See Murphy v. New York & Porto Rico S. S. Co., D.C.S.D.N.Y., 27 F.Supp. 878 (Hulbert, J.). See also The Dalzellace, D.C.S.D.N.Y., 10 F.Supp. 434, where Judge Hulbert made a similar ruling in interpreting and applying Admiralty Rule 32, 28 U.S.C.A. following section 723, citing The President Polk, D.C.E.D.N.Y., 37 F.2d 102, where Judge Campbell compelled the production of a report to the respondent made by the engineer of the vessel about the time of the accident in the regular course of his duty, but excluded reports and statements of other officers, apparently made in preparation for trial. No reason is apparent why statements of members of the crew made in the course of their duties should not also be produced.
In interrogatory No. 7 libelant seeks to find out whether any of the Army tugs reported a collision between a scow and a tow on that morning, and also the contents of the report. An interrogatory somewhat similar in form was allowed by Judge Hulbert in The Dalzellace, D.C.S.D.N.Y. 1934, 10 F.Supp. 434, 435, but as Judge Conger points out in Shelton v. United States, D.C.S.D.N.Y. 1939, 27 F.Supp. 801, 802, the decision as reported is somewhat misleading. As a matter of fact, Judge Hulbert merely ordered categorical answers, but did not require the answering libelant to furnish the contents of reports or even to give the names of the reporting employees.
See Murphy v. New York & Porto Rico S. S. Co., D.C.S.D.N.Y., 27 F.Supp. 878 (Hurlburt, J.) See also The Dalzellace, D.C.S.D.N.Y., 10 F.Supp. 434, where Judge Hurlburt made a similar ruling in interpreting and applying Admiralty Rule 32 * * * citing The President Polk, D.C.E.D.N.Y., 37 F.2d 102, where Judge Campbell compelled the production of a report to the respondent made by the engineer of the vessel about the time of the accident in the regular course of his duty, but excluded reports and statements of other officers, apparently made in preparation for trial. No reason is apparent why statements of members of the crew made in the course of their duties should not also be produced.
‘ The statements of defendant's employees making reports relevant to the accident and submitted in the usual course of business following the accident are subject to the inspection of the plaintiff.’ In addition to the last two cases, this Court cited The Dalzellace, D.C., 10 F.Supp. 434; Murphy v. N.Y. & Porto Rico S. S. Co., D.C., 27 F.Supp. 878. Plaintiff further asks to inspect the report and statement given by him to the Third Assistant Engineer of defendant's vessel.
The statements of defendant's employees making reports relevant to the accident and submitted in the usual course of business following the accident are subject to the inspection of the plaintiff. Stark v. American Dredging Co., D.C., 3 F.R.D. 300, 302; The Dalzellace, D.C., 10 F.Supp. 434; Eiseman v. Pennsylvania R. Co., D.C., 3 F.R.D. 338; Murphy v. New York & Porto Rico S. S. Co., D.C., 27 F.Supp. 878; and numerous other cases support this view. Request number 4 tends to make defendant disclose who its witnesses are and what their testimony would be. It is, therefore, denied.
(2) The report of the defendant's superintendent in connection with the accident . This report comes within the rule covering the production of logs, officers' reports, etc. (see The Dalzellace, D.C., 10 F.Supp. 434,1935 A.M.C. 469, and cases cited: Kenealy v. Texas Co., supra; Revheim v. Merritt-Chapman & Scott Corp., supra), by which the reports have generally been held subject to production. Although the prospect of litigation may be one of the reasons for requiring these reports to be made, there are others, and not quite the same considerations apply as in the case of statements of witnesse, employees and others, who happen to know something of the facts and whose statements are taken solely as part of the preparation for trial.
It is entirely in the nature of a fishing expedition. The libellant relied greatly, in his brief, upon the case of The Dalzellace, 10 F.Supp. 434, 435, 1935 A.M.C. 469. As a matter of fact, in that case, Judge Hulbert, in passing upon almost the exact situation, refused to allow 'the name and address of the captain and of the engineer of the said tug who were in charge of her at the time of the alleged accident * * * ' (Interrogatory 'Thirteenth').
The circumstances would seem to justify the propounding of the interrogatories in question. See The City of Taunton (D.C.) 11 F. (2d) 285, 1926 A.M.C. 143; The Forest T. Crosby (D.C.) 34 F. (2d) 719, 1929 A.M.C. 1742; The Dalzellace (D.C.) 10 F.Supp. 434, 1935 A.M.C. 469; The Henry S. Grove (D.C.) 287 F. 247, 1923 A.M.C. 366. Exceptions overruled.