A Federal District Court sitting in admiralty has no power to
order the taking of oral depositions for the purpose of discovery
only, and Rule 32 of the Admiralty Rules of the District Court for
the Northern District of Illinois, purporting to authorize the
taking of such depositions, is invalid for want of authority in the
District Court to promulgate it. Pp.
363 U. S.
641-652.
(a) A court of admiralty has no inherent power, independent of
any statute or rule, to order the taking of depositions for the
purpose of discovery. Pp.
363 U. S.
643-644.
(b) Rule 32C of this Court's General Admiralty Rules does not
impliedly empower a district judge to order the taking of such
depositions. Pp.
363 U. S.
644-646.
(c) Rule 32 of the District Court's Admiralty Rules is not a
valid exercise of its power to regulate local practice, conferred
by Rule 44 of the General Admiralty Rules. Pp.
363 U. S.
646-652.
265 F.2d 312 affirmed.
MR. JUSTICE HARLAN delivered the opinion of the Court.
Certiorari was granted in this case, 361 U.S. 807, 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
Page 363 U. S. 642
Court for the Northern District of Illinois, purporting to
authorize the taking of such depositions, [
Footnote 1] 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. [
Footnote 2] After
argument, petitioner
Page 363 U. S. 643
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. 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 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. Corp., 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,
126 F. Supp. 583,
with Darling's Estate v. Atlantic Contracting
Corp., 150 F. Supp. 578, 579; 1950
Page 363 U. S. 644
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 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. 44 U. S.
Curtis, 3 How. 236,
44 U. S.
245.
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. [
Footnote 3]
However, the remainder of the Civil Rules in Part V, dealing with
"Depositions and Discovery," including Rule 26, the basic
authority
Page 363 U. S. 645
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. Corp., 79 F. Supp. 701, 702
(D.C.E.D.Pa.). In accord with the
Brown decision are
Bunge Corp. v. The Ourania Gournaris, 1949 A.M.C. 744
(D.C.S.D.N.Y.);
Galperin v. United States, 1949 A.M.C.
1907 (D.C.E.D.N.Y.);
The Ballantrae, 1949 A.M.C. 1999
(D.C.N.J.).
The dilemma thus suggested -- either that we must regard Civil
Rule 26 as inadvertently omitted from the Admiralty Rules [
Footnote 4] 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
Page 363 U. S. 646
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, 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).
[
Footnote 5] 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, 95 F.
Supp. 790 (D.C.S.D.N.Y.);
Application of A. Pellegrino &
Son, 11 F.R.D. 209 (D.C.S.D.N.Y.);
cf. Republic of France
v. Belships Co., Ltd., 91 F.Supp.
Page 363 U. S. 647
912;
Prudential Steamship Corp. v. Curtis Bay Towing
Co., 20 F.R.D. 356 (D.C.Md.). 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., 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. [
Footnote 6]
Page 363 U. S. 648
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, [
Footnote 7] 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, 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
Page 363 U. S. 649
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, 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,
329 U. S. 500.
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,
Page 363 U. S. 650
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 rulemaking
powers of the Court,
see 28 U.S.C. § 331 (advisory
function of Judicial Conference), 28 U.S.C. § 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 rulemaking power, especially when that course was
never reported to Congress, [
Footnote 8] as would now be required under 28 U.S.C. §
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.
Page 363 U. S. 651
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 [
Footnote 9] 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, 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 rulemaking powers --
more particularly, of course, the Judicial Conference of the United
States (28 U.S.C. § 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 rulemaking. All we decide in the existing
Page 363 U. S. 652
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 rulemaking power under General Rule
44.
Affirmed.
[
Footnote 1]
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, 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).
[
Footnote 2]
This statute, as amended, 31 Stat. 182, is now applicable only
to proceedings in admiralty.
See note preceding 28 U.S.C.
§ 1781. Section 863 permits the taking of the deposition
de
bene esse of a witness in a pending action, in the following
circumstances only:
". . . when the witness lives at a greater distance from the
place of trial than one hundred miles, or is bound on a voyage to
sea, or is about to go out of the United States, or out of the
district in which the case is to be tried, and to a greater
distance than one hundred miles from the place of trial, before the
time of trial, or when he is ancient and infirm. . . ."
