author: ALDRICH, Senior Circuit Judge.

text:
    LOCAL UNION 1219, UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, etc., Plaintiff, Appellant in 73-1329, Plaintiff, Appellee in 73-1348. v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, Defendant, Appellee in 73-1329, Defendant, Appellant in 73-1348.
    Nos. 73-1329, 73-1348.
    United States Court of Appeals, First Circuit.
    Argued Jan. 4, 1974.
    Decided March 20, 1974.

      G. Curtis Webber, Auburn, Me., with whom Linnell, Choate & Webber, Auburn, Me., was on brief, for Local Union 1219, United Brotherhood of Carpenters and Joiners of America, etc.
    Errol K. Paine, Bangor, Me., with whom Paine, Lynch, Weatherbee & Ko-britz, Bangor, Me., and Robert J. Pleasure, Washington, D. C., were on brief, for United Brotherhood of Carpenters and Joiners of America.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

Defendant, United Brotherhood of Carpenters and Joiners of America, a large international union [hereinafter International] with five territorially distinct locals in Maine [hereinafter the carpenter locals], granted plaintiff local [hereinafter Local 1219] a charter on June 15, 1966. The charter gave Local 1219 jurisdiction to represent millwrights in Maine, a jurisdiction which had previously been exercised by the carpenter locals. The carpenter locals objected to the new local and the threat that it posed to their jurisdiction over millwrights. They subsequently refused to obey directions by International to cease bargaining for millwrights on new contracts with intrastate employers. International’s General President did not impose any sanctions on the carpenter locals for their disobedience, and he refused to provide interstate contractors working in Maine with necessary authorization that they could hire millwrights through Local 1219 rather than through the carpenter locals. Local 1219, as a consequence, has been unable to place its members in jobs and has lost much of its membership.

Local 1219 brought this action, after appealing the failure of the General President to accede to its demands to International’s General Executive Board without avail, seeking injunctive relief and damages for the alleged failure of International to support Local 1219 adequately in the jurisdictional dispute with the carpenter locals, and for failing to authorize employers to hire through it rather than through them. The district court, finding no contractual undertaking by International to provide such support, denied relief. Local 1219 appeals, and International cross appeals claiming the district court lacked jurisdiction.

Jurisdictional Issues

Defendant attacks the district court’s jurisdiction on essentially three grounds: improper service of process, failure of plaintiff to exhaust intra-un-ion remedies, and lack of subject matter jurisdiction under section 301(a) of the Labor Management Relations Act, 29 U. S.C. § 185(a).

With respect to improper service, defendant concedes personal jurisdiction in the doing business sense, but contends that since the only service was made on its agents outside the territorial jurisdiction of the court under Fed. R. Civ.P. 4(f), the Maine long arm statute. 14 Me.Rev.Stat.Ann. § 704, taken with McGreary v. Chandler, 58 Me. 537 (1870), would authorize such process only as a matter solely of state law if it were served on each individual member of the union personally. This argument is without merit. Section 301(b), 29 U. S. C. § 185(b), states that unions may be sued as entities, and subsection (d)" states that the service of process on an officer or agent of the union, in his capacity as such shall constitute service upon the union. F.R.Civ.P. 4(d)(7) provides that service on unincorporated associations, inter alia, may be made “in the manner prescribed by the law of the state in which the district court is held for the service of summons or other like process upon any such defendant in an action brought in the courts of general jurisdiction of that state.” Section 704 provides as follows. “Service of process upon any person who is subject to the jurisdiction of the courts of this State, as provided in this section, may be made by personally serving the summons upon the defendant outside this State .” Since under the federal statute International must be considered an entity for the purposes of this suit, it, and not its individual members, is the defendant in this case. The federal statute also provides that service on defendant’s agent shall constitute service on the defendant, and such service is not limited to “federal court” service but includes the process of “any court of the United States.” Since personal service was made on defendant’s agent, it would be against the clear meaning of the federal statute to hold that this personal service on the defendant’s agent did not constitute “personal service on the defendant” under the Maine long arm statute.

Defendant’s exhaustion argument was squarely answered by the district court in its finding of unreasonable delay if an appeal to International’s General Convention in 1974 were required, since plaintiff’s appeal to the General Executive Board was decided in 1970, too late for the 1970 convention. In the circumstances of this case, a finding that a delay in excess of three years would be unreasonable was clearly not erroneous, and further exhaustion need not have been required.

Defendant argues that the instant dispute, involving as it does an alleged contract between a parent international union and its local, is not a suit for violation of a contract between any labor organizations, within the subject matter of 29 U.S.C. § 185. Defendant concedes that the relationship between a parent union and its local is contractual in nature, but it argues that this is not the type of contract between two unions, see Copra v. Suro, 1 Cir., 1956, 236 F.2d 107, 113, to which the statute is intended to apply. Although Congress did indicate some reluctance to “effect extensive and detailed statutory regulation of internal union affairs,” Parks v. International Bhd. of Elec. Workers, 4 Cir., 1963, 314 F.2d 886, 915, 915-916 n. 49, cert. denied 372 U.S. 976, 83 S.Ct. 1111, 10 L.Ed.2d 142, it is clear that the local and International are each suable entities under the act. When two such entities’ relationship is a matter of contract, and that contract directly concerns the representation of workers in collective bargaining, there is no reason to assume that Congress did not-intend the statute to apply simply because the two parties to the contract are related. Furthermore, this suit is on a contract and is not intended to enforce internal customs and practices of the unions which have not been reduced to a contract; exercising jurisdiction here will not involve the courts in regulating internal union matters which Congress did not intend to control. In such circumstances there is no reason in this case to depart from the literal meaning of the statute. See National Ass’n of Letter Carriers v. Sombrotto, 2 Cir., 1971, 449 F.2d 915, 918; Parks v. International Bhd. of Elec. Workers, ante.

Defendant also alleges in a similar vein that Count II of the complaint is in reality a class action by individual members of the local, and as such is not a “suit between unions” over which section 301 jurisdiction lies. See Copra v. Suro, ante, 236 F.2d at 113. Section 301(b), 29 U.S.C. § 185(b), states that “[a]ny such labor organization may sue or be sued as an entity and in behalf of the employees whom it represents.” In view of the fact that Count II appears to be such a suit “in behalf of” Local 1219’s members, and is based completely on the same contractual claim alleged in Count I, there is no reason to so limit the court’s jurisdiction. Furthermore, that same subsection, while prohibiting recovery against individual members in such a representative action, is silent as to recovery by individual members. It would appear that recovery by individual members for their damages, obtained by Local 1219 in an action for their benefit based upon a contract between it and International, and International’s breach thereof, would be within the scope of the statute.

