author: PAUL X WILLIAMS, District Judge.

text:
    Ethel JORDEN, Appellant, v. METROPOLITAN UTILITIES DISTRICT, Appellee.
    No. 74-1035.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 16, 1974.
    Decided June 14, 1974.
    Wilbur C. Smith, Omaha, Neb., for appellant.
    Merlin E. Remmenga, Omaha, Neb., for appellee.

      Before GIBSON and WEBSTER, Circuit Judges, and WILLIAMS, District Judge.

       The Honorable Paul X Williams, United States District Judge, Western District of Arkansas, sitting by designation.

   PAUL X WILLIAMS, District Judge.

The Appellant, plaintiff Ethel Jorden, a citizen of Nebraska and a resident of Omaha filed complaint against the Appellee, defendant Metropolitan Utilities District under 42 U.S.C. § 1983.

The District Court dismissed the complaint for failure to state a claim upon which relief can be granted. From the dismissal Appellant appeals.

The complaint which seeks both compensatory and punitive damages from the Metropolitan Utilities District alleges in part as follows:

1.
Plaintiff is a citizen of the State of Nebraska and has been a resident for at least 20 years of the City of Omaha, Douglas County. That plaintiff occupies as her residence and maintains as her dwelling 3427 Seward Street in the City of Omaha and is, and has been a customer for many years, who was current in the payment of utility charges of the defendant, Metropolitan Utilities District which provides gas, water and sewer services to inhabitants of the City of Omaha.
2.
That the defendant, Metropolitan Utilities District is a Municipal Corporation in the City of Omaha, Douglas County, Nebraska, providing utility services in a proprietary capacity and as a function operated pursuant to express legislative enactments under the color of State and Local laws and through the exercise of the State’s police power as an instrumentality of the State of Nebraska, empowered to engage in supplying utility services and which has exclusive control over furnishing the inhabitants of the City of Omaha and surrounding territory with gas, water and sewer system, Section 14-1001 to 14-1042; 14-1101 to 14-1110, and as implemented by Metropolitan Utilities District Water Rules and Regulations.
3.
Allegations of jurisdiction herein arises under 28 USCA sections 1343 (3), (4) and 42 USCA section 1983, that (1) Defendants act under color of State or local law and (2) that the plaintiff be deprived of a right, privilege or immunity secured to all citizens and persons by the Constitution and laws of the United States or by an Act of Congress. The matter in controversy exceeds, exclusive of interest and costs, the sum of $10,000.00.

4.

On Tuesday, March 20, 1973, between the hours of 12 o’clock noon and 4 o’clock in the afternoon the defendant, its agents and employees, negligently and wrongfully cut off the water supply to the [plaintiff’s residence, without notice or a hearing. Defendant, its agents and employees failed to restore water until approximately four forty five in the afternoon (4:45 P.M.) Wednesday March 21, 1973, thereby depriving plaintiff of water for approximately 26 hours.

The prayer for relief in the complaint states inter alia:

Wherefore, plaintiff respectfully prays for compensatory damages in the sum of $16,400.00, [and] punitive damages in the sum of $100,000.00.

Appellant contends in this court that Metropolitan Utilities District is a “person” within the language of 42 U.S.C. § 1983. It will be noted that the complaint alleges that Metropolitan is a “Municipal Corporation.” The law is now settled that § 1983 has no application to a municipal corporation. In City of Kenosha v. Bruno, 412 U.S. 507, 513, 93 S.Ct. 2222, 2226, 37 L.Ed.2d 109 (1973), the Supreme Court stated:

We find nothing in the legislative history discussed in Monroe [v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961)], or in the language actually used by Congress, to suggest that the generic word “person” in § 1983 was intended to have a bifurcated application to municipal corporations depending on the nature of the relief sought against them. Since, as the Court held in Monroe, “Congress did not undertake to bring municipal corporations within the ambit of § 1983,” id., at 187 [81 S.Ct. 473], they are outside its .ambit for purposes of equitable relief as well as for damages.

Accord, Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36 L.Ed.2d 596 (1973); Curran v. Lee, 484 F.2d 1348 (2nd Cir. 1973); Gibson v. City of Seattle, 472 F.2d 1220 (9th Cir. 1973); Davis v. United States, 439 F.2d 1118 (8th Cir. 1971).

The nub of appellant’s contention is that Metropolitan is not a “true” municipal corporation, in that it performs only proprietary functions, in contrast to governmental functions. Appellant has cited us no authority for her proposition nor do we find any. The exclusion of municipal corporations from liability under § 1983 was based upon a Congressional belief that it lacked the constitutional power to impose liability upon any and all municipal corporations, whether or not they were immune from liability under state law (where the distinction between proprietary and governmental functions may still determine their state law immunity). Moor v. County of Alameda, supra at 709-710. We perceive no basis to import the often nebulous distinction between the proprietary and governmental functions of a municipal corporation into the federal law question of its civil liability under § 1983.

It will be further noted that, no matter if the sought damages are called “compensatory and punitive” this is still an action in which the plaintiff seeks a money judgment against a municipal corporation. And it is not the business in which Metropolitan engages which excludes it from the language of § 1983, it is the fact that is WHAT it is — a Municipal Corporation.

It is elementary that District Courts of the United States are courts of limited jurisdiction. They are empowered to hear only such cases as are within the judicial power of the United States as defined by the Constitution and have been entrusted to them by a jurisdictional grant by Congress.

In the case at bar, there has been no such grant. Hence there is no jurisdiction in the district court to entertain this complaint.

If this case be considered an attempted suit against an agency of the State of Nebraska, the recent United States Supreme Court case of Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, 42 U.S.L.W. 4419 (U.S., March 24, 1974), points out that the 11th Amendment to the United States Constitution precludes such an action unless the State has in some manner waived its sovereign immunity and consented to be sued, and there has been no such allegation or showing in this case.

The action of the district court was correct and is affirmed.


source: Caselaw Access Project

author: CRAVEN, Circuit Judge.

license: Public Domain

text:
    Samuel SPAULDING, an infant under the age of 21 years, who institutes this suit by his father and next friend, Junior LeRoy Spaulding, and Junior LeRoy Spaulding, Appellants, v. ADS-ANKER DATA SYSTEMS—MIDWEST, INC., a corporation, Appellee. Robert N. JOHNSON, Appellant, v. ADS-ANKER DATA SYSTEMS—MIDWEST, INC., a corporation, Appellee.
    Nos. 73-1442, 73-1467.
    United States Court of Appeals, Fourth Circuit.
    Argued April 3, 1974.
    Decided May 29, 1974.

      Robert W. Lawson, III, Charleston, W. Va. (Rudolph L. Di Trapano and Di Trapano, Mitchell, Lawson & Field, Charleston, W. Va., on brief), for appellants.
    John M. Slack, III, and Robert K. Kelly, Charleston, W. Va. (Jackson, Kelly, Holt & O’Farrell, Charleston, W. Va., on brief), for appellee.
    Before BOREMAN, Senior Circuit Judge, and WINTER and CRAVEN, Circuit Judges.
   CRAVEN, Circuit Judge.

In this diversity jurisdiction case we apply the law of West Virginia with respect to the duty of an employer to provide its employees with a reasonably safe place in which to work and reasonably safe appliances and instrumentalities with which to perform their assigned duties. The district court entered summary judgment against complaining employees Johnson and Spaulding and in favor of their employer Ads-Anker Data Systems — Midwest, Inc. The question of whether the employer had, under the circumstances, a duty of ordinary care and failed to fulfill it was, we think, disposed of prematurely. We reverse and remand for trial on the merits.

The employer (Anker) is a corporation selling and servicing cash registers. Johnson was employed as a salesman and Spaulding as a repairman. On June 18, 1970 they were traveling in Johnson’s station wagon carrying cash registers on the rear deck. They alleged that as a result of a head-on collision with a truck the cash registers were propelled forward with such force that a “second collision” occurred that contributed substantially to the injuries which each sustained.

