Brown v. Isthmian Steamship Corporation, 119.

Decision Date26 July 1948
Docket NumberNo. 119.,119.
Citation79 F. Supp. 701
PartiesBROWN v. ISTHMIAN STEAMSHIP CORPORATION.
CourtU.S. District Court — Eastern District of Pennsylvania

Stark & Goldstein, of Philadelphia, Pa., for libellant.

Krusen, Evans & Shaw, of Philadelphia, Pa., for respondent.

KIRKPATRICK, District Judge.

The single question upon which both the above motions depends is:

Has a party to a suit in admiralty the right to take the testimony of the other party by deposition upon oral examination for the purpose of discovery?

The Admiralty Rules promulgated by the Supreme Court, 28 U.S.C.A. as revised, provide for written interrogatories to be answered under oath by a party. Admiralty Rule 31 covering this point is a counterpart of Rule 33 (as originally adopted) of the Federal Rules of Civil Procedure, 28 U.S.C.A. However, there is no admiralty rule corresponding to Rule 26 of the Federal Rules of Civil Procedure, which authorizes oral examination of a party before trial for the purpose of discovery, or providing for such procedure in express terms.

In the absence of a rule, "modes of proceeding in suits * * * of admiralty * * * shall be according to the principles, rules, and usages which belong to courts * * * of admiralty * * *", 28 U.S.C.A. § 723;1 United States Revised Statutes § 913; Mar. 3, 1911 c. 231, § 291, 36 Stat. 1167.

The libellant argues that pre-trial discovery by oral examination of a party has never been a mode of proceeding according to the usages of the courts of admiralty. So far as I know, it has not been used in this Court and no instance of its use has been called to my attention.* However, it seems plain that the Supreme Court, when it promulgated the Admiralty Rules, must have considered that this mode of procedure was available to parties in admiralty and was in accordance with the usages of admiralty courts. Rule 32C of the Admiralty Rules is entitled "Refusal to Make Discovery — Consequences" and it provides "If a party * * * refuses to answer any question propounded upon oral examination * * *" and then goes on to fix penalties for such refusal. It 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. It seems to me out of the question to impute a solecism of this kind to the Court and the distinguished group of admiralty lawyers who advised with the Court in drafting the Rules. That, however, would be the only...

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6 cases
  • Dowling v. Isthmian SS Corporation
    • United States
    • U.S. Court of Appeals — Third Circuit
    • August 30, 1950
    ...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 t......
  • Miner v. Atlass
    • United States
    • U.S. Supreme Court
    • June 20, 1960
    ...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. ......
  • Mercado v. United States
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 13, 1950
    ...he may apply to the court in the district where the deposition is taken for an order compelling an answer." In Brown v. Isthmian S. S. Corp., D.C.E.D. Pa., 79 F.Supp. 701, Judge Kirkpatrick held that it is inconceivable that the Supreme Court, by means of the elaborate and detailed terms of......
  • Standard Steamship Co. v. United States, 1705.
    • United States
    • U.S. District Court — District of Delaware
    • December 1, 1954
    ...with penalties in event of refusal by a party to answer questions upon oral examination. One line of cases, e. g., Brown v. Isthmian S. S. Co., D.C. E.D.Pa., 79 F.Supp. 701, held the Supreme Court, by promulgating A.R. 32C, could not have intended a remedy to enforce a right which did not e......
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