Substantive Issues

At the outset, plaintiff urges that this court need not apply the “clearly erroneous” test of F.R.Civ.P. 52(a) since the evidence in this case was largely documentary and “facts found from the oral testimony were not in dispute.” Even if we were to accept plaintiff’s proposition that the findings based upon oral evidence were not contested, in this circuit “[t]he clearly erroneous rule is applicable even where ... a finding is based on documentary evidence or undisputed facts.” Engine Specialties, Inc. v. Bombardier Ltd., 1 Cir., 1972, 454 F.2d 527, 530; Leach v. Crucible Center Co., 1 Cir., 1968, 388 F.2d 176, 179.

[The balance of this opinion, being but a discussion of the evidence, reaching the conclusion that the district court’s findings against the plaintiff as to the extent of the contractual obligation were not clearly erroneous, is disseminated to the parties, but not released for publication.]

Affirmed.


source: Caselaw Access Project

author: TIMBERS, Circuit Judge:

license: Public Domain

text:
    Du PONT de NEMOURS INTERNATIONAL S.A. and E. I. Du Pont de Nemours & Co., Inc., Plaintiffs-Appellants, v. S. S. MORMACVEGA, her engines, boilers, etc., and Moore-McCormack Lines, Inc., Defendants-Appellees.
    No. 11, Docket 73-1376.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 1, 1973.
    Decided Jan. 7, 1974.

      Alan S. Loesberg, New York City (Andrew R. Colmant, Thomas D. Toy, and Hill, Rivkins, McGowan & Carey, New York City, on the brief), for plaintiffs-appellants.
    John H. Reilly, Jr., New York City (W. Shelby Coates, Jr., and Hyde, Dickerson & Reilly, New York City, on the brief), for defendants-appellees.
    Before HAYS, FEINBERG and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge:

Once again we have before us for construction the $500 per package limitation of liability clause of Moore-Mc-Cormack’s ocean carrier bill of lading as authorized by COGSA. This time the ’issue presented — apparently one of first impression — is whether the stowage of a container on the deck of a modern containerized cargo vessel pursuant to a clean bill of lading, absent a contractual provision or a universal custom to the contrary, constitutes an “unreasonable deviation” from the contract of carriage so as to deprive the carrier of its limitation of liability provided for in the bill of lading. The district court held that it did not. We agree. We affirm.

I.

The action below, invoking the admiralty and maritime jurisdiction of the district court, was commenced July 30, 1968. It was brought by E. I. Du Pont de Nemours & Co., Inc. and Du Pont de Nemours International S.A. (Du Pont), the shipper and consignee, respectively. They sued Moore-McCormack Lines, Inc. (Mormac) and the S.S. Mormacvega. Mormac is the carrier that owned and operated the Mormacvega. Du Pont sought to recover $109,966.18 damages for the loss overboard at sea of an ocean shipping container of 38 pallets of a synthetic resin liquid known as “Teflon”. After a bench trial at which Mor-mac in effect admitted liability but relied on the limitation of liability provision in its bill of lading, a judgment was entered on November 28, 1972 in the Southern District of New York, Charles L. Brieant, Jr., District Judge, awarding Du Pont $19,000 plus interest from May 6, 1967. 367 F.Supp. 793. Du Pont now appeals from the judgment in its favor to the extent that it limited the shipper’s recovery against the carrier to $500 per package pursuant to the limitation of liability clause in the bill of lading as authorized by Section 4(5) of the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1304(5) (1970).

The facts as found by the district court may be briefly summarized. In April 1967, Du Pont booked cargo for two 40 foot ocean shipping containers on the Mormacvega bound from New York to Rotterdam. The containers were delivered on April 28 by Du Pont’s freight forwarding agent to Mormac’s stevedor-ing department at a pier in New York. Mormac issued a clean bill of lading. The vessel sailed from New York for Europe on April 30. Unknown to Du Pont, the containers were stowed on the Mormacvega’s deck in the area of her No. 5 hatch. At about midnight on May 5/6, 1967, one of the containers of 38 pallets of “Teflon” was lost overboard at sea.

The Mormacvega was built in 1964 as one of the “Constellation” class of vessels intended for the carriage of general cargo. Stowage was determined on what is commonly known as a “break-bulk” basis, i. e. various units of freight were received from the shipper and stowed by Mormac with such dunnage as the situation warranted.

In 1966 the Mormacvega was reconstructed, refitted and converted into a combination “break-bulk” and containerized cargo vessel. At that time containerized shipping, although still in an embryonic stage, was gaining acceptance in the North Atlantic trade. Substantial structural changes were made in the Mormacvega to permit on deck stowage of ocean shipping containers. These modifications included installation of a flume tank stabilization system to dampen the vessel’s roll, modification and strengthening of the hatches and installation on deck of support pedestals and related fittings which permitted stowage and lashing of containers three tiers high.

As a result, the Mormacvega in effect was converted into a new vessel fitted in all material respects as if she originally had been designed and constructed as a combination cargo ship. Following her reconstruction, the Mormacvega was surveyed by the American Bureau of Shipping. Its inspection report indicated that the conversion was accomplished in a workmanlike manner and that it was effective for the safe carriage of ocean shipping containers on deck.

The Mormacvega was equipped to carry approximately 135 “forty foot equivalent” containers, i. e. containers measuring 40 feet in length, 8 feet in height and 8 feet in width. The conversion contemplated that most of these would be stowed on deck. There was space in the hold, however, to accommodate the equivalent of approximately 35 containers.

To determine whether a particular container would be stowed on or below deck, a procedure dictated primarily by the practical necessities of the trade and to some extent by chance was used. If there was a large amount of break-bulk cargo, few if any containers would be stowed below. If the break-bulk cargo permitted container stowage in the hold, Mormac considered other factors in determining container placements. Whenever possible, depending on the port of call at which a given container was to be unloaded and the time of its delivery for onloading, heavier containers were stowed below to maintain optimum stability of the vessel. Containers with flammable or explosive materials generally were stowed on deck. Cargo which was likely to suffer from exposure to the elements was stowed below to the extent possible. Cargo which was delivered to the pier after the loading process had begun of necessity was stowed on deck.