The deposition is admissible at trial only in the event of the
deponent's death, absence from the country, presence at a distance
greater than 100 miles from the place of trial, or inability to
travel and appear by reason of age, ill health, or imprisonment.
R.S. § 865.
[
Footnote 3]
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."
[
Footnote 4]
For reasons stated,
ante at
363 U. S.
643-644, 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, 87 F. Supp. 79, 80.
[
Footnote 5]
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.
Judge Rifkind's rejection of the
Brown decision has
been followed by several district judges.
See Kelleher v.
United States, 88 F. Supp. 139 (D.C.S.D.N.Y.);
cf.
Standard Steamship Co. v. United States, supra (D.C.Del.);
Gulf Oil Corp. v. Alcoa S.S. Co., 1949 A.M.C. 1965
(D.C.S.D.N.Y.).
[
Footnote 6]
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.
For much the same reason, we do not deem the challenged rule
inconsistent with the
de bene esse statute, note 2 ante. That statute is
concerned with the taking of depositions for use at trial, and not
for discovery. The limitations on the taking of a deposition are
evidently the product of the limitations on use. A discovery
deposition not meeting the conditions of the statute may not be
admitted into evidence at the trial,
Mercado v. United
States, 184 F.2d 24, but where a deposition is not sought to
be taken for use at trial, we see no reason to regard the statute
as a bar.
See Republic of France v. Belships Co., Ltd.,
supra.
[
Footnote 7]
The Bar Association Report, in referring to "Chief Justice
Stone," is in error. The Chief Justice in 1939 was Charles Evans
Hughes.
[
Footnote 8]
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, require the prior reporting of such
rules to Congress.
[
Footnote 9]
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., supra (D.C.E.D.Va.);
Brown v. Isthmian S.S. Corp.,
supra (D.C.E.D.Pa.).
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR.
JUSTICE STEWART join, dissenting.
The Court today strikes down a local admiralty rule which has
counterparts in District Courts throughout the country. In fact,
the statistics of the most recent fiscal year in the experience of
the federal courts indicate that over half the admiralty litigation
in the federal courts is conducted in courts having discovery
deposition rules like the one today nullified. [
Footnote 2/1] I cannot agree to a judgment
Page 363 U. S. 653
which lightly brings about so widespread a turning back of the
clock in the admiralty practice throughout the Nation.
I agree with the Court that the first and second contentions of
the petitioners, on which reliance is put that the judgment should
be reversed, are not well taken; [
Footnote 2/2] but I must dissent from the Court's
rejection of the third, and truly substantial, contention of
petitioners. This is that the order for discovery depositions made
here was sanctioned by the District Court's local Admiralty Rule
32, and that that rule is a valid exercise of the District Court's
rulemaking power. There is no doubt that the order in
Page 363 U. S. 654
question was authorized by the local rule; and so the only
question is of the rule's validity. The question is one of power,
and, to me, the Court's opinion fails completely to demonstrate a
lack of power to promulgate the rule in question in this District
Court and the many District Courts having a very substantial
admiralty business which have adopted similar rules. The local rule
was promulgated under authority of this Court's General Admiralty
Rule 44, which provides:
"Rule 44. Right of trial courts to make rules of practice."
"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."
The authority established by General Admiralty Rule 44, under
this Court's statutory powers, is separate in form and different in
expression from the general statutory authority of the District
Courts, with the other federal courts, to make "rules for the
conduct of their business." 28 U.S.C. § 2071. [
Footnote 2/3] Whatever the precise content of §
2071, I think as a separate authority General Admiralty Rule 44
must be read separately as a grant
Page 363 U. S. 655
of power to the District Courts to make admiralty rules of
procedure effective as to actions within them, subject only to the
limitations specified in the rule or otherwise implicit in law.
This seems to be the obvious meaning of the rule, and it should be
taken at its face value.
See Papanikolaou v. Atlantic
Freighters, Ltd., 232 F.2d 663, 665;
Galveston Dry Dock
& Construction Co. v. Standard Dredging Co., 40 F.2d 442,
444. [
Footnote 2/4]
Cf. British
Transport Commission v. United States, 354 U.
S. 129,
354 U. S. 138.
Civil Rule 83 is quite similar in concept, and appears to be given
a comparable interpretation.
