ELDER SUGAR REFINING CO. TRANSATLANTICA. ESPANOLA.
(District Oourt, S. D. New York. March 28,1890.)
Under rule 28 in admiralty interrogatories annexed to the libel conflned to issuable matter, and only the defendant's oat4 is required in response thereto. Inspection or copies of letters or documentll ,not w issue cannot be obtaiJ;led by that means. Held. therefore, in a libel for damage to cargo, thatlnterrogatories calling for the production of letters between the defendants and their agents for tbe purpose of proving the fact of damage, and how it occurred, should be stricken out. :. ' (l51IZlabus l1y t'h.e OouTt.)
Exceptions to interrogatories.
lJufltl", Btilbnan & Hubbard and Mr. Mynde:rae, for libelant. Wing, Slwudy.& PUf1nam, for respondent.
.The interrogatories in the libel under ru}e23,cli:lling for the production of any letters, cablegrams, or correspondence between the respondents and their agents, or the master, relating to the damage to cargo,which forms the subject-matter of litigation. To these interrogatories the respondent objects as unauthorized. Rule 23 of the supreme court, in admiralty. provides that the libelant may require the defendant to answer all interrogatories "touching all and singula<r:the allegations in the libel." The interrogatories must be confined, therefore, to the allegations of the libel; that is, to those matters or partioulars that go to make up the item of damage, or that constitute alleged defects, or the particular acts of negligence, or specifications of negligenCe, that might properly be averred in the libel, and are covered by it iti at least general terms. Contracts. bills oflading, or other docin litigation, may be uments, when directly forming the the subject of int\mogatories,and perhaps be required to be produced. But letters passing between the defendants and their agents do not stand in any such relation to the subject-matter of this suit.- If the faot that eertaiu infortnation was:commllnicated to the defendants was material, that might authorize inquiry as to letters containing. such information. But that is not the present case; No averment as respects stich letters, oninyinformution they contain, could here be properly pleaded. The libelant has the right to interrogate the defendant aeto each and every material fact in issue; but the rUle requires the defendant's oath I and his oath 'only, in response thereto. It does not require him to produce documents, much of which would be hearsay, as mere evidence in the libelant's favor, or as a substitute for his own oath as regards the material facts in issue. .Ben, Adm. 670, form 220. That is not, I think, within the intent Qfthe rule. The inspection of documents isadifIerent mat;.. ter, and is obtained, when allowed, by a different procedure, or under different rules. The English practice, which provides for the production of documents in actions at law, equity, or in admiralty, is founded
BA VERMEYERS & E.
fl. COHPANIA TRANSATIIANTICA ESPANOLA.
111'0n;express statutory provisions ahd definite rules ofcourt.
, See clltiue.!ct; ,order 31, and various rules under it; BUStr08 v. White, 1 Q; It Diy. 4M; Englwh v. Tottie, ld. 141; WillialnS!& B. Adm. Pro 406; 'The 'Don Francisco, 1 Lush. 474; The Emma, 3 Asp. (N. S.) 21R. We have no such statute applicable to proceedings in admiralty. Section 724 of the United States Revised Statutes relates to suits at law only ; and, not evidence considering that the answers made to for the party making them, (Cushing V. Laird, 6 Ben. 410; Cushman v. Ryan, 1 Story, 91; Hutaon v. Jordan, 1 Ware, 389, 400; The L. B. Gold8rt1ith, 1 Newb. Adm. 123; The Serapw,37 Fed. Rep. 442,) I do not think the rule should be extended beyond its plain intention. The terrogatories as respects the letters, etc., must therefore be disallowed.
