1 F.R.D. 574 | S.D.N.Y. | 1940
This is a hearing on exceptions to the interrogatories, which respondent annexed to its answer herein.
Libelant seeks to recover damages for injuries to a shipment of hemp transported on the S. S. Exermont from Leghorn to New York under a bill of lading dated December 7, 1939. The delivery of the hemp in good order, and condition at Leghorn and the delivery at New York seriously damaged and impaired in value, in violation of respondents’ and the ship’s obligations and duties, are alleged in the libel. Negligence is not alleged. The answer, in addition to denying the damage, sets up certain affirmative defenses among which is the assertion that the hemp, if damaged at all, was damaged while not in respondents possession but through some inherent vice or by some cause for which respondent is not responsible.
Objection is made to interrogatories 3rd, 4th, 5th, 6th and 7th upon the ground that they relate to the history of the cargo prior to the delivery to respondents, a matter upon which libelant has the burden of proof. Interrogatories 7th and 13th are objected to on the ground that they relate to the question of damages, which, in admiralty, is usually determined by a commissioner after there has been an adjudication of liability. The objection to Interrogatory 14 is that it seeks the production of confidential and privileged documents, namely the survey reports made by the cargo underwriters.
Clearly all the interrogatories relate to matters relevant to the issues in the case. Those interrogatories relating to the condition of the cargo before delivery to the carrier, with respect to which the burden of proof would normally be upon the libelant, would have been improper before September 1, 1939, at which date Admiralty Rule 31 was amended by the Supreme Court of the United States, 28 U.S.C.A. following section 723. See Helgoland.
I shall likewise overrule the exceptions to interrogatories 12 and 13. Under Rule 33 of the Federal Rules of Civil Procedure, the courts, in the exercise of their discretion, have usually allowed interrogatories directed to the question of damages even where an accounting would be necessary after the issue of liability had been determined. Fox v. House, D.C., 29 F.Supp. 673. Nothing has been shown here to change that rule. It will not be unduly burdensome for libelant to answer these interrogatories and the information thus given will be relevant and material to a commissioner if the case ever reaches that stage.
I shall, however, sustain the objection to Interrogatory No. 14 without prejudice, to a motion by respondent under Admiralty Rule 32 for an inspection of the survey reporter. The question of privilege is always a delicate one and libellant should be given an opportunity to raise it when the request for the surveys has been properly presented.
Motion disposed of as indicated. Submit order on notice.
No opinion for publication.