Miner v. Atlass

• Decision Date: 20 June 1960
• Docket Number: No. 156,156
• Parties: Hon. Julius H. MINER and Hon. Edwin A. Robson, etc., Petitioners, v. H. Leslie ATLASS
• Court: U.S. Supreme Court

363 U.S. 641

80 S.Ct. 1300

4 L.Ed.2d 1462

Hon. Julius H. MINER and Hon. Edwin A. Robson, etc., Petitioners,

v H. Leslie ATLASS.

No. 156.

Argued March 3, 1960.

Decided June 20, 1960.

Mr. Harold A. Liebenson, Chicago, Ill., for petitioners.

Mr. Edward B. Hayes, Chicago, Ill., for respondent.

Mr. Justice HARLAN delivered the opinion of the Court.

Certiorari was granted in this case, 361 U.S. 807, 80 S.Ct. 66, 41 L.Ed.2d 57, to review the decision of the Court of Appeals holding that a District Court sitting in admiralty lacked power to order the taking of oral depositions for the purpose of discovery only, and that Rule 32 of the Admiralty Rules of the Dis- trict Court for the Northern District of Illinois, purporting to authorize the taking of such depositions,¹ was invalid for want of authority in the District Court to promulgate it.

The issue arose in the following manner: The respondent filed a petition in admiralty seeking exoneration from or limitation of liability for the death by drowning of two seamen employed on a yacht owned by him. The representatives of the deceased seamen, having appeared as claimants, applied to the District Court for an order granting leave to take the depositions of several named persons, including respondent, for the purpose of discovery only. Respondent opposed the motion on the ground that the court had no power to order the taking of depositions in any case not meeting the conditions of R.S. §§ 863—865, the de bene esse statute.² After argument, petitioner Miner, D.J., granted the claimants' motion, pursuant to local Admiralty Rule 32. Respondent then sought a writ of mandamus or prohibition requiring the vacation of the order of the District Court, and prohibiting Judge Miner, or any other district judge to whom the case might be assigned, from further proceeding under it. A rule to show cause was issued by the Court of Appeals and, after a hearing, the application for extraordinary relief, whose availability in the particular circumstances involved is not challenged before us, was granted. 7 Cir., 265 F.2d 312. For reasons presently to be stated, we have concluded that the Court of Appeals' conclusion was correct, and we affirm its judgment.

Counsel for the claimants, representing the petitioners here, undertake to support the discovery-deposition order on the grounds that: (1) a court of admiralty has inherent power, not dependent on any statute or rule, to order the taking of depositions for the purpose of discovery; (2) Rule 32C of this Court's General Admiralty Rules, 28 U.S.C.A., impliedly empowers a district judge to order the taking of such depositions; (3) Rule 32 of the District Court's Admiralty Rules is a valid exercise of its power to regulate local practice, conferred by Rule 44 of the General Admiralty Rules. We consider each contention in turn.

The reliance on an asserted inherent power is based almost exclusively on the decision of the Court of Appeals for the Third Circuit in Dowling v. Isthmian S.S. Corp., 184 F.2d 758. In an exhaustive discussion, Judge Fee, for that court, expressed the view that the traditionally flexible and adaptable admiralty practice empowers a court to order a party to submit to pretrial oral examination. Whether or not the decision was intended to embrace examinations solely for discovery purposes 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; 1950 Annual Survey of American Law 523. None of the historical data adduced in the Dowling case seems to go beyond the area of testimony for use at the trial. The opinion states no more than that history discloses no overt rejection of the power to order depositions taken for discovery purposes. 184 F.2d at page 771, note 36. There is no affirmative indication of the exercise of such a power, if any was thought to exist, and the 1940 edition of Benedict on Admiralty unequivocally asserts that '(a)n admiralty deposition may only be taken for the purpose of securing evidence; it may not be taken for the purpose of discovery.' 3 Benedict, Admiralty (Knauth ed.), 34. This statement by a leading work in the field hardly bespeaks the existence of traditional inherent power, and we find none. Cf. Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576.

Neither can we find in this Court's Admiralty Rules warrant for the entry by a district judge of an order of the character granted below. The deposition practice authorized by the Civil Rules does not of its own force provide the authority sought, since those rules are expressly declared inapplicable to proceedings in admiralty. Civil Rule 81(a)(1). Certain of the Civil Rules were adopted by this Court as part of the Admiralty Rules in the 1939 amendments, 307 U.S. 653. Thus, Civil Rules 33 through 37 were made part of the Admiralty Rules as Rules 31, 32, 32A, 32B, and 32C, respectively.³ However, the remainder of the Civil Rules in Part V, dealing with 'Depositions and Discovery,' including Rule 26, the basic authority for discovery-deposition practice (see note 1, ante), was not adopted. We cannot of course regard this significant omission as inadvertent, cf. 76 A.B.A.Ann.Rep. 565—566; rather, it goes far to establish the lack of any provision for discovery by deposition in the General Admiralty Rules.