It is well settled in the West Virginia law of master and servant that an employer is neither an “insurer,” Linville v. Chesapeake & O. Ry. Co., 115 W.Va. 610, 177 S.E. 538, 539 (1934); Smith v. United Lumber Co., 71 W.Va. 749, 77 S.E. 330, 332 (1913), nor a “guarantor,” Moll v. Bayha, 108 W.Va. 173, 150 S.E. 515, 518 (1929), of the safety of his employees. Equally well settled, however, is the following principle:

Generally, it is a master’s duty to provide his servants reasonably safe and suitable tools and appliances sufficient for the work intended, and the servant may assume that the master has performed that duty; and whether the master has been negligent in that duty is generally a question for the jury under all the facts and circumstances.

Walls v. McKinney, 139 W.Va. 866; 81 S.E.2d 901, 904 (1954); Estep v. Price, 93 W.Va. 81, 115 S.E. 861, 862 (1923). The standard of care to be exercised in the performance of this duty has been further delineated as that of “ordinary care and diligence . . . considering the character of the work in which he [the servant] is engaged.” Barr v. Knotts, 101 W.Va. 440, 133 S.E. 114, 115 (1926).

In concluding that there was no duty on the company’s part to provide a protective cage or barrier for its employee’s privately-owned vehicles, the district court emphasized that the vehicle was not only owned by the plaintiff-appellant [Johnson] “but also that the defendant did not maintain, inspect or control it in any way.” The court added:

The measure of the master’s duty to the servant, in reference to affirmafive action for his safety, depends upon the extent to which he is allowed the opportunity or has the means or power for his own protection.

We agree, see Walls v. McKinney, 139 W.Va. 866, 81 S.E.2d 901 (1954); 56 C.J.S. Master and Servant §§ 201, 210, but, except in a “perfectly clear” case, it is for the trier of fact to infer whether an employer has sufficient opportunity, means and power to control the dangerous conditions of an instrumentality of employment. Had appellants’ injuries' allegedly resulted from defective brakes or tires, summary judgment would have been appropriate, for, absent special contract, an employer ordinarily has no duty to inspect and no power to control the maintenance of an employee’s automobile. The defect here alleged, however, is the failure to provide special equipment (cage or barrier) without which, it is said, the transporting of the employer’s machines is dangerous. The alleged danger was not only known to the company but the evidence suggests that installation of a protective barrier was the custom of the trade. Since both knowledge of the danger and the possibility of control are arguably present, it is for the jury to say whether the company breached its duty of ordinary care in failing to provide a barrier or other safety device for Johnson’s car.

As to appellant Spaulding, the evidence before the district court on the motion for summary judgment reveals a further duty which may have been breached by the employer. In the taking of his deposition, Spaulding was asked how he happened to be in the Johnson car on the occasion of the accident. He responded: “I come in to work that morning, and my boss told me to go with Mr. Johnson to Cyclone to repair a machine.” (Emphasis added). Even if it be assumed that the company had no control or supervision over the Johnson vehicle, it was “under a duty not to order its servants into an obviously dangerous place,” Pritt v. West Virginia Northern R. Co., 132 W.Va. 184, 51 S.E. 2d 105, 115 (1948), cert. denied, 336 U.S. 961, 69 S.Ct. 891, 93 L.Ed. 1113 (1949), or at least, knowing of the danger (as Johnson’s deposition alleges), it was under a duty to warn Spaulding of the danger. Trimble v. Steele, 110 W.Va. 170, 157 S.E. 166, 167 (1931). Even if the duty to warn is negated when “[a]ny adult of ordinary discretion should have comprehended all of the potentialities of the situation,” Linville v. Chesapeake & O. Ry. Co., 115 W.Va. 610, 611, 177 S.E. 538, 539 (1934), or when the danger “was as obvious to plaintiff as it was to defendant,” Smith v. United Lumber Co., 71 W.Va. 749, 750, 77 S.E. 330, 331 (1913), still there may be a duty to warn a person of Spaulding’s youth (19) and inexperience. See Shaw v. Hazel-Atlas Glass Co., 70 W.Va. 676, 74 S.E. 910, 911-912 (1912). “[Y]oung or inexperienced employees . . . must be given instructions suitable to their age, intelligence and knowledge, and to the risk to be encountered.” W. Prosser, Handbook of the Law of Torts § 80, at 548 (3d ed. 1964).

The motion for summary judgment was, under these circumstances, improvidently granted since genuine issues as to material facts are presented by appellants’ depositions. The judgment of the district court is reversed and the case is remanded for trial on the merits.

Reversed and remanded.

      . Summary judgment is particularly inappropriate in negligence actions, as Chief Judge Parker recognized in Pierce v. Ford Motor Co., 190 F.2d 910 (4th Cir.), cert. denied, 342 U.S. 887, 72 S.Ct. 178, 96 L.Ed. 666 (1951):
      It is only where it is perfectly clear that there are no issues in the case that a summary judgment is proper. Even in cases where the judge is of opinion that he will have to direct a verdict for one party or the other on the issues that have been raised, he should ordinarily hear the evidence and direct the verdict rather than attempt to try the case in advance on a motion for summary judgment, which was never intended to enable parties to evade jury trials or have the judge weigh evidence in advance of its being presented.
      190 F.2d at 915. This is not, we believe, the “unusual case,” Bland v. Norfolk and South ern R. R. Co., 406 F.2d 863 (4th Cir. 1969) where “there is no genuine issue as to any material fact.” Fed.R.Civ.P. 56(c).
      The infrequent utility of motions for summary judgment in negligence cases has been documented by a study of Fourth Circuit cases by Guiher, Summary Judgments — Tactical Problems of the Trial Lawyer, 48 Va. L.Rev. 1263 (1962). Professors Wright and Miller note the result of the study:
      [B] etween 1938 and 1961 the Fourth Circuit dealt with 41 cases involving summary judgment but only four cases involved negligence actions and of the four, three resulted in the reversal of the trial court’s grant of summary judgment.
      C. Wright and A. Miller, 10 Federal Practice and Procedure: Civil § 2729, at 560 (1969).

      . Q. Mr. Johnson, is there anything else you would like to add to this deposition?
      A. Yes; I had a discussion with Mr. Winderweedle at one time about having cages put in their stationwagons, since one of the largest cash register companies require all of their personnel to have this equipment in all of their cars; and, of course, there wasn’t anything ever came about.
      Q. What did he say?
      A. He just agreed with me that they actually should be there.
      (Deposition of Robert Johnson).

      . The fact that both Johnson and Spaulding knew of the dangerous condition or that such a condition should have been obvious to them is of no avail to the company since “notwithstanding that the employee knew of the danger and with such knowledge used such machinery in the course of his employment, the master is liable.” Walls v. McKinney, 139 W.Va. 866, 81 S.E.2d 901, 904 (1954). An employee’s knowledge of the danger does not negate the existence of the employer’s duty. Nor can the company, which is not a subscriber to the West Virginia Workmen’s Compensation Fund, rely on the common law defenses of contributory negligence, assumption of risk or the fellow-servant rule. Art. 2, § 8 of Chap. 23, W.Va.Code effectively strips the company of such defenses. Walls v. McKinney, 139 W. Va. 866, 81 S.E.2d 901, 905-906 (1954); Trimble v. Steele, 110 W.Va. 170, 157 S.E. 166, 167 (1931).

