Before AUGUSTUS N. HAND, CLARK, and FRANK Circuit Judges.
Libellant, a former wiper on the S. S. Charles Sumner, sued the United States, as owner of the vessel, to recover for personal injuries allegedly sustained on two separate occasions during his employment upon it. As a first cause of action the libellant alleged that he was injured about 2:00 p.m. on December 27, 1944, while the vessel was at sea. As a second cuase of action he then alleged that he was injured on January 13, 1945, when he slipped and fell on the dock near the foot of the gangway as the vessel lay alongside a quay at Antwerp, Belgium. The district court after trial dismissed the second claim with respect to the gangway accident, but awarded libellant $2,500 upon his first claim. Respondent appeals from the award to the libellant of damages and maintenance and cure on this claim. Libellant appeals from the dismissal of his second claim and the limiting of his recovery on the first to $2,500.
Libellant testified that about 2:00 p.m. on December 27, 1944, he went with the second assistant engineer to sound the tanks. As they were going through a doorway leading from the engine room libellant slipped and fell in a pool of oil, injuring his right knee. According to his testimony the second assistant engineer, who had preceded him through the doorway, helped him up and told him that he would be all right. He did not seek treatment for his knee until three weeks after the end of the voyage, in March, 1945; nor was any report made of the alleged mishap. Against this the second engineer testified that so far as he knew libellant had not been injured while aboard the vessel. He testified further that he was otherwise occupied at the time the fall is alleged to have occurred, that because of rough seas the tanks would not have been sounded at that time, and that when he did sound the tanks he rarely had a wiper to accompany him. He specifically denied that libellant had ever fallen in his presence or that he had ever helped libellant up after a fall. The trial judge said with regard to this witness, "On that state of the case I am quite satisfied that I would find as a fact the second engineer was telling the truth."
It is thus apparent that the primary issue is one of veracity. And respondent did make a serious attack on libellant's credibility, forcing him eventually to admit that he had testified falsely in disclaiming the making of similar claims against other vessels and also showing a sworn statement made by him to another shipowner likewise disclaiming any other claim. But the experienced trial judge was convinced, as he said during the trial and found later in his decision, that the accident occurred as libellant claimed; and in accordance with our settled rule we have no occasion to disturb this finding. We add, too, with respect to libellant's claim of inadequacy of the damages allowed, that we have no occasion to disturb the finding of contributory negligence which led to the limited award. The case would therefore call for affirmance save for a contretemps occurring as to the admission of a deposition, and resulting from the confusion due to the failure to adopt the civil rules (more than partially) in admiralty and a not unnatural belief to the contrary on the part of the Judicial Code revisers.
In a sworn answer to an interrogatory, libellant had stated that the second assistant engineer was the only person present at the time of the fall. But three days before the trial libellant took the deposition of one Ariello Pecchia, a former crew member of the vessel, who claimed to have seen the accident and testified that it was as libellant had alleged. Pecchia resided in Bergenfield, New Jersey, less than one hundred miles from the place of trial. The deposition was taken in the law office of libellant's counsel in New York City, and respondent was represented by associate counsel who cross-examined the witness at length. When libellant offered the deposition at the trial, respondent objected on the basis of the provision of the de bene esse statutes, Rev.Stat. § 865, the former 28 U.S.C.A. § 641, that "unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause." The trial judge characterized the objection as "rather technical" and, upon learning that respondent had cross-examined the witness, overruled the objection and admitted the deposition.
It is impossible for us to tell how much weight the judge gave the Pecchia deposition in making his findings. At one point in the trial he seemed to indicate some doubts about the value of the deposition, saying, "It seemed to me he spread it on awfully thick." But he did not definitely reject the testimony, and in view of the sharp conflict in the evidence we are hardly justified in concluding that he would have found as he did without the deposition. Nor can we find a waiver on the part of the respondent. The actual facts do not point to any intent to waive all objections; nor does the modern law, stressing depositions for the purpose of discovery as well as the production of evidence, require more than an objection at the trial if and when the deposition is offered in evidence. Compare Federal Rules of Civil Procedure, rule 26(e), 28 U.S.C.A. Hence we must review the court's ruling in admitting it.
