The Sisilina

212 F. 1022, 1914 U.S. Dist. LEXIS 1099

• Court: District Court, S.D. New York
• Decided: February 16, 1914
• Status: Published

Opinion

WARD, Circuit Judge.

The libelant in a cause of collision applies for an order under District Court rule 38 in admiralty, giving her leave to examine the. master and lookout of the respondent’s vessel. The rule reads:

“After joinder of issue, and before trial, any party, by leave of the court, granted on motion, may examine the opposite party, his agents or representatives, or deliver interrogatories in writing, for the examination of such party, his agents or representatives, with regard to any fact material to the issues. In case the order shall provide for an examination by interrogatories, the answer to the interrogatories shall be under oath and filed within ten- days after the delivery thereof, or within such further time as may be allowed by the court.”

The witnesses in question are not now in the employment of the respondent, and, if they were, are, in my opinion, not within the rule. It was, no doubt, adopted in analogy to the principles of discovery in chancery, and must be understood to apply to parties only.

The purpose cannot have been to authorize one party to examine the officers and crew of the other party’s vessel, and so discover his entire case, without being bound by the testimony. There is no hardship whatever upon the libelant, because under section 863, U. S. Rev. Stat. (U. S. Comp. St. 1901, p. 661), she can examine the master, who lives more than 100 miles from the place of trial, and probably can examine the lookout under the same section, when his whereabouts are discovered.

The motion is denied.