      . Even though the Pritt ease was decided under the Federal Employers’ Liability Act, its discussion of the employer’s duty is applicable, especially since 45 U.S.O. §§53 and 54 deprive the employer of the defenses of assumption of risk and contributory negligence (partially) in a manner similar to the West Virginia Code in these circumstances.


author: TRASK, Circuit Judge:

text:
    Carolyn ROBERTS, Individually, et al., Plaintiff-Appellees, v. UNITED STATES of America, Defendant-Appellant.
    No. 73-2260.
    United States Court of Appeals, Ninth Circuit,
    June 6, 1974.
    Rehearing Denied June 20, 1974.

      Neil H. Koslowe (argued), Morton Hollander, James C. Hair, Jr., of Civil Div., Appellate Section, U. S. Dept, of Justice, Washington, D. C., for defendant-appellant.
    Al Schallau (argued), Ian Herzog, Craig S. Dummit, Los Angeles, Cal., for plaintiff-appellees.
    Before ELY, HUFSTEDLER and TRASK, Circuit Judges.
   TRASK, Circuit Judge:

The United States appeals from an order denying its motion for dismissal of the appellees’ complaint. Because the motion raised a close jurisdictional question the District Court certified its order for an interlocutory appeal under 28 U.S.C. § 1292(b). The United States filed an application in this court to prosecute that appeal and we granted the application. Upon review of the applicable authorities we conclude that the court erroneously denied the Government’s motion to dismiss.

This is a wrongful death action arising out of the crash of a Flying Tiger Lines cargo plane on July 27, 1970. The plane was approaching the Naha Air Base, Okinawa, for a ground controlled landing when it crashed in navigable waters 1500 to 1900 feet short of the runway. Charging that United States Air Force personnel negligently directed the landing and subsequent rescue operations, the widow and three minor children of the plane’s navigator (appellees) filed suit against the United States on November 21, 1972. Their original complaint was brought under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., and sought $2,500,000 damages for wrongful death. The United States, however, successfully argued that because the tort was alleged to have occurred in Okinawa, the action was therefore barred by section 2680 (k) of the FTCA which excludes “[a]ny claim arising in a foreign country.” The District Court accordingly dismissed the suit but granted the appellees leave to amend.

In their subsequently amended complaint the appellees relied upon the same basic facts but stated them somewhat differently. The first cause of action was still based upon the FTCA. However, instead of alleging that the events occurred “at or near Naha Air Base, Okinawa, Ryukyu Islands” which would open the claim to the “foreign country” exclusion of section 2680(k), the complaint alleged that the events occurred “while the aircraft was making an approach to landing . . . over the high seas crashing into navigable waters . . . .” Thus, the claim was asserted to be “maritime.” A second cause of action was asserted as a “Maritime Wrongful Death” under the general admiralty and maritime jurisdiction, Fed.R.Civ.P. 9(h), and a third cause of action was alleged under the “Death on the High Seas Act,” 46 U.S.C. §§ 761-767.

The specific acts of negligence relied upon were the same as to each of the three claims: that the United States negligently directed the landing of the aircraft and the subsequent rescue operations of its passengers.

The United States again moved to dismiss the action, arguing that the aviation crash did not give rise to a maritime claim. Secondarily, the Government contended that even if maritime jurisdiction were appropriate, the appellees’ suit against the United States was cognizable solely under the Suits in Admiralty Act (SIA), 46 U.S.C. §§ 741-752, and not the FTCA as averred. The District Court rejected both of these arguments and concluded that it had jurisdiction to entertain the appellees’ suit as a maritime wrongful death action under the FTCA.

This appeal invites an examination of whether, under the circumstances shown here, an aviation tort claim is cognizable under maritime law. Preliminarily we note that if viewed as stating a “land” rather than a “maritime” tort, the appellees’ complaint under the FTCA is indeed barred by 28 U. S.C. § 2680(k). See United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949). To therefore shift the locus of their claim from land to sea, the appellees rely upon two independent sources: the general maritime law, and a specific federal statute, the Death on the High Seas Act, 46 U.S.C. §§ 761-768.

As far as the general maritime law is concerned, Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) is necessarily the starting point in any effort to define a “maritime tort” in the aviation context. In Executive Jet the Supreme Court rejected the traditional locality test which found maritime jurisdiction whenever a tort occurred in navigable waters. A literal application of this test over the years had brought aviation tort cases within admiralty jurisdiction depending, of course, upon where the aircraft crashed. However, in Executive Jet the Supreme Court criticized the fortuity of this jurisdictional classification and announced a new twofold test for determining whether a maritime tort was pleaded. The Court retained the navigable waters locality prerequisite but added a maritime “nexus” requirement:

“. . . [W]e conclude that the mere fact that the alleged wrong ‘occurs’ or ‘is located’ on or over navigable waters — whatever that means in an aviation context — is not of itself sufficient to turn an airplane negligence case into a ‘maritime tort.’ It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity.” Id. 409 U.S. at 268.

The maritime claims asserted in Executive Jet arose from the crash of a chartered jet en route from Cleveland, Ohio to Portland, Maine. The aircraft struck and ingested a flock of seagulls on takeoff and crashed in the navigable waters of Lake Erie. The Supreme Court had little difficulty in concluding that “a flight that would have been almost entirely over land and within the continental United States” bore an insufficient relationship with traditional maritime activity. However, the Court declined to generalize as to other aviation tort contexts, commenting instead:

“We need not decide today whether an aviation tort can ever, under any circumstances, bear a sufficient relationship to traditional maritime activity to come within admiralty jurisdiction in the absence of legislation. It could be argued, for instance, that if a plane flying from New York to London crashed in the mid-Atlantic, there would be admiralty jurisdiction over resulting tort claims even absent a specific statute. An aircraft in that situation might be thought to bear a significant relationship to traditional maritime activity because it would be performing a function traditionally performed by water-borne vessels.” Id. 409 U.S. at 271.

The Supreme Court thus expressly reserved the question which is before us now.

An examination of the record provides several bases for distinguishing the air accident in this case from the crash which occurred in Executive Jet. According to the appellees’ amended complaint, the Flying Tiger Lines aircraft was engaged in transporting cargo between Los Angeles and Viet Nam; Okinawa was merely one of a number of intermediate stopping points. Geographic realities, therefore, do not make the cargo plane’s contact with navigable waters entirely “fortuitous.” More significantly, the transoceanic transportation of cargo is an activity which is readily analogized with “traditional maritime activity.” Indeed, before the advent of aviation, such shipping could only be performed by waterborne vessels. We therefore do not interpret Executive Jet, supra, as precluding a maritime action on the facts of this case.

The appellees’ alternate reliance upon the Death on the High Seas Act (DOHSA), 46 U.S.C. §§ 761-768, is more questionable. Although the Supreme Court has explicitly sanctioned the bringing of aviation wrongful death cases under a literal construction of the DOHSA, the facts alleged in the appellees’ own brief cast doubt upon the statute's applicability. The appellees concede that the alleged tort occurred a maximum of 1900 feet from the Okinawa shore, i. e., in presumably foreign territorial waters. In view of the somewhat ambiguous language of the statute itself and the apparent lack of authority on the point, we hesitate to conclude whether a tort occurring within foreign territorial waters comes within the purview of the Death on the High Seas Act.

However, we find it unnecessary to resolve this question since our acceptance of appellees’ maritime tort designation on either this or Executive Jet ground would require recognition of another jurisdictional obstacle prohibiting this suit.

It is axiomatic that Congressional waiver of sovereign immunity is a prerequisite to any suit brought against the United States under admiralty law or otherwise. Recognizing this fact, the appellees rely upon the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671 et seq., as an expression of governmental consent to be sued. The United States, however, contends that maritime claims against the Government arising under either the Death on the High Seas Act or the general maritime law are cognizable solely under two specific federal admiralty statutes, the Suits in Admiralty Act (SIA), 46 U.S.C. §§ 741-752 and the Public Vessels Act, 46 U.S.C. §§ 781-790. Neither side disputes the fact that jurisdiction under the FTCA and the two admiralty statutes is mutually exclusive, 28 U.S.C. § 2680(d).

