Steamship Co. of 1949 v. China Union Lines, Hong Kong

Citation123 F. Supp. 802
PartiesSTEAMSHIP CO. OF 1949, Inc. v. CHINA UNION LINES, HONG KONG, LIMITED. THE SHANGHAI VICTORY.
Decision Date06 April 1954
CourtU.S. District Court — Southern District of New York

Lord, Day & Lord, New York City (John W. Castles, 3rd, New York City, of counsel), for charterers.

Platow & Lyon, New York City (E. F. Platow, New York City, of counsel), for owner.

CONGER, District Judge.

Steamship Company of 1949, Incorporated (hereinafter designated as the "Charterers") has moved for an order adjudicating David Cohen and American Ship Brokerage Corporation (hereinafter designated as "Brokerage Corporation") to be in civil contempt for refusal to comply with the terms of two subpoenas duces tecum issued out of this Court under date of September 11, 1953 and for an order providing for the punishment of the said David Cohen and Brokerage Corporation for such contempt.

The China Union Lines, Hong Kong Ltd. (hereinafter designated as the "Owner") has moved to terminate the examination of David Cohen and the Brokerage Corporation (now pending and partially had) and for an order directing the person conducting said examination to cease said examination.

Both motions were argued together and both will be disposed of in one opinion.

The matter before the Court arose out of an action which was commenced in July, 1951 in the United States District Court for the Southern District of Texas.

On August 20, 1953 an order of that Court was entered directing the parties to proceed to arbitration in accord with clause 17 of the charter party and the provisions of the United States Arbitration Act, 9 U.S.C. § 1 et seq.

I understand that these arbitration proceedings are now pending and the arbitrators have been appointed but no testimony has been taken.

Subsequently, and on or about September 8, 1953 the attorneys for the Charterers herein caused to be served on the attorneys for the Owners herein a notice to take the testimony of David Cohen and the Brokerage Corporation at a designated time and place. The notice was given and the testimony to be taken pursuant to the Federal Rules of Civil Procedure. Neither David Cohen nor the Brokerage Corporation were parties to this action or proceeding but were to be examined as witnesses.

On September 10, 1953 there was issued by the Clerk of this Court two subpoenas duces tecum directed to David Cohen and the Brokerage Corporation. The subpoenas were served on them September 11, 1953.

No question is raised here as to the regularity and/or service of the notice to take testimony and the subpoenas.

The subpoenas directed David Cohen and the Brokerage Corporation to appear at the same time and place designated in the notice to take testimony and to testify on behalf of the Charterers at the taking of a deposition in the action in the Texas Court and to bring with them certain designated documents.

On November 25, 1953 David Cohen appeared pursuant to said subpoenas and was sworn and the taking of his deposition commenced, both for himself and the Brokerage Corporation, of which he is president. In all, there were three hearings had. The last was adjourned "to a date to be agreed upon, upon the decision of the Court upon the motion to cite Mr. Cohen and American Ship Brokerage Corporation in contempt for failure to comply with subpoenas duces tecum."

At the hearings Mr. Cohen refused, on the advice of counsel, to produce certain documents called for in the subpoenas. One document was the contract of sale and the bill of sale of the SS HAFEZ (ex SHANGHAI VICTORY) to Argosy. (Paragraph 9 of subpoena)

Mr. Cohen did produce the bill of sale but it had stricken from it one of its provisions, to wit: the purchase price. I do not regard this as compliance with the subpoenas.

The Owner contends, first, that no contempt order can technically be entered according to law.

The contention is that Rule 37, F.R. C.P., 28 U.S.C., was not violated; that the witness at no time refused to answer a question. Rule 37 and the contempt provided for therein, 37 (b) is not in issue here.

The contempt sought is for failure of a witness to comply with a subpoena duces tecum. See Rule 45, F.R.C.P., and Rule 12 of the Civil Rules of this Court. Rule 12 does not cover only contempt contemplated by Rule 37 but all civil contempts including those provided for by Rule 37 (b) (2) (i-iv), F.R.C.P.

The next point is that the examination was conducted in this Court without an order issuing out of this District and upon a subpoena served and pre-dating the Texas order of November 9, 1953.

I know of no rule which provides that an order must be obtained before a deposition may be taken at this stage of the suit. No leave of the Court was necessary. See Rule 26, F.R.C.P. The subpoenas were properly issued. See Rule 45, F.R.C.P. Rule 30(b), F.R.C.P. is a protective provision for the benefit of a party or person to be examined. It is not a condition precedent before an examination takes place. The Owner took advantage of this provision in Texas and obtained an adverse ruling.

Lastly, the objection is made that the matter being now in arbitration, the Arbitration Board has jurisdiction over the procedure. See U.S.Code, Title 9, § 7 and Federal Rules of Civil Procedure, 81 (a) (3).

Unfortunately for the objectors here, all the matters except the first one have already been raised and passed and that is the law of the case as far as I am concerned.

On September 15, 1953 one of the attorneys for the Owner, in the Texas Federal Court, obtained a stay in the taking of the depositions. Subsequently, and within a few weeks thereafter a formal motion was made that the taking of the said depositions and the said subpoenas be suppressed on the...

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7 cases
  • United Nuclear Corp. v. General Atomic Co.
    • United States
    • New Mexico Supreme Court
    • August 29, 1980
    ...214 (N.D.Ill.1972); Independent Productions Corp. v. Loew's, Incorporated, supra, 22 F.R.D. at 271; Steamship Co. of 1949 v. China Union Lines, Hong Kong, 123 F.Supp. 802, 805 (S.D.N.Y.1954); Bloomer v. Sirian Lamp Co., supra, 4 F.R.D. at 27 Cf. United States v. International Business Machi......
  • Compton v. Societe Eurosuisse, SA
    • United States
    • U.S. District Court — Southern District of Florida
    • July 21, 1980
    ...Messenger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 740, 56 L.Ed. 1152 (1912) (Holmes, J.). See also Steamship Co. of 1949 v. China Union Lines, 123 F.Supp. 802 (S.D.N.Y.1954). Although invocation of the law of the case doctrine requires the Court to exercise its discretion, Southern R.......
  • United States v. Eilberg
    • United States
    • U.S. District Court — District of Columbia
    • October 19, 1981
    ...all information and arguments, that judge's decision must be followed as the law of the case); Steamship Co. of 1949 v. China Union Lines, Hong Kong, 123 F.Supp. 802 (S.D.N.Y.1954) (validity of subpoena and examination thereunder established by prior ruling of Texas federal Applying these g......
  • Helge v. Druke
    • United States
    • Arizona Court of Appeals
    • May 11, 1983
    ...is the test in determining whether evidence sought by a subpoena duces tecum is proper. Steamship Co. of 1949 v. China Union Lines, Hong Kong, Ltd., 123 F.Supp. 802 (S.D.N.Y.1954); United States v. E.I. DuPont DeNemours & Co., 14 F.R.D. 341 (N.D.Ill.1953). Here the burden was on petitioner ......
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