Opinion
Action by Karel Weiss against Isbrandtsen Steamship Company and another for damages sustained as a result of defendants' failure to deliver plaintiff's cargo at Korea. The District Court, McGohey, J., held that since plaintiff's attempt to discover facts from local witnesses had been thwarted by military action in Korea, and plaintiff's counsel in Korea had not been heard from since the outbreak of hostilities, discovery of statement in defendants' possession, which statement was made by witness in Korea, would be allowed.
Motion for discovery granted.
Thacher, Proffitt, Prizer, Crawley & Wood, New York City, for plaintiff, Joseph M. Brush, Edward C. Kalaidjian, New York City, of counsel.
Lord, Day & Lord, New York City, for defendant, John W. Castles, 3rd, New York City, of counsel.
McGOHEY, District Judge.
Plaintiff moves pursuant to Rule 34, Fed.Rules Civ.Proc. 28 U.S.C.A., for discovery of a statement by one Chwae Yung Shuk which is in defendants' possession. Defendants oppose on the ground that good cause is not shown. I disagree. The action is for damages sustained, it is alleged, through defendants' failure to deliver plaintiff's cargo at Inchon, Korea, in December, 1947. Chwae Yung Shuk was the manager of the Inchon branch of the Korea Forwarding Company, which defendants concede ‘ participated in the handling, discharging and delivery of the cargo involved in this action.’
Plaintiff's attempt to discover facts from local witnesses has been thwarted by the military action in Korea. His counsel in Seoul has not been heard from since the outbreak of hostilities in June, 1950. This circumstance alone distinguishes this case from Gebhard v. Isbrandtsen, S.D.N.Y., 10 F.R.D. 119, urged by the defendants. In that case there was no showing that plaintiff had made any prior effort to locate witnesses and no showing that those whose names he was to get from the defendants could not be readily examined in this jurisdiction.
I think that the plaintiff's affidavit establishes good cause for the relief sought and, accordingly, the motion is granted.