In view of this procedure and the fact that cargo often was received at the pier before a complete stowage plan had been formulated or after initial placements made change impractical, it was impossible for Mormac to determine with any degree of certainty where a given container would be stowed. For this reason, it was Mormac’s practice, and that of other carriers, to issue clean bills of lading to shippers even when it was possible or likely that a given container would be stowed on deck. This was so even when a shipper had made a specific request for below deck stowage. It was therefore consistent with Mormac’s established procedure for it to have issued a clean bill of lading with respect to Du Pont’s consignment and to have stowed the containers on deck.

II.

The contract of carriage for Du Pont’s shipment was subject to the provisions of COGSA. Since Mormac at trial failed to explain the cargo loss and abandoned all defenses except its claimed limitation of liability, clearly it was liable for the loss. The issue here, as it was in the district court, is whether, under the circumstances, the carrier may avail itself of the $500 per package limitation of liability provided in the bill of lading and authorized by Section 4(5) of COGSA.

It is Du Pont’s position as the shipper that goods shipped pursuant to a clean bill of lading must be' stowed below deck, absent a clear agreement to the contrary or a universal custom of the trade from which the consent of the shipper may reasonably be imputed. On deck stowage, Du Pont contends, necessarily constitutes an intentional and unreasonable deviation from the contract of carriage and precludes the carrier from relying on the statutory limitation of liability. Mormac as the carrier, on the other hand, maintains that on deck carriage of the containerized cargo aboard a vessel specially designed for that purpose, while it may have been a deviation, was not “unreasonable” within the meaning of Section 4(4) of COGSA, 46 U.S.C. § 1304(4) (1970), and therefore did not make it an insurer of the cargo loss.

The concept of deviation was rooted in the law of marine insurance long before enactment of COGSA. A marine insurer was deemed to have assumed only those risks inherent in the contemplated voyage. As a result, whenever there was a voluntary and unexeused departure from the intended course, the contract of insurance was “ousted” and the underwriters were totally discharged with respect to any loss occurring thereafter. See Hearne v. Marine Insurance Co., 87 U.S. (20 Wall.) 488 (1874); Oliver v. Maryland Insurance Co., 11 U.S. (7 Cranch) 487 (1813). A related consequence was an “ouster” of the contract of carriage itself. The carrier thereby was precluded from relying on the contractual “exceptions to liability” provided for in the bill of lading. The carrier thus became an insurer against any loss of or damage to the cargo thereafter. See, e. g., S.S. Willdomino v. Citro Chemical Co., 272 U.S. 718 (1927); Niles-Bement-Pond Co. v. Kampkiesa Kieselskabet Balto, 282 Fed. 235 (2 Cir. 1922).

While the concept of deviation originally applied to unjustifiable changes of route, American courts long have held that any carrier “misconduct” which amounts to a material breach of the contract of carriage constitutes a “deviation”.. The consequences to the carrier were the same as in the case of a change of route. See, e. g., Propeller Niagara v. Cordes, 62 U.S. 7, 24 (1858). See generally Prosecution of the Voyage, 45 Tul.L.Rev. 807, 816 (1971); Gilmore & Black, The Law of Admiralty §§ 3-40, 3-42, at 156, 159-60 (1957). Thus, unless warranted by agreement or universal custom, on deck carriage pursuant to a clean bill of lading was held to constitute a deviation sufficiently serious to oust the contract of carriage and to render the carrier an insurer of the cargo.

The traditional rule of deviation was stated in St. Johns Corp. v. Companhia Geral, 263 U.S. 119, 124 (1923):

“. . . the clean bill of lading amounted to a positive representation . that the goods would go under deck.
By stowing the goods on deck the vessel . . . exposed them ■ to greater risk than had been agreed and thereby directly caused the loss. She accordingly became liable as for a deviation, cannot escape by reason of the relieving clauses inserted in the bill of lading for her benefit, and must account for the value at destination.”

See also Propeller Niagara v. Cordes, supra, 62 U.S. at 23; Encyclopaedia Brittanica v. S.S. Hong Kong Producer, 422 F.2d 7, 16-17 (2 Cir. 1969), cert. denied, 397 U.S. 964 (1970); Jones v. The Flying Clipper, 116 F.Supp. 386, 388 (S.D.N.Y.1953).

Whatever might have been the consequences of the deviation here under traditional maritime law, we are required to determine whether the deviation was reasonable within the meaning of Section 4(4) of COGSA, which provides in pertinent part that:

“. . . any reasonable deviation shall not be deemed to be an infringement or breach of this chapter or of the contract of carriage, and the carrier shall not be liable for any loss or damage resulting therefrom . . . 46 U.S.C. § 1304(4) (1970).

The Act provides no definition of “reasonable deviation”; nor is there any indication in the Act of the appropriate legal consequences of a deviation if found. We must assume that Congress, in enacting the “reasonable deviation” provision set forth above, was aware of the harsh doctrine which had rendered a deviating carrier an insurer of any subsequent causally related loss and chose to confine strict liability to situations where the deviation was unreasonable. See Atlantic Mutual Insurance Co. v. Poseidon Schiffahrt, 313 F.2d 872, 873-74 (7 Cir.), cert. denied, 375 U.S. 819 (1963).

The district court appropriately made a factual inquiry as to the reasonableness of the deviation in the instant case. The court found that “ [containers on the deck of the Mormacvega were not necessarily subject to greater risks than those stowed under deck”; that deck stowage was required by the realities and exigencies of Mormac’s cargo terminal and ship loading procedures; that the vessel was specially reconstructed to permit safe carriage of cargo on deck; and that the stowage lashing and chocking of the cargo was approved shortly before departure by a surveyor from the National Cargo Bureau. Based on these and other facts, the court concluded that the deviation was reasonable.