The District Court, believing that the admiralty statutes extended only to claims involving United States vessels or cargo concluded that the appellees’ maritime claim was maintainable solely under the FTCA. Prior to 1960, this interpretation of the intersecting scope of the statutes would have been correct. However, in 1960, Congress amended section 742 of the SIA by deleting the language which restricted the statute to claims involving merchant vessels and by substituting a broad new jurisdictional statement:

“In cases where if such vessel were privately owned or operated, or if such cargo were privately owned or possessed, or if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in personam may be brought against the United States. . . .” Pub.L. No. 86-770, § 3, 74 Stat. 912. (Emphasis added)

The addition of the phrase “or if a private person . . . were involved” has been interpreted by a majority of courts as a legislative attempt to bring all maritime torts asserted against the United States within the purview of the SIA. See De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971); Richmond Marine Panama, S. A. v. United States, 350 F.Supp. 1210, 1219-1220 (S.D.N.Y.1972); Tankrederiet Gefion A/S v. United States, 241 F.Supp. 83 (E.D.Mich.1964); Contra, J. W. Petersen Coal & Oil Co. v. United States, 323 F.Supp. 1198 (N.D.Ill.1970). Moreover, this expanded interpretation of the SIA appears to conform with retrospective Congressional understanding of the Act, as the court in Richmond Marine Panama, S. A. v. United States, supra, notes:

“Although subsequent Congressional explanation of the meaning of a statute is not binding on the courts, it is interesting to note, nevertheless, that a Senate Report of August 17, 1972 explained that the 1960 amendment extends jurisdiction under the Suits in Admiralty Act ‘to the full range of admiralty cases which might have been maintained had a private person or property been involved rather than the Government or its agents and employees or property.’ Senate Report No. 92-1079, 92d Cong., 2d Sess., 1972, 9 U.S.Code Cong, and Admin. News, pp. 4045, 4050.” Id. 350 F.Supp. at 1220, note.

We therefore conclude that the Suits in Admiralty Act, as amended, encompasses aviation wrongful death actions against the United States arising under the general maritime law or under the Death on the High Seas Act. See Allen v. United States, 338 F.2d 160 (9th Cir. 1964) (Text accompanying n. 2.) The necessary corollary is that the appellees action is therefore not maintainable under the FTCA. 28 U.S.C. § 2680(d).

Finally, in anticipation of an adverse resolution of these issues, the appellees request a second opportunity to amend their complaint in conformity with the court’s jurisdictional conclusions. Appellees further contend that such an amendment should “relate back” so as to avoid the time bar of the two year limitations period contained in the Suits in Admiralty Act, 46 U.S.C. § 745. In support of this request the appellees cite Beeler v. United States, 338 F.2d 687 (3d Cir. 1962), and other cases erroneously brought under the FTCA in which a transfer to admiralty was allowed.

However, the appellees’ situation is distinguishable from the precedent they cite in that the appellees’ original complaint was not filed until after the two year SIA limitations period had already expired. Since any amendment filed now can only refer back to the date when the appellees’ original complaint was filed, Fed.R.Civ. P. 15(c), the “relation back” argument cannot save this action from the operation of section 745. While the result is harsh, it is well established that the limitations period in the Suits in Admiralty Act is jurisdictional in nature:

“The two year time-bar of the Suits in Admiralty Act is unlike a time-bar period prescribed under an ordinary Statute of Limitations. Under an ordinary time-bar statute a claim is not extinguished after the statutory period has elapsed. It is only unenforceable. The time-bar of the Suits in Admiralty Act renders a claim against the United States not only unenforceable, but extinguishes the claim itself, for when the sovereign, immune from suit, consented to be sued it was made a condition of the right to sue that suits so authorized had to be brought within the time-bar period.”

States Marine Corp. of Delaware v. United States, 283 F.2d 776, 778 (2d Cir. 1960). See also McMahon v. United States, 342 U.S. 25 (1951). Neither infancy nor any other disability can toll the running of this statute. Sgambati v. United States, 172 F.2d 297 (2d Cir. 1949), cert. denied, 337 U.S. 938, 69 S.Ct. 1514, 93 L.Ed. 1743 (1949). Accord, Williams v. United States, 133 F.Supp. 319 (E.D.Va.1954), aff’d, 228 F.2d 129 (4th Cir. 1955), cert. denied, 351 U.S. 986, 76 S.Ct. 1054, 100 L.Ed. 1499 (1956).

We therefore conclude that to the extent that the appellees’ claim is cognizable in admiralty, it is governed by the Suits in Admiralty Act and absolutely time-barred by § 745 of that Act. The Government’s motion to dismiss should have been granted.

Reversed.

      . An administrative claim was filed on July 26, 1972, and rejected by the appropriate Federal agency on August 22, 1972.

      . Under the FTCA, a tort claim arises at the place where the negligent act or omission occurred and not where the negligence had its “operative effect,” (i.e., the situs of injury). Richards v. United States, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). An American military base located on foreign soil is fully within the foreign country exception (section 2680 (k)), United States v. Spelar, 338 U.S. 217, 70 S.Ct. 10, 94 L.Ed. 3 (1949), and this court has previously classified Okinawa as a foreign country for the purposes of the FTCA, Cobb v. United States, 191 F.2d 604 (9th Cir. 1951), cert. denied, 342 U.S. 913, 72 S.Ct. 360, 96 L.Ed. 683 (1952).
      The OoW) classification was based upon the status of Okinawa as of 1949. We note that on May 15, 1972, after the cause of action in this suit arose, the island was returned to the empire of Japan. 23 U.S.T., Part 1 at 447.

      . A classic statement of the locality test appears in The Plymouth, 3 Wall. 20, 36 (1855) ; “Every species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.” The durability of this test is reflected by the fact that the Supreme Court approvingly applied the locality standard in the term immediately prior to the Executive Jet decision. Victory Carriers, Inc. v. Law, 404 U.S. 202, 205 (1971).
      A distinct problem is the determination of where an aviation tort “occurs.” Unlike the rule developed under the Federal Tort Claims Act, see supra, n. 2, in applying the maritime locality test a tort is deemed to occur not where the wrongful act or omission had its inception, but at the place where it became operative, i.e., place of injury. Oppen v. Aetna Insurance Co., 485 F.2d 252, 256 (9th Cir. 1973); Chapman v. City of Grosse Pointe Farms, 385 F.2d 962 (6th Cir. 1967); Wilson v. Transocean Airlines, 121 F.Supp. 85, 92 (N.D.Cal.1954). The Supreme Court in .Executive Jet, supra, discussed the difficulties inherent in determining tort locus in the aviation context, but the Court did not propose another test. Id. 409 U.S. at 266-268.

      . See Executive Jet, supra 409 U.S. at 264, n. 14.

      . We find little assistance in the post -Executive Jet cases, as none have involved claims arising from a transoceanic aviation accident. E.g., Teachey v. United States, 363 F.Supp. 1197 (M.D.Fla.1973) (helicopter crash during a land shuttle); Higginbotham v. Mobil Oil Corp., 357 F.Supp. 1164 (W.D.La.1973) (helicopter crash during performance of activities identical to those performed by crew boats); Hawk v. Antilles Airboats, Inc., 355 F.Supp. 683 (D.C.Virgin Islands 1973) (crash of a seaplane).

      . “Indeed, it may be considered settled today that this specific federal statute gives the federal admiralty courts jurisdiction of such wrongful-death actions.
      * * s H * *
      “Of course, under the Death on the High Seas Act, a wrongful death action arising out of an airplane crash on the high seas beyond a marine league from the shore of a State may clearly be- brought in a federal admiralty court.” Executive Jet, supra, 409 U.S. at 263-264, 271, n. 20.

