Darling's Estate v. Atlantic Contracting Corp.

Decision Date01 May 1957
Docket NumberNo. 7824.,7824.
CourtU.S. District Court — Eastern District of Virginia
PartiesESTATE OF Mary G. DARLING, James S. Darling, Jr., Ann Darling Tormey, Sarah W. Darling, trading as J. S. Darling & Son, and Severn L. Robbins and Ross W. Robbins, as owners of THE Trawler POWHATAN, Libellants, v. ATLANTIC CONTRACTING CORPORATION and the Norfolk Dredging Company, Inc., in personam, Respondents.

Vandeventer, Black & Meredith, Braden Vandeventer, Jr., Norfolk, Va., for libelants.

Jett, Sykes & Howell, R. Arthur Jett, Norfolk, Va., for respondents.

HOFFMAN, District Judge.

Contemporaneously with the filing of the libel herein, libellants caused a notice to take depositions to be served upon counsel for respondents. While the notice does not specify whether the depositions are to be in the nature of discovery or de bene esse, proctors for libellants have stated they desired to proceed by way of discovery. In any event the ruling of the Court would be the same.

The ultimate question to be determined is one of priority with respect to taking discovery depositions. Respondents have now served a like notice upon libellants. Assuming that there are no unusual circumstances justifying equitable action by the Court to order otherwise, may a libellant obtain some dubious advantage by causing a notice to be served at the same time the libel is filed?

The right to take discovery in admiralty has been freely recognized in this District. True, it is discretionary with the Court, but such practice has been followed for many years to the end that proctors generally agree upon same and it is only infrequently necessary to enter an order permitting the taking of discovery depositions. The full discussion of Circuit Judge Fee in Dowling v. Isthmian S. S. Corporation, 3 Cir., 184 F.2d 758, establishes the history of discovery in admiralty.

Admiralty Rule 44, 28 U.S.C. A., vests in the District Courts appropriate authority to regulate their practice in admiralty "in such a manner as they deem most expedient for the due administration of justice", provided such local rules are not inconsistent with the Supreme Court Rules or in contravention of any statute. No rule of court can enlarge or restrict jurisdiction. Nor can a rule abrogate or modify the substantive law. Matters of discovery are the subject of protective orders where a party fears the invasion or destruction of rights of privacy.

The Eastern District of Virginia has promulgated Local Admiralty Rule 24 which reads as follows:

"Any step in admiralty practice and procedure, (including the taking of testimony within the United States or in any foreign country) whether before the court, a master or commissioner, which is not prescribed by statute, by the rules promulgated by the Supreme Court, or in these rules, and left by the admiralty practice to follow the procedure of the common law, in equity or at law, shall be taken, and proceeded with, in the same manner as it would be done under the Federal Rules of Civil Procedure if said Rules were applicable in admiralty."

The intent of this Rule is simply to aid procedure. Molinos v. The Rio Grande, D.C., 129 F.Supp. 25. It is not per se...

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2 cases
  • Miner v. Atlass
    • United States
    • United States Supreme Court
    • June 20, 1960
    ...is not entirely clear. Compare Standard Steamship Co. v. United States, D.C., 126 F.Supp. 583, with Darling's Estate v. Atlantic Contracting Corp., D.C., 150 F.Supp. 578, 579; Annual Survey of American Law 523. None of the historical data adduced in the Dowling case seems to go beyond the a......
  • Thornell v. Chesapeake & Ohio Railway Company
    • United States
    • U.S. District Court — Western District of Michigan
    • September 5, 1958
    ...to Admiralty suits the trend is to apply their liberal provisions to Admiralty suits." And as stated in Darling's Estate v. Atlantic Contracting Corp., D.C.Va.1957, 150 F.Supp. 578, 580: "Nor does the provision of Rule 81(a) (1) of the Federal Rules of Civil Procedure prevent a district cou......

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