Whether we view this determination as one of fact to which the “unless clearly erroneous” standard of review applies, see, e. g., Surrendra (Overseas) Private Ltd. v. S.S. Hellenic Hero, 213 F. Supp. 97 (S.D.N.Y.), aff’d, 324 F.2d 955 (2 Cir. 1963), or as one of law, cf. In re Marine Sulphur Queen, 460 F.2d 89 (2 Cir.), cert. denied, 409 U.S. 982 (1972) ; Mamiye Bros. v. Barber Steamship Lines, Inc., 360 F.2d 774 (2 Cir.), cert. denied, 385 U.S. 835 (1966), we hold that the district court reached the correct conclusion.

Du Pont acknowledges that under some circumstances containers reasonably may be stowed on deck even pursuant to a clean bill of lading. It argues, however, that the court’s finding with respect to the safety of on deck stowage was inconsistent with its finding that the loss would not have occurred had the Du Pont container been stowed in the ship’s hold. We disagree. It does not follow logically that simply because on deck stowage was the cause of the loss, such stowage necessarily was more dangerous. Du Pont’s argument would appear to prove too much. While we are hesitant even to attempt to equate the different kinds of risks associated with on deck and below deck stowage, it is evident that had the container been a shipmate with the break-bulk cargo below, it would have been subject to the dangers inherent in such proximity. For example, 'had the Du Pont container been stowed below and had it been damaged by a shift in the break-bulk cargo or by contamination from it, Du Pont might well have argued with force that its container should have been stowed on deck where it was meant to be carried and where it would not have been damaged. In any event, the record is barren of any evidence that on deck stowage was any more dangerous than below deck stowage.

We hold that the district court’s findings are supported by substantial evidence and are not clearly erroneous.

We are not breaking new ground in recognizing that technological innovation and vessel design may justify stowage other than below deck. See, e. g., The Salvore, 60 F.2d 683, 685 (2 Cir.), cert. denied, 287 U.S. 653 (1932); Lagerloef Trading Co. v. United States, 43 F.2d 871, 872 (S.D.N.Y.1930); The William Crane, 50 Fed. 444 (D.Md.1889); The Neptune, 17 Fed.Cas. 1343, 1344 (No. 10,118) (C.C.S.D.N.Y.1868). Cf. Encyclopaedia Brittanica Inc. v. Hong Kong Producer, supra, 422 F.2d at 18 n. 12; Standard Electra S. A. v. Hamburg Sudamerikanischer, 375 F.2d 943, 945 (2 Cir.), cert. denied, 389 U.S. 831 (1967).

In all of these cases, the nature of the cargo or the construction of the ship was held to justify stowage other than below deck. They stand for the proposition that, while a clean bill of lading imports below deck stowage, nevertheless stowage elsewhere will be held to be an unreasonable deviation only when a ship’s hold is the ordinary and contemplated stowage area. Leading authorities are in accord with this view. For example, Colinvaux states:

“[Hjaving regard to the manner in which steamers are now commonly built, it cannot perhaps be said that cargo must always be below the main deck in order to be in the ordinary loading space of the ship.” Colinvaux, Carver’s Carriage of Goods By Sea 601 (12th ed.1971).

Here, the Mormacvega and her sister ships were reconstructed, modified and refitted to permit the safe carriage of goods on deck. Thus the dangers historically associated with on deck stowage —principally jettison, loss overboard and damage from ocean wash — which support the cases upon which Du Pont relies were substantially reduced. We decline to hold, as Du Pont suggests, that an unreasonable deviation occurs every time goods are 'carried on deck — even on a vessel specially designed for that purpose.

We hold under the circumstances of this case, and particularly in view of the special construction of the ship and the type of cargo involved, that on deck stowage of the Du Pont container was excusable, justifiable and therefore reasonable within the meaning of Section 4(4) of COGS A.

Affirmed.

      . The practice of carrying containers of miscellaneous freight on decks of merchant vessels began in the Puerto Rican trade in the mid-1950’s. At the time of the loss here, Du Pont had been using Mormac’s containerized service for approximately six months.

      . This structural modification work was done at the Maryland Shipbuilding and Drydoek Company at a cost in excess of $385,000.

      . This term refers to the fact that two 20 foot “half containers” could be coupled and stowed in the place of one full container. In addition, there were areas aboard the Mormacvega which could accommodate only half containers.

      . The district court declined to find that there was an oral contract between the parties requiring that Du Pont’s consignment be stowed below deck. We agree that the record would not support such a finding. We therefore do not reach the issue of whether such a contract, had it existed, would have constituted an unfair discrimination in violation of Section 14 of the Shipping Act of 1916, 46 U.S.C. § 812 (Fourth) (a) (1970).

      . On occasion, Mormac did issue bills of lading specifically claused for on deck stowage. No explanation for these infrequent departures from the carrier’s standard procedure appears in the record.

      . Carriage of Goods by Sea Act, 46 U.S.C. § 1300 et seq. (1970).
      COGSA provides that every bill of lading evidencing a contract for carriage of goods to or from ports of the United States in foreign trade shall be subject to the provisions of the Act. Id. at § 1300.

      . An ocean carrier in the position of Mormac here ordinarily must prove, among other things, that it has exercised due diligence with respect to the seaworthiness of the ship and that it was free from negligence in the care and stowage of cargo. Sections 4(1) and 4(2) (q) of COGSA, 46 U.S.C. §§ 1304(1) and (2) (q) (1970). These issues admittedly stand resolved against Mormac here.

      . Section 13 of the bill of lading provides in relevant part:
      “In case of any loss or damage to or in connection with goods exceeding in actual value $500, . . . per package, . . . the value of the goods shall be deemed to be $500 per package and the carrier’s liability in any capacity, if any, shall be determined on a value of $500 per package . . . unless the nature of the goods and a valuation higher than $500 shall have been declared in writing by the shipper upon delivery to the carrier and inserted in this bill of lading and extra freight paid if required . . . ■ . ”

      . In spite of the absolute terms of Section 4(5) of COGSA, 46 U.S.C. § 1304(5) (1970) — -i. e. that
      “Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package .... ”—
      it is the law of this Circuit that any intentional, unjustifiable or unreasonable deviation from the contract of carriage will deprive the carrier of this statutory limitation of liability. See, e. g., Encyclopaedia Britannica v. S.S. Hong Kong Producer, 422 F.2d 7, 18 (2 Cir. 1969), cert. denied, 397 U.S. 964 (1970) ; Jones v. The Flying Clipper, 116 F.Supp. 386, 389-91 (S.D.N.Y.1953).
      Here the ocean bill of lading described the Du Pont consignment as “1 container said to contain 38 pallets resin synthetic liquid.” As the district court observed, there is no real dispute as to the accuracy of the shipper’s declaration. We hold that the district court was correct in concluding that the 38 pallets constituted 38 packages for the purposes of § 4(5) of COGSA. See Royal Typewriter Co., Div. Litton Bus. Systems, Inc. v. M/V Kulmerland, 483 F.2d 645, 648-49 (2 Cir. 1973) ; Leather’s Best, Inc. v. S.S. Mormaclynx, 451 F.2d 800, 814-16 (2 Cir. 1971).

