# Miner v. Atlass/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Brennan
United States Supreme Court
363 U.S. 641
Hon. Julius H. MINER and Hon. Edwin A. Robson, etc., Petitioners, v. H. Leslie ATLASS.
Argued: March 3, 1960. --- Decided: June 20, 1960
Certiorari was granted in this case, 361 U.S. 807, 80 S.Ct. 66, 41 L.Ed.2d 57, to review the decision of the Court of Appeals holding that a District Court sitting in admiralty lacked power to order the taking of oral depositions for the purpose of discovery only, and that Rule 32 of the Admiralty Rules of the District Court for the Northern District of Illinois, purporting to authorize the taking of such depositions, was invalid for want of authority in the District Court to promulgate it.
The issue arose in the following manner: The respondent filed a petition in admiralty seeking exoneration from or limitation of liability for the death by drowning of two seamen employed on a yacht owned by him. The representatives of the deceased seamen, having appeared as claimants, applied to the District Court for an order granting leave to take the depositions of several named persons, including respondent, for the purpose of discovery only. Respondent opposed the motion on the ground that the court had no power to order the taking of depositions in any case not meeting the conditions of R.S. §§ 863-865, the de bene esse statute. After argument, petitioner Miner, D.J., granted the claimants' motion, pursuant to local Admiralty Rule 32. Respondent then sought a writ of mandamus or prohibition requiring the vacation of the order of the District Court, and prohibiting Judge Miner, or any other district judge to whom the case might be assigned, from further proceeding under it. A rule to show cause was issued by the Court of Appeals and, after a hearing, the application for extraordinary relief, whose availability in the particular circumstances involved is not challenged before us, was granted. 7 Cir., 265 F.2d 312. For reasons presently to be stated, we have concluded that the Court of Appeals' conclusion was correct, and we affirm its judgment.
Counsel for the claimants, representing the petitioners here, undertake to support the discovery-deposition order on the grounds that: (1) a court of admiralty has inherent power, not dependent on any statute or rule, to order the taking of depositions for the purpose of discovery; (2) Rule 32C of this Court's General Admiralty Rules, 28 U.S.C.A., impliedly empowers a district judge to order the taking of such depositions; (3) Rule 32 of the District Court's Admiralty Rules is a valid exercise of its power to regulate local practice, conferred by Rule 44 of the General Admiralty Rules. We consider each contention in turn.
The reliance on an asserted inherent power is based almost exclusively on the decision of the Court of Appeals for the Third Circuit in Dowling v. Isthmian S.S.C.orp., 184 F.2d 758. In an exhaustive discussion, Judge Fee, for that court, expressed the view that the traditionally flexible and adaptable admiralty practice empowers a court to order a party to submit to pretrial oral examination. Whether or not the decision was intended to embrace examinations solely for discovery purposes is not entirely clear. Compare Standard Steamship Co. v. United States, D.C., 126 F.Supp. 583, with Darling's Estate v. Atlantic Contracting Corp., D.C., 150 F.Supp. 578, 579; 1950 Annual Survey of American Law 523. None of the historical data adduced in the Dowling case seems to go beyond the area of testimony for use at the trial. The opinion states no more than that history discloses no overt rejection of the power to order depositions taken for discovery purposes. 184 F.2d at page 771, note 36. There is no affirmative indication of the exercise of such a power, if any was thought to exist, and the 1940 edition of Benedict on Admiralty unequivocally asserts that '(a)n admiralty deposition may only be taken for the purpose of securing evidence; it may not be taken for the purpose of discovery.' 3 Benedict, Admiralty (Knauth ed.), 34. This statement by a leading work in the field hardly bespeaks the existence of traditional inherent power, and we find none. Cf. Cary v. Curtis, 3 How. 236, 245, 11 L.Ed. 576.
Neither can we find in this Court's Admiralty Rules warrant for the entry by a district judge of an order of the character granted below. The deposition practice authorized by the Civil Rules does not of its own force provide the authority sought, since those rules are expressly declared inapplicable to proceedings in admiralty. Civil Rule 81(a)(1). Certain of the Civil Rules were adopted by this Court as part of the Admiralty Rules in the 1939 amendments, 307 U.S. 653. Thus, Civil Rules 33 through 37 were made part of the Admiralty Rules as Rules 31, 32, 32A, 32B, and 32C, respectively. However, the remainder of the Civil Rules in Part V, dealing with 'Depositions and Discovery,' including Rule 26, the basic authority for discovery-deposition practice (see note 1, ante), was not adopted. We cannot of course regard this significant omission as inadvertent, cf. 76 A.B.A.Ann.Rep. 565-566; rather, it goes far to establish the lack of any provision for discovery by deposition in the General Admiralty Rules.