Russell v. Cunningham, 233
F.2d 806, 811; 7 Moore, Federal Practice (2d ed.), � 83.03.
Cf.
United States v. Hvass, 355 U. S. 570,
355 U. S.
575.
Clearly a rule providing for discovery by way of deposition
practice is one regulating procedure.
See Sibbach v. Wilson
& Co., 312 U. S. 1. The
Court does not venture to deny this. Of course, this procedural
rule may be as important as many a "substantive" doctrine, but
there is nothing in General Rule 44 confining the local rulemaking
power to exercises in the trivial. Hence, the District Court rule
is
prima facie valid (as the Court apparently admits), and
we must examine whether it is invalidated by reason of conflict
with some rule promulgated by this Court, or some statute. No
statute precludes the local
Page 363 U. S. 656
rule; [
Footnote 2/5] but the
court holds that it is precluded by some of this Court's General
Admiralty Rules. The Court gingerly draws some support from the
circumstance that the amendatory Admiralty Rules promulgated by
this Court in 1939 -- General Admiralty Rules 31 through 32C --
incorporated some of the Civil Rules' discovery devices but not
others. On this basis, it is concluded that the District Courts are
precluded from adopting local rules that establish
Page 363 U. S. 657
in admiralty the Civil Rules discovery devices not adopted in
the General Admiralty Rules -- such as Civil Rule 26. [
Footnote 2/6] But certainly this negative
inference does not follow. This Court's promulgation of General
Admiralty Rules 31 through 32C made the observance of those rules,
counterparts of Civil Rules as they were, mandatory on the District
Courts. As to those Civil Rules dealing with discovery and pretrial
practice that were not adopted by General Admiralty Rules, the
inference is obvious that they were not made mandatory upon the
District Courts; but it does not follow that the District Courts'
power under General Admiralty Rule 44 in regard to local rules was
lessened. This Court decided that the rules it promulgated
Page 363 U. S. 658
in the discovery area were enough for the time being as General
Admiralty Rules; but there is not a word in the rules that inhibits
the District Courts from going further if they desire. The test of
General Rule 44 is simply whether the local rules are "not
inconsistent" with the general. There is not a word in the General
Rules indicating that their discovery devices shall constitute the
only ones permissible. [
Footnote
2/7] How then does the Court come to a contrary conclusion?
The Court's basic reason, it appears, why this local rule is to
be held void under the negative implications of the 1939 amendments
to the General Admiralty Rules is that it was not promulgated with
the safeguards provided for in the current General Admiralty Rules
Enabling Act. 28 U.S.C. § 2073;
see also 28 U.S.C. § 331
(advisory function of Judicial Conference). There are many answers
to this contention. Perhaps the most basic is that these safeguards
are relevant only to General Admiralty Rules -- rules which are
promulgated by this Court, and whose observance is mandatory in
admiralty throughout the country. The statutes that ordain those
safeguards do not require them of local rules, and this reflects
the difference in Congress' approach between rulemaking carried on
on a local basis and General Rulemaking, which ends all forms of
local innovations and prescribes a rule for the whole country.
[
Footnote 2/8] If the District
Court for
Page 363 U. S. 659
the Northern District of Illinois had attempted to promulgate a
rule for the whole country, the Court's observations would have
some point.
Furthermore, one of the protective provisions -- the provision
for Judicial Conference advice (which is not mandatory even on this
Court, incidentally) -- was not even in effect as to General Rules
at the time this local rule was adopted. [
Footnote 2/9] And the General Admiralty Rules additions
of 1939, which introduced sweeping liberalizations of
Page 363 U. S. 660
discovery practice, and which the Court finds preclusive of this
supplementary local rule, were promulgated with none of these
safeguards -- with no advisory report at all, and with no
submission to Congress. Yet there is no doubt as to their validity.