      . In the district court, the parties introduced substantial evidence as to whether there existed a custom of the trade in the port of New York which authorized on deck stowage of containers aboard container vessels. They continue to press this issue on appeal. In view of the ground of our decision, it is unnecessary for us to reach this issue. We agree with Judge Brieant, however, that the evidence failed to establish the existence of any such custom in 1967.

      . See also Gilmore & Black, The Law of Admiralty § 3-41, at 159 (1957) :
      “COGSA must clearly be taken to have abolished all legal effect of any deviation other than unreasonable.”


author: FAIRCHILD, Circuit Judge. PELL, Circuit Judge

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. NICKEY CHEVROLET SALES, INC., Respondent.
    No. 72-1314.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 13, 1973.
    Decided Feb. 27, 1974.

      Marcel Mallet-Prevost, Asst. General Counsel, Paul J. Spielberg, Atty., N.L. R.B., Washington, D. C., for petitioner.
    Ray E. Poplett, Chicago, 111., for respondent.

      Before FAIRCHILD and PELL, Circuit Judges, and CAMPBELL, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

   FAIRCHILD, Circuit Judge.

The present proceeding arises out of a judgment of this court, entered March 11, 1971, finding respondent Nickey in civil contempt for disobeying a decree of this court entered May 4, 1965. Our 1965 decree enforced an N.L.R.B. order, and ordered respondent to cease and desist from discouraging union membership by discriminating in hiring, tenure or other conditions of employment or interfering with its employees in the exercise of their right to self-organization.

Our 1971 judgment, entered after a proceeding initiated before us by the Board, found that respondent, by discharging its employee Sergott on October 4, 1969, wilfully violated the 1965 decree and became guilty of contempt of this court and its decree. We provided, among other things, that respondent shall purge itself of said contempt by reinstating Sergott “and making him whole for all pay and benefits lost due to the discrimination against him, together with 6% interest thereon. . ” The discharge of Sergott was never the subject of an unfair labor practice proceeding before the Board.

Respondent reinstated Sergott March 24, 1971. Whether respondent then offered or tendered any amount of back pay is not clear, but in any event agreement on the amount necessary to comply with our 1971 judgment was not reached. The Board might then have asked this court to find that respondent had not purged itself so as to escape the penalties we prescribed in the event of respondent’s default. Resolution of the dispute over the amount to be paid would then, either upon petition by the Board, or by respondent, perhaps accompanied by a tender, have been a function of this court, doubtless performed through a special master appointed by us.

The Board, however (and apparently at all times with the acquiescence of respondent), proceeded to make an administrative determination of the amount of back pay required. The regional director issued a back pay specification, respondent answered, a hearing was held before a trial examiner, General Counsel filed exceptions, the Board reversed the examiner in part, and issued an order, 195 NLRB No. 76, requiring respondent to pay Sergott $20,606.09, less tax withholding, and plus interest. The Board seeks enforcement of this order by a further decree of this court.

The procedural problem is that the foundation for a determination of the amount of back pay in Sergott’s case is not a Board remedial order in a statutory unfair labor practice proceeding requiring respondent to reinstate Sergott and pay him back pay, but is an order of this court requiring respondent to do so in order to remedy an event which was never the subject of an unfair labor practice proceeding before the Board. As well be seen, we think there was no statutory authority for the back pay order entered by the Board, nor for the Board’s petition to this court for enforcement of that order, and that any legal stature which the Board’s back pay order has must be predicated upon the 1971 decree of this court, together with respondent’s acquiescence in, and failure to object up to the time of oral argument before this court to the form of procedure followed.

After oral argument, the parties supplied supplemental memoranda. The Board argues that our 1971 judgment “tracks closely the language of a typical Board order of reinstatement and back pay, and appears to contemplate, if necessary, the usual back pay proceedings before the Board.” In other words, it appears to be the Board’s position that the similarity of the function of determining the amount of back pay in this case to the function regularly performed by the Board in other instances is to be given controlling significance.

It is true that the Board’s authorization under 29 U.S.C. § 160(c) to “take affirmative action including reinstatement of employees with or without back pay” has been construed to include the conduct of proceedings to determine the amount of back pay following court enforcement of a Board order directing payment of back pay in general terms. See Nathanson v. National Labor Relations Board, 344 U.S. 25, 29, 73 S.Ct. 80, 83, 97 L.Ed. 23, 30 (1952); National Labor Relations Board v. Bird Mach. Co., 174 F.2d 404, 405 (1st Cir., 1949); Wallace Corporation v. National Labor Relations Board, 159 F.2d 952, 954 (4th Cir., 1947); National Labor Rel. Board v. New York Merchandise Co., 134 F.2d 949 (2d Cir., 1943).

It is the ordinary practice of the Board not to consider the amount of back pay until its general remedial order has been enforced by the court on its merits, in order to avoid unnecessary efforts if enforcement be denied. See N.L.R.B. v. Deena Artware, 361 U.S. 398, 411, 80 S.Ct. 441, 447-449, 4 L.Ed.2d 400, 409-410 (separate opinion) (1960); Nathanson, supra-, New York Merchandise Co., supra. The Board has promulgated rules establishing the procedures for back pay proceedings subsequent to court enforcement of its orders. 29 C.F.R. § 101.16.

