# Bank Line, Ltd. v. United States

> Court of Appeals for the Second Circuit · July 16, 1947 · 163 F.2d 133

URL: https://www.frixlaw.com/law-library/cases/9641143

## Case

- **Full name:** BANK LINE, Limited, v. UNITED STATES (Two Cases). THE SHIRRABANK. THE P. C. 472, Etc. THE WINSUM
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** July 16, 1947
- **Citations:** 163 F.2d 133; 1947 A.M.C. 1233; 1947 U.S. App. LEXIS 2235
- **Precedential status:** Published
- **Opinion:** Concurrence by Clark
- **Judges:** Hand, Clark
- **Cited by:** 45 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9641143

## Opinion text

CLARK, Circuit Judge
(concurring).
I concur, but desire to add two further suggestions. First, I think Ex parte Fahey, 67 S.Ct. 1558 , condemns the approach of Bereslavsky v. Caffey, 2 Cir., 161 F.2d 499 , and is not to be distinguished from it; at any rate I think it desirable to express my own disagreement with the views expressed in the latter case, both in the decision itself and in the dictum expressing nostalgia for the old separation of law and equity. Second, I think we should avoid any implication of a suggestion that the Navy has, as yet, shown fully adequate grounds for refusing discovery. Certainly for the conduct of war and for purposes of national defense the proper heads of our armed forces may make a decision of the need of concealment, which the courts must respect; but I think no general principle of refusing discovery on a general statement of prejudice to its best interests can or should be applied to any branch of the government, including the armed forces. 1 Here we are dealing with matters of a war now closed, i. e., with matters of history; could the Navy refuse information in its. files as to the development of the Monitor on a present claim of privilege? We are not at war now, and I do not believe it will aid and comfort some unknown potential enemy if the Navy now states why concealment of specific information is material to national defense. The English experience seems not wholly untroubled ; compare the earlier case of Robinson v. State of South Australia [1931] A.C. 704, and the discussions in 56 Harv.L.Rev. 806; 58 L.Q.Rev. 1, 31, 232, 243, 436, 462 ; 59 Id. 7, 102; 20 Can.B.Rev. 805; 21 Id. 51; 8 Camb.L.J. 328; 58 Scot.L.Rev. 102; 60 Id. 1, with extensive reliance upon the classic limitations on executive power stated by Wigmore, 8 Evidence, 3d Ed. 1940, §§ 2378a, 2379. Now that the war is over, these scholarly discussions and frequent criticism of some of the grounds taken in the Duncan case, supra [1942] A.C. 624 (though not of the decision, which clearly involved war secrets), may lead to a reexamination of the important issue.
Compare learned discussions from somewhat differing points of view in Pike and Fischer, Discovery Against Federal Administrative Agencies, 56 Harv.L.Rev. 1125, 1129-1132, and O’Reilly, Discovery Against the United States: A New Aspect of Sovereign Immunity? 21 N.C.L.Rev. 1.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9641143. Public record. Not legal advice.