      . The Act itself reads:
      “Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Terri-tones or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death liad not ensued. Mar 30, 1920, c. Ill, § 1, 41 Stat. 537.” 46 U.S.C. § 761.
      While a distince of 1900 feet from shore would almost certainly be within a foreign state’s territorial waters-, we have noted that some foreign states have extended their territorial waters for fishing purposes to much greater distances than “one marine league.” (Approximately 3 nautical miles.) Because Congress only has power to fix the extent of territorial waters measured from the shores of its own country it may well have considered all waters beyond one marine league from those shores to be “high seas” for purposes of DOHSA so long as navigable, even though within the territorial waters of a foreign state.
      Belatedly, a law review article discussing the Act observes:
      “In addition, it is not clear whether the DHSA would have application when the accident occurs on territorial waters of a foreign country. Nevertheless, the scope of general admiralty jurisdiction clearly extends to such cases, and presumably the scope of the DHSA would be the same except in the areas where it is expressly not applicable.” 51 Cal.L.Rev. 389, 397 (1963).
      For a discussion of the meaning of the term “high seas” see United States v. Flores, 289 U.S. 137, 153 S.Ct. 580, 77 L.Ed. 1086 (1933) and United States v. Rodgers, 150 U.S. 249, 14 S.Ct. 109, 37 L.Ed. 1071 (1893). But see United States v. Ross, 439 F.2d 1355, 1357 (9th Cir. 1971).

      . The appellees appear to argue that the Death on the High Seas Act constitutes an independent jurisdictional base. See Appellees’ Brief at 2. However, this is clearly not the case. The DOHSA merely creates a cause of action for wrongful maritime death where none previously existed; the act does not contain any provision waiving sovereign immunity. A suit against the United States brought under the DOHSA still requires the pleading of a separate federal statute authorizing suit against the government. See e. g., Allen v. United States, 338 F.2d 160 (9th Cir. 1964); 51 Cal.L.Rev. 389 (1963).

      . See e. g., Somerset Seafood Co. v. United States, 193 F.2d 631 (4th Cir. 1951), and the discussion in De Bardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971).

      . Prior to the 1960 amendment, section 742 read as originally enacted :
      “In cases where if such vessel were privately owned or operated, or if such cargo were privately owned and possessed, a proceeding in admiralty could be maintained at the time of the commencement of the action herein provided for, a libel in personam may be brought against the United States or against any corporation . . . as the case may be, provided that such vessel is employed as a merchant vessel or is a tugboat operated by such corporation. ...”

      . Although somewhat blurred in the pleadings, the appellees attempt to distinguish the events which produced the air crash from the subsequent rescue operations. While the appellees’ claim arising out of the latter activity is more readily classified as “maritime” in nature, it still requires the pleading of an appropriate jurisdictional statute authorizing suit against the government. Since we conclude that the SIA is the only statute proper in this instance, we hold that the appellees’ action based either upon the crash or upon the rescue operations is not maintainable under the FTCA.

      . Under the Suits in Admiralty Act the two year statute of limitations begins to run from the date of injury rather than the date of denial of an administrative daim. McMahon v. United States, 342 U.S. 25 (1951); Kindrew v. United States, 479 F.2d 49 (5th Cir. 1973).

      . In similar vein this court has held that the institution of a suit under the FTCA within the statutory period of limitation is a jurisdictional requirement, and that the limitation period is not tolled during minority. Mann v. United States, 399 F.2d 672 (9th Cir. 1968); Brown v. United States, 353 F. 2d 578 (9th Cir. 1965). Indeed, appellees do not contest the point here.


author: HEANEY, Circuit Judge.

text:
    James R. CORCORAN et al., Appellants, v. ALLIED SUPERMARKETS, INC., Appellee.
    No. 73-1414.
    United States Court of Appeals, Eighth Circuit.
    Submitted Jan. 14, 1974.
    Decided June 7, 1974.
    Rehearing and Rehearing En Banc Denied July 5, 1974.

      Charles Alan Seigel, St. Louis, Mo., for appellants.
    Stephen W. Skrainka, St. Louis, Mo., for appellee.
    Before MATTHES, Senior Circuit Judge, HEANEY, Circuit Judge, and SMITH, Senior District Judge.

       TALBOT SMITH, Senior District Judge, Eastern District of Michigan, sitting by designation.

   HEANEY, Circuit Judge.

The issues on this appeal are: Did the District Court err in concluding (1) that a settlement agreement between the plaintiffs’ union and their employer terminated plaintiffs’ rights to a guaranteed annual wage for the duration of a collective bargaining agreement, and (2) that neither the union nor the employer was guilty of fraud or misconduct against the plaintiffs in reaching the settlement agreement.

On January 1, 1969, Teamsters’ Local Union 688 entered into a multi-employer collective bargaining agreement covering warehouse and office employees of a number of employers in the St. Louis, Missouri, area. One such employer was the St. Louis operation (Bettendorf-Rapp Division) of Allied Supermarkets, Inc., a national retail grocery chain. The agreement was to run until May 31, 1973, but in accordance with its terms, it was reopened in June of 1970 and modified in certain respects not pertinent to the issues raised here. The “Guaranteed Annual Wage Article” of the agreement provided that each employer would guarantee employment of at least 2,000 straight-time hours annually for the duration of the agreement to the fifty percent of its employees with the greatest seniority. The Article further provided a “liquidation-cancellation” clause which read as follows :

* * * If during the life of this Agreement the stockholders should decide to liquidate the Company or to consolidate with some other Company, then this guarantee may be cancelled on thirty (30) days written notice to the Union.

In July of 1970, Allied decided to terminate its St. Louis operation because Allied as a whole was in financial trouble and the Division was operating at a loss. Allied officials, beginning on July 24, 1970, held a number of meetings with officers of the local union at which it revealed its termination plans and discussed its obligations under the agreement including the Guaranteed Annual Wage (GAW) provision. These meetings were held without the knowledge of the rank and file members of the local union. The local union’s officers agreed not to disclose Allied’s plans to others because Allied feared disclosure would frustrate the sale of the Division, result in a loss of employees and grocery customers and cause adverse fluctuations in Allied’s corporate stock. Allied took the position that by terminating its St. Louis operations, it was relieved of its obligations under the GAW provision. It reasoned that the agreement was between the local union and the Bettendorf-Rapp Division, not Allied as a whole. The local union officers contended that Allied would remain obligated. They reasoned that the agreement was between the local union and Allied as a whole, and that Allied was obligated under the GAW clause until or unless Allied's nationwide operations were liquidated and not just the Bettendorf-Rapp Division. No immediate agreement was reached by the parties.

On October 5, 1970, the local union and employees were notified in writing that the Division would be liquidated and the employees laid off effective October 10, 1970.

On October 7, 1970, legal counsel for the Teamsters’ International advised the local union’s officers that applicability of the GAW clause under the circumstances was questionable, that a test would involve lengthy litigation, and that the precarious financial position of Allied might make the collection of a judgment, if any, difficult. Later that same day, the local union officers and Allied officials reached an agreement under which Allied agreed to pay six weeks' severance pay, plus accrued vacation pay, to all office and warehouse employees of the St. Louis operation. The settlement agreement contained the following clause:

The severance payment is in full satisfaction of, and will release Allied Supermarkets from any further liability to any employee under the current agreement.

The agreement was ratified by the employees on October 8, 1970, by a vote of eighty-nine in favor and twenty-two opposed. Those opposed for the most part were employees with enough seniority to place them within the coverage of the GAW. On October 14, 1970, checks for the severance pay and accrued vacation pay were issued to the employees.