However, petitioners contend, and some courts have agreed, that the existence of such a power is to be inferred from Rule 32C, the counterpart of Civil Rule 37, entitled, 'Refusal to make discovery: consequences.' That rule details the procedures which are to be followed if 'a party or other deponent refuses to answer any question propounded upon oral examination * * *.' It has been held that the inclusion of this rule must be taken as the expression of an assumption by the Court that the discovery-deposition practice existed or was to be followed in admiralty, for the reason that '(i)t is inconceivable that the Supreme Court, by means of the elaborate and detailed terms of Rule 32C would have given a suitor in admiralty a method of enforcing a right that did not exist.' Brown v. Isthmian S.S. Corp., D.C.E.D.Pa., 79 F.Supp. 701, 702. In accord with the Brown decision are Bunge Corp. v. The Ourania Gournaris, D.C.S.D.N.Y., 1949 A.M.C. 744; Galperin v. United States, D.C.E.D.N.Y., 1949 A.M.C.1907; The Ballantrae, D.C.N.J., 1949 A.M.C. 1999.

The dilemma thus suggested—either that we must regard Civil Rule 26 as inadvertently omitted from the Admiralty Rules⁴ or that we should consider that part of Civil Rule 37 which refers to oral examinations as inadvertently included—is more seeming than real. The ref- erence to 'discovery' in the title to Rule 32C can well have been simply to the modes of discovery authorized by those of the Civil Rules which were carried into the Admiralty Rules in the 1939 amendments, see note 3, ante, and we think it should so be taken. As to the reference to 'oral examination,' we are in agreement with the explanation offered by Judge Rifkind in Mulligan v. United States, D.C., 87 F.Supp. 79, 81, that it comprehends only those forms of oral examinations traditionally recognized in admiralty, primarily the deposition de bene esse (see note 2, ante).⁵ By this construction, both actions of this Court—the adoption of Civil Rule 37 and the omission of Civil Rule 26—are given harmonious effect.

Petitioners' third contention is that, although admiralty courts were not given authority by the General Admiralty Rules to order the taking of depositions for discovery purposes, the District Court in the present case acted pursuant to its own local Admiralty Rule 32 (see note 1, ante) granting such authority, and that such rule was a valid exercise of power conferred on the District Court by Rule 44 of the General Rules. See Ludena v. The Santa Luisa, D.C.S.D.N.Y., 95 F.Supp. 790; Application of A. Pellegrino & Son, D.C.S.D.N.Y., 11 F.R.D. 209; cf. Republic of France v. Belships Co., Ltd., D.C., 91 F.Supp 912; Prudential Steamship Corp. v. Curtis Bay Towing Co., D.C.Md., 20 F.R.D. 356. Rule 44, entitled 'Right of trial courts to make rules of practice,' provides:

'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.' (Emphasis added.)

We may assume, without deciding, that, the proviso apart, the affirmative grant of authority contained in Rule 44 is sufficiently broad and unqualified, in light of the traditional liberality and flexibility of admiralty practice, to embrace the 'practice' of taking depositions for discovery purposes. Cf. Galveston Dry Dock & Const. Co. v. Standard Dredging Co., 2 Cir., 40 F.2d 442. However, we feel constrained to hold that this particular practice is not consistent with the present General Admiralty Rules and therefore that in this respect local Rule 32 falls within the proviso.⁶ As we have noted, the determination of this Court in 1939 to promulgate some but not all of the Civil Rules relating to discovery must be taken as an advertent declination of the opportunity to institute the discovery-deposition procedure of Civil Rule 26(a) throughout courts of admiralty. It may be, see 76 A.B.A.Ann.Rep. 565—566,⁷ that one reason for this failure was the belief that this Court could not take over into Admiralty in its entirety Civil Rule 26. The Enabling Act did not then, R.S. § 913, although it does now, 28 U.S.C. § 2073, 28 U.S.C.A. § 2073, authorize the Court to supersede statutes, and the limitations of the de bene esse statute would therefore have overridden Civil Rule 26(d) to the extent the statute was more restrictive. Nevertheless it does seem clear that the part of Civil Rule 26 with which we are now concerned could have been promulgated in admiralty,...