3/11/2023 0 Comments De bene esse depositions![]() In a sworn answer to an interrogatory, libellant had stated that the second assistant engineer was the only person present at the time of the fall. The case would therefore call for affirmance save for a contretemps occurring as to the admission of a deposition, and resulting from the confusion due to the failure to adopt the civil rules (more than partially) in admiralty and a not unnatural belief to the contrary on the part of the Judicial Code revisers. We add, too, with respect to libellant's claim of inadequacy of the damages allowed, that we have no occasion to disturb the finding of contributory negligence which led to the limited award. But the experienced trial judge was convinced, as he said during the trial and found later in his decision, that the accident occurred as libellant claimed and in accordance with our settled rule we have no occasion to disturb this finding. And respondent did make a serious attack on libellant's credibility, forcing him eventually to admit that he had testified falsely in disclaiming the making of similar claims against other vessels and also showing a sworn statement made by him to another shipowner likewise disclaiming any other claim. It is thus apparent that the primary issue is one of veracity. The trial judge said with regard to this witness, 'On that state of the case I am quite satisfied that I would find as a fact the second engineer was telling the truth.' He specifically denied that libellant had ever fallen in his presence or that he had ever helped libellant up after a fall. He testified further that he was otherwise occupied at the time the fall is alleged to have occurred, that because of rough seas the tanks would not have been sounded at that time, and that when he did sound the tanks he rarely had a wiper to accompany him. Against this the second engineer testified that so far as he knew libellant had not been injured while aboard the vessel. He did not seek treatment for his knee until three weeks after the end of the voyage, in March, 1945 nor was any report made of the alleged mishap. According to his testimony the second assistant engineer, who had preceded him through the doorway, helped him up and told him that he would be all right. As they were going through a doorway leading from the engine room libellant slipped and fell in a pool of oil, injuring his right knee. ![]() on December 27, 1944, he went with the second assistant engineer to sound the tanks. ![]()
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