The reason, of course, is that there was no statutory requirement
for the use of these procedures; the Court had the power to
promulgate these rules without them. And unquestionably, in 1939,
this Court could have promulgated a General Rule in the terms of
the local rule here. [
Footnote
2/10] By the same token, so did the District Court, under
General Admiralty Rule 44, which stood side by side with the 1939
amendments, have the power to make this local rule without
reference to Congress; there was no statute requiring it to make
such a reference, and in fact no procedure by which the reference
could have been made. The local rule may be one providing for a
"basic" change in procedure, but it is still a local rule; it was
validly authorized by General Admiralty Rule 44 to be promulgated,
as local rules may be promulgated, without reference to Congress;
and I think we break faith with the District Courts when we give
them a power which we later declare to be a mirage.
The court finds support for its position from the fact that this
Court has never promulgated a General Rule for deposition discovery
since 1948, when it received the power to supersede statutes in the
exercise of its General Admiralty Rulemaking power. To be sure,
Civil Rule 26 then could have been promulgated in admiralty by this
Court (as it could not have been before,
in toto). But
the
Page 363 U. S. 661
local rule, which does not contain any provision contrary to
existing statutes, [
Footnote
2/11] was not dependent on any such power. It did not require
the exercise of a power reserved exclusively to this Court. And the
failure of this Court to promulgate a General Rule in the post-1948
era hardly reflects on the validity of the local rules. Perhaps
this Court thought that the time was not ripe for a General Rule;
that the problem for a while was best approached through local
experimentation. Certainly there does not have to be evidence that
the Court thought the local rules made the promulgation of a
General Rule "unnecessary," as the Court today intimates. For the
local rule to be valid, it is enough that it have been promulgated
within the scope of the District Court's authority. It is not a
prerequisite on the validity of a local rule that it make General
Rules unnecessary. Obviously this is one of the intrinsic
differences between a local rule and a General Rule. [
Footnote 2/12]
Page 363 U. S. 662
The Court's holding stops up one of the most plentiful sources
of reform and revision of the General Admiralty Rules -- a source
very relevant to revision of the discovery rules. In developing the
Civil Discovery Rules, there was a great body of state court
experience with discovery
Page 363 U. S. 663
depositions on which to draw, and Civil Rule 26's formulators
drew upon it.
See 4 Moore, Federal Practice (2d ed.),
26.01. If there is consideration whether Civil Rule 26, or a
comparable provision, should be promulgated as a General Admiralty
Rule, the question will occur whether the discovery deposition
procedure is suitable to the particular problems of the admiralty
court. State court and Federal Civil Rules experience may arguably
not be of great value here. For example, there has been opposition
to a general rulemaking the Civil Rules applicable in admiralty to
cases unprovided for in the other Admiralty Rules by those who
argue that the problems of admiralty are so unique that the Civil
Rules will fit badly.
See Report of the Standing Committee
on Admiralty and Maritime Law, American Bar Association, in 76
Ann.Rep.A.B.A. (1951), pp. 182-183. It would appear difficult
either to evaluate the correctness of this attitude or to
investigate which civil rules would work well in admiralty without
some District Court experience in applying them. If it is being
held that, every time this Court's General Admiralty Rules deal
with a general subject, all parts of the subject, though untouched
by the General Rules, become insulated from further rulemaking by
the District Courts, the most fruitful source, and perhaps the only
valid source, of experience as to further revision of the General
Admiralty Rules would be choked off -- the experience of the
various District Courts under their local admiralty rules. We
should be loath to draw any negative inference from our rules that
would produce such a result.
We are not apprised how broad the principle of implicit
preclusion the Court today establishes may be. It would be pure
speculation to attempt to enumerate the local rules which might be
struck down on the basis of it because they deal with an important
subject matter and there are General Rules which move in the same
area as they
Page 363 U. S. 664
do. The result is a cloud of uncertain proportions on the local
rules.
