*1 232; L.Ed. 26, 59 U.S. S.Ct. Watson, Cir., F. Society of Shakers v. p.2
512; Procedure vol. Moore on Fed. 299; p. Annotation 19 Am.Jur.
L.R.A.,N.S., cases cited. 1031 and petition will
For reasons stated the
be denied.
BERNSTEIN v. VAN FRERES HEYGHEN SOCIETE ANONYME.
No. Docket 20521. dissenting:. CLARK, Judge, Circuit Appeals, Circuit Second Court Circuit. July 13, 1947. Oct.
Writ of Certiorari Denied
See
Couts, City (Victor all New York Finkel, Sidney Liebo- I. Bernard A. witz, City, counsel), York all of New appellant. Simpson Stephen Duggan, Jr., P. City Bartlett, New York all of Thacher & Frederick Persinger and B. (Richard B. City, Sussman, of coun- of New both appellee. sel), for Congress The American filed Jewish appellant as amicus. brief SWAN, CLARK, HAND, L. Before Judges. Circuit HAND, Judge. Circuit L. appeals order, attachment, a writ and dis- quashing *2 orig- complaint, proceeds action cover the an insurance missing in against 1943, for brought July the defendant in inally collected state had defendant, part early Belgian corporation. sinking The the “in the the vessel by another 1942.” warrant attached a debt owed corporation defendant, Belgian to the plaintiff, motion opposition The to in publication completed by was on served attachment, vacate filed affidavit to an 23, July The defendant removed “on alleged January which he that in August on case to the district court Gestapo, I the Nazi by 1937 was arrested appeared and specially vacate part the latter day and from until that complaint. and attachment to dismiss custody July continually 1939 I in was complaint alleged plaintiff The that imprisoned He al- by of and the Nazis.” owner of all shares of stock of was leged charges made that various were corporation, commonly known German time against during him this for violation Line,” the “Arnold Bernstein which in turn exchange laws, foreign “certain German ship the owner of a the “Gan- was called I led from was told and and time time January plaintiff “In was día.” officials, my by at- by to believe Nazi then forcibly custody by taken into Nazis offi- torneys by un- and others that Hamburg imprisoned jail and cials my shipping I surrendered interests less Hamburg, Germany.” During the time of designated Nazis, I by a ‘trustee’ imprisonment his he had reasonable cause indefinitely, kept my imprisoned remain- and believe the “said did believe ing property my would be confiscated and had designs Nazi officials on life well family my life and the lives immediate liberty and interests.” At some business imperilled.” alleged Further he by time not stated “Nazi officials” these Jew, that he was a and were Nazis means and duress unlawful threats of openly carrying on “a deliberate and harm, bodily imprisonment indefinite and program eliminating avowed so-called death, ruin, compelled as well as of business non-Aryans from German and eco- social plaintiff documents, which to execute my I I and fam- nomic life. believed that purported to transfer the shares ily danger I were real unless acceded one, Bernstein Line” to “Arnold Marius demands, I signed Nazi documents and Boeger. Boeger possession took of all the purporting assign my transfer and own- Line, ship, including
assets which ership and Arnold control of the Bern- equipment, with its was “transferred to and designee, Line one Marius stein to Nazi defendant, possession by taken into un- * * * Boeger, prison.” while still lawfully adequate and con- without fair and signed after Even he had these documents sideration.” Before the defendant came alleged he had been un- he released possession vessel, into and control of the paid July, til when his friends a “ran- plaintiff learned that it had awas Jew Germany. and was som” he allowed leave imprisoned, he and had been for and by alleging affidavit The concluded that he years and one-half had over two been ship later which was learned that mercy of “said Nazi gener- officials” whose Line, acquired by had been asset non-Ary- policies elimating al so-called Nazi the defendant “from the ‘trustee’ life, confiscating ans from German 