Batlet, Stillman &: Hubbard, for claimant.
BENEDICT,J. On reading the briefs presented in this case, I observe that great stress is laid by the claimant upon the non-production by the libelant of the hatch-cover, which the libelant asserts broke under his weight, and which the proofs show to be in his custody, or under his control. If Diy recollection serves me, the production of the hatch-cover was tendered by the libelant at the trial; and it seems to me more conducive to justice to have it produced, instead of leaving the case to be decided upon the assertion of the libelant that the hatch-cover broke under his weight, on the one hand, and the presumption that if produced it would show the contrary, on the other. This cas.e is held open, with leave to the libelant to produce the hatch-cover in question, and with liberty to both sides to present any evidence same 88 they may be advised.
CoMPAGNIE GENERALE TRANSATLANTIQUE.·
District OO'U'ft, E. D. N6'IIJ York.
June 5; 1888.)
DEPOSITIONS-FOREIGN WITNESS-INTJIlBPRETJIlR-,DuTY OF STENOGRAPHEll.
Witnesses for respondent were being examined an interpreter, and, a difference arising as to the accuracy of the translation, respondent's .proctor announced that the answers would be written down as translated by him, and the stenographer, on being appealed to by libelant's proctor, an· nounced that he would do as respondent's vroctor directed. .Libelant's proc· tor thereupon withdrew, and the examinatIOn was completed in his absence. On motioll to sJ.lppress the depositions, held, that libelant's proctor was jus· tified in ",ithdrawing, the motiOn shOUld be granted, even though it appeared that the depositIOns were not eventually taken in the manner com· ,. . plained of by libelant's proctor.
In Admiralty. On motion to suppress depositions taken. Biddle &: Ward, for libelant. Coudert Br08., for respondent.
BENEDICT, J. This is a motion to suppress certain depositions. It is made on behalf of the libelant. There is a difficulty with the motion, arising out of the fact that the depo8'itions complained pi have not been filed, and that they are not mentioned with particularity. The depositions complained of were taken under these circumstances: Notice of taking of certain witnesses was given, and the proctors on both the sides attended, and the taking of the depositions commenced. The witnesses were unacquainted with the JJ;nglish language, and were examined through an interpreter. A difference seems to have arisen as to the accuracy of the translations made, and the proctor for the claimant an1 Reported
by Edward G. Benediot, Esq., of the New York bar·.
nounced that the stenographer would take down the answers of the wit,. nesses as translated by him. To this the proetor for the libelant objected, and inquired of the stenographer as tohis intention. 'rhe stenographer replied that, being employed by the claimant's proctor, he felt bound to take the instructions of the claimant's proctors in the particulars in dispute. Whereupon the libelant's proctor withdrew. It seems that after the withdrawal of the proctor for the libelant,. the taking of the depositions was continued, and, as it now appears, not in accordanpe with the announced to the libelant's proctor, that the stenographer would correct the translation of the interpreter. In this way several depositions were taken on behalf of the chimants, without the presence of any person on behalf of the libelant, and of course without cross-examination. The libelant's proctor now asks that the depositions so taken be declared irregular be suppressed. Upon the point in controversy my opinion is that the method of taking the depositions, which the libelant's proctor supposed to have been announGed, and of which he now complains, was improper. The libelant's proctor was entitled to ha.ve the answers of the witnesses as interpreted by the sworn interpreter taken down by the stenographer. It is also my opinion that, after the notice given, and the statement made by the stenographer of his intention to take down the notes in accordance directed by the claimant's proctor, the libelant's proewith tor wasjustified in withdra\\'ing, in the belief that such intention would be carried into, effect. It is my opinion, therefore, that the depositions taken after his withdrawal, without any disavowal of intention to follow that method, although not taken in accordance with the method complained of by the libelant's proctor, the same having been taken in the absence of the libelant's proctor, and without cross-examination, should be
THE ALESIA. 1
BONANNO t7. LA COMPAGNIE FRAN9AISE DE NAVIGATION FABRE & Cm.
(District Oourt, E. D. New York. June 5, 1888.>
SJDPPING-DAMAGE TO CARGO-FROST-BILL OF LADING-EXCEPTION.
The steam-ship A. arrived in the port of New York in February, with one ,-,old filled with green fruit. and general merchandise in the others. ,The 16th was a warm day, and the ship commenced to discharge the fruit. but the discharge was stopped by request of certain consignees, with the assent of the libelant. All the fruit could have been discharged on that day. The folll-wing three days were cold, and no fruit was discharged until the 20tb and 21st, when. the :weather having moderated. the discharge was completed. and the fruit transferred to a wareb'olise. It,was afterWards found to be frozen. and for its 108s this action w8sbrought. The bill of lading contained the ordi·
': J:Reported by Edward G. Benedict, Esq., of the New York bar.