Obviously the Court is greatly influenced by the fact that any
local admiralty oral deposition rule must to some extent be a
piecemeal effort, because even if discovery can be provided for by
local deposition rule, the local rule cannot change the provisions
of the
de bene esse act regulating admissibility into
evidence. So
Mercado v. United States, 184 F.2d 24, holds,
and there is no gainsaying its correctness. [
Footnote 2/13] Thus, the District Courts themselves
cannot give the whole subject of depositions the integrated
treatment that the Civil Rules give it, or that an admiralty
deposition rule from this Court, with its post-1948 power to
supersede statutes, could give it. There is force to this point,
but its force is not against the validity of the local rule. I do
not see how it affects the power of the District Courts, under
General Admiralty Rule 44, to deal with the matter as far as they
can. It may have considerable force in indicating that this Court,
and those who advise it in this regard, [
Footnote 2/14] should be more careful to examine
whether a general rule should be promulgated. But the question here
is one of the District Court's power, and to me that seems
unimpaired so long as it is confined to the use of the deposition
for discovery. [
Footnote
2/15]
Page 363 U. S. 665
However well motivated may be the basis on which the Court today
strikes down this rule and the many, many local rules like it, I
cannot conclude that its action has any basis in law. It may well
be desirable that this Court promulgate a General Rule in the
premises, and certainly, informed with this Court's power to
supersede statutes, such a rule might provide a better approach to
the problem than the local rules can provide. And the area may be
one that particularly lends itself to uniform regulation. But if
that is so, the answer is for this Court to promulgate such a rule,
not to strike down local rules which, within their territorial and
statutory limitations, provide some sort of solution for the
problem in the interim. This Court has granted local rulemaking
power to the District Courts through General Admiralty Rule 44 and
Civil Rule 83, and I submit we should not seek to escape the plain
consequences of such a grant of power whenever we believe that it
has been exercised in an area where we think we could do better.
When we do act on admiralty discovery depositions through a General
Rule, the local rules will be superseded, and that will be time
enough.
The Court's action nullifies these many local admiralty
discovery deposition rules, and casts an uncertain cloud over other
local admiralty and civil rules. It creates an unfortunate hiatus
in the development of discovery in admiralty by postponing the
further collection of practical experience on the matter until a
General Rule can be produced. I can see no legal reason why the
exercise of the District Court's rulemaking powers should not be
permitted to go forward, and accordingly I dissent from the
judgment affirming the Court of Appeals' issuance of the
extraordinary writs.
[
Footnote 2/1]
In the fiscal year ending June 30, 1959, over half the private
admiralty actions filed in the District Courts were brought in
districts having rules similar to the one in question here. Local
admiralty rules expressly providing for the taking of depositions
of witnesses (including nonparty witnesses) in accord with the
Civil Rules have been adopted in the Southern District of New York
(Admiralty Rule 32); the Northern District of New York (Admiralty
Rule 32); the Southern and Northern Districts of Florida (joint
Admiralty Rule 24); the Northern District of California (Admiralty
Rule 13); and the Western District of Washington (Admiralty Rule 25
and 25A), besides the Northern District of Illinois. In the fiscal
year referred to, these districts were responsible for 1,743 of the
3,424 private admiralty actions filed in the District Courts, or
50.9%.
In addition, there are two districts where there is a catchall
local admiralty rule making the Federal Rules of Civil Procedure
applicable to situations not otherwise provided for. In one of
these districts, the local rule is interpreted as allowing
discovery depositions. Eastern District of Virginia, Admiralty Rule
24;
Darling's Estate v. Atlantic Contracting Corp., 150 F.
Supp. 578, 580. In the other, the rule was apparently promulgated
in response to a suggestion by the chief district judge that a
local rule on depositions be proposed by a committee for
promulgation by the court.
Prudential S.S. Corp. v. Curtis Bay
Towing Co., 20 F.R.D. 356, 357 (decided May 9, 1957); District
of Maryland, Admiralty Rule 46, promulgated May 9, 1958. These two
districts accounted for 170 or 5% of the private admiralty cases
filed during the year in question. This, with the category of
districts just discussed, indicates that 55.9% of the private
admiralty cases were prosecuted in districts where there existed a
local rule making the Civil Rules procedure for discovery
deposition available.
In addition, several districts have admiralty rules providing
for broadened deposition practice in regard to adverse parties.
Eastern District of New York, Admiralty Rule 32; Eastern District
of North Carolina, Admiralty Rule 30; Western District of
Louisiana, Admiralty Rule 30; Northern District of Ohio, Admiralty
Rule 38. In the year in question, these districts accounted for 116
cases filed, or 3.4%.
In other districts, the need for a local rule may have been
thought to be obviated by a ruling that General Admiralty Rule 32C
implicitly made broadened discovery available,
see The
Ballantrae, 1949 A.M.C. 1999 (D.C.N.J.);
Brown v. Isthmian
S.S. Corp., 79 F. Supp. 701 (D.C.E.D.Pa.), or by a decision
indicating that the practice was available without rule of court,
see Dowling v. Isthmian S.S. Corp., 184 F.2d 758.
