Opinion

Gill v. United States

  • 184 F.2d 49
  • 1950 U.S. App. LEXIS 3803
Court
Court of Appeals for the Second Circuit
Filed
Jul 27, 1950
Status
Published
Author
Clark
On the bench
Cricuit, Hand, Chase, Clark
Cited by
15 cases

The opinion

■CLARK, Cricuit Judge

(concurring).

On the question of venue I should prefer to place our affirmance on the ground that the district court’s finding of respondents’ waiver of the defense had adequate support in the record. Respondents’ court activities clearly suggest the inference that they were retaining this defense as an ace-in-the-hole, to be used if others should fail; this was permissible for a time, but was carried too far when the jury trial opened and the libelant herself was completely examined by all parties and adjournment had for the day and week without any complaint from respondents. The attempt then to reopen the matter when trial was resumed after the week-end recess seems to me one of those afterthoughts which a trial judge as experienced as this knew how to dispose of properly. I do not specifically disagree with the ground taken in the opinion; it is at least a logical development from the earlier cases cited. But it does leave the venue privilege as the most barren of chance technicalities, a far cry from the original view of a right to trial in the vicinage, a privilege to be regularly lost in fact as soon as the vessel has any slight business in New York Harbor. Far preferable would be outright repeal of its few remaining vestiges. In all other respects I join in Judge Chase’s very complete opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.