However, petitioners contend, and some courts have agreed, that the existence of such a power is to be inferred from Rule 32C, the counterpart of Civil Rule 37, entitled, 'Refusal to make discovery: consequences.' That rule details the procedures which are to be followed if 'a party or other deponent refuses to answer any question propounded upon oral examination * * *.' It has been held that the inclusion of this rule must be taken as the expression of an assumption by the Court that the discovery-deposition practice existed or was to be followed in admiralty, for the reason that '(i)t is inconceivable that the Supreme Court, by means of the elaborate and detailed terms of Rule 32C would have given a suitor in admiralty a method of enforcing a right that did not exist.' Brown v. Isthmian S.S.C.orp., D.C.E.D.Pa., 79 F.Supp. 701, 702. In accord with the Brown decision are Bunge Corp. v. The Ourania Gournaris, D.C.S.D.N.Y., 1949 A.M.C. 744; Galperin v. United States, D.C.E.D.N.Y., 1949 A.M.C.1907; The Ballantrae, D.C.N.J., 1949 A.M.C. 1999.
The dilemma thus suggested-either that we must regard Civil Rule 26 as inadvertently omitted from the Admiralty Rules or that we should consider that part of Civil Rule 37 which refers to oral examinations as inadvertently included-is more seeming than real. The reference to 'discovery' in the title to Rule 32C can well have been simply to the modes of discovery authorized by those of the Civil Rules which were carried into the Admiralty Rules in the 1939 amendments, see note 3, ante, and we think it should so be taken. As to the reference to 'oral examination,' we are in agreement with the explanation offered by Judge Rifkind in Mulligan v. United States, D.C., 87 F.Supp. 79, 81, that it comprehends only those forms of oral examinations traditionally recognized in admiralty, primarily the deposition de bene esse (see note 2, ante). By this construction, both actions of this Court-the adoption of Civil Rule 37 and the omission of Civil Rule 26-are given harmonious effect.
Petitioners' third contention is that, although admiralty courts were not given authority by the General Admiralty Rules to order the taking of depositions for discovery purposes, the District Court in the present case acted pursuant to its own local Admiralty Rule 32 (see note 1, ante) granting such authority, and that such rule was a valid exercise of power conferred on the District Court by Rule 44 of the General Rules. See Ludena v. The Santa Luisa, D.C.S.D.N.Y., 95 F.Supp. 790; Application of A. Pellegrino & Son, D.C.S.D.N.Y., 11 F.R.D. 209; cf. Republic of France v. Belships Co., Ltd., D.C., 91 F.Supp. 912; Prudential Steamship Corp. v. Curtis Bay Towing Co., D.C.Md., 20 F.R.D. 356. Rule 44, entitled 'Right of trial courts to make rules of practice,' provides:
'In suits in admiralty in all cases not provided for by these rules or by statute, the District Courts are to regulate their practice in such a manner as they deem most expedient for the due administration of justice, provided the same are not inconsistent with these rules.' (Emphasis added.)
We may assume, without deciding, that, the proviso apart, the affirmative grant of authority contained in Rule 44 is sufficiently broad and unqualified, in light of the traditional liberality and flexibility of admiralty practice, to embrace the 'practice' of taking depositions for discovery purposes. Cf. Galveston Dry Dock & Const. Co. v. Standard Dredging Co., 2 Cir., 40 F.2d 442. However, we feel constrained to hold that this particular practice is not consistent with the present General Admiralty Rules and therefore that in this respect local Rule 32 falls within the proviso.
As we have noted, the determination of this Court in 1939 to promulgate some but not all of the Civil Rules relating to discovery must be taken as an advertent declination of the opportunity to institute the discovery-deposition procedure of Civil Rule 26(a) throughout courts of admiralty. It may be, see 76 A.B.A.Ann.Rep. 565-566, that one reason for this failure was the belief that this Court could not take over into Admiralty in its entirety Civil Rule 26. The Enabling Act did not then, R.S. § 913, although it does now, 28 U.S.C. § 2073, 28 U.S.C.A. § 2073, authorize the Court to supersede statutes, and the limitations of the de bene esse statute would therefore have overridden Civil Rule 26(d) to the extent the statute was more restrictive. Nevertheless it does seem clear that the part of Civil Rule 26 with which we are now concerned could have been promulgated in admiralty, cf. note 6, ante. But for whatever reason, no action was taken.