The plaintiffs, thirty-four of those employees eligible for the GAW, brought an action in the United States District Court for the Eastern District of Missouri. After trial without a jury, the District Court held that plaintiffs’ contractual rights — 2,000 hours of straight-time annual employment for the duration of the agreement — were effectively compromised and completely released by the settlement agreement, thereby barring them from recovery. It further held that neither Allied nor the local union was guilty of fraud or misconduct and that they had not entered into a conspiracy to deprive plaintiffs of their rights under the collective barganing agreement.

The plaintiffs contend on appeal that the District Court erred in holding the settlement agreement terminated their rights under the GAW clause of the agreement because the local union acted beyond its authority in compromising their rights. In addition, they contend that the District Court erred in concluding that neither the local union nor Allied was guilty of fraud or misconduct and that they had not entered into a conspiracy to deprive the plaintiffs of their contractual rights under the collective bargaining agreement. We disagree.

The District Court correctly held that the local union, as the employees’ exclusive bargaining agent, had a right to settle the anticipated contractual dispute over the applicability of the GAW clause after the Bettendorf-Rapp Division was liquidated. Section 33.01 of the Constitution and By-Laws of Teamsters’ Local Union 688 grants this authority to the local union, and such a grant of authority is permissible under the law. See, Elgin, Joliet & Eastern R. Co. v. Burley, 327 U.S. 661, 663 n.2, 66 S.Ct. 721, 90 L.Ed. 928 (1946); Pyzynski v. New York Central Railroad Company, 421 F.2d 854 (2nd Cir. 1970). This authority is not absolute. The local union’s “obligation ‘to represent all members of an appropriate unit requires (it) to make an honest effort to serve the interests of all of those members, without hostility to any. . . . ’ and its powers are ‘subject always to complete good faith and honesty of purpose in the exercise of its discretion.’ Ford Motor Co. v. Huffman, 345 U.S. 330, 337-338, 73 S.Ct. 681, 686, 97 L.Ed. 1048 [1953].” Humphrey v. Moore, 375 U.S. 335, 342, 84 S.Ct. 363, 368, 11 L.Ed.2d 370 (1964).

Thus, we turn to an examination of the circumstances which existed at the time the settlement agreement was entered into. • The record supports the view that there was a genuine dispute as to whether or not Allied had a continuing obligation to pay the GAW benefits. The experienced Teamsters’ International legal counsel had advised the local union’s officers that the clause was probably not enforceable. The seniority lists, which determined eligibility for the benefits, were limited to employees of the St. Louis operation and were not nationwide. The history of the GAW clause’s application under similar contracts was that employees were not given benefits when a division and not an entire company was liquidated. Furthermore, while the 1969 agreement was signed by Allied, the reopened June 1, 1970, agreement, which was in effect, and all other previous contracts had been signed by “Bettendorf” or “Bettendorf-Rapp.” We believe it is clear from these facts that there was a genuine dispute as to the applicability of the GAW clause and that the local union officers acted in good faith and honestly represented the plaintiffs in negotiating the settlement agreement. Therefore, we cannot say that the District Court erred in concluding that it was permissible for the local union to negotiate severance payments for all employees including the plaintiffs in exchange for the release by the employees of all obligations Allied might have under the contract.

Moreover, as we read the collective bargaining agreement, the GAW clause was primarily designed to provide full-time employment for those with the most seniority rather than part-time work for all in the event of a business slowdown. It was not intended to extend benefits to the senior employees when an entire division was liquidated as was the case here.

We find no merit in plaintiffs’ additional arguments in support of their contention that the release did not terminate their rights under the GAW clause. We are satisfied that the notice of cancellation was adequate, that the ratification of the settlement agreement by the rank and file was knowledgeable, that it was proper for all the local union members covered by the collective bargaining agreement to vote on the settlement agreement, and that liquidation by decision of Allied’s officers and directors, rather than by vote of its “stockholders,” sufficiently complied with the purpose of the “liquidation-cancellation” clause to effect the cancellation of the GAW clause.

Similarly, we find no merit in the plaintiffs’ contentions that the local union and Allied were guilty of fraud and misconduct in negotiating the settlement agreement, and that they had conspired to deprive the plaintiffs of their rights under the collective bargaining agreement. It is true that the local union officers were informed by Allied, in July of 1970, that Allied was considering terminating its St. Louis operation and that the rank and file were not given notice until October of 1970. This fact alone, however, does not demonstrate fraud, misconduct, or conspiracy to deprive the plaintiffs of their rights. Rather, it is clear from the record that at all times, the local union acted in the best interest of its members, including the plaintiffs. The local union fought hard to gain GAW benefits for the plaintiffs, but when in their honest judgment it became clear that this was not feasible, the negotiators went on to get at least severance pay for all members including the plaintiffs. Furthermore, there is no credible evidence to support the assertion that the local union and Allied conspired against the plaintiffs.

Finally, we do not suggest that it is ever proper for a majority of a union to deprive the minority of contractual benefits to which they are entitled. Rather, we emphasize that the rights of the minority here to the GAW was tenuous at best, and the local union acted responsibly in negotiating the settlement agreement.

Affirmed.

      . The plaintiffs argue that the agreement was between the local union and Allied’s nationwide operations. Allied, on the other hand, argues that the agreement was between its St. Louis operation and the local union. Eor internal corporate purposes, the St. Louis operation — Bettendorf-Rapp—was treated as a “Division” of Allied. It was one of nine such retail divisions of Allied, each operating independently under the direction and general management of an Allied vice president. The agreement at issue only covered employees in the Bettendorf-Rapp Division.

      . The District Court’s memorandum opinion incorporating its “Findings of Fact and Conclusions of Law” is published at 359 F.Supp. 1041 (E.D.Mo.1973).

      . Section 33.01 The Union shall be the exclusive representative of each member for the purpose of collective bargaining and for the negotiation and execution of collective bargaining agreements with employers, and it is irrevocably authorized and empowered by each member to present, negotiate and settle any and all grievances, complaints and disputes arising out of the relationship between the member and his employer in such manner as it deems, within its discretion, to be in the best interests of the Union. The Union and its officers may decline to process any such grievance, complaint or dispute if, in their sole discretion and judgment, such grievances, complaint or dispute lacks merit.


author: WALLACE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Norman LUE, Defendant-Appellant.
    No. 73-1980.
    United States Court of Appeals, Ninth Circuit.
    June 19, 1974.

      Spencer W. Strellis (argued), Stanley P. Golde, Golde, Strellis & Hall, Oakland, Cal., for defendant-appellant.
    Frederick Read (argued), Crim. Div., Dept, of Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., for plaintiff-appellee.
    Before DUNIWAY and WALLACE, Circuit Judges, and EAST, District Judge.

       Honorable William G. East, United States District Judge, District of Oregon, sitting by designation.

   WALLACE, Circuit Judge:

A jury convicted Lue of one count of conspiring to import heroin in violation of 21 U.S.C. § 952 and three counts of distributing heroin and possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1).

He appeals asserting two errors: (1) that he was a victim of entrapment as a matter of law and (2) that the conduct of the law enforcement officers was so outrageous that his conviction constituted a denial of due process. We reject both of these contentions and affirm the judgment.

On March 5, 1972, Young Ah Jen (Young) approached Henry Monsen in Hong Kong and proposed that Monsen participate with him in smuggling morphine into the United States. After advising Young that he would “think about it,” Monsen contacted the agent in charge of the Bureau of Narcotics and Dangerous Drugs in Hong Kong (Shostrom) and told him of the proposal. Monsen was instructed to keep in contact with Young; later, Monsen agreed to participate with Young in the smuggling. After May 10, when Mosen came to San Francisco Shostrom became the contact with Young in Hong Kong.

On June 5, Young asked and Shostrom agreed to take a package to Monsen in San Francisco. On June 16, Young called Shostrom and asked him to have Monsen call Lue in Los Angeles. Young had previously met Lue in Hong Kong and had offered to send heroin to Lue in the United States. Young gave Shostrom Lue’s telephone number and said that Monsen should give the code phrase “Young has just come from the airport” when he spoke with Lue.

