This was a typical three-party suit arising from an injury to a longshoreman. Ruiz, employed by Jones Stevedoring (Jones), was injured while working on a vessel, the M.V. Koln, owned by Hamburg-American (Hamburg). As a Sieracki1 seaman, Ruiz sued Hamburg, alleging unseaworthiness of the vessel. Hamburg brought a third-party action seeking indemnity from Jones, alleging (1) that Jones breached his Ryan2 warranty of workmanlike performance, and (2) that Jones was obligated under an express contractual provision to hold Hamburg harmless against any claim for personal injury arising out of Jones' work on the vessel.

The two actions were tried together. Ruiz was awarded a favorable verdict, and has since settled his claim against Hamburg. His claim is not before this court. The indemnity action resulted in a jury verdict against Hamburg.

The Hamburg-Jones contract provided indemnity to the shipowner for claims arising from injuries to longshoremen, other than those due to the "sole fault" of Hamburg.3 Hamburg attempted to prove fault or negligence of Jones as the cause of the accident and its evidence was substantial.4

On the final afternoon of a ten-day trial, Jones introduced its defense theory. With circumstantial evidence it attempted to show that members of the ship's crew had removed a safety device and that this was the sole cause of the injury to Ruiz.

Ruiz, a member of the longshore gang working around Hatch Number 3, was injured when the hatch cover fell on him. It had been stored vertically and had to be lowered and pulled over the empty hatch with a cable. The leading edge fell on Ruiz as he stood on the hatch coaming trying to locate the end of the cable which he was to fasten to the cover.

Jones' witnesses, produced at the end of the trial, provided some evidence that members of the ship's crew were near Hatch 3 from 30 to 45 minutes before the accident and that the longshoremen had not worked at that hatch from 5:30 p. m. to 6:45 p. m. The accident occurred shortly after 6:45 p. m.

Schoder, a superintendent for Jones, testified to a conversation with the ship's chief officer about 5:45 p. m. The mate had asked if the ship's crew could close Hatch 3, and Schoder firmly refused permission, as long as there were longshoremen aboard the vessel. Schoder added that the mate then spoke in German to a junior officer who went in the direction of the ship.

On the night of the accident, said Schoder, the ship's officers and crew "were very anxious to sail" to avoid possible fog conditions. Another longshoreman testified that, when he left the hatch area at 5:30 p. m., some 3 1/2 feet of cable was hanging from the winch platform in the direction of the hatch. Ruiz and others added that, when they arrived later, the cable was hanging much lower and into the hatch opening.

After all parties had rested and before oral argument, counsel for Hamburg moved to reopen and for a continuance, in order that he might bring from Germany to testify crew members who had been aboard the ship on the day of the accident. Counsel claimed surprise because he had been misled by answers to interrogatories which indicated that Jones did not contend that crew members had handled any ship's gear at Hatch 3. The motions were denied and the trial was concluded with closing arguments.

In argument, counsel for Jones urged repeatedly that Hamburg had failed to call any members of the crew to refute the story of crew involvement as testified to by the longshoremen. Footnote 7 details some of the remarks.

After the adverse jury verdict, Hamburg moved for a new trial on these grounds: (a) surprise, (b) prejudicial misconduct of opposing counsel in oral argument and (c) insufficiency of the evidence to justify the verdict. The trial court denied the motion and we granted leave for it to consider Hamburg's motion under Civil Rule 60(b) for relief from judgment because of newly discovered evidence, surprise and misrepresentation by Jones.

The trial court denied this motion, finding that Hamburg had not exercised due diligence. From this denial, Hamburg has appealed and its appeal has been consolidated under Rule 3(b) of Federal Rules of Appellate Procedure with the appeal from the denial of motions for directed verdict, judgment n.o. v. and new trial.

In considering motions for a continuance, new trial, and for relief of judgment under Rule 60(b), the trial court is free to exercise its discretion, and its decision will be overturned on appeal only for abuse of that discretion. In States Steamship Co. v. Philippine Airlines, 426 F.2d 803, 804 (9th Cir. 1970), we said:

"Whether the judge misused or abused his discretion, of necessity, depends upon the facts of each case. This court has never attempted to fix guidelines, although a good rule of thumb might be to follow Judge Magruder's oft-quoted phrase in In Re Josephson, 218 F.2d 174, 182 (1st Cir. 1954), that the exercise of discretion of the trial judge should not be disturbed unless there is 'a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors.' "

Given the obvious genuine surprise to Hamburg's counsel when Jones introduced its "crew involvement" defense on the afternoon of the last day of trial, coupled with the misleading nature of Jones' reply to interrogatory No. 22,5 it does not seem to us that a request for a continuance was unreasonable. Had the members of this panel been in a position to exercise the discretion reposing in the trial judge, we would have granted the continuance in the interest of justice.