1939”; passed June, that she had on time of general their were matters charter to the British Minister of War knowledge. knew, The also defendant war; Transport during the had been sunk in have known should 100,000 that insurance amounting to bodily compelled by harm, in- threats of pounds paid loss; had been for the imprisonment death, as well definite this had been collected another ruin, the transfer to execute to Belgian corporation, business which held This Boeger. count. was first It account. defendant’s was debt levied, damages count second demanded which the the at- vessel; third was judge quashed detention tachment. The the attach- complaint derived profits defendant ment dismissed the ground the fourth was for a operation; wrong re- the claim her challenge under under done “the Government a number New German Nevertheless, regime,” as the confis- decisions. shall the Nazi dis- pose territory, appeal upon it was theory cation within German produced subject persuasive should our courts.” The more “not review *3 all, important appeal upon question more on this is After is evidence. difficult it validity issue, support whether of whose party the determination the almost in- the evidently opponent, of 1937 acts the German Government in must draw his of jurisdiction the do more than is within the of of much state court circumstances based; York; from which an preliminarily, of New State inference papers question papers whether the that shall raise with and we it the are take that present enough so, stage respect. sufficient at the definiteness If there is no litigation dispute any except of the a decision about to make nec- the facts as to essary. up phrase, officials,” the meaning We will these in reverse “Nazi take which recurs a number order. of times the com- plaint plaintiff’s and the supporting affidavit. The York New Civil Practice phrase in Does that context which the requires plaintiff, Act1 if he would at plaintiff “clearly used it indicate” that the defendant, property tach “show imposed duress under he which acted was * * * that a cause action exists persons by pur- acting, who were who defendant”; the New ported acting, of the as officials Third validity law which determines added, think, Reich? Little can be we attachments district court.2 When the cogency language itself. The upon plaintiff’s claim facts which plaintiff explain does not he else depends dispute, of New are courts phrase; by could have meant who else requiring York have been liberal in not agent government but an accredited plaintiff present an unassailable “imprisoned” jail “in him case; have also examined his Hamburg”; pro- cr else would have who right jealousy upon in law less than by designee” ceeded of a “Nazi who means complaint motion to dismiss the for insuffi sold to later the defendant. But that is not ciency principle The law.3 controlling all. In his affidavit he swore that he “was variations, been stated with has some Gestapo the Nazi and from arrested among which the most extreme is that the * * * day continuously was papers bad,”4 “hopelessly must if the Nazis”; imprisoned custody of and However, attachment is to fail. the au that his offence pretended the “viola- was expression, think, thoritative we is that foreign tion of exchange certain German stand, papers attachment will if the laws”; “trustee,” Boeger and that * * * upon “was based clear designated Nazis. Thus when called ly plaintiffs indicate ultimately clarify meaning com- 5 This, being fail.” besides the last word plaint question left court, highest times several victim; allege meant to that he had been a affirmed accept in die lower courts.6 We persecution governmental Jews, our guide. it as up so far build went the universal- plaintiff’s allegations The the de- regime. execration of the notice fendant’s the duress which com- pelled sign transfer, him to argues, ex- are brief of the amicus ceedingly fragile, so, and would even acts survive “Nazis offi-
64,
App.Div.
Co.,
Co. v.
3
2
1 § 903.
[4]
Federal
Goldmark
Guarantee
28
Jones
Moore,
U.S.C.A.
App.Div. 331,
264,
Rules of Civil
v.
v.