For the statistics as to private admiralty cases filed,
see Annual Report of the Director of the Administrative
Office of the United States Courts for the Fiscal Year ending June
30, 1959, Table C.3. Government admiralty cases are not separately
listed as such.
[
Footnote 2/2]
These contentions are, first, that admiralty courts have
inherent power to order such depositions, and second, that this
power is conferred by General Admiralty Rule 32C.
[
Footnote 2/3]
Before the codification of 1948, the statutory predecessors of
28 U.S.C. § 2071, themselves were more clear in providing for some
practice rulemaking power in the trial courts.
See R.S. §
918, and its somewhat differently worded predecessor, § 7 of the
Act of March 2, 1793, 1 Stat. 335.
See also R.S. § 913,
derived from the early Process Acts. But, as early as the First
General Admiralty Rules of 1844, this Court had provided for
subsidiary rulemaking power by the District Courts in terms fairly
similar to those of the present General Admiralty Rule 44.
See General Admiralty Rule 46 of 1844, 3 How. xiii.
[
Footnote 2/4]
In the last-cited case, Judge Learned Hand went so far as to say
of a District Court rule promulgated under the authority of R.S. §
918 and General Admiralty Rule 44 that it was
"the result of the exercise of a power to legislate, delegated
by Congress, though circumscribed by the statute which gives it,
and by anything contained in the general laws, or the Supreme Court
rules, as the statute itself declares. Within these limits, the
District Court may disregard existing practice as freely as
Congress itself; its action has the force of law . . . , and we are
as much bound to observe it as a statute."
40 F.2d at 444.
[
Footnote 2/5]
The Court rightly rejects the contention that the
de bene
esse act itself, R.S. §§ 863-865, operates through negative
implication to prevent the promulgation by a District Court of any
other deposition rule, and hence makes this local rule fall as
violative of a statute. General Admiralty Rule 44 does not purport
to invest District Courts with this Court's current power to
supersede statutes under the Admiralty Rules Enabling Act, 28
U.S.C. § 2073. But there is no inconsistency between the
de
bene esse act and the local rule. The act provides a method
for the introduction of depositions into evidence; the local rule
regulates their taking for discovery. The local rule contains a
provision designed to subject the admissibility into evidence of
depositions taken under it to the provisions of the act. It is said
that the
Fisk and
Tooth Crown cases,
Ex parte
Fisk, 113 U. S. 713;
Hanks Dental Ass'n v. International Tooth Crown Co.,
194 U. S. 303,
implied that the
de bene esse act, and the other statutes
regulating the taking of depositions for use as testimony, then on
the books (
see 363
U.S. 641fn2/6|>note 6,
infra), amounted to an
implicit exclusion of all other means of examination, for discovery
purposes or otherwise. These cases were based primarily on the
provisions of R.S. § 861 for the taking of testimony in open court
(
see 363
U.S. 641fn2/12|>note 12,
infra); but even if they
were based in part on negative inferences from the deposition acts,
they have not been honored as authorities in admiralty. For this
Court's 1939 amendatory General Admiralty Rules, dealing
extensively with discovery, were promulgated at a time when all
these statutes were on the books, and when this Court's rulemaking
powers in admiralty did not extend to the power to supersede
statutes. It has been recognized in the admiralty jurisprudence
here, accordingly, that the various statutory provisions referred
to in
Fisk and
Tooth Crown are to be taken as
relating only to the introduction of proof at trial, and not to
discovery practice. Accordingly there is no barrier in those cases,
or in the
de bene esse act, to the local rule here
involved.
[
Footnote 2/6]
Of course, in 1939, this Court had no authority to promulgate in
admiralty that part of Civil Rule 26 which provides for the
reception of depositions in evidence, to the extent that it was
inconsistent with the
de bene esse act and such other
statutes as R.S. §§ 866-870, 875, providing for various means of
taking evidence other than in open court.