Monsen contacted Lue and repeated the phrase as directed, but Lue gave no indication he recognized the code. Mon-sen subsequently met with Lue in Los Angeles, at Monsen’s request, and told him to “contact his party in Hong Kong.” Later, on June 22, Lue contacted Monsen in San Francisco and informed him that he had talked to Young and asked Monsen “how much was coming.”

After the drugs arrived in San Francisco, Monsen met Lue, delivered a bag containing the heroin and received from him $2,000. Lue was followed by federal agents and was later arrested.

I. ENTRAPMENT

Lue maintains that he was the victim of entrapment as a matter of law. He claims he was unwilling to participate in narcotics smuggling but was overcome by the repeated importunings of the government agents. He also objects that the trial court instructed the jury in accordance with the traditional concept of entrapment which focuses on the accused’s predisposition to commit the offense. He contends that the jury instructions should have focused on the degree of governmental activity.

In United States v. Russell, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973), the Court reaffirmed its earlier opinions in Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932), and Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), which held that the defendant’s predisposition to commit the crime was the principal element in the defense of entrapment. In Russell, the Court expressly overruled the conclusion reached by us that as a matter of law “a defense to a criminal charge may be founded upon an intolerable degree of governmental participation in the criminal enterprise.” United States v. Russell, 459 F.2d 671, 673 (9th Cir. 1972), rev’d, 411 U.S. 423, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973). The jury instructions given by the trial court were directed to the concept of predisposition and are therefore proper under the holdings of Sorrells, Sherman and Russell. The trial court committed no error by denying Lue’s motions to instruct the jury in accordance with our erroneous holding in Russell.

We agree with Lue that this case differs from Russell in the degree of predisposition, but that does not call for a different result as a matter of law. In Russell the evidence clearly disclosed that, prior to the time of the government involvement, the defendant had actually been engaged in the criminal activity for which he was convicted. Russell even conceded in the court of appeals “that he may have harbored a predisposition to commit the charged offenses . . . .” 459 F.2d at 672. Lue, on the other hand, has persisted in contending that he had no such predisposition nor prior criminal activity. The jury, after hearing all the evidence and after proper instructions, was apparently persuaded that “the Government’s deception [did not] actually implant . . . the criminal design in the mind of the defendant . . . .” Russell, 411 U.S. at 436, 93 S.Ct. at 1645. The evidence was clearly sufficient for the jury to reach that conclusion.

II. DUE PROCESS

Lue asserts that his conviction was obtained in violation of due process because of the conduct of the law enforcement officers. His contention is apparently based upon the following language from Russell:

While we may some day be presented with a situation in which the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction, cf. Rochin v. California, 342 U.S. 165[, 72 S.Ct. 205, 96 L.Ed. 183] (1952), the instant ease is distinctly not of that breed.

411 U.S. at 431-32, 93 S.Ct. at 1643. This dictum has already produced some speculation, Comment, The Viability of the Entrapment Defense in the Constitutional Context, 59 Iowa L.Rev. 655, 664-69 (1974), and litigation, United States v. Archer, 486 F.2d 670 (2d Cir. 1973), but no resolution. The Russell dictum implies that where the entrapment defense is unavailable to the defendant because of his predisposition, a remedy founded on due process may still be available in an extreme case. Thus, the Court did close the door on the government activity theory in an entrapment case, but it left it open enough to provide proper relief when such activity violates due process. This is not an exception to entrapment law which focuses on a defendant’s predisposition. It is a recognition that some government activity might be so grossly shocking to be violative of due process regardless of whether the requirements of entrapment have been met. For an accused to benefit from this remedy, the facts of this case would have to demonstrate government conduct “so outrageous” as to be analogous to the police conduct in Rochin.

Lue, however, attempts to thrust open completely that which was left slightly ajar by claiming the same type of government activity validated in Russell is now tainted under the banner of due process. In this he fails. Monsen and Shostrom were conduits in the transfer of the heroin from Young to Lue. As in Russell, where the government agents provided something of value in order to infiltrate the drug ring, here also the government provided something of value when it furnished the needed couriers to carry the heroin. The Court stressed in Russell that the defendants could have obtained the chemical ingredient supplied by the government from alternate sources and thereby achieved their criminal purpose without the assistance of the government. Similarly, if Monsen and Shostrom had not been available, someone else would have been employed by Young to carry the heroin to Lue.

In Russell, the Court, addressing itself to government activity similar to that involved in this case, stated:

[I]n drug-related offenses law enforcement personnel have turned to one of the only practicable means of detection: the infiltration of drug rings and a limited participation in their unlawful present practices. Such infiltration is a recognized and permissible means of investigation; if that be so, then the supply of some item of value that the drug ring requires must, as a general rule, also be permissible. For an agent will not be taken into the confidence of the illegal entrepreneurs unless he has something of value to offer them. Law enforcement tactics such as this can hardly be said to violate “fundamental fairness” or “shocking to the universal sense of justice,” Kinsella, [361 U.S. at 246, 80 S.Ct. 297, 4 L.Ed.2d 268].

411 U.S. at 432, 93 S.Ct. at 1643.

Just as the Supreme Court concluded in Russell, we also conclude in this case:

The law enforcement conduct here stops far short of violating that “fundamental fairness, shocking to the universal sense of justice,” mandated by the Due Process Clause of the Fifth Amendment. Kinsella v. United States ex rel. Singleton, 361 U.S. 234, 246[, 80 S.Ct. 297, 4 L.Ed.2d 268] (1960).

411 U.S. at 432, 93 S.Ct. at 1643.

Affirmed.

      . The district court instructed in part:
      The defendant asserts that he was a victim of entrapment as to the crimes charged in the indictment.
      Where a person has no previous intent or purpose to violate the law, but is induced or persuaded by law-enforcement officers or'their agents to commit a crime, he is a victim of entrapment and the law as a matter of policy forbids his conviction in such a case.
      On the other hand, where a person already has the readiness and willingness to break the law, the mere fact that government agents provide what appears to be a favorable opportunity is not entrapment.
      If, then, the jury should find beyond a reasonable doubt from the evidence in the case that, before anything at all occurred respecting the alleged offense involved in this case, the defendant was ready and willing to commit crimes such as charged in the indictment, whenever opportunity was afforded, and that government officers or their agents did no more than offer the opportunity, then the jury should find that the defendant is not a victim of entrapment.

      . In Archer the defendants asserted the due process defense based on the Russell dictum but the Second Circuit avoided the resolution of the “uncertainties and dimensions of this defense,” Comment, The Viability of the Entrapment Defense in the Constitutional Context, 59 Iowa L.Rev. 655, 665 (1974), and decided the case on other grounds. United States v. Archer, 486 F.2d 670, 677 (2d Cir. 1973).

      2. In Archer the defendants asserted the due the Court has apparently tried to augment it with a separate non-entrapment defense based on due process. This defense is centered on the theory that although the predisposition of a defendant will render the traditional entrapment .defense unavailable to him, the fundamental fairness requirements of due process may prevent his prosecution.
      Comment, The Viability of the Entrapment Defense in the Constitutional Context, 59 Iowa L.Rev. 655, 665 (1974).


author: OAKES, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Theron CLARK, Appellant.
    No. 861, Docket 73-2790.
    United States Court of Appeals, Second Circuit.
    Argued March 7, 1974.
    Decided June 5, 1974.
    Michael A. Young, New York City (William J. Gallagher, The Legal Aid Society, New York City, of counsel), for appellant.
    David A. DePetris, Brooklyn, N. Y. (Edward John Boyd, V, U. S. Atty. for the Eastern District of New York, Paul B. Bergman, Asst. U. S. Atty., of counsel), for appellee.
    Before MOORE, MANSFIELD and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

This is an appeal from a second conviction on two counts of possession of narcotics with intent to distribute in violation of 21 U.S.C. § 841(a) (1). The first conviction was reversed by this court in a decision reported at 475 F.2d 240 (1973). On this appeal appellant claims that the search which resulted in discovery of the narcotics was unlawful, that evidence of the street value of the narcotics was improperly admitted, that the court below erred in refusing a requested charge on the issue of intent, and that appellant was improperly excluded from a portion of his suppression hearing. For the reasons below we affirm the conviction.