Savings
that it that the of the for- within presupposes state cupied application territory um where such acted relieve its courts has ** * juris- injustice inequality would cause the exercise of their restraint person diction; (b) by against any government discriminating and that own nationality, religious race, remaining This reason of already so acted. ”* * * case; prospec- beliefs and the critical issue This operation, tive more examine those becomes even have to actions 5 of “Article III” which been. manifest § provided offi- of German “decisions” 5, 1945, On the four victorious June every “applying cials kind National “Declaration,” powers by which issued a objectives Socialist or doctrines shall supreme authority “assume did referred, .authority to or followed respect pow Germany, including interpretation application possessed Government, by the German ers However, Military German law.” any state, municipal High Command cogni- early in our Government “zone” took authority.”11 government or local On plaintiff’s, *5 zance as and of causes the such “supreme authority,” the August 14, 1945, by an July amendment 2 of § constituted, four com vested in the was 52, provided of Article I of No. Law in own zone manders-in-chief “each subject “Property has been of which occupation, in matters jointly of and also * * * hereby transfer under duress is whole, a in their affecting subject equally be to seizure of declared of Coun capacity members the Control * * * Military possession by or title cil”; enacted that “all Nazis and was “property” Government.” The intended provided the Hitler laws of which basis Germans; by held was to that not confined regime or discrimination established contrary, have on the would included race, grounds creed, political of or plaintiff’s ship in defendant’s hands No shall be abolished. such discrimina existence, in had been and then ti®hs, or legal, administrative oth whether “zone,” (f) of included subdivision § erwise, (It will be shall tolerated.”12 property of “Absentee owners of non- speaks futuro, in only noted this not Nationality, German United Na- including presupposes but existence continued ” * * * apparent tions that this It is abolition.) Pow laws until of such their law, alone, standing provide a did not means pass already er to such a been law bar; such at settling of as that controversies' given 13(b) “Declaration” by Article of the preliminary which only it was a law assigned “zone” to the of 5th. The June justiciable should them in make some territory include United States did sys- designated up. to be later set Boeger in had been which the transfer apparently not tem so foreshadowed has “zone,” that was the British and made: devised; yet completely no Restitution which we have not access the laws although approval, final Law has received commander-in-chief of the British progress to that end. Nev- has been made promulgated under the may “zone” have 52 makes it clear that it ertheless Law No. separate authority by vested him lan contemplated was trans- quoted. have No order law guage we is “Nazi by ferred under duress officials” to passed “Control Council” by has been sequestrated by the local authorities. “jointly” which so far we can find as No. 52 does It be answered that Law legal incidence of to affect the trans sumes bar, only because the not affect case occurring Germany. actions plain- “property” is now in existence proceed against the defendant which to consider our claim is We first own tiff’s corporation; any Belgian legislation claim States the United “zone.” sequestrated 1 provided against No. “Article II” it cannot therefore be Law p. pp. Defeat” Publica “The Axis Defeat” “The Axis in Department Department of State. State. tion Publication Gov- Military notice of any the action the duress the “Nazi ernments, “prop- procured spite shares, officials” of the fact that transfer erty” 9(c) charge would in- is in Law No. the defendant whh defined its § 52— —so “claims, validity. Nevertheless, things as to include did among other defendant obligations upon indebted- act in evidence of reliance act other an German that, perfect government, officials, It to this ness.” answer whether plaintiff speaks although the owner not it existing was German authorized ship, plaintiff succeeds, law. speaking he never If strictly that re- her; only owner the liance failed, owned will have the defendant— Line”; Belgian corporation shares “Bernstein claim —will against was a German corporation, quite over the Reich for its It loss. power sequestration the British (by immaterial prove whether claim will (cid:127)Military end; any rate) Government at might valid even assume— unquestionable. However, even though we need quite would be to do unwarranted rely rele- because so—that complicity of the defendant wrong vant consideration is how far our Execu- answer claim to its tive positive has indicated intent to re- the Reich: g., e. that some doctrine lax the doctrine that our courts shall not would obtain akin to that of muni- our own bar; cipal entertain actions indemnity kind at some law that there can be no positive being joint evidence such an intent wrongdoers. between no It makes necessary. Certainly, it indication difference how the defendant’s claim came intent, out, claim, although present such the Executive it would obvious- provided adjudication locally