See 3 Benedict,
Admiralty (6th ed. 1940), §§ 397-401. All these statutes except the
de bene esse act were repealed in the 1948 codification of
the Judicial Code. 62 Stat. 993. This inability was due to the fact
that, until the 1948 revision of the Judicial Code, 28 U.S.C. §
2073, this Court's Admiralty Rules Enabling Act did not contain a
power to supersede statutes. R.S. § 917.
See also R.S. §§
862 and 913. Civil Rule 26 contains provisions for the reception of
depositions as evidence different from those of the
de bene
esse act. Hence it could not have been promulgated in terms in
admiralty then, only in a form like the local rule here which
avoids conflict with the statute.
See 363
U.S. 641fn2/5|>note 5,
supra; cf. Mercado v. United
States, 184 F.2d 24.
There is some evidence that it was the inability of this Court
under the then-existing Admiralty Rules Enabling Act to promulgate
Civil Rule 26
in toto in admiralty which resulted in no
action at all being taken on the subject.
See Report of
the Standing Committee on Admiralty and Maritime Law, American Bar
Association, in 76 Ann.Rep.A.B.A. (1951), pp. 565-566. The 1939
General Admiralty Rules amendments were made without report from an
advisory committee, and no rule was promulgated which was not a
copy of one of the new Civil Rules.
[
Footnote 2/7]
Not only might a local rule on discovery depositions serve as a
supplement to the General Rules on discovery, but to the pretrial
conference practice. See General Admiralty Rule 44 1/2, added 316
U.S. 716. Cf. Dowling v. Isthmian S.S. Corp., 3 Cir., 184 F.2d 758,
773.
[
Footnote 2/8]
It should be noted that a similar authority to that of General
Admiralty Rule 44 is vested in the District Courts by Civil Rule
83, empowering the District Courts to make local rules of civil
procedure. No submission of these local rules to Congress is
contemplated by this Court's Rules. No power to supersede statutes
is delegated by either the General Admiralty Rule or the Civil
Rule. It might be noted that, generally (
but cf. 28 U.S.C.
§ 2074), only where this power is given has Congress provided for a
procedure whereby new rules are reported to it and laid on the
table before it.
See the original Civil Rules Enabling
Act, the Act of June 19, 1934, c. 651, 48 Stat. 1064, and its
present form, 28 U.S.C. § 2072, and the current Admiralty Rules
Enabling Act, 28 U.S.C. § 2073. Contrast the old civil rulemaking
authority in the lower courts, R.S. § 918, and the old Admiralty
Rules Enabling Act, R.S. § 917, together with R.S. §§ 862 and 913.
These provisions did not empower the courts to supersede
preexisting statutes (although § 917's predecessor may have been
itself an implicit repealer of certain statutes,
see
363
U.S. 641fn2/12|>note 12,
infra); and they provided
for no procedure whereby the rules would be laid before
Congress.
Of course, under the modern Acts, all new General Admiralty and
Civil Rules promulgated here must be laid before Congress, not
simply those which supersede statutes; but the point is that the
limited rulemaking power delegated here to the District Court,
since it does not contemplate the supercession of statutes, is
foreign to the procedural safeguards which the Court today finds
indispensable to its exercise. The point is that a narrow power,
particularly in lower courts, to make procedural rules of a nature
(like this one) not inconsistent with statutory law, has not
generally been deemed by Congress to require the safeguards the
Court today requires, and which the local rulemaking power cannot
provide.
[
Footnote 2/9]
This provision was added to § 331 of the Judicial Code by the
Act of July 11, 1958, 72 Stat. 356. The local rule in question was
in effect in 1955.
See 5A Benedict, Admiralty (7th ed.
1959), p. 833. Of course this is not relevant to the efficacy of a
local admiralty rule, since, even today, local rules are not
covered by § 331; but it is interesting to note that the provisions
of § 331 that the Court treats as relevant here would not even have
been applicable to a General Rule promulgated at the time this
local rule was.
[
Footnote 2/10]
There is some suggestion in the Court's opinion that General
Admiralty Rule 44 itself should be narrowly construed because it
was not reported to Congress. But that procedure was not required
at the time it was promulgated, and, in promulgating it, there is
no evidence to show that this Court did not exercise the plenitude
of its rulemaking powers under the then-existing statutes.
See 363
U.S. 641fn2/6|>note 6,
supra.
