Erie & Western Transp. Co. v. Great Lakes Towing Co. , 184 F. 349 ( 1910 )

RELLSTAB, District Judge.

The libel is filed by the libelant as owner of the steamship Wissahickon, and as bailee of its cargo.

The interrogatories, 26 in number, are all excepted to. Libelant, instead of assigning specific objections to each interrogatory, merely states that they are all open to one or more of 14 enumerated objections. The interrogatories and objections are hereinbefore set forth. This method of excepting to interrogatories is bad. Exceptions in their purpose and effect correspond with special demurrers and pleas in bar at common law. Ben. Adm. (3d Ed.) § 466. Thev should be carefully prepared, specifying in the simplest and clearest manner, in separate exceptions, the matter excepted to. Id, § 470. The objectionable part of each interrogatory should be specifically pointed out, that a clear and definite issue may be presented. To say that each interrogatory is open to one or more of any number of objections does not produce a single issue. The utmost that can be learned from such manner of stating exceptions is that each one of these 26 interrogatories is open to at least 1 objection, but which of the 14 objections is left to speculation. Such method suggests a misunderstanding of the function of exceptions. To meet exceptions thus framed the respondent would have to test each one of its 26 interrogatories with each one of the 14 objections. This is an unnecessary burden, could easily be made intolerable, and cannot receive judicial sanction.

On the argument and in the brief submitted by libelant, the specific objections to each interrogatory were pointed out, and as respondent has availed himself of the time given for said purpose, and submitted an argument in reply thereto, such exceptions will be considered on their merits; but this indulgence is not to be taken as a precedent for future cases. Hereafter exceptions that fail to clearly and definitely point out the objectionable matter in the particular interrogatory excepted to will not be considered by the court, and may be struck out on motion of the interrogating party.

Rule 23 in admiralty provides that:

“All libels in instance causes, civil or maritime, shall state the nature of the cause; * * * and the libelant may further require the defendant to answer on oath all interrogatories propounded by him touching all and singular the allegations in the libel at the close or conclusion thereof.”

And rule 32 provides that:

“The defendant shall have a right to require the personal answer of the libelant upon oath or solemn affirmation to any Interrogatories which he may, at the close of his answer, propound to the libelant touching any matters charged in the libel, or touching any matter of defense set up in the answer.”

The only exception is that referred to in rule 31, that the required answers do not expose libelant “to any prosecution or punishment for crime, or for any penalty or any forfeiture of his property for any penal offense.”

“Touching any matters charged in the libel or touching any matter of defense set up in the answer” are comprehensive phrases. The probing for definite issues, and'-the searching of the conscience in aid thereof, here authoi'ized, is of the very genius of admiralty pleading and practice. It does not take place after the issues are joined, as in the jurisdictions where the pleadings and practice are based on the common law, but before issue, and for the verj'- purpose of narrowing the issues to save both time and expense in-the trials.

As was said by Judge Brown in The Mexican Prince (D. C.) 70 Fed. 246, at page 248:

“In any rational system of pleading, it is essential that the subject of litigation shall’be reasonably defined, in order that the parties may know what they have to meet, that the case.may be presented with intelligence, and the record restricted within appropriate limits, and useless expense avoided. It is the duty of the court to promote this end in all appropriate ways, in furtherance of justice, in pursuance of rule 4G and section 918 of the Revised Statutes [U. S. C-omp. St. 1901, p. 685].”

To the same effect, see Benedict’s Adm. (3d Ed.) § 440, p. 297.

In view of the comprehensive information sought hy the interrogatories, an extended reference to the libel and answer is necessary.

The third article of the libel alleges on information and belief that on December 12, 1909, .the steamship, while bound on a voyage from Erie, Pa., to Duluth, with a cargo of about 3,360 tons of general merchandise belonging to various persons, stranded on Outer Duck Island' in Lake Huron; that on December 16th the tug “General,” owned by respondent, arrived near the wreck and arranged to take off its crew; that on the same day C. H. Sinclair, representing all the interests concerned, arrived at the wreck and posted notices that the ship and cargo were not abandoned, and that any one interfering therewith would be prosecuted, and that he employed a man on Duck Island to watch the steamer; that on the 22d day of December R. Parry-Jones, representing all the interests, wrote respondent a letter, to which respondent replied by letter dated the 24th of that month, copies of such letters being attached to the libel and marked “A” and “B,” respectively; that thereafter R. Parry-Jones, in his representative capacity, oraliy accepted the first proposition contained in respondent’s letter, making a contract with it to relieve such steamer from the strand, and to deliver her and her carg'o on board or in lighters at Detroit or Milwaukee, for the consideration of $30,000.

