THE BELFAST MARU, 1253

• Decision Date: 26 May 1925
• Docket Number: No. 1253,1256.,1253
• Citation: 6 F.2d 89
• Parties: THE BELFAST MARU. GULF REFINING CO. v. SUDERMAN & YOUNG.
• Court: U.S. District Court — Southern District of Texas

6 F.2d 89 (1925)

THE BELFAST MARU GULF REFINING CO. v. SUDERMAN & YOUNG.

Nos. 1253, 1256.

District Court, S. D. Texas, at Galveston.

May 26, 1925.

Baker, Botts, Parker & Garwood, of Houston, Tex., for libelant.

McDonald & Wayman, of Galveston, Tex., for intervener.

John L. Darrouzet and John R. Palmer, both of Galveston, Tex., for respondent.

In No. 1256:

W. T. Armstrong and W. E. Cranford, both of Galveston, Tex., for libelant.

John L. Darrouzet and John R. Palmer, both of Galveston, Tex., for respondent.

HUTCHESON, District Judge.

On application of the respondents in the above cases under admiralty rule 32: "After joinder of issue and before trial any party may apply to the court for an order directing any other party, his agent or representative, to make discovery on oath of any documents which are or have been in his possession or power relating to any matter or question in issue, and the court may order the production by any party, his agent or representative, on oath of such of the documents in his possession or power relating to any matter in question in the cause as the court shall think right, and the court may deal with such documents when produced in such manner as shall appear just" — the following order was entered, ex parte and as of course:

"Upon the application of Mr. John R. Palmer, one of the proctors for the above-named respondent, and upon referring to the record herein from which it appears that issue has now been joined between the parties: It is ordered that the above-named libelant shall within fifteen days from the service of this order make discovery upon oath of all letters, paper writings, books of account, policies of insurance, bills, receipts, vouchers, and any and all other documents, of whatever nature or kind, which are or have been in its possession, control, or power, pertaining or in any way relative to the matters or questions in issue in these proceedings."

The libelants in the cases, with leave of the court, appeared, seeking to have the order set aside. Upon hearing of the matter, argument was had, and full and comprehensive briefs were filed, and the question involved was interestingly and ably discussed.

The contention of the libelants is that the order of the court requiring a disclosure by libelants of all papers, letters, documents, telegrams, policies of insurance, bills accounts, etc., was beyond the power of the court to make; that it operates to give the applicant for the order fishing rights on libelants' premises, which the law does not accord them; and that it was contrary to the established and recognized procedure for discovery, which libelants contend rule 32 should be construed as merely declaratory of.

As a preliminary matter I may say that, quoting from the dissenting opinion of Justice Holmes in Southern Pac. Co. v. Jensen, 244 U. S. 221, 37 S. Ct. 531, 61 L. Ed. 1086, L. R. A. 1918C, 451, Ann. Cas. 1917E, 900: "I recognize without hesitation that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common-law judge could not say, I think the doctrine of consideration a bit of historical nonsense and shall not enforce it in my court. No more could a judge exercising the limited jurisdiction of admiralty say, I think well of the common-law rules of master and...