The exigencies of argument force each side to a certain extent at once to rely upon and to repudiate the civil rules in admiralty. Libellant's basic point is that he could not subpoena the witness, pointing out that the long existing provision, Rev.Stat. § 876, the former 28 U.S.C.A. § 654, from Act of March 2, 1793, c. 22, § 6, 1 Stat. 335, which granted district courts power to subpoena witnesses living without the district, but within one hundred miles of the place of trial in civil causes, had been repealed on the adoption of the new code. This is so expressly stated in the Schedule of Laws Repealed, Act of June 25, 1948, c. 646, § 39, 62 Stat. 992, 993. The reason for this seems obvious and is stated in various places, e.g., in Parallel Table of Sections for Title 28, Federal Rules of Civil Procedure and New Title 28, U.S. Code Judiciary and Judicial Procedure, 158, West Pub. Co., 1950 Rev.Ed.; 3 Moore's Federal Practice, 1948 Cum.Supp. 97; Note to § 654, Tit. 28, in United States Code, 1946 Ed.; it was thought to be covered by Federal Rules of Civil Procedure, rule 45(e)(1), and Federal Rules of Criminal Procedure, rule 17(e), 18 U.S.C.A., which were improved restatements of the old statute. See Advisory Committee's Notes to the civil rule. And respondent asserts that the witness was "obviously within the subpoena power of the court" as defined in the civil rule. But the civil rules do not apply in admiralty except as specifically adopted, Federal Rules of Civil Procedure, rule 81(a)(1); and this rule was not one of those adopted. Indeed it could hardly have been before the new code which for the first time granted complete rule-making authority in admiralty to the Supreme Court, with power to supersede existing statutes. Compare the present 28 U.S.C.A. § 2073 with the former 28 U.S.C.A. § 723, also §§ 637 and 730. Hence we have the anomalous situation that at the moment this important subpoena power is uniquely lacking in admiralty.
If thus this witness could not be subpoenaed for the actual trial, the natural course would be to use his deposition, just as the civil rules permit. And again we find a nice confusion, since a part, but only a part, of the deposition rules have been adopted in admiralty. But before we pass to this we should note the neat intertwining of the old subpoena provision with the de bene esse statute and the hiatus left by the repeal of the former: If, formerly, he lived within one hundred miles of the court, he could be subpoenaed; if he lived farther away, his deposition could be used. The latter still appears to be true. While the statute authorizing depositions de bene esse is not re-enacted anywhere as a part of the new Title 28, U.S. Code - doubtless because of the complete and superseding provisions of F.R.C.P. 26 - yet it is not contained in the schedule of repealed laws supra. Since this schedule was carefully checked and rechecked, H.R.Rep. No. 308, 80th Cong., 1st Sess. 1947, Tit. 28, U.S. Code Cong. Serv. 1948, 1692, at p. 1699, we may take this as deliberate and hence the statute still applies in admiralty. Indeed, this is the conclusion stated in 28 U.S.C.A., the note preceding § 1781 and in the note to former 28 U.S.C.A. § 641 in the 1948 Cumulative Annual Pocket Part.
In 1939 the Supreme Court adopted certain of the civil deposition rules in admiralty. Thus Admiralty Rules 31, 32, 32A, 32B, and 32C, 28 U.S.C.A., are F.R.C.P. 33, 34, 35, 36, and 37. These cover the provisions for interrogatories to parties, the production of documents, physical and mental examinations, admissions, and the consequences of refusal to make discovery. But the court, whether because of doubt as to its authority or for other cause, did not adopt the basic deposition rule, F.R.C.P. 26, which provides for not only the general taking of depositions pending action, but also their scope and the conditions under which they can be admitted in evidence. This rule extends admissibility beyond the de bene esse statute in at least two particulars here important. Thus F.R.C.P. 26(d)(3), subd. 4, makes a deposition admissible when the party offering it "has been unable to procure the attendance of the witness by subpoena," while id. 5 gives the judge authority to admit the deposition where other grounds are unavailable upon a finding "that such exceptional circumstances exist as to make it desirable, in the interest of justice" and with due regard to the importance of oral testimony in open court.*fn1 The basic nature of Rule 26 was confirmed by the amendments effective in 1948, e.g., of Rules 33 and 34, which referred back to Rule 26 for the conditions of their use.
