Sea Trade Corp. v. BETHLEHEM STEEL CO., SHIPBUILDING DIV.

• Decision Date: 07 March 1961
• Citation: 192 F. Supp. 913
• Parties: SEA TRADE CORPORATION, as Owner of THE M/V TAGALAM, Libelant, v. BETHLEHEM STEEL COMPANY, SHIPBUILDING DIVISION, Respondent.
• Court: U.S. District Court — Southern District of New York

192 F. Supp. 913

SEA TRADE CORPORATION, as Owner of THE M/V TAGALAM, Libelant, v. BETHLEHEM STEEL COMPANY, SHIPBUILDING DIVISION, Respondent.

United States District Court S. D. New York.

March 7, 1961.

Cravath, Swaine & Moore, by Harold R. Medina, Jr., New York City, for respondent.

Dow & Stonebridge, New York City, William P. Hepburn, New York City, of counsel, for libelant.

EDELSTEIN, District Judge.

Respondent has moved for summary judgment in an Admiralty action. The original libel, served July 2, 1958, seeks damages for claimed loss of earnings resulting from allegedly improper repairs made by respondent to the M. V. Tagalam, a vessel owned by libelant, in December 1952, and early 1953. An amended libel, served January 20, 1960, increased the damages prayed for to $199,801. The libel alleges breach of warranty and negligence.

Respondent's motion for summary judgment is predicated on the grounds that the action is barred by laches and is precluded by the terms of the contract between the parties pursuant to which the repairs were undertaken. In the alternative, respondent moves to dismiss the libel herein for failure of libelant to give adequate answers to certain of respondent's interrogatories, or for an order compelling libelant to give such adequate answers.

Ab initio, libelant raises the argument that summary judgment is not a remedy or proceeding available in an Admiralty action. Prior to reaching the merits of whether summary judgment may or may not be granted on the facts of this case, the availability in Admiralty of the remedy itself must be considered. The issue, though raised occasionally, does not appear from the reported decision to have commanded much interest or extensive discussion in this district. It assumes new importance, however, in light of the Supreme Court's recent pronouncement in Miner v. Atlass, 1960, 363 U.S. 641, 80 S.Ct. 1300, 4 L.Ed.2d 1462, on the efficacy of the local rule making power.

Admiralty procedure is governed by statutes and three sets of rules,¹ excluding the Federal Rules of Civil Procedure which are specifically non-applicable in Admiralty.² No statute, no Supreme Court Admiralty Rule, nor any local rule of the Southern District providing for summary judgment has been cited to the court, and none has been found. Turning then to the settled rules of practice as developed by the courts, I find no support, especially in this circuit, for the proposition that summary judgment is available in Admiralty.

The leading expression by the Second Circuit Court of Appeals appears in The Sydfold,³ where the Court stated: "Such a practice of trying the issue of limitations by affidavits cannot be sanctioned in admiralty where there is no rule resembling that in force in New York (New York Rules of Civil Practice, rule 113), and in some other jurisdictions which authorizes summary judgment."⁴ No subsequent case in this circuit has explicitly accepted, over objection, the use in Admiralty of summary judgment. Where the practice has appeared in the cases, either its propriety has not been fully explored,⁵ or it has been equated with exceptions and exceptive allegations.⁶ Except for two cases in the Eastern District of Pennsylvania, no definite expression sanctioning the use of summary judgment has been found in the other circuits.⁷ Thus, where the parties did not raise the fact that there existed no admiralty rule providing for summary judgment, and in fact stipulated its use, the Fifth Circuit permitted the practice.⁸ And where possible, courts have dealt with a motion for summary judgment as an exception to the pleadings.⁹

In Infante v. Moore-McCormack Lines, Inc., D.C.E.D.Pa.1950, 93 F.Supp. 239, the District Court held that it had the power to issue a summary judgment dismissing the libel. As authority for the inherent power of Admiralty courts to adopt new procedures, the court cited Dowling v. Isthmian S. S. Co., 3 Cir., 184 F.2d 758. The Dowling case, however, concerns itself only with a discussion of discovery matters, and the Supreme Court has recently limited its authority even within that sphere.¹⁰ The Court found that the historical data in Dowling did no more than disclose "no overt rejection of the power to order" discovery depositions, but "no affirmative indication of the exercise of such a power" was uncovered. Following the Supreme Court's reasoning further, it is evident that the reliance of the Infante court upon Dowling is unwarranted. For not only is Dowling lacking in any "affirmative indication" of the exercise of any power to grant summary judgment, it is completely devoid of any indication whatever regarding summary judgment. Thus, Dowling fails to support both the extension of the inherent power concept to summary judgment as well as the exercise of any inherent power within its own sphere of discovery depositions. Moreover, not only do none of the leading commentaries support the existence of any traditional practice or inherent power to grant summary judgment, but Benedict on Admiralty asserts that "Admiralty does not employ * * * the summary judgment * * * as those proceedings are set forth in the Civil Rules."¹¹ This statement by a leading work in the field hardly bespeaks the existence of traditional inherent power, and we find none."¹²

