Hyam v. American Export Lines, 236
| Decision Date | 06 May 1954 |
| Docket Number | Docket 23027.,No. 236,236 |
| Parties | HYAM v. AMERICAN EXPORT LINES, Inc. |
| Court | U.S. Court of Appeals — Second Circuit |
Bigham, Englar, Jones & Houston, New York City (Henry N. Longley and James H. Simonson, New York City, of counsel), for libellant-appellant.
Haight, Deming, Gardner, Poor & Havens, New York City (Kenneth Gardner, M. E. DeOrchis and John J. Mulcahy, Jr., New York, of counsel), for respondent-appellee.
Before CLARK, HINCKS and HARLAN, Circuit Judges.
Libellant-appellant appeals from a final decree of the District Court (Judge Thos. F. Murphy), dated January 26, 1954, dismissing on the merits F.R.C.P. 41 (b), 28 U.S.C.A. a libel in admiralty because of libellant's failure to appear for pre-trial examination as directed by an order of the District Court (Judge John W. Clancy), made on April 27, 1953.
On June 15, 1950, libellant-appellant, Jacob Hyam, d/b/a Jacob Hyam & Co., filed in the Southern District of New York a libel in admiralty against respondent-appellee, American Export Lines, Inc., to recover damages of $7000 alleged to have been suffered by 229 skids of tinplate, purchased by Hyam from Philadelphia Tinplate Company, while in shipment from Philadelphia to Bombay, India, on American Export's S. S. "Exemplar." American Export filed its answer to the libel on January 8, 1951. Hyam resides and has his office in Bombay. American Export, a New York corporation, has its head office in New York, and also an office in Bombay where it is prepared to accept service of process in legal actions instituted against it in the courts of Bombay.
On December 12, 1952, almost two years after issue had been joined, American Export served a notice under Admiralty Rule 32 of the District Court to take the deposition of Hyam on January 30, 1953, in New York. On January 13, 1953, Hyam moved under Rule 32 and F.R.C.P. 30(b) for an order directing that Hyam's deposition "may be taken only on written interrogatories" (this being the language of F.R.C.P. 30(b)), "and for such other and further order or relief as may be just and proper in the premises."
On the argument of the matter before Judge Clancy, American Export objected to the procedure of written interrogatories and countered with the suggestion that the deposition be taken orally in Bombay, "upon an open commission or by local solicitors appointed by each side," the cost thereof to both sides to be borne by Hyam. Libellant refused to accept this proposal and stood on its motion that the deposition be taken by written interrogatories. In this state of affairs, Judge Clancy denied Hyam's motion and ordered Hyam to appear for examination in New York. Hyam did not appear on the appointed day, and there ensued American Export's motion to dismiss the complaint for failure of Hyam to comply with Judge Clancy's order, which was granted by Judge Murphy on January 26, 1954.
The parties have explicitly accepted the validity of Admiralty Rule 32 which makes applicable to admiralty proceedings in the Southern District the deposition procedure of the Federal...
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