ly deny it would be absurd to that it would where for most controversies do so. adjudi- claim That *6 part they arise, accompanied it has will not cated an item of the general claim for by reparations the this redundant declaration in that Germany; it could ordinary other cases the doctrine still ob- not be left to the any decision of other tains. tribunals than to those which the ascer- reparations tainment of will be left. More- necessity maintaining for doc- that over, since the defendant’s claim-—more in appears upon trine all cases reflection. probably, Belgian that government of the any So property wrongfully far as seized upon its behalf—would be measured the remains in the control of the German Gov- plaintiff’s recovery in the at bar, case the ernment, destroyed, has been used or liquidation plaintiff’s of the al- claim must claims for will into go it for account so be treated as an item in the account reparations; or be otherwise with dealt against Germany. Otherwise, that account peace treaty. What those will claims pro left any will tanto be to hazard be, they will how be res- collected what any court in juris- state which can obtain given titution will be the victims are all any diction over transferee. It to seems obviously cog- matters of international us consequence that that is at a so variance left wholly nizance and be within the with the control which must be exercised may control of own Executive. at our It jointly powers in making victorious appear first that is blush not true of this peace, explicit that only the most evidence obtained, property wrongfully trans- willingness themselves, aof far so to divest persons, plaintiff’s third ferred to like the support can action at As bar. we have not figure shares. Such in will show, yet to far appeared, tried has as reparations, get so far as victims res- only evidence directly opposite. is transferees, plain- titution from as the seeking tiff to here. might do That All we legis- that said have about own answer, sufficient lation, matter were end irrelevant, is in a sense because any recovery action; plaintiff in but it transferred the shares the Bri- not; ques- “zone,” would at least would appear it become a tish does not it tion for international determination. We Military laws the Government that that, assuming plaintiff are promulgated. as between the “zone” have Theoreti- defendant, putative cally, possible imagine defendant’s that gov- that ernment, territory to was in court despoiled, its own New York successor in fact Reich, validity allow contro- not feel has consented to bound concede transfer, though the law versies bar to be determined of even under at kind said, acquired. True, Re- jurisdiction wherever was valid. as we can is, several possibility mote as that are that is an extension usual doctrine there of the First, it. the “Control Council” will not enforce answers to court the forum designed action, and, although repel- joint liability arising sufficiently for under powers respects nevertheless, foreign law; all are as- not in acted lant have we unison, aware, suming British proper so far as we are is a extension. Thus, ac- necessary ourselves a New have been substantial it would not be Second, just said, nothing have cord. as we York court'to to the “Chart- have recourse explicit expression sat- Nuremberg the most “Judgment” but er” isfy practice ignore us so destructive of the Trial transfer and to treat peace, underlying treaty plaintiff ship. owner necessities as the Both contemplated. “Judgment” are in- “Charter” and the necessary support con- deed a criminal Third, ready agree we are no means “Tribunal,” viction was set before the that, appeared even if it the British up hoc; by hypothesis they ad noth- but add Military gone Government so far ing plaintiff’s position force necessary, would in our it would bar, the case for the transfer was invalid relieve a New need from the anyway. equivalent assent of our own Executive. join in It would not On follow that the other we should hand neither the “Charter” supposititious consent, “Judgment” nor British aids the willing path; were avail overcoming courts the real obstacle transactions, is, themselves any as to the absence substantive which, “zone” occurred our own law—the making law of New York— pass. invalid, we should them to allowed transfer but court of Finally, suggests state, permitted apply nowhere other passed law, Military British Government has since claim for ad- is reserved any legislation judication along its “zone” different other such claims *7 our own. part as of the final settlement Ger- with many. The fact that we acted as one of plaintiff’s argu- There only remains prosecutors of the rulers of Reich “Judg- ment drawn from “Charter” so doing asserted existence of a Trial, ment” is Nuremberg which liability criminal not to of any be found upon recognized fact that as based both laws, nothing its has whatever to do with acts, against crimes “inhumane committed propriety of the district enter- court’s any population, during, civilian before or taining said, In the action. we war, persecutions political, or on ra- not positive- we do wish to be understood as religious grounds cial or in execution of or ly holding the New doc- that under York in connection with crime within' the laws, a trines conflict New jurisdiction Tribunal, whether or not