Courts have approved this procedure on the theory that the order of the Board requiring reinstatement and back pay clearly contemplates further administrative determination on its part; that the initial order is analgous to an interlocutory judgment fixing liability but not determining damages; and that the enforcement decree is analogous to an affirmance of such interlocutory judgment on appeal. After enforcement, the prior administrative proceedings resume and the exact amount of back pay due is determined. If the supplemental Board order embodying this specific amount of back pay comes before the court again either for enforcement under § 10(e) or for review under § 10(f); an even more restricted judicial inquiry may be in order than is called for by the “substantial evidence test.” In reviewing the Board’s choice of a formula for computing back pay the Supreme Court has stated that the Board’s order “ ‘should stand unless it can be shown that the order is a patent attempt to achieve ends other than those which can fairly be said to effectuate the policies of the Act.’ ” [citations omitted] National L.R.B. v. Seven-up Bottling Co., 344 U.S. 344, 346-347, 73 S.Ct. 287, 289, 97 L. Ed. 377, 381-382 (1953).

The procedural stance of the instant case is quite different. Here, the Board did not commence another unfair labor practice predicated upon the discharge of Sergott, but chose, instead, to seek a judicial determination of the unlawfulness of his discharge in a contempt action. In such an original proceeding before the court of appeals or its master, the Board must prove, much like a prosecutor in a criminal action, except by clear and convincing evidence, that the respondent has failed to comply with the decree of the court. See, e. g., N.L.R.B. v. Laney & Duke Storage Warehouse Co., 424 F.2d 109, 112 (5th Cir., 1970); Alamo Express, Inc., supra. In contrast, at an enforcement proceeding the Board defends its order as supported by the record made before the Board.

The Board relies on the procedure followed by this court in N.L.R.B. v. My Store, Inc., 468 F.2d 1146 (7th Cir., 1972), cert. denied 410 U.S. 910, 93 S.Ct. 965, 35 L.Ed.2d 271. There this court gave effect to the Board’s back pay determination as an appropriate administrative proceeding within the Board’s province. The Board had ordered reinstatement and back pay to a class of employees in an unfair labor practice proceeding; this court enforced; later this court found the employer in contempt for failure to make proper offers of reinstatement ; after reinstatement, the court found the purgative terms of the contempt order had been satisfied, and remanded to the Board to determine back pay. Although the sequence of the proceedings is indeed similar to that in the instant case, we think there is a significant difference. In My Store, the back pay determination, although following a contempt adjudication, was a continuation of the original unfair labor practice proceeding, and a filling out of the Board’s original remedial order.

Respondent’s obligation to pay back pay to Sergott arose solely from the order of this court, and not from an order of the Board. If the Board, after an appropriate unfair labor practice proceeding, had ordered respondent to pay back pay to Sergott, the Board would, as held in the decisions above cited, have had authority to determine the amount in a further proceeding. Absent such underlying Board order, we think there was no authority for the Board’s determination of the amount of back pay. The determination would be a nullity, and, unhappily, a waste of effort unless respondent’s acquiescence makes possible a degree of salvage.

If the Board had been proceeding within its authority, the test on judicial review would be whether its findings were “supported by substantial evidence on the record considered as a whole.” 29 U.S.C. § 160(e). Under the present circumstances, that test does not apply, because the statute did not confer the authority to make the determination, nor do we think that respondent’s acquiescence could do so.

Respondent does, however, suggest in argument that the Board’s determination could be treated as that of a special master and adopted by this court except where clearly erroneous.

It is, of course, improbable that we would have appointed the Board, or one of its examiners, our special master, in view of the Board’s status as a litigant, albeit one not seeking the vindication of a private interest. The Board relies on the part of our contempt order requiring the “preserving [by respondent] and making available to the Board all records and books necessary to analyze the amount of backpay due, and to determine whether Sergott has been properly reinstated.” This language required disclosure of information to the Board, but could hardly imply an appointment of the Board as special master.

Nevertheless, in accord with the interest of judicial and administrative economy, we shall proceed, at least in approximation, to follow respondent’s suggestion, and resolve the matter upon the record made, according no greater weight either to the decision of the examiner or of the Board than that to which findings of a special master would be entitled.

Sergott was discharged October 4, 1969 and reinstated March 24, 1971. The Board proposed a formula for determining his cash earnings during the interim: a percentage of the actual earnings during the interim of three other salesmen. The percentage was derived from a comparison over a previous 4% year period. There is no issue with respect to this formula. There is no evidence that he received other earnings during the interim. The examiner concluded, and the Board agreed, that Ser-gott’s efforts to find other employment were reasonable from October 5, 1969 to April 30, 1970, while registered with and reporting to the state employment office. Respondent takes no issue with the decisions concerning this period.

The examiner concluded that Sergott’s efforts after April 30, when he was no longer reporting to the employment office, could not be deemed reasonable. The Board reversed this part of the examiner’s decision, on the basis that respondent had failed to sustain its burden of establishing that Sergott wilfully incurred a loss of earnings.

The failure of a discriminatorily discharged employee to make a reasonable search for interim employment substantially equivalent to his prior position constitutes an affirmative defense to back pay liability; the burden of proof is on the employer. N.L.R.B. v. Madison Courier, Inc., 153 U.S.App.D.C. 232, 472 F.2d 1307, 1318 (1972); N.L.R.B. v. Reynolds, 399 F.2d 668, 669 (6th Cir., 1968); N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 575 (5th Cir., 1966); N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir., 1963).

The fact which the employer must prove has been described by the Supreme Court as “losses which [the employee] willfully incurred” and “clearly unjustifiable refusal to take desirable new employment.” Phelps Dodge Corp. v. National Labor Rel. Bd., 313 U.S. 177, 198, 200, 61 S.Ct. 845, 854, 85 L.Ed. 1271 (1941). Additional specifications have been widely accepted by the Board and Courts of Appeals: “fails diligently to search for alternative work”, N.L.R.B. v. Mastro Plastics Corp., 354 F.2d 170, 174, n. 3 (2d Cir., 1965), cert. denied 384 U.S. 972, 86 S.Ct. 1862, 16 L.Ed.2d 682; “Failure ... to make a reasonable search for interim work”, N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 575 (5th Cir., 1966); and failure to make an “honest good faith effort”, N.L.R.B. v. Cashman Auto Co., 223 F.2d 832, 836 (1st Cir., 1955), followed in Golay & Co. v. N.L.R.B., 447 F.2d 290 (7th Cir., 1971).