It is of course true that the failure to adopt Civil Rule 26 implies no more than that this Court did not wish to impose the practice on the District Courts, and does not necessarily bespeak an intention to foreclose each District Court from exercising a 'local option' under Rule 44. We do not deny the logic of this contention; neither do we hold that whenever the General Admiralty Rules deal with part, but not all, of a subject, those practices left unprovided for by the General Rules may not in any circumstances be dealt with by the District Courts under General Rule 44. Unlike many state practice statutes, this Court's rules of admiralty practice for the District Courts are not comprehensive codes regulating every detail of practice, and we would be slow to hold that the interstices may not be the subject of appropriate local regulation. For example, rules fixing the time for doing certain acts are of the essence of orderly procedure. So long as the time set be not unreasonable, it is less important what the limit be than that there be a rule whereby some timetable may be known to the profession. Thus, the failure of the General Admiralty Rules to prescribe a time within which motions for rehearing may be filed should not bar a District Court from fixing such a time limit. See Papanikolaou v. Atlantic Freighters, 4 Cir., 232 F.2d 663, 665. Similarly, the General Admiralty Rules provide no answer to the question whether one sued for a certain sum, who contests his liability for but a portion of that sum, may be required to suffer a judgment for the remainder prior to trial on the contested portion, and there is no compelling reason why that lack should be held to prevent a District Court from supplying an answer by local rule. See Galveston Dry Dock & Const. Co. v. Standard Dredging Co., supra.
We deal here only with the procedure before us, and our decision is based on its particular nature and history. Discovery by deposition is at once more weighty and more complex a matter than either of the examples just discussed or others that might come to mind. Its introduction into federal procedure was one of the major achievements of the Civil Rules, and has been described by this Court as 'one of the most significant innovations' of the rules. Hickman v. Taylor, 329 U.S. 495, 500, 67 S.Ct. 385, 388, 91 L.Ed. 451. Moreover, the choice of procedures adopted to govern various specific problems arising under the system was in some instances hardly less significant than the initial decision to have such a system. It should be obvious that we are not here dealing either with a bare choice between an affirmative or a negative answer to a narrow question, or even less with the necessary choice of a rule to deal with a problem which must have an answer, but need not have any particular one. Rather, the matter is one which, though concededly 'procedural,' may be of as great importance to litigants as many a 'substantive' doctrine, and which arises in a field of federal jurisdiction where nationwide uniformity has traditionally always been highly esteemed.
The problem then is one which peculiarly calls for exacting observance of the statutory procedures surrounding the rule-making powers of the Court, see 28 U.S.C. § 331, 28 U.S.C.A. § 331 (advisory function of Judicial Conference), 28 U.S.C. § 2073, 28 U.S.C.A. § 2073 (prior report of proposed rule to Congress), designed to insure that basic procedural innovations shall be introduced only after mature consideration of informed opinion from all relevant quarters with all the opportunities for comprehensive and integrated treatment which such consideration affords. Having already concluded that the discovery-deposition procedure is not authorized by the General Admiralty Rules themselves, we should hesitate to construe General Rule 44 as permitting a change so basic as this to be effectuated through the local rule-making power, especially when that course was never reported to Congress as would now be required under 28 U.S.C. § 2073, 28 U.S.C.A. § 2073.
We are strongly reinforced in our conclusion by the post-1939 history of the question of adoption of discovery-deposition rules in the General Admiralty Rules. In the 1948 revision of the Judicial Code this Court was given the power to supersede statutes, which it lacked in 1939. In 1951 a joint committee representing several leading bar associations proposed the adoption of a rule permitting the taking of the deposition of a party for discovery purposes. See 76 A.B.A.Ann.Rep. 181; Maritime Law Assn., Doc. No. 348 (Sept. 1951). No action was taken. In 1953 it was recommended that Rule 26(a) be made applicable to proceedings in admiralty, with two minor modifications; this would of course have permitted discovery by deposition of witnesses as well as parties. Maritime Law Assn., Doc. No. 369 (Apr. 1953). Again no action was taken. We do not think this failure to enact the proposed amendments can be explained away by suggesting that the widespread local adoption of rules similar to the local rule now before us was thought to render amendment of the General Rules unnecessary, for local rules, by virtue of the inability of the District Courts to supersede statutes, cannot deal with the matter of the taking and use of depositions as an integrated whole. See Mercado v. United States, 2 Cir., 184 F.2d 24.