NOTE., .Since the foregoing :wal! written, I am informed ora similar decision made by Judge BENEDICT in the eastern district in April, 1885, in the case of The Joseph Farwell, which was also a suit for damage to cargo. No opinion was filed. The following is extracted from Mr. Mosher's brief in opposition to the interrogatories propounded:
"Perhaps the clearest and fullest exposition of the origin and object of these interrogatorifs is to be found in the IearnE'd note to Hutson v. Jordan,1 Ware, 386, 395. It is shown in the opinion in that case that, with the other general rules of practice in admiralty, these interrogatories come to us directly from the Romanlaw. ' Id. 389. In the civil law the practice of putting interrogatories was substituted for interrogatory actions after the latter fell into disuse. Id.398. But Interrogatories WE're and are subject to the same rules. and governed by the same principles, as were the intelTogatory actions. Id.400. ,Now, it will be found by reference to the civilians quoted by thelearnE'd judge, that the interrogatory action, and the interrogatories which were substituted for It, were confined wholly to eliciting the oral answers of the adverse party, and could not be used to procure a discovery and copy of documents. Forthe lattE'r purpose, there was a distinct action ad exhibendum. 2 Huberus, Prrelectlones, p. 415,lib.l0, tit. 4. While the interrogatory action fell into disuse by the time of Justinian, the commentator says that Ulp:an declares the actio ad exhibendum to be most necessary in practice, and that its val ue Is proved by daily examples. Id. J. This actio ad exhibendum is the origin of the bill to discover written instruments in chancery. 2 Story, Eq. Jur. § 1487. (2) While, in the simple proceedings of the American admiralty, thesedistinctions of form may be disregarded, and discovery of written instruments be compelled, in a proper case, by interrogatories, the substantial rights of the parties must be preserved, and the one interrogated should not be compelled to exhibit his business books. accounts, and correspondence before the trial, to be digested by his adversary at leisure, except 011 grounds strong enough to uphold an action ad exhibendum or a bill of discovery. Both the ancient action and the modern bill reqUire that the actor or complainant shall show some especial right to the discovery sought beyond the ordinary interest of litigant to procure all attainable evidence in support of his case, and this special right must appear on the face of his pleadings. 2 Huberus, 415; 2 Story, Eq. Jur. §§ 1490, 1491. But whoever heard of a bill in equity seeking, under the circumstances of thiS case, the discovery here asked? If the libelants were the factors, trustees, or stewards of the claimants, and bound to account to them, more could not be demanded. If they were charged with misappropriating the claimant's property, a fuller discovery could not be required than that they exhibit
the merchandiseforwblch they sue. Such practice is repugnant to the spirit of our jurisprudence, which has always jealonsly guarded the private affairs of litigants from the unnecessary prying of thei.r ad versndes. No precedent can be tound for it either in equity or admiralty."
an thefrcorrespondence, accounts, and book entries relating to
(Df,strict Oourt, E. D. llHcnigan. May 26, 1890.)
ADMJRALTy-SEAMEN-LIABILITY OF SHIP TO SUPPORT AND Ct:l'RE INJURED.
The obligation of a vesdel navigating the lakes to support and cure seamen taken sick or receiving injuries in the service of the ship does not extend beyond the tar. minationof the seaman's contract. and his return to his home or to a marine hospitaL (Syllabus b'I/ the Oourt.
In Admiralty. This was a libel for wages, and IDcney paid for medical attendance, board, and nursing, after libelant had been compelled to leave the vessel by reason of injuries received while in her service. The facts of the case were substantially as follows: Libelant shipped as mate on the schooner J. F. Card, August 24, 1889, at $60 per month wages. He stated his employment was for the remainder of the season, but admitted that he signed shipping articles for a voyage from Detroit to Toledo, thence to Gladstone, thence to Escanaba to load ore, and thence to Erie, the port of destination. The articles themselves were lost. While the vessel was p:ocoorling down Lake Erie, about 10 o'clock in the evening .of. Septemberpfth, with a fresh wind and considerable sea, libelant went 011 top of the cabin to reef the mainsail. The main boom was properly crotohed to prevent its swaying, though it necessarily lifted a. foot or two in the seaway. Libelant, and the seamen aiding him, had got the reef point tied as far as fhe forward end of the cabin, when he attempted to jump down UpOll the deck. He did not take hold of the :boom, butturned around to step down, and while doing this the boom struck him on the elbow and hip, and tbrew him upon the deck.H&" was carried below' at once, where he remained until the vessel. arrived at Erie, the second day after the injury, when a physician was summoned to treat him. He told· the master on the same day that he would have to leave the vessel, and at his request another mate was hired. As soon as possible, he was taken at his own request to the steamer Nyack, and returned to his bome in Detroit. It was conceded that he received his wageS at' the agreed rate until he left the vessel at Erie. His injury appeared to be anintercapsular fracture or a bruise. He claimed in his libel wages to the end of the season, the expenses of his medical attendance, board and .nursing for seven weeks. Stewart O. Van der Marek, for libelant. ll. H. Swan, for respondent.