Molinos v. The Rio Grande, 197.
| Decision Date | 25 February 1955 |
| Docket Number | No. 197.,197. |
| Citation | 129 F. Supp. 25 |
| Court | U.S. District Court — Eastern District of Virginia |
| Parties | Spyros MOLINOS, Libellant, v. The RIO GRANDE, her boats, engines, tackle, apparel, etc., Michael Katsoulis, a non-resident, as Master, Rio Grande Compania Naviera, S. A. and Rethymunis and Kulukundis, Ltd., both foreign corporations or associations, as owners and/or operators of the Panamanian S.S. Rio Grande, and Stefanos Mitarakis, a non-resident, as Chief Mate of the Panamanian S.S. Rio Grande, and as agent of the other named respondents, Respondents. |
Morewitz & Morewitz, Newport News, Va., for plaintiff.
Vandeventer, Black & Meredith, Braden Vandeventer, Jr., Norfolk, Va., for respondents.
The primary question involved in this stage of the proceeding in this action involving essentially a seaman's claim for wages and overtime under the Labor Code of Panama in which the respondents allege that the seaman libellant deserted the vessel and hence the earned wages are forfeited under the Panamanian Law is as follows:
Where the respondents (shipowner) seek to take a deposition de bene esse in New York, should proctors for libellant (seaman) be allowed expenses incident to attending a deposition as a condition precedent to the taking of such deposition and, if not, may the Court enter a protective order limiting the scope of such deposition?
By reason of the relationship between the shipowner and seaman, the matter is of some importance. It is a well settled rule of law that a seaman is a ward of admiralty and his rights should be protected by the courts. Shipping interests could effectively defeat legitimate wage claims by merely serving a notice to take depositions de bene esse in a city or country so far removed from the pending litigation as to render it impracticable for libellant or his proctor to attend and refute the evidence submitted by way of deposition.
There are two provisions of the Rules of the United States District Court for the Eastern District of Virginia (July, 1954) which are pertinent. Local Admiralty Rule 24 provides 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".
Local Rule 21(3) contains, in substance, the following language:
"If either side causes unnecessary expense the court may, in its discretion, order such unnecessary expense to be taxed against the side or party, or personally against any attorney, causing the same, without regard to the outcome of the action".
Irrespective of the wording in Rule 46 of the Admiralty Rules promulgated by the Supreme Court, 28 U.S.C.A., the right to take depositions de bene esse is generally conceded and universally accepted. Moreover, Local Admiralty Rule 21 makes specific reference to depositions in such cases. Former sections 639-641 of Title 28 U.S.C.A.,1 have not been repealed and the use of depositions apparently remains the same. Application of A. Pellegrino & Son, D.C.N.Y.1950, 11 F.R.D. 209; Mercado v. United States, 2 Cir., 184 F.2d 24, 1950 A.M.C. 1614. It will be noted that Rule 47 of the Supreme Court Admiralty Rules prohibits the taxation of costs of the traveling expenses of any witness for more than 100 miles. Certainly the Supreme Court did not intend to abolish the right to take depositions in light of this Rule.
The respondents herein must carry the ultimate burden of proving that libellant was a deserter and has, therefore, forfeited his right to wages under the Panamanian Law. This is not a case involving simply a claim for wages with the necessary accounting. This Court has repeatedly held that factual information relating to a seaman's wages, vacation pay, and overtime, should be produced by the shipowner on answers to interrogatories propounded by the seaman. There is no need to take depositions de bene esse for this purpose only, and such an attempt on the part of the shipowner should require the application of Local Rule 21(3) referring to the assessment of unnecessary expense as a part of the taxable costs without regard to the outcome of the action.
Libellant urges that Local Rule...
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Darling's Estate v. Atlantic Contracting Corp.
...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 binding upon the district court to apply the Federal Rules of Civil Procedure, 28 U.S.C.A., but the intent of......