The facts appearing in the record are as follows: At the time of discharge, Sergott was 44 years old and had been employed as a salesman by Chevrolet and Cadillac dealers for 18 years. Ser-gott registered with the state employment agency and reported 29 times up to April 30, 1970. Apparently these did not produce referrals. During the same period he called on 20 car dealers and made some 20 follow up telephone calls. After April 30 and before reinstatement, he made new contacts with four dealers and his total contacts with these dealers and some of those contacted earlier were 72, including a number of phone calls. Sergott testified he directed his later efforts toward those who initially encouraged him. He received no offers except from two dealers who conditioned further consideration on his resignation from the union.

The examiner did not discredit Ser-gott’s testimony, only noting that in his judgment, “many of the contacts made by Sergott were window dressing.”

Respondent proved only that there are more than five hundred new and used car dealers in the metropolitan area of Chicago. It offered no testimony as to business conditions during the period or other evidence tending to show that jobs were available for a salesman notwithstanding known union associations, or that the lack of opportunity with the dealers to whom Sergott applied was not representative. Sergott testified that “economically things were a bit slow at this time.”

We think that the examiner, in ultimate effect, imposed on Sergott the burden of proving that his efforts were reasonable. Given the efforts Sergott was shown to have made, and in the absence of proof bearing at least generally on the availability of suitable employment in the area, we conclude the respondent did not discharge its burden of proof. Accordingly, we consider the examiner’s adverse finding clearly erroneous, and find that Sergott’s efforts were reasonable.

A second element of back pay was the value of the use of a demonstrator which would have been available to Ser-gott if employed by respondent. The examiner fixed a value per month, and the only challenge by respondent is that the Board has extended the figure over the whole interim.

A third element of back pay was the value of prizes in various sales contests sponsored by General Motors in which Sergott would have participated if employed.

Sergott testified without dispute that in the year preceding his discharge he received prizes worth $675. If that period were deemed representative of the interim, an allowance of $168.75 for each quarter would be appropriate. This was the figure used by the Board.

The examiner noted that when the General Counsel worked out a formula for cash earnings he had considered that a period of 4% years, or 19 quarters, should be used for comparison of Sergott and the other salesmen. The examiner felt that a justification must be shown for selecting a different period as representative of prizes received. Since there was no evidence of the prizes received in any but the last year, the examiner pro rated the $675 over the 19 quarters, allowing $35.52 per quarter to compensate for loss of prizes.

Respondent offered no testimony to show that the one year period was not reasonably representative. Under these circumstances we consider the examiner’s finding clearly erroneous and adopt the finding of the Board.

For reasons already indicated, "we treat the Board’s application for enforcement of its back pay order as a petition that we judicially determine the amount of back pay which respondent must pay Sergott in order to purge itself of contempt under our 1971 judgment. We adopt the findings of the Board as our own, consistently with the foregoing opinion.

Accordingly,

It is ordered and adjudged by the Court that within 20 days from the date this order is filed and entered, respondent shall pay to Harold Sergott, as the amount required under paragraph 2(b) of our judgment of March 11, 1971, $20,606.09, less any tax withholding required by the laws of the United States and the State of Illinois, plus interest thereon at the rate of 6 percent per an-num in accordance with the formula prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, and

'It is further ordered and adjudged that in default of payment by such time, respondent shall be subject to the fine, and its officers and agents shall be subject to attachment, as provided in paragraph (1) of said judgment.

PELL, Circuit Judge

(dissenting).

In my opinion, with regard to Ser-gott’s back pay entitlement for the period subsequent to April 30, 1970, the trial examiner in a well reasoned and eminently fair opinion reached the only correct result. I therefore respectfully dissent.

Nickey Chevrolet is not a newcomer to the halls of this court. The present disposition marks the second time that a panel of this court had found clearly erroneous findings of fact made by a front line trier of fact following an evidentiary hearing. On the first occasion, the master, a United States district court judge, to whom this court referred the case found that there was no evidence that Sergott was discharged in retaliation for his union activities. The finding was held to be clearly erroneous. NLRB v. Nickey Chevrolet Sales, Inc., No. 15,122, 76 LRRM 2849 (1971).

The panel found Nickey Chevrolet in contempt and, inter alia,, ordered that Sergott be offered full reinstatement (which was subsequently done) and that he be made whole for all pay and benefits lost due to the discrimination against him. 76 LRRM at 2852.

The case is now back with us again in the anomalous procedural posture which Judge Fairchild has carefully and, in my opinion, correctly analyzed. Again, however, this court has disagreed with the trier of fact, who had the opportunity to hear and evaluate witnesses, to the extent of holding his findings on the post-April 1970 period to be clearly erroneous.

I think it well at this point to look at the pertinent portion of the trial examiner’s opinion:

“A different conclusion is warranted, however, with regard to Sergott’s efforts to find employment after the expiration of his employment benefits on April 30, 1970. Those efforts cannot be deemed reasonable on the facts presented herein. After April 30, 1970, he kept applying to the same employers repeatedly although there is no indication he was receiving any encouragement. For example, between April 30, 1970, and March 17, 1971, he applied at (or telephoned) Stamer Cadillac, 11 times; Moell Cadillac, 11 times; Gateway Chevrolet, 11 times; Briganee Chevrolet, 11 times. These were all dealers to whom he had applied before April 30. Not until November 18, after a period of 6% months, did he apply to a new dealer. Thereafter, he contacted another new dealer on January 4, 1971; another one on January 8, 1971; and yet another on March 12, 1971. There is no explanation why, having limited his search to 21 dealers over a period of 13 months, - Sergott decided to expand his search, and yet to do so in such a limited fashion. In my judgment, many of the contacts made by Sergott were window dressing. An undetermined number were merely telephone calls, and as previously noted they were repeat calls. Given the size of the employment market, and the fact that he was no longer registered with the State Employment office, it cannot be said that such efforts to find equivalent employment were reasonable. Sergott is 44 years old with 18 years of experience. It is inconceivable to me that he would have been unemployed for 18 months had he made reasonable efforts to find equivalent employment. On the facts of this case, I conclude that Sergott is not entitled to backpay for the period after April 30, 1970.”