Notwithstanding this omission, Admiralty Rule 32C provides, in language identical with F.R.C.P. 37(a): "If a party or other deponent refuses to answer any question propounded upon oral examination, the examination shall be completed on other matters or adjourned, as the proponent of the question may prefer. Thereafter, on reasonable notice to all persons affected thereby, he may apply to the court in the district where the deposition is taken for an order compelling an answer." In Brown v. Isthmian S.S. Corp., D.C.E.D. Pa., 79 F.Supp. 701, Judge Kirkpatrick held that it is inconceivable that the Supreme Court, by means of the elaborate and detailed terms of Admiralty Rule 32C, would have given a suitor in admiralty a method of enforcing a right which did not exist. So he inferred that the penalties for failure to answer questions on oral examination imply that oral examination is available in admiralty. Other judges have followed this rather reasonable view in The Ballantrae, D.C.N.J., 1949 A.M.C. 1999, Galperin v. United States, D.C.E.D.N.Y., 1949 A.M.C. 1907, and Bunge Corp. v. S.S. Ourania Gouranis, D.C.S.D.N.Y., 1949 A.M.C. 744.
A contrary view was taken, however, by Judge Rifkind in a well reasoned opinion, Mulligan v. United States, D.C.S.D.N.Y., 87 F.Supp. 79, in accord with which is Gulf Oil Corp. v. Alcoa S.S. Co., D.C.S.D.N.Y., 1949 A.M.C. 1965. Judge Rifkind suggested that there are three possible explanations for the omission from the Admiralty Rules of a provision corresponding to F.R.C.P. 26 and the simultaneous provision, under Admiralty Rule 32C, of penalties for failure to answer a question on oral examination. First, the right to oral examination for purposes of discovery might be thought such an established part of admiralty practice that explicit provision for it was unnecessary; this, however, he found not to be in accord with the facts of history, citing 3 Benedict on Admiralty 34, 6th ed. 1940. Second, it was not intended to introduce oral examinations into admiralty, and the inclusion in Admiralty Rule 32C of the language of F.R.C.P. 37(a) dealing with oral examination was an oversight. And third, the revisers did not intend to authorize oral discovery proceedings and the reference in Admiralty Rule 32C to oral examinations relates to the kind of oral examination permissible in admiralty under the de bene esse statutes, the former 28 U.S.C.A. §§ 639-641. While this reading gives to the words of Admiralty Rule 32C a different content than the same words have in F.R.C.P. 37(a), Judge Rifkind thought it preferable because it avoided the necessity of attributing to the proponents of these amendments to the Admiralty Rules and to the Supreme Court action based upon either a historical inaccuracy or a careless inclusion in Admiralty Rule 32C of inapplicable language borrowed from F.R.C.P. 37.
Thus, by chance rather than design, there has developed a quite troublesome, though rather unnecessary, question of practice, as the judges in the Southern District have recognized by attempting to correct it so far as they can by recent local rule.*fn2 We are tempted to cut the Gordian knot by forth-rightly applying the modern federal practice as we have done in substance in other cases. Boston Ins. Co. v. City of New York, 2 Cir., 130 F.2d 156; Schiavone-Bonomo Corp. v. Buffalo Barge Towing Corp., 2 Cir., 134 F.2d 1022, certiorari denied 320 U.S. 749, 64 S. Ct. 53, 88 L. Ed. 445; Untersinger v. United States, 2 Cir., 172 F.2d 298, 300; Esso Standard Oil Co. v. United States, 2 Cir., 174 F.2d 182, 186. There is the more reason for so doing because it seems the only condition which holds this case on the admiralty side of the federal court is the sovereign nature of the defendant. Though the action here was originally grounded upon negligence under the Jones Act, 46 U.S.C.A. § 688, and unseaworthiness under the general maritime law, the true ground appears to be negligence and the judge expressed the belief that this was a Jones Act case. We have repeatedly allowed the shift from admiralty to law or vice versa without the need of a new action, Cannella v. Lykes Bros. S.S. Co., 2 Cir., 174 F.2d 794, 797, certiorari denied 338 U.S. 859, 70 S. Ct. 102; James Richardson & Sons v. Conners Marine Co., 2 Cir., 141 F.2d 226, 230; and as against a private litigant, the shift here to obtain the benefit of F.R.C.P. 26 would seem natural and normal. But claims under the Jones Act against the United States can be ...