THE MANDU

• Decision Date: 04 September 1935
• Docket Number: No. 12172.,12172.
• Citation: 11 F. Supp. 845
• Parties: THE MANDU. In re COMPANHIA DE NAVEGACAO LLOYD BRASILEIRO.
• Court: U.S. District Court — Eastern District of New York

11 F. Supp. 845

THE MANDU In re COMPANHIA DE NAVEGACAO LLOYD BRASILEIRO.

No. 12172.

District Court, E. D. New York.

September 4, 1935.

Purrington & McConnell, of New York City, for petitioner.

Single & Tyler, of New York City, for claimant.

CAMPBELL, District Judge.

This is a motion made by the petitioner, Companhia de Navegacao Lloyd Brasileiro, owner of the Brazilian steamship Mandu, to suppress six depositions, namely, those of Ludwig Mundt, manager of Siemens — Schuckertwerke, in Berlin, Frederick Scholz, manager of Bleichroder & Co., insurance broker, Berlin Branch, Alfred Schmidt, of Schmidt & Prosch, average adjusters, Walter Borchert, manager of loss department of the firm of William Lazarus, insurance business, August F. B. Dolitzscher, office manager Hamburg-American Line, and August A. J. Warns, office employee of the Hamburg American Line, and exhibits annexed thereto, returned to the clerk of this court from Hamburg and Berlin, Germany.

At the instance of the claimant, the Great American Insurance Company, this court, on December 20, 1934, issued two letters rogatory to the German courts, which in so far as is at present necessary for consideration read as follows:

"We, therefore, request you that, in furtherance of justice you will, by the proper and usual process of your court, cause such witness or witnesses named in the order for letters rogatory annexed hereto, to appear before you or some competent person by you for that purpose to be appointed and authorized, at a precise time by you to be fixed, and there to answer on their oaths or affirmations, to the several interrogatories hereunto annexed, and that you will cause their depositions to be committed to writing and returned to us under cover," etc.

The said Great American Insurance Company, as alleged insurer of part of the cargo of the German steamship Denderah, filed libels as subrogee and assignees of other cargo against the Mandu.

The Cia de Navegacao Lloyd Brasileiro, owner of the steamship Mandu, then petitioned for exoneration or limitation of liability, and the libelant Great American Insurance Company filed its answer and claim.

No claim or appearance has been filed by the owner of the steamship Denderah.

This litigation arose out of a collision in Santos Bay, between the Brazilian steamship Mandu and the German steamship Denderah, on July 31, 1929, resulting in the loss of the steamship Denderah and part of her cargo.

Plaintiff moves to suppress the depositions on various grounds: (1) That they were irregularly taken; (2) that one of the cross-interrogatories was not answered; (3) that the depositions were not taken in accordance with the instructions contained in the letters rogatory; (4) that the purported assignment, on which claimant apparently relies, indicates that the claims now attempted to be proved were assigned to an insurance company, now a bankrupt, for which company no trustee or receiver has appeared in this proceeding; (5) that the testimony is mostly based on hearsay; (6) that the documents annexed as exhibits are incompetent because unproved and unauthenticated; (7) that interrogatories in one case were not answered singly and seriatim, but by annexing an omnibus statement.

The right to interview prospective witnesses in advance of seeking the issuance of a commission or letters rogatory, in order to determine what evidence they will give, is not open to question.

Neither party should be required to call a person as their witness, without some knowledge as to the testimony that witness will give, but that is not what the libelant complains of in this instance.

It clearly appears by the answers to the cross-interrogatories that Alfred Schmidt, an average adjuster of Hamburg, employed by the proctors for the claimant, interviewed the witnesses, gave them copies of the interrogatories, and supervised the business of securing their answers.

The answers to the interrogatories of the witness Alfred Schmidt were prepared and written out, privately in advance, and not while the witness was before the German court and under oath, and the answers to the interrogatories of the witnesses Mundt, Scholz, Dolitzscher, and Warns, under claimant's agent Schmidt's supervision, privately in advance, and not while the witness was before the German court and under oath, and that claimant's agent Schmidt was apprised of and called the attention of the said witnesses to the necessity of giving answers to the interrogatories, based upon the instructions given by one of claimant's proctors.

The effect of this was that as to Schmidt and the four other witnesses, Mundt, Scholz, Dolitzscher, and Warns, the court merely adopted those earlier answers as testimony.

We thus find that all of the witnesses but Borchert appeared in court with their written statements in question and answer form, or an omnibus statement, which were adopted by the court as their testimony.

It appears from the deposition of Borchert that he admits having discussed the matter repeatedly with the said Alfred Schmidt, and that he knew Schmidt as the representative there of the attorneys of the Great American Insurance Company, and that in March, 1934, he saw Schmidt and received from him a copy of the interrogatories in English, and had conferences with Schmidt regarding them.

I am convinced that these six depositions are of no greater value than six affidavits.

The courts both in England and this country have uniformly suppressed depositions so taken. Shaw v. Lindsey, 15 Ves. Jr., 38, 33 English Reprints Reports, 798; Sayer v. Wagstaff, 5 Beav. 462, 49 English Reprints Reports, 657; Western Division of Western N. C. R. Co. v. Drew et al., Fed. Cas. No. 17,434, affirmed Florida C. R. Co. v. Schutte, 103 U. S. 118, 26 L. Ed. 327; Richardson v. Golden, Fed. Cas. No. 11,782; Dodge v. Israel, Fed. Cas. No. 3,952.

Mundt, manager of the forwarding and insurance division of Siemens-Schuckertwerke, testified that shipments in question were attended to by the oversea division of the company.

He did not testify from knowledge or memory, but his answers to the individual interrogatories were the result of these ascertainments, on the basis of the...