However, we cannot say that the action of the district judge was so unreasonable and arbitrary as to amount to an abuse of his discretion. The trial had already taken ten days, and Hamburg had rested. Further, the record shows no mention by Hamburg's counsel, in his informal request for a reopening and a continuance, of the length of time it would take to produce the German witnesses. We recognize the desire of the trial judge to conclude expeditiously an already lengthy case. The calendar congestion in the district courts is well known, and we do not wish to discourage conscientious attempts to reduce it. Under these circumstances, therefore, we are unwilling to find an abuse of discretion.

NEW TRIAL BASED UPON SURPRISE, MISREPRESENTATION, AND

The trial court characterized Jones' replies to the interrogatories of Hamburg as "ambiguous" on the issue of crew involvement. Jones argues that its answer to interrogatory No. 22 was true since, at best, it had only circumstantial evidence of crew involvement. We do not find this distinction between direct and circumstantial evidence compelling. The interpretation of knowledge and information urged by Jones would substantially subvert the purposes underlying the discovery devices of the Federal Rules of Civil Procedure, i. e., "to reduce the amount of litigation, to narrow the issues and to avoid surprises and to promote justice." Dill Mfg. Co. v. Acme Air Appliance Co., Inc., 2 F.R.D. 151, 153 (E.D.N.Y.1941).

Our analysis of Jones' replies to Hamburg's interrogatories leads us to conclude that Jones misrepresented its position.6 Thus Hamburg was justifiably surprised at trial when a new defense was offered. Some courts have gone so far as to hold that failure to disclose a defense before trial warrants a new trial. See, e. g., Burton v. Weyerhaeuser Timber Co., et al., 1 F.R.D. 571 (D.Ore.1941); Jones v. Pennsylvania R. Co., 35 F. Supp. 1017 (E.D.N.Y.1940).

We need not go so far in our holding that when a party in its answers to interrogatories misleads another party into believing that a defense will not be offered at trial, the later introduction of that defense will support a motion for a new trial. Misleading and evasive answers to interrogatories justify the court's viewing with suspicion the contentions of the party so answering. See, e. g., Alamo Theatre Co., Inc., et al. v. Loew's Inc., et al., 22 F.R.D. 42 (N.D. Ill.1958); Zielinski v. Philadelphia Piers, Inc., 139 F. Supp. 408 (E.D.Penn. 1952).

The trial court, finding the answers to the interrogatories merely ambiguous, exercised its discretion in denying the motion for a new trial. In addition to our conclusion that the answers were unequivocal and not ambiguous, we note that counsel for Jones made extensive use in closing argument of the fact that Hamburg failed to call members of the crew in rebuttal.7

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* * *Counsel even went so far as to intimate, falsely, that prior to the trial Hamburg was aware of the testimony one of Jones' key witnesses would give. Although generally comment on the failure to call available rebuttal witnesses is proper, under these circumstances, in light of Jones' misrepresentation in the answers to interrogatories and its incorrect intimation, as noted above, we are convinced that the judgment cannot stand.

The Supreme Court has said that discretion "[w]hen invoked as a guide to judicial action . . . means a sound discretion . . . exercised . . . with regard to what is right and equitable under the circumstances and the law, and directed by the reason and conscience of the judge to a just result." Langnes v. Green, 282 U.S. 531, 51 S. Ct. 243, 75 L. Ed. 520 (1931). We are not bound to stay our hand and place our stamp of approval on a result which we deem unjust. Commercial Credit Corp. v. Pepper, et al., 187 F.2d 71 (5th Cir. 1951).

Accordingly, we conclude that the combination of all the errors below, when considered in light of the exceedingly thin evidence in support of the verdict, dictates a conclusion that the trial court abused its discretion in denying the motion for a new trial. We cannot escape the "definite and firm conviction that the court below committed a clear error of judgment."

The judgment is reversed and the case remanded for a new trial. We deny Hamburg's request that we direct a verdict in its favor, since we are not convinced that "the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict." Brady v. Southern R. R., 320 U.S. 476, 479, 64 S. Ct. 232, 234, 88 L. Ed. 239 (1943).

Reversed.

Inasmuch as I do not have a definite and firm conviction that the trial judge committed a clear error of judgment in the conclusions which he reached, I would hold that he did not abuse his discretion and would affirm the judgment.