Before McLAUGHLIN and KALODNER, Circuit Judges, and FEE, District Judge.
JAMES ALGER FEE, District Judge.
Dowling, a seaman, sued the Isthmian Steamship Corporation to recover wages, statutory penalties and subsistence. Isthmian noticed deposition of Dowling, which he moved to vacate. This was denied. An appeal taken from this order was dismissed because not a finality. Thereafter, the District Judge ordered Dowling to appear for oral examination at a time and place to be agreed upon between the parties. Dowling appeared according to the terms of the order, but upon advice of counsel, refused to be sworn or to submit to examination. Judgment was thereafter "entered against the Libellant and in favor of the Respondent by reason of the failure of the Libellant to submit to an oral examination by the Respondent, as required by the Order and Decision of this Court." Appeal was taken from this order.
The chief question is whether a federal court, sitting in admiralty, has the power to compel a party orally to answer questions regarding matters involved in a libel filed therein?
The question of whether discovery can be obtained from a party, although debated, is really not raised, since libelant refused to testify at all. The question of whether witnesses can be examined by deposition is not strictly relevant, since examination of a party is sought. The question of whether the testimony of a party by oral deposition, rather than by written interrogation, can be taken alone is involved. Finally, what may be done under the Admiralty Rules does not necessarily come before us, since here the party was directed to answer by order of court.
The key postulate might well be disposed of by saying that due process has been granted and that rulings upon practice and procedure are within the sound discretion of the Admiralty Court.*fn1 However, since these matters have been seriously urged in argument, all will be discussed.
It is passing strange that such a point should be debated at this period of history, in admiralty and in respect to jurisdiction. For now, it is accepted, contrary to what had been thought previously,*fn2 that power of discovery, limitless except by protective orders of the court, can be permitted by rule as of course in common law actions.To old admiralty procedure, our modern systems are in debt for characteristic features and customs of extreme liberality and flexibility.*fn3 It is surprising to find an attempt made to effect a spasticity more crippling than that now in the course of common law.*fn4 Finally, an attack upon the power of a court to discipline a litigant for failure to obey an order to submit to examination far transcends a claim of error for receiving in evidence a deposition taken contrary to rule. Such a claim strikes at the jurisdiction of the tribunal itself.*fn5
Some courts and textwriters seem to proceed upon the theory that Congress and the Supreme Court of the United States have attempted to limit the power of the Admiralty Courts to follow traditional and customary procedure by the adoption of the Admiralty Rules of Procedure, 28 U.S.C.A. While recognizing the traditions of the courts of instance jurisdiction, some of these seem to feel that the present text of the Admiralty Rules is a rigid legislative limitation of the power of the courts, and that therefore the tribunals acting under express rules are less constrained.This criticism fails to recognize the effect of both legislation and court rule.*fn6
The Constitution of the United States vests admiralty and maritime jurisdiction in the federal courts.*fn7 It is to be noted that this jurisdiction was very well understood both as to substantive and adjective law by the founders, and was recognized as embracing "a system of procedure known and established for ages."*fn8 The first judiciary act*fn9 contained the clause: "* * * the forms and modes of proceedings in causes of equity, and of admiralty and maritime jurisdiction * * * shall be according to the course of the civil law."*fn10
Although the nomenclature of the legislation was changed, the great body of procedure of the civil law was continued in effect by the statute of 1792,*fn11 which provides: "That the forms of writs, executions and other process, * * * and the forms and modes of proceeding in suits * * * shall be the same as are now used * * * in those of admiralty and maritime jurisdiction, according to the principles, rules and usages which belong to courts * * * of admiralty * * * as contradistinguished from courts of common law; except so far as may have been provided for by the act to establish the judicial courts of the United States, subject however to such alterations and additions as the said courts respectively shall in their discretion deem expedient, or to such regulations as the supreme court of the United States shall think proper from time to time by rule to prescribe to any circuit or district court concerning the same: * * *."
In order to provide for uniformity in certain basic procedures, the Congress in 1842 gave to the Supreme Court of the United States the power to regulate the practice, including the obtaining of discovery by general rules binding upon the lower federal courts.This statute does not indicate any attempt to circumscribe the power of the lower courts themselves to follow the traditional procedure theretofore recognized by the statutes above quoted. The act*fn12 in part provides that: "* * * the Supreme Court shall have full power and authority * * * to prescribe * * * in suits * * * in admiralty * * * the forms and modes of taking and obtaining evidence, and of obtaining discovery * * * and generally to regulate the whole practice of the said courts, so as to prevent delays, and to promote brevity and succinctness in all pleadings and proceedings therein, and to abolish all unnecessary costs and expenses in any suit therein."
This power has been continued by Congress in the most recent statute,*fn13 which provides in part: "The Supreme Court shall have the power to prescribe, by general rules, the forms of process, writs, pleadings, and motions and the practice and procedure in admiralty and maritime cases in the district courts of the United States * * *."
It thus appears that there was a great body of procedure and practice which was adopted for the Admiralty Courts by statute and which these follow today. For a hundred years then, the Supreme Court has had express authority to prescribe and regulate the forms and modes of taking and obtaining evidence and of obtaining discovery. The fact that this power has not been exercised does not indicate that there were no methods of obtaining discovery by the procedure of civil law. It merely indicates that the Supreme Court was satisfied with the existing flexible practice which then obtained.
What then were the modes of proceeding of the Admiralty Courts according to the course of the civil law, which the musty statutes give the tribunals of today the right to follow?
As is well known, the admiralty and marine doctrines, adopted by the early English courts, had roots in the foundations of law and custom, and were drawn from sources widely separated in time and space, as Rhodes, Wisby, Oleron and the Hanse Towns,*fn14 but in the course of centuries the practice was developed from the civil law tribunals and the ecclesiastic courts and widely differentiated from the procedure in the courts of common law.
When we speak of history, care must be exercised that all events be taken into consideration and that our interpretation accords with the spirit of the time of which we speak and not merely with the crabbed letters of the ancient text. Particularly is this true of practice and procedure of Admiralty. The civilians were a learned profession, who constituted a close-knit body.*fn15 In the struggle over jurisdiction, owing to purely local causes, the courts of the common law prevailed in England, and the scope of action allowed to tribunals of Civil and Canon law, of which Admiralty was one, became extremely restricted.*fn16 For this and other reasons, there were until very late no reports in admiralty. The permissible steps in a proceeding were shrouded in mystery to the uninitiated, for these often depended upon an unverified oral tradition carried in memory or at most committed to secret notes for the practitioner's own eye.*fn17 The gulf which separated the technical environs of the Court of Chancery and the common law courts was not nearly as forbidding as that which cut off either of these from the procedural domain of the civilians. In the darkness*fn18 of these difficulties, the surviving indicia will be reviewed.
From very early times, the Admiralty Court of England, in its instance jurisdiction, took proof from witnesses in foreign lands by issuance of letters rogatory or of commissions.*fn19 These commissions were sent out on court order where the witness was absent from the jurisdiction and other now familiar conditions. In these courts, proofs were customarily taken in the jurisdiction immediately upon the initiation of the proceeding because of the nature of the situation and the tendency of witnesses to disperse.*fn20 Since "some of the parties or witnesses * * * are pressing to go to sea with the next tide,"*fn21 commissions were issued under order in the jurisdiction for other good cause, in the discretion of the court. These proofs, taken by commission upon direction of the court, were often initiated by filing of interrogatories. The answers were paraphrased by the commissioners for filing in court. Such examinations were held in secret and the transcription thereof constituted the proofs, since testimony was never taken in open court, but presented to the judge by the proctors. These were the paper proofs decried ...