Having ascertained no specific grant of authority in the Admiralty Rules nor a traditional practice utilizing summary judgment, the issue narrows to whether a district court may adopt the procedure pursuant to the power conferred by Rule 44 of the Supreme Court Admiralty Rules.¹³ In light of the recent Supreme Court decision concerning Rule 44, this court requested, and counsel for the parties have submitted, additional memoranda relating the instant question to Miner v. Atlass. Each claims support therein for his position.

In Miner v. Atlass, the court concluded the opinion with the following summary of its holding: "All we decide in the existing posture of affairs is that the matter of discovery depositions is not presently provided for in the General Admiralty Rules or encompassed within the local rule-making power under General Rule 44."¹⁴ Although the holding is narrow, and not directly in point, the case does offer a guide in its approach to Admiralty practice.

Pointing to the Court's refusal to foreclose the District Courts from any local rule making, respondent contends that Miner provides strong support for the granting of summary judgments in Admiralty suits. But all the Court said in Miner was that it would not hold that "whenever the General Admiralty Rules deal with part, but not all, of a subject, those practices left unprovided for by the General Rules may not in any circumstances be dealt with by the District Courts under General Rule 44."¹⁵ As an example of appropriate local regulation to fill the interstices of the General Admiralty Rules, the Court cited the practice adopted by local Rule 14 of the Southern District and Galveston Dry Dock & Constr. Co. v. Standard Dredging Co.¹⁶ Thus, to say that where a suitor contests liability for but a portion of a claim, the court may order a severance and enter a decree for the uncontested portion is not to equate that practice with an approval of a broad application of summary judgment practice. Furthermore, the difference between the severance practice of Galveston and a summary adjudication on affidavits is readily apparent. The decree rendered in the severance situation concerns only that portion of a claim about which there is no dispute in law or in fact. Moreover, the fact that the Admiralty Rules provide a very limited form of summary procedure without trial by way of exceptions is not sufficient support for finding a power in the district court to deal with broader forms of summary dismissals.¹⁷ Respondent contends further that the Supreme Court indicated a liberal construction of Rule 44 and a narrow application of the inconsistency provision therein. Due to the unique facets appertaining to discovery depositions in Admiralty, the particular practice sanctioned by the local rule there considered was held to be inconsistent with the General Admiralty Rules.¹⁸ Miner, it is therefore argued, does not detract from the earlier precedents establishing the availability of summary judgment.

The precedents respondent refers to have already been discussed and found not to be controlling.¹⁹ Notwithstanding the liberality to be accorded Rule 44, it can scarcely be doubted that if discovery depositions are "more weighty and more complex a matter" than the examples of permissible local rule making discussed by the Court,²⁰ certainly summary judgment is even "more weighty and more complex a matter" than discovery depositions. This is especially so in Admiralty where reluctance to adjudicate upon affidavits is often expressed.²¹ And the Supreme Court's reliance on the need for nationwide uniformity in Admiralty as relating to the important area of discovery procedures is equally applicable to the important area of summary judgment.²²

The incorporation into Admiralty of the summary judgment practice is precisely the kind of major innovation which requires resort to the statutory provisions governing the rule making powers of the Supreme Court.²³ The reluctance of the Supreme Court to permit "a change so basic as discovery depositions to be effectuated through the local rule-making power"²⁴ serves to guide this court in declining to import summary judgment into Admiralty. This court's reluctance is reinforced by the fact that in Miner, there existed an enacted local rule which had been considered and concurred in by at least a majority of the judges of the districts where the rule was in force.²⁵ No such local summary judgment rule prevails in this district, and for a single judge, absent even the color of authority, to adopt such a basic alteration would be unfounded. A request to incorporate some of the Federal Rules of Civil Procedure into...