[
Footnote 2/11]
See 363
U.S. 641fn2/5|>note 5,
supra.
[
Footnote 2/12]
The Court rightly rejects the argument that the local rule is in
conflict with General Admiralty Rule 46, which requires that "the
testimony of witnesses shall be taken orally in open court, except
as otherwise provided by statute, or agreement of parties." Old
cases here have held discovery deposition practice at law
inconsistent with comparable provisions,
Ex parte Fisk,
113 U. S. 713;
Hanks Dental Ass'n v. International Tooth Crown Co.,
194 U. S. 303, but
these cases hardly offer guides to our decision under the present
General Admiralty Rules. The primary basis of these decisions,
rendered in 1885 and 1904, was that discovery depositions were
thought to be inconsistent with the then-existing statute,
applicable at law, providing that all testimony be given orally in
open court except as otherwise statutorily provided. R.S. § 861.
See Hanks Dental Ass'n v. International Tooth Crown Co.,
supra, at
194 U. S. 308.
Modern practice has come to see the making of testimonial proof and
the taking of discovery depositions as quite separate matters.
There would seem no reason why a limitation on the former should
affect the latter.
See Republic of France v. Belships Co.,
91 F. Supp. 912, 913. And the provisions for the taking of
testimony in open court found in General Admiralty Rule 46 comes
with an entirely different history from that of the statutory
provision applicable at law. The first statutory provision on the
subject, § 30 of the First Judiciary Act of 1789, c. 20, 1 Stat.
88, applied to all actions, admiralty, law and equity alike; but,
in the revision of 1874, the provision was restricted to actions at
law, R.S. § 861, and admiralty and equity proofs were left to this
Court's rules. R.S. § 862. This may, in fact, have been the state
of the law even before the 1874 revision. The note to R.S. § 862
derives the provision entirely from § 6 of the Act of August 23,
1842, c. 188, 5 Stat. 518, which was the first Admiralty Rules
Enabling Act. The 1842 Act contained no explicit repealer of the
application in admiralty of § 30 of the First Judiciary Act, but
evidently, at the time of the revision, the view was taken that the
rulemaking authority (which, in its 1842 form, as opposed to its
form in the revision, R.S. §§ 862, 917, was not made expressly
subject to preexisting statutes) had superseded in admiralty the
requirement of § 30 of the First Judiciary Act.
This Court's General Admiralty Rules of 1844, which subject to
individual amendments remained in effect till the revision of 1921,
never contained any provision comparable to R.S. § 861, or to the
present General Admiralty Rule 46. (
See Hughes, Admiralty
(2d ed. 1920), p. 511
et seq., for the form of the 1844
Rules as they stood immediately before the 1921 revision.) General
Rule 46 was introduced in the 1921 General Admiralty Rules
revision, but side by side with it were promulgated two rules,
General Admiralty Rules 31 and 32, 254 U.S. at 692-693, which
touched on the subject of discovery; and when the extensive 1939
discovery supplements to the rules were promulgated, it was not
thought necessary to make any alteration in General Admiralty Rule
46. Accordingly, since discovery rules have stood side by side with
Rule 46, without explicit exception or cross-reference in it, it
should not be treated as carrying the same gloss as R.S. § 861 was
held to have, particularly since the interpretation of such a
provision as inhibiting discovery rather than simply regulating the
introduction of proof at trial is a very strained one.
[
Footnote 2/13]
Cf. notes
363
U.S. 641fn2/5|>5 and
363
U.S. 641fn2/6|>6,
supra.
[
Footnote 2/14]
The Judicial Conference has responsibilities in this area, as
has been developed,
see 28 U.S.C. § 331;
United States
v. Isthmian S.S. Co., 359 U. S. 314,
359 U. S.
323-324; and an Advisory Committee to this Court on the
General Admiralty Rules has recently been formed.
[
Footnote 2/15]
The local rule in question here, with an exception for use as
impeachment or contradiction of the deponent when he has testified,
makes admissibility in evidence depend generally upon the
fulfillment of the conditions specified in R.S. § 865. It does not
provide for admissibility in the circumstances set forth in Civil
Rule 26(d)(3), items 4 and 5, which present occasions for admission
not having counterparts in the
de bene esse act.