The opinion of the court was delivered by: CONGER
Steamship Company of 1949, Incorporated (hereinafter designated as the 'Charterers') has moved for an order adjudicating David Cohen and American Ship Brokerage Corporation (hereinafter designated ad 'Brokerage Corporation') to be in civil contempt for refusal to comply with the terms of two subpoenas duces tecum issued out of this Court under date of September 11, 1953 and for an order providing for the punishment of the said David Cohen and Brokerage Corporation for such contempt.
The China Union Lines, Hong Kong Ltd. (hereinafter designated as the 'Owner') has moved to terminate the examination of David Cohen and the Brokerage Corporation (now pending and partially had) and for an order directing the person conducting said examination to cease said examination.
Both motions were argued together and both will be disposed of in one opinion.
The matter before the Court arose out of an action which was commenced in July, 1951 in the United States District Court for the Southern District of Texas.
On August 20, 1953 an order of that Court was entered directing the parties to proceed to arbitration in accord with clause 17 of the charter party and the provisions of the United States Arbitration Act, 9 U.S.C. § 1 et seq.
I understand that these arbitration proceedings are now pending and the arbitrators have been appointed but no testimony has been taken.
Subsequently, and on or about September 8, 1953 the attorneys for the Charterers herein caused to be served on the attorneys for the Owners herein a notice to take the testimony of David Cohen and the Brokerage Corporation at a designated time and place. The notice was given and the testimony to be taken pursuant to the Federal Rules of Civil Procedure. Neither David Cohen nor the Brokerage Corporation were parties to this action or proceeding but were to be examined as witnesses.
On September 10, 1953 there was issued by the Clerk of this Court two subpoenas duces tecum directed to David Cohen and the Brokerage Corporation. The subpoenas were served on them September 11, 1953.
No question is raised here as to the regularity and/or service of the notice to take testimony and the subpoenas.
The subpoenas directed David Cohen and the Brokerage Corporation to appear at the same time and place designated in the notice to take testimony and to testify on behalf of the Charterers at the taking of a deposition in the action in the Texas Court and to bring with them certain designated documents.
On November 25, 1953 David Cohen appeared pursuant to said subpoenas and was sworn and the taking of his deposition commenced, both for himself and the Brokerage Corporation, of which he is president. In all, there were three hearings had. The last was adjourned 'to a date to be agreed upon, upon the decision of the Court upon the motion to cite Mr. Cohen and American Ship Brokerage Corporation in contempt for failure to comply with subpoenas duces tecum.'
At the hearings Mr. Cohen refused, on the advice of counsel, to produce certain documents called for in the subpoenas. One document was the contract of sale and the bill of sale of the SS HAFEZ (ex SHANGHAI VICTORY) to Argosy. (Paragraph 9 of subpoena)
Mr. Cohen did produce the bill of sale but it had stricken from it one of its provisions, to wit: the purchase price. I do not regard ...