In its fourth article the libel alleges on information and belief that on or about the 29th day of said December, in pursuance of such contract, respondent’s tugs “General” and “Thompson” with the lighter “Reliance” began wrecking operations, transferring some of the cargo to the lighter; that on February 7, 1910, the Wissahickon was finalfy relieved from the strand; and that thereafter she and the “Reliance" were towed to Detroit by tu'gs “Favorite” and “F. S. Schanck,” arriving there on or about April 2, 1910.

In its fifth article it alleges that, when delivered at Detroit, the “Wis-sahickon” and lighter “Reliance” had on board together about 2,300 tons of cargo,; ‘that the difference of cargo, about 1,060 tons, together with the steamer’s fittings and furnishings, etc., had disappeared, due to the negligent and improper way in which the respondent had conducted said wrecking operations.

In its sixtli article it alleges- that by reason of the respondent’s failure to conduct said wrecking operations in a proper manner, and to deliver the “Wissahickon” with her fittings, furnishings, etc., and cargo on board or in lighters, libelant had suffered damages of about $60,000 ; and that no part thereof had been paid.

In its answer to the third article of the libel, respondent admits that it sent to R. Parry-Jones a letter dated December 24, 1909, in reply to his letter of December 22d, but denies that the copy of the letter attached to the libel, marked “B," is an exact copy thereof; and avers that it has no knowledge or information sufficient to form a belief as to whether or not on the clay that the tug “General” was near the “ Wis-sahickon’s” wreck, or any other time, C. PI. Sinclair, or any other persons representing all the interests concerned, or otherwise, arrived at said wreck and posted the notices or employed the watchman referred to; and upon information and belief denies that said R. Parry-Jones accepted the so-called proposition contained in respondent’s letter of December 2-1, 1909; and denies that the said Jones thereby made a contract with respondent to release said steamer from the strand, or to deliver her with her cargo, at Detroit or Milwaukee, for any fixed sum of money. It also avers that, as to every other allegation of said third article, it has no knowledge or information to form belief, and therefore denies the same.

As to the allegations of the fourth article of the libel, respondent, on information and belief, denies that, in pursuance of the contract alleged in the libel, its tugs and lighters proceeded to the “Wissahickon,” but admits the other allegations of said article. It also denies on information and belief the allegations of the fifth and sixth articles of the libel.

Respondent, further answering the libel, alleges on information and belief that such steamship and cargo were stranded in December, 1909, on said island, in an exposed position on a rocky shore, at about the close of navigation; that the weather was, and continued, especially severe; that such place was many miles from a telegraph station, and] on an almost uninhabited island; that, unless released and taken to shelter, said vessel and cargo would have been lost; that respondent, with a valuable equipment, which it maintained for wrecking purposes, released said vessel and saved the greater portion of its cargo, pursuant to the acceptance of its bid contained in its letter of December 24, 1909, to Mr. R. Parry-Jones, and delivered the same in Detroit, where such vessel and cargo were accepted by libelant without protest or objection, and thereby performed the salvage service which it had undertaken; that respondent performed said salvage services at great risk to its property, and with great efforts and much suffering on the part of its employes, and in all things performed its agreement and saved property of great value; that no claim was made on it for payment of any loss or damage on account of loss of cargo, or any alleged negligent or improper method employed in conducting- said wreckitig operations, except until the libel was filed herein; that respondent is not informed as to the basis of said claims of negligence and damage, and cannot ascertain them from the yery general allegations of the libel, and therefore attaches and propounds interrogatories to said libel.

It is to be noted that the basis of the action is the negligent and improper conduct of the respondent in the wrecking operations, and that the damages are the loss of a part of the cargo and the vessel’s equipment. The steamship was stranded on the 12th of December, 1909, and respondent’s contract to release the vessel and deliver her and her cargo at Detroit was not entered! into until after the 24th (the exact date not being mentioned), and the wrecking operations did not begin until the 29th. On the 16th, about two weeks before such operations began, one C. H. Sinclair, said by libelant to represent all the interests concerned, arrived at the wreck, posted warning notices, and employed a watchman. , Arrangements were made on the" same day with respondent’s tug to take off the crew. The contract is said by libelant to have been made between respondent and one R. Parry-Jones, representing all the interests.

The damages are stated in the most general terms, viz., that when the steamer arrived at Detroit on April 2, 1910, there was missing about 1,060 tons out of the 3,360 tons of cargo said to have been shipped) at Erie, Pa. The damages are stated at about $60,000. The exact contract is in dispute, and the time when it went into effect does not appear.

