Before MEDINA, WATERMAN and SMITH, Circuit Judges.
In this proceeding in admiralty to recover for cargo damage against the vessel and her owner, the answer of the shipowner has been stricken for failure to produce certain documents as required by a discovery order. The interlocutory decree striking the answer contains the customary reference to a Special Commissioner to ascertain the amount of the damages sustained by the owners of the cargo. From this interlocutory decree the shipowner appeals. Our jurisdiction is based on 28 U.S.C. § 1292(a) (3). Isthmian Steamship Co. v. California Spray-Chemical Corp., 9 Cir., 1961, 290 F.2d 486, 487, modified on other grounds, 9 Cir., 1962, 300 F.2d 41. The opinion below is reported at 1962 Am.Mar.Cas. 493.
The cargo was loaded aboard appellant's vessel SS "Radnik," in June of 1957 at Rijeka, Yugoslavia, her home port on the Adriatic. Appellant has no office or offices in the United States. The cargo was found damaged in the alleged amount of $26,950.00 at outturn at the Port of New York on July 9, 1957. Appellant's answer alleged that the loss occurred through fire, and this, if true, would establish a complete defense under the Fire Statute, 46 U.S.C. § 182, in the absence of proof that such fire was "caused by the design or neglect" of the shipowner.
As the cargo owners had no representative aboard the "Radnik" at the time of the fire, after the discovery of the loss an attempt was made to secure from the shipowner copies of the various documents and records relating to the fire. and particularly to the cause of the fire and conditions aboard the "Radnik" that made it possible for the fire to start, and made it difficult or impossible to extinguish the fire before it had caused such extensive damage to the cargo.
Thus, prior to the filing of the libel, counsel for the cargo owners communicated with the New York agents of appellant's underwriters and with its General Average adjusters in New York, in an attempt to secure the various documents and records relevant to the issues. In September, 1959 the New York agents reported that the "ship's records" had been received and would be made available for inspection. No records, however, had yet been made available when, on March 14, 1960, the libel was filed or on August 10, 1960, when the answer containing the affirmative defense of the Fire Statute was filed.
After repeated further demands, on March 23, 1961 appellant's counsel produced: a survey report of cargo damage, dated July 24, 1957, based upon inspection of the vessel at New York; a copy of the stowage plan; and extracts from the engine, deck and port logbooks describing measures taken to fight the fire "which broke out in No. 3 hold." But none of these documents gave any indication whatever of the circumstances surrounding and explaining the origin of the fire.
After a motion by the cargo owners for discovery under Supreme Court Admiralty Rule 32, 28 U.S.C. at pp. 100-101, Judge Cashin, on April 25, 1961, entered an order, consented to by appellant, requiring appellant to produce for inspection, within 90 days, the following items:
"1. The vessel's rough and smooth deck and engineroom log books.
"2. A list of the cargo stowed in #3 hold on the voyage described in the libel.
"3. All letters, cablegrams, reports, memoranda, statements or other communications made by the master of the SS. Radnik, the Chief Officer, Chief Engineer, or shore representatives of respondent concerning the cause of the fire which broke out on board the said vessel at Trieste on or about June 15, 1957.
"4. Original or true copy of Protest and Extended Protest made by the Master of the SS. Radnik in connection with the fire which broke out on board the said vessel at Trieste on or about June 15, 1957.
"5. Original or true copies of all letters, cablegrams, reports, statements and memoranda made by or on behalf of respondent concerning the cause of said fire.
"6. All survey reports and correspondence in connection therewith relating to any and all investigations made by or on behalf of respondent, its agents and employees, concerning the cause of the fire which broke out on board the said SS. Radnik at Trieste on or about June 15, 1957, and, particularly, (a) reports prepared by Lloyd's ...