Before L. HAND, AUGUSTUS N. HAND, and CLARK, Circuit Judges.
AUGUSTUS N. HAND, Circuit Judge.
The libellant, Bank Line, owner of the British Steamship Shirrabank, filed two libels, one against the United States as owner of naval escort vessel P.C. 472, P.C. 473, P.C. 475 and P.C. 481, and the other against the United States, as owner of the Lookout Mountain and the naval escort vessels, and also against the Dutch Government and the master of the Dutch Steamer Winsum. The libels were to recover damages to the Shirrabank arising out of a collision with the Steamer Lookout Mountain.
On February 9, 1944 the libellant's Steamship Shirrabank was proceeding in the channel leading into Casablanca, French Morocco, in an inbound convoy. The Lookout Mountain, a vessel owned and operated by the War Shipping Administration, was proceeding in the channel in a convoy outbound from Casablanca. Both convoys were escorted by United States and Allied War Craft. The channel was through adjacent minefields, was swept and marked by buoys, and was used by war vessels and by vessels carrying war materials to reach Casablanca. Within a short period of time there occurred in the channel in a fog some four collisions involving eight vessels - inbound vessels colliding with outbound vessels - of which series of collisions that between the Shirrabank and the Lookout Mountain was one.
One of the principal questions in the two suits is on which side of the channel the collision occurred. It seems to have been impossible, on account of the heavy fog, for the vessels to descry some of the buoys or to see one another. Whether the respective vessels followed their naval guides, what were the courses of those naval guides, and what buoys they passed, are other questions to be resolved. The Shirrabank is said to have been following the Dutch Steamer Winsum, which in turn was presumably following a naval escort vessel. The libellant argues that in such a situation the truth about the collision will have to be ascertained by combining the observations of the different vessels in order to determine the courses with reference to the various buoys and to fix the place of collision. To achieve this, the libellant seeks to ascertain facts developed at an investigation had two or three days after the accident by a Naval Board consisting of three officers appointed by the Commander of the Moroccan Sea Frontier Forces. This Board of Investigation was convened pursuant to Navy Regulations providing as follows: "In the event of a collision between a vessel of the Navy and a merchant vessel, a Court of Inquiry or a Board of Investigation shall be ordered to determine the responsibility for the accident, the extent of the injuries received, the probable amount of damages and all attendant circumstances."
The libellant moved in the District Court for an order directing the United States (1) to answer various interrogatories of the libellant; (2) to produce for inspection and copying a certain chart showing the entrance into Casablanca Harbor, the location of the channel leading into the Harbor and the positions of the buoys in the channel; (3) to produce for inspection and copying a transcript of the hearing before the Naval Board relating to the collision.
The Navy objected to the granting of the motion on the ground that the investigation was held solely for naval purposes and because of a possible need for disciplinary action respecting the conduct of commanding officers of certain of the escort vessels attending upon the colliding vessels. Presence of civilian witnesses before the Board was purely voluntary, and a copy of the testimony of the master of the Shirrabank was furnished to the libellant. No witnesses from the Lookout Mountain testified, as that vessel had left the port of Casablanca prior to the hearing. The court made an order granting the motion as to the above items (1), (2) and (3), except such portions of the record before the Board as dealt solely with disciplinary action. Thereafter the United States moved for a reconsideration of the matter and a vacation of the order. It submitted in support of the application a written statement by the Judge Advocate of the Navy asserting that the record of the Board of Investigation was privileged and saying that after the Board had made a finding of fact the following action was taken by the Navy Department:
"Action will be taken in separate correspondence to prevent convoys passing in the approach channel, during thick weather, and to insure that incoming escort commanders maintain better control of their convoys."
The statement of the Judge Advocate of the Navy made further representations which are quoted in part in the margin.*fn1
The libellant made an affidavit that it had vainly endeavored to obtain statements from the other vessels involved in the collision and that it is necessary in order to ascertain the facts to learn the identity of the witnesses, and that the record of the investigation at Casablanca is the only means by which it can secure the required evidence and properly prepare its case for trial. The District Court denied the motion for vacation of its former order.
After the foregoing decisions of the District Court the government filed a petition in this court for a writ of prohibition and/or mandamus prohibiting the judges of the District Court from taking steps to enforce the production of the record of the proceedings of the Board of Naval Inquiry and requiring them to vacate so much of the orders as directed the production of the record of the Board. This motion for the alternative writ is supplemented by a communication from the Acting Secretary of the Navy to the Attorney General in which the following appears:
"After full consideration of the opinion of the District Court and its effect upon Navy Department procedure, the Navy Department reiterates the considerations set forth in the Judge Advocate General's communication of 9 May 1946. The Navy Department is of the view that an inability to conduct an investigatory proceeding into its own administration, without the record becoming available to litigants, if the matter should become involved in litigation, will greatly hamper the effective functioning of the Navy Department and is prejudicial to its best interests. For that reason, the Navy Department considers the compulsory production of records of its investigations prejudicial to the Navy Department and, therefore, not in the public interest.
"Accordingly, the Navy Department urges the Department of Justice to take such further steps as may be practical in order to obtain a review of the District Court's opinion in this matter."
It is conceded that the orders of the District Court directing the production of the record are not final and therefore not appealable. Such was the effect of the decision of the Supreme Court in Cobbledick v. United States, 309 U.S. 323, 60 S. Ct. 540, 84 L. Ed. 783, where an order denying a motion to quash a subpoena duces tecum requiring one to appear with papers and testify before the grand jury was held not final and consequently not appealable. We can see no difference in respect to finality between an order directing a party to produce a record for examination and a subpoena duces tecum. The present petition for an alternative writ of prohibition and mandamus as a mere short cut for an appeal clearly does not lie as the Supreme Court held no later than June 23, 1947 in Ex parte Fahey, 67 S. Ct. 1558. This is not a case where intervention is sought to protect the immunity of a foreign power or of one of the states as in Ex parte Republic of Peru, 318 U.S. 578, 587, 63 S. Ct. 793, 87 L. Ed. 1014, and Ex parte State of New York, 256 U.S. 490, 41 S. Ct. 588, 65 L. Ed. 1057. Nor is it necessary to save the delay and expense of a separate trial as in Ex parte Simons, 247 U.S. 231, 38 S. Ct. 497, 62 L. Ed. 1094; Ex parte Peterson, 253 U.S. 300, 40 S. Ct. 543, 64 L. Ed. 919 and Bereslavsky v. Caffey, District Judge, 2 Cir., 161 F.2d 499, filed ...