assumed; court would decide as we have in violation of the domestic law enough is it that even so not be it would country perpetrated” 6(c). where —Article justified proceeding. argument that, runs since we were a Finally, reason to party prosecution, recognized to we no disturb see part com- of the order which dismissed a liability criminal for a wrong exist stands, plaint. As it district as had suffered; such has and it and, power proceed; may no while it not unreasonable to hold civil that a proper, say juris, stricti it had may wrong not exist as did This we well. question is a jurisdiction, mere arguendo; accept point. but misses the enough words. It is court was already our In discussion we assumed powerless move despoiled by had been if person Germany Order private way a in the affirmed. he do (dissenting). request a CLARK, Judge address to our State De- Circuit partment for policy definition executive a criti that the agree Judge I HAND premises. found we have True, dis last one he case is the cal issue previous Depart- occasions, the State one, cusses, it, I which only take may wary forthright- ment officials plaintiff. definitively determines point ness determining affecting to the or it, gov it is our As he formulates whether so, already litigation. neg- pending Even a “already” acted to relieve ernment ative or might convey neutral answer upon of the traditional restraint courts important certain information. amount question jurisdiction to the exercise of their Such an answer would at least an ab- show foreign acts of within state nation done policy sence which brethren my Perhaps it latter’s own boundaries. (quite curiously, me) assume seems appropriate the issue thus load I policy, officials. That our as under- presumption or burden which must be it, stand until is “the most there oppression overcome of Nazi before acts explicit willingness evidence” questioned in can be courts. our Even powers pos- allied to divest themselves of so, wholly I think also be clear it should reparations sible claim for from the defeat- I that all ac authorities cited—which wrongs ed for such as this will we have cept points fully on the decide—are jurisdiction of this action. I do see foreign based condition that the how the attitude our allies af- judicial nation whose deserve our acts thus jurisdiction directly; fect our and in so respect one to our Executive far as it is one of the elements to be recognition accorded as the de facto de considered our Executive in reach- jure government Compare at the time. ing policy, a decision it concerns that Oetjen Co., v. Central Leather 246 U.S. official, high sup- not us. But if S.Ct. L.Ed. Banco de position is to be on making relied Espana Bank, Cir., v. Federal Reserve increasing presumption against this ac- recognition gave F.2d Such tion, my then I suggest own doubt hallmark legality far courts of its rational basis. War seems teach precedents were But concerned. those do however, permanently; little I thought, with, visualize, appear deal even experience that the of World War I in the the situation where Executive acts later illusory reparations character from a repudiate recognition it has destroyed enemy defeated all belief granted and to declare the that na acts of efficacy possibility. my part their For wrongful void, wiped tion as out I suggestion have seen no that we were to by a tremendous war effort and acts of such exact tribute from defeated and restitution and retribution at war’s end. prostrate Germany economy even *8 our Many happened things days have since the were fitted stand the shock to of collec- Germany when Nazi recognized Indeed tion. the defendant sug- does not government territory many of German —so much; gest speaks only pos- as of the important precedent so and we have no sibility of restitution courts of to 'be set short, govern to this case. In a new one up Germany itself. must formulated. be yet ripe Department I do not Further, Now think case State could prece- the definitive properly formulation of such a asked to furnish a clear and dent; trial, ordered, clarify precise recital of the various directives cut, and given representatives, make the our military facts issues clear as to and not present civil, regard are on record. The with to in- pass upon Nazi issue we need at this time validation laws as to Jewish oppression enough property is whether been shown—or is the restitution of has and judicial justify allowing despoiled. within our ken—to made those We have trial, dismissing True, us rather that before nothing than like now. parties finally his case limited affidavits of the on motion. rather preliminary had; supplemented fairly I I are full a trial think so believe should and briefs process things judicial judge one first aided no- trial should tice, may perhaps But seems most material discussed even interpreted But to relevant material before me to according to us. sure; legalistic fact our inter- narrow inade- we cannot be and of its formula likely quacy presump- be as pretation to of the data to overthrow the asserted rate, faulty jurisdiction, At tion on divergent. rather than as Court, or without broad pointing the District either with lines as nature and to officials, purpose policy. should general aid of executive executive inquiry complete Thus, particular leg- be directed to whether the decree or make may