Elsewhere in the decision it is pointed out that other than with regard to the dealers mentioned in the foregoing quoted portion, twenty-four in all, Sergott ignored the rest of some 500 Chicago area dealers through the entire back pay period, including a number of sizable dealers in the immediate area of his residence, that he discontinued reporting to the State Employment office as soon as his unemployment compensation benefits stopped, and that he did not contact a previous employer, Brigance Chevrolet, until nearly four months after his discharge.

Some of these additional matters just mentioned were, of course, not directly germane to the period subsequent to April 30, 1970. They are worthy of mention, however, in two respects. First, as I have mentioned, it appears to me that the trial examiner was eminently fair. Thus, he did not disqualify Sergott for an initial period even though Sergott waited four months to get in touch with Brigance. He was afforded similar favorable treatment notwithstanding that he did not apply to any employer until forty days after his termination. Second, it appears to me that the general attitude of Sergott reflected during the initial period serves as a background for evaluation of his efforts during the period here in question.

The standards for determining whether there is back pay entitlement are correctly outlined in the majority opinion. These synthesize into a requirement that the employee make an honest, good faith and reasonable effort to find other work. Despite what appears to me to be a complete lack of meeting these standards on the part of Sergott, the majority opinion overturns the finding of the trial examiner on the basis that the burden of proof on the company was not met.

Because of the rather unusual procedural aspect of the present case, arising as it does not from an unfair labor practice, a question might potentially exist as to who did have the burden of proof. However, noting statements such as “[t]he cases are unanimous that the defense of wilful loss of earnings is an affirmative defense, and that the burden is on the employer to prove the defense,” NLRB v. Reynolds, 399 F.2d 668, 669 (6th Cir. 1968), I will assume that once the General Counsel had established the gross amount of back pay the burden was on Nickey. NLRB v. Madison Courier, Inc., 153 U.S.App.D.C. 232, 472 F.2d 1307, 1318 (1972). However, I do not conceive that this burden is to prove the lack of reasonable effort beyond a reasonable doubt but only by the greater weight of all of the credible evidence, considering the record as a whole. NLRB v. Madison Courier, Inc., supra at 1318. The burden, in any event, is only to show the lack of reasonable effort, not that a “discriminatee would have located suitable interim employment had he only made the required effort.” Id. at 1319 (emphasis in the original).

It also appears to me that at some point in any fact finding process the burden is subject to being shifted and that that should have been the case here. I am unable to say that a fact finding is clearly erroneous where it involves a man who only got in touch with twenty-four dealers out of some five hundred in the metropolitan area where he lived and then only sporadically, frequently by telephone, and many times where he had been turned down without any invitation to return. In other words, the company had met its burden of proof, and this proof was not overcome by any contrary evidence, at least, insofar as saying that it was clearly erroneous is concerned.

I do not agree with the majority’s interpretation of the trial examiner’s characterization of many of Sergott’s contacts as “window dressing.” The trial examiner had an opportunity to hear Sergott’s testimony, and I read the characterization as a finding that Sergott was less than credible.

The Board in reversing did not do so on the basis of failure to meet the burden of proof but simply on a sweeping statement, which I find virtually unsupported other than by the Board’s own assertion, that Sergott continued to make a reasonable search. The facts speak for themselves. The Board laid emphasis on (1) the fact that there was no evidence that Sergott at any time during the period received or refused any job offers; (2) that there was no showing that any jobs were available at any of the dealers to whom he applied or at any of the other Chicagoland dealers; and (3) that Sergott testified that he had not applied to the other dealers because he only applied to the dealers that gave him hope of getting a job.

Certainly, it appears to me, the lack of evidence that he was not offered a job bears only minimally on whether he used reasonable efforts; and the lack of evidence that he did not refuse one does not bear at all on the reasonableness-of-search question. I find incredible the thought that nearly half a thousand automobile dealers during nearly a year long period would not through normal processes of turnover, death, removals from the territory, promotions, and numerous other factors common to all businesses have had need for hiring experienced salesmen. I find equally incredible the necessity for showing by a widespread canvass this fact of everyday knowledge. Lastly, the hope that Ser-gott supposedly had when he made his repeat calls appears to be of gossamer quality and after several turn downs would not even seem to be of that magnitude.

Further, the majority opinion, as well as the Board, appears to rely on the fact that there may have been a lack of available suitable émployment. In my opinion, this adds an improper element above and beyond the requirement that there be the good faith reasonable effort. Presumably there could be economic disaster areas where unemployment was so widespread that to attempt to seek a job would be obviously fruitless. I express no opinion as to whether even so there should not be some requirement of effort because that is not the ease we have here. With a lack of diligence, “ ‘the circumstance óf a scarcity of work and the possibility that none would have been found even with the use of diligence is irrelevant.’ American Bottling Co., 116 N.L.R.B. 1303, 1307 (1956),” Madison Courier, Inc., supra, at 1319. (footnote omitted).

There is a basis for the belief that Nickey Chevrolet had assumed the status of persona non grata in the eyes of the Board by its long continuing appearances before the Labor Board and its representatives. That such status had been achieved, if it was, is no reason for reaching a different result than plainly indicated by the facts. I think the Board has done so in this case, whatever the motivating factors may have been, and I therefore in the particular procedural posture of this case would order payment by Nickey Chevrolet in accordance with the trial examiner’s findings insofar as the period subsequent to April 30, 1970, is concerned. Otherwise, I concur in the opinion of the majority.

      . Clearly it would be inappropriate for the court to usurp the Board’s function at this stage by either hearing evidence or appointing a master to determine the specific amount of back pay due. See New York Merchandise Co., supra.

      . The Board has the responsibility of obtaining compliance with court decrees and may, when necessary, petition the court to hold a respondent in contempt. See, e. g., NLRB v. Alamo Express, Inc., 395 F.2d 481 (5th Cir., 1968) ; Olson Rug Company v. N.L.R.B., 304 F.2d 710 (7th Cir., 1962) ; 29 C.F. R. § 101.15, 29 U.S.C.A., p. 275. The purpose of providing an “immediately available” court decree via section 10(e) is to serve as a basis for contempt proceedings in the event of a subsequent renewal of the unfair labor practice. See National Labor Rel. Bd. v. Mexia Textile Mills, 339 U.S. 563, 569, 70 S.Ct. 826, 830, 94 L.Ed. 1067, 1073 (1950).