It hardly need be added that our decision here in no way implies any view as to the desirability or undesirability of having a discovery-deposition procedure in admiralty cases. Those who advise the Court with respect to the exercise of its rule-making powers-more particularly of course the Judicial Conference of the United States (28 U.S.C. § 331, 28 U.S.C.A. § 331) and the newly created Advisory Committee on the General Admiralty Rules, which it is to be hoped will give the matter their early attention-are left wholly free to approach the question of amendment of the discovery provisions of the rules in the light of whatever considerations seem relevant to them, including of course the experience gained by the District Courts which have had rules similar to the Local Rule here challenged. Nor would anything we have said prevent those bodies from recommending that the matter of discovery-depositions be left to local rule making. All we decide in the existing posture of affairs is that the matter of discovery-depositions is not presently provided for in the General Admiralty Rules or encompassed within the local rule-making power under General Rule 44.
Affirmed.
Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS and Mr. Justice STEWART join, dissenting.

## Notes

* ↑ Local Rule 32 provides that the 'taking and use of depositions of parties and witnesses shall be governed by the Federal Rules of Civil Procedure except as otherwise provided by statute and except that their use' is limited as set forth in the rule. Rule 26(a) of the Civil Rules, 28 U.S.C.A., permits the taking of 'the testimony of any person, including a party, by deposition upon oral examination * * * for the purpose of discovery or for use as evidence in the action or for both purposes,' subject to limitations as to use of such depositions set forth in Rule 26(d).
* ↑ This statute, as amended, 31 Stat. 182, is now appliable only to proceedings in admiralty. See note preceding 28 U.S.C. § 1781, 28 U.S.C.A. § 1781. Section 863 permits the taking of the deposition de bene esse of a witness in a pending action, in the following circumstances only:
* ↑ Civil Rule 33, adopted as Admiralty Rule 31, is entitled, 'Interrogatories to parties'; Civil Rule 34 (Admiralty Rule 32) relates to 'Discovery and production of documents and things for inspection, copying, or photographing'; Civil Rule 35 (Admiralty Rule 32A) authorizes 'Physical and mental examination of persons'; Civil Rule 36 (Admiralty Rule 32B) governs 'Admission of facts and of genuineness of documents'; Civil Rule 37 (Admiralty Rule 32C) deals with 'Refusal to make discovery: consequences.'
* ↑ For reasons stated, 363 U.S. at pages 643-644, 80 S.Ct. at pages 1302-1303, we cannot regard the omission as the result of a so well-settled practice of using depositions for discovery in admiralty that codification was thought unnecessary. See Mulligan v. United States, D.C., 87 F.Supp. 79, 80.
* ↑ Apart from the de bene esse procedure, admiralty practice traditionally utilized the Commission Dedimus Potestatum, the Deposition In Perpetuam Rei Memoriae, and Letters Rogatory. The statutory authority for these procedures, R.S. §§ 866-870, 875, was not repealed until the 1948 codification of the Judicial Code, some years after the 1939 amendments to the Admiralty Rules. For a discussion of them, see 3 Benedict, Admiralty, §§ 397-401.
* ↑ We do not find such inconsistency in Admiralty Rule 46, requiring that 'the testimony of witnesses * * * be taken orally in open court, except as otherwise provided by statute, or agreement of parties.' We regard that provision as having been promulgated with reference to the trial and not the discovery stage of the lawsuit. See Republic of France v. Belships Co., Ltd., supra.
* ↑ The Bar Association Report, in referring to 'Chief Justice Stone,' is in error. The Chief Justice in 1939 was Charles Evans Hughes.
* ↑ R.S. § 913, the predecessor source of this Court's authority to promulgate admiralty rules, in effect when Rule 44 was adopted, did not, as does 28 U.S.C. § 2073, 28 U.S.C.A. § 2073, require the prior reporting of such rules to Congress.
* ↑ See, e.g., Southern District of New York, Admiralty Rule 32; Southern and Northern Districts of Florida, Admiralty Rule 24; Northern District of California, Admiralty Rule 13, West's Ann.Code. See also Darling's Estate v. Atlantic Contracting Corp., D.C.E.D.Va., supra; Brown v. Isthmian S.S.C.orp., D.C.E.D.Pa., supra.
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