), p. 468, and remained in force for some years. See Bender’s Lawyers Diary and Directory (1920), p. 195.
The actual American practice as to oral examination before trial is somewhat difficult to fix, as practice always is. Judge Learned Hand, a great jurist of the liberal tradition, was constrained to deny discovery by ordinary process in equity, but a bill of discovery was available on proper conditions, which precluded more summary procedure. Pressed Steel Car Co. v. Union Pac. R. Co., D.C., 241 F. 964. A report of a colonial case furnished an interesting background: “Ffrances Harison Qui Tam Contra Pinke Good Intent and European Goods. Evidence may be taken viva voce on special motion. Dec. 3, 1716, Upon a Lybell exhibitted for haveing Brandy and European Goods on board for which noe Crockett or reporting the same as the Laws direct; Mr. Jamieson, deputy advocate, prays Robert Campbell may be sworn to be examined viva voce ex parte Informr, who was sworn. Mr. Bickley, proctor for the defendt prays Mr. Samuel Bayard may be sworn and examined viva voce, who was sworn accordingly.” Reports of Cases In the Vice Admiralty of the Province of New York, Ed. by Charles Merrill Hough, Yale U.P., New Haven, 1925. This report gives ground for the comment that the Admiralty Courts of the United States have tended to follow the precedents of the colonial courts rather than the strictly English practice. It further shows that the colonial courts were not always advised as to what the traditional practice was. “In 1700 it had been suggested to the Board of Trade that some could and judicious attorney, well practiced in the methods of Doctors’ Commons, that might advise in the proceedings of the Admiralty Court, might be sent to the Colonies and to Pennsylvania in particular `since the gentlemen concern’d freely acknowledge their unacquaintance in’ the Civil Law, and with the practice of that Court.” Calendar State Papers Colonial, 1700, p. 724. Records of the Rhode Island Vice-Admiralty Court, 1716-1752, p. 91. An early case (1828) in equity furnishes the rationale of the procedure of examination and supplies a common sense view well adapted to the “modern” approach. “When he is examined before a master in relation to his own rights in the cause, the examination is in the nature of a bill of discovery. * * * The ancient practice was to file written interrogatories for the examination of a party, to which he put his answer in writing. The modern practice of examining orally before a master does not alter the rights of either party.” Benson v. LeRoy, 1828, 2 Paige 122. But an order was apparently required. Justice Story indicates that an order should be required but the practice was otherwise. “Indeed, in strictness, the testimony of persons, whether salvors or others, who are parties to the suit, ought not to be taken, except under special order of the court for this purpose, showing a cause, as is done in the ordinary course of chancery proceedings. In the looseness of our practice it is often done without such an order. But it is irregular; and it would be well, that the irregularity were corrected, as the court might in its order limit the inquiries to matters properly within the scope of the exception.” The Schooner Boston, 3 Fed.Cas. pages 932, 938, No. 1,673, 1 Sumn 328, 345. In Betts’ Admiralty Practice (1838), p. 84, it is stated, as to depositions de bene esse, that “the examination is in public and the questions are put orally as on trial.” Attention is called by the author to the fact that the earlier practice was to examine by interrogatories, and thereupon criticism of viva voce testimony on deposition is voiced as follows: “If the modern practice is better calculated to search into and extract the full knowledge of a witness, it is also liable to abuses * * *.” Conkling says: “Witnesses whose depositions are taken in this form, are examined and cross-examined viva voce, as in open court.” Conkling, Admiralty, Vol. II, p. 292. In the same volume (pp. 283-4), the author indicates that the taking of testimony by interrogatory would have been the practice in American Admiralty Courts if the process Act of 1792 had stood with only the adoption of the civil law, but oral proof was therein expressly required. Benedict, Adm., 1st Ed., § 519, indicates that viva voce proof on trial is the established method. Dunlap, Admiralty Practice, 2nd Ed., p. 223, says: “The testimony of witnesses in the District and Circuit Courts of the United States, in civil causes of Admiralty jurisdiction, is frequently given viva voce, as it is in the British Courts of Admiralty in causes heard summarissime. such as cases of seamen’s wages.” “Oral Depositions. Depositions of witnesses shall be taken by oral interrogatories and cross-interrogatories propounded by the respective parties of record or their proctors, which interrogatories and cross-interrogatories and the answers thereto and all other proceedings, shall be taken in shorthand by a competent and disinterested stenographer, reduced to typewritting, and shall be read by or to the witnesses and signed by them respectively; but any of these requirements may be waived by agreement of all parties present or represented at the taking of the deposition or depositions. Eastern District of Pennsylvania, Rule 2, Part 5(3).
In this case, we are not sure that the method adopted by the learned Trial Judge was strictly in accordance with Admiralty Rule 32C, under which the Court purported to act, Brown v. Isthmian Steamship Company, D.C., 79 F. Supp. 701, since here the party did not fail to appear and did not refuse to respond to any particular question. However, if the proper procedural steps had been taken, it is probable that the Court had the right to dismiss the action for failure to obey the order. And see in this connection Producers Releasing Corporation De Cuba v. P.R.C., 2 Cir., 176 F.2d 93, 95.
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