The scope of the interrogatories under the admiralty rules was passed upon in the following: Havermeyers, etc., v. Compania, etc. (D. C.) 43 Fed. 90; The Mexican Prince, supra; La Bourgogne (D. C.) 104 Fed. 823; Bock v. International Nav. Co. (D. C.) 124 Fed. 711; Dana & Co. v. Cosmopolitan Shipping Co. et al. (D. C.) 131 Fed. 158; In re Knickerbocker Steamship Co. (D. C.) 136 Fed. 956; The Baker Palmer (D. C.) 172 Fed. 154; Chirurg v. Knickerbocker Steam Towage Co. (D. C.) 177 Fed. 943. They uniformly allow great latitude in eliciting testimony from the adverse party. In the Baker Palmer, Judge Dodge, in considering the extent of claimant’s right in the premises, used language so appropriate to the present case that I am justified in quoting him in extenso. He said, referring to the interrogatories excepted to:

“Some call for distinct allegations regarding matters about wliicb the libel as filed is not sufficiently specific. These, which will be identified below, the libelants are clearly bound to answer, as they would have been bound to amend the libel, had exceptions been filed. But the claimant has the right to go further than this under rule 32. Touching any matters alleged in the libel or touching any matter of defense set up in the answer he is entitled to compel his adversary to amplify the allegations of the libel, even though not open to exceptions for insufficiency as filed, for the purpose of dispensing wit'' the talcing of proofs regarding them, or for the purpose of bringing distinctly before the court the points relied on in defense, or for the purpose of obtaining evidence in support of the defense from the personal answers of his adversary. The David Pratt, 1 Ware (495) 509, Fed. Cas. No. 3,597; The Serapis (D. C.) 37 Fed. 436, 442; The Mexican Prince (D. C.) 70 Fed. 246; Benedict, Adm. Practice (3d. Ed.) § 519.

“The extent to which the process of interrogation may properly be carried will necessarily vary according to the circumstances of each case, and must be regulated, when it is in dispute, by the court in its discretion. The purposes for which it is allowed, as above stated, are to be kept in view; and it is also to be remembered that the matters regarding which interrogatories may be put are, by the language of rule 32, only the matters alleged in the libel or set up in defense by the answer, and that interrogatories are not to be used for such purposes merely as those of finding out in advance what the adversary’s evidence will be, or who his witnesses are, or of obtaining the production of letters or documents not in issue, or of cross-examining the adverse party regarding the truth of the allegations made in his pleadings. The Intrepid (D. C.) 42 Fed. 185; Havermeyers, etc., Company v. Compania Transatlantica (D. C.) 43 Fed. 90; Bock v. Navigation Company (D C.) 124 Fed. 711. It is, however, not necessarily an objection to an interrogatory, otherwise permissible under rule 32, that some of the purposes above referred to may bo incidentally accomplished by it.”

The condition of the steamer and the cargo at the time the wrecking operations were begun is not stated. Manifestly, on the libelant’s representations, the respondent cannot be charged with the loss that occurred before contracting to take charge of the vessel. The quantity and value of the entire cargo when shipped, its condition and how stored at the time of such contract, the condition of the vessel at such time, and the condition and amount of its cargo on its arrival at Detroit, are material on the question of damages, if any are recoverable. The name, whereabouts, and conduct of the watchman in charge of the steamer before such contract was made; the general authority of Jones in the premises, and particularly as to the making of such contract; whom he represented on such occasion; and what was said in his oral acceptance of one of the alternate propositions submitted by respondent, the names of the owners of the cargo, and their several interests therein; in what respect the wrecking operations were negligent or improper ; what the character of the damages — are also material and relevant in view of the nature of this controversy, and the matters set up in the libel and answer.

It is difficult to see the materiality and relevancy of the interrogatories relating to the authority and conduct of Sinclair; but the libel’s reference to his authority’ and conduct makes it sufficiently so for the purpose of propounding interrogatories in relation thereto.

The libel lacks fullness in respect to several matters which would seemingly be within the knowledge of the libelant. This may be a mere inadvertence, but it opens the way for a very searching probe. Some of the interrogatories propounded relate to such and other matters touched upon in the libel; others more particularly touch matters of defense set up in the answer.

The drawing of the line between permissible and objectionable interrogatories is oft a difficult task. The interrogatories here propounded are comprehensively framed and call for considerable detail information. Much time andi labor will be expended, the names of some of libelant’s witnesses will be disclosed, and the introduction of undisclosed documents may take place by making full answer thereto. This, however, is no reason for disallowing the interrogatories, where the. purpose is not to harass, and such disclosures are but a mere incident to the main information sought. The interrogatories in this case, while intrusive and far reaching, are well within the scope of those allowed in the cited cases.

I have carefully analysed each of these interrogatories andl so considered them in relation to the matters charged in the libel and set up as defense in the answer, a.nd to the objections interposed, and while the scope of the probe might be curtailed here and there, yet, keeping in mind the purposes served by the use of interrogatories, and the scant reference in the libel to some apparently important, if not controlling, matters in the controversy, I am constrained to allow them to standi as framed.

The exceptions are therefore overruled.