operate an entail. islation order for trial would or territory imprisoned where Bernstein was draws stands, opinion herewith itAs in 1938 1939 whether it is effective or executive certain conclusions wholly Nazi lim- laws or is invalidate chal- policy subject which I are believe prospective operation seems »not ited lenge (a) because it omits reference to relevancy; decisive in either case on accepted various bits of relevant material of this policy executive determinative parties by the 'being at least in existence process case would seem at least (b) doubtful, erroneous, and gives a if not Moreover, steps taken formulation. interpretation of bearing effect me tenta- or to be taken do seem to Among the material discussed. the former halting suggests. tive and as the the original April, directive issued in supports the Some material of the omitted 1945, Commander in Chief of the already are the Nazi contention laws occupation United States forces in Ger- nuga- officially invalidated considered many, objective which stated as an allied tory; last newspaper accounts of program enforcement restitu- that a law for March were to effect despoiled tion races and as means already had then tribunals of restitution objective toward impounded ordered just what A been drafted. trial would show through or blocked taken duress place; deal actu- taken with confiscation, Commander strongly time, not rest alities at the prompt take “measures for restitution” of which, presumption heavy on burden property. such blocked J.C.S.Directive deference, appears to be say I 2423, Dept. State Publication No. theorizing as to based mere pp. deserving of should 40-59. Also notice defeated en- possible toward our attitude Military decree Gov- important emy. Nor does seem ernment, 1, Abrogation “Law of Nazi No. where Bern- may occupy zone British Law,” specified objec- effect depriving of yet was, may not have formu- stein January Nazi laws tionable enacted since plans of restitution—no more lated their containing a “General Sus- hope repara- fact, important, than applying laws caus- pending Clause” to all allies. some of our tions still attributed to injustice inequality by ing reason partake or less This all more seems of race re- discrimination account attitudes of other nations guesses ; and more ligion the somewhat similar policy which, pertinent for our however 1” of Allied Con- “Law No. extensive particular makers, to our are irrelevant Berlin, September 20, trol Council fact, however, problem. As a matter Laws”; *9 entitled, of Nazi and “Repealing in fighting with were one us our allies peace, signed or treaties the various greatest history which had war country enemy proposed, between this repudiation objectives of acts one countries, requiring restitution satellite alleged. passing But such as here reasons, for racial ir- property confiscated many, us in they joined with if subsequent respective transfers. most, steps aimed at the restoration relevant for light All such material is economy; an earlier German policy of American executive offers as to joined pros- with particular us irrespective premises, of the direct Nuremberg. chiefs application Nazi of such decrees ecution of the or immediate enemies, suspect they, as our as well particular I to this defendant. or treaties seem mystified by vagaries restitution policy looking to of a time at the same Jews oppression accepts that it the acts of Nazi courts. American binding Jews attempt a
Though myself I would not finality time, yet final decision at this say my compels brothers’ words me policy is one Executive
nonrecognition oppression of Nazi and of
restitution I are think we Jews bound observe it And courts.
all the I have far indications tend seen support policy finding such original petition For for en- on Indeed, United States. without a forcement Labor National of order contrary, clear showing I should to the Board, Relations 161 F.2d see 8. think the classic excoriation of the Nazi for very acts, others, leaders among these Arkel, Counsel, Gerhard Van General P. prosecutor made at Nur- American Somers, Coun- A. Norman Asst. Gen. emberg, accepted must be by us the au- sel, C., Washington, both Paul D. thentic of our voice Executive. Atlanta, Kuelthau, Regional Atty., E.
Ga., petitioner. Candler, Decatur,
Murphey Ga., Jr., of Nix, Athens, respond- Ga., and Abit ent. HUTCHESON, McCORD,
Before WALLER, Judges. Circuit PER CURIAM. NATIONAL LABOR RELATIONS BOARD v. MFG. ATHENS CO. The motion is denied. In Waterman No. 11852. Corporation N.L.R.B., S. Cir., S. v. 760, 762, F. 2d we said: “But since the Appeals, Circuit Court Fifth Circuit. performance Board is entitled to demand June by any and is not bound settlement employee, request we think it ought on co-operate employer with the framing tender, proper and we should be slow punish contemptuous unassisted tenders respects which are not in all correct but good made in faith. The Board case, assist, though refusing at first did discuss Com finally details some, pany, agreement reaching developing pointed differences as oth ers.” enough, be time com
It will when have, pany after and board an earnest and agree meaning honest effort to as to the *10 proper order and as to methods of out, found themselves carrying unable agree the board is of the company contempt, for us to determine on the motion of the board for