1. The Search.

On May 24, 1972, appellant attempted to board a domestic flight at LaGuardia Airport. At the boarding gate a marshal and an airline supervisor, who had already been informed that there was a “selectee” on this flight, noted that appellant’s ticket was specially marked as such. Appellant then, as did all prospective passengers, went through a magnetometer which indicated that he had metal either on his person or in the bag which he was carrying. The supervisor then asked appellant for some identification. Appellant said he had none. According to the marshal, appellant seemed “stupefied,” “like he wasn’t himself.” With that the marshal frisked appellant and found nothing. He directed appellant to open his bag. There he saw a bulky object wrapped in a towel. He unwrapped it and found a box, which he opened in the belief that it might contain explosives. Inside were glassine and other envelopes containing what later was determined to be narcotics. The court below after the suppression hearing determined that the search was lawful first on the basis that it met the test prescribed by this court in United States v. Bell, 464 F.2d 667 (2d Cir.), cert. denied, 409 U.S. 991, 93 S.Ct. 335, 34 L.Ed.2d 258 (1972), and second on the basis of consent.

We agree with the court below that the test of Bell has been met in this case. Here “specific, articulable facts exist[ed] to support a reasonably prudent man’s belief that his or others’ safety might be in danger. . . .” United States v. Albarado, No. 73-1954, 495 F.2d 799 (2d Cir. Apr. 1, 1974), at 810. In Bell those facts were the defendant’s meeting the profile, activating the magnetometer, having no identification, and admitting he was out on bail pending trial for attempted murder. Here appellant met the profile, activated the magnetometer, could produce no identification, and acted strangely, appearing in a stupor or “not himself.” Upon these facts the marshal was well justified in searching both appellant’s person and the bag he carried.

2. The Evidence of the Street Value of the Narcotics.

At trial, counsel for appellant stipulated to a chemist’s report which indicated both the elements present in certain envelopes which had been tested and the total weight of all the elements present in those envelopes. There was no evidence, however, of either the actual amount of controlled substances in the envelopes tested or the percentage of the powder which was in fact “controlled substances.” In other words, while appellant stipulated to the fact that there were controlled substances in at least some of the packets, neither did he stipulate to nor did the Government prove how much there was. The Government nevertheless sought to admit evidence as to the “street value” of the envelopes seized. Its expert witness estimated the street value of the envelopes seized, the estimate being based on his experience in undercover purchases, conversations with informants, literature of the BNDD, and, perhaps most importantly, the manner in which this particular material was packaged. Appellant’s claim is that the evidence was improperly admitted since, without knowing how much heroin or cocaine was involved, there would be no genuine basis for an estimate of “street value.”

While knowledge of the actual amount of heroin in the powder would be the best basis for an opinion as to the value of the narcotics envelopes, it is not the only basis. Experience with the values of envelopes of the same size and shape, concededly containing some heroin, is another basis and was present here. Knowledge of the actual contents would not of itself insure an accurate opinion as to “street value.” As with many other commodities, glassine envelopes of heroin are not always subject to chemical analysis prior to sale. A buyer must often rely on what amounts to the seller’s warranty as to the contents. Thus the “street value” of packaged heroin may depend as much on the appearance of the package as the actual percentage of heroin and powder. Inasmuch as there was a sufficient basis for the expert testimony to be admitted, whatever infirmities existed in his testimony as a result of the lack of a laboratory analysis went to the weight of his testimony and not its admissibility, once it was established (as it was here by stipulation) that there was heroin in the envelopes. Cf. Mims v. United States, 375 F.2d 135, 143-144 (5th Cir. 1967); United States v. Licht, 158 F.2d 458, 460 (2d Cir. 1946), cert. denied, 339 U.S. 824, 67 S.Ct. 863, 91 L.Ed. 1274 (1947).

3. The Refused Request to Charge the Jury.

Appellant requested a charge to the jury to the effect that the fact that a person may have been under the influence of drugs at the time of the commission of a crime may negate the existence of specific intent. While such a charge may well be required in the proper case, see, e. g., Allen v. United States, 239 F.2d 172, 173 (6th Cir. 1956), this is not such. The specific intent the Government had to prove in this case was that appellant intended to distribute the narcotics in question. The fact that appellant may have been an addict, for which there was some evidence, is irrelevant to whether when appellant obtained the narcotics or during the period in which he had it he was under such influence. Here there was- no evidence at all that appellant was acting under the influence of drugs when he acquired the narcotics or, alternatively, when his intent was formed — arguably when he left North Carolina to come to New York, according to his own tale, to bring back a package for someone. In short, there was no evidence in the record which would require such a charge.

4. Appellant’s Exclusion from Part of His Suppression Hearing.

In United States v. Bell, supra, we upheld the exclusion of a defendant from that portion of a suppression hearing dealing with the criteria that make up the “profile,” and this partial exclusion was reaffirmed in appellant’s first appearance before this court. 475 F.2d at 244-245. Appellant claims now, however, that because the profile system was no longer in use at the time of the suppression hearing, there was no compelling need to maintain the confidentiality which justified the partial exclusion. Primarily, it should be noted that appellant did not object below to the partial exclusion, and may be said therefore to have waived his right of confrontation. But even were there no waiver, there is no evidence that the profile has been abandoned forever as a weapon to combat air piracy. In the future it may once again be used. The fact that the FAA has at the present time on its own initiative withdrawn the profile system does not mean that the necessity of preventing public disclosure of the profile criteria found in United States v. Bell, supra, has ceased to exist. Hence, appellant’s exclusion from that portion of the suppression hearing was proper.

'Judgment' affirmed.

      . As was noted in the first appeal, this ease arises in the context of the anti-hijacking system in effect at that time at LaGuardia Airport. An important part of that system was the “profile” screening method, see United States v. Albarado, No. 73-1954, 495 F.2d 799 (2d Cir. Apr. 1, 1974), at 802; United States v. Ruiz-Estrella, 481 F.2d 723, 724 (2d Cir. 1973), whereby those meeting the “profile” were designated “selectees” and their tickets were specially marked so that those at the boarding gate would be able to identify them.


text:
    MYSTIC STEAMSHIP CORPORATION, Plaintiff-Cross-Appellee, v. M/S ANTONIO FERRAZ, her engines, etc., and Navegacao Mercantil S.A., Defendants-Cross-Appellants. NAVEGACAO MERCANTIL S.A., Plaintiff-Appellee and Cross-Appellant, v. The TUG BETTY MORAN, her engines, tackle apparel, etc., and Moran Towing Corporation, Defendants-Appellants and Cross-Appellees.
    Nos. 765, 852, Dockets 73-2350, 74-1145.
    United States Court of Appeals, Second Circuit.
    Argued April 1, 1974.
    Decided June 5, 1974.

      Robert B. Pohl, New York City (Burlingham Underwood & Lord, New York City, of counsel), for appellants-crossappellees The Betty Moran and Moran Towing Corp. and plaintiff-cross-appellee Mystic Steamship Corp.
    Joseph M. Brush, New York City (Cichanowicz & Callan, New York City, of counsel), for appellee-cross-appellants M/S Antonio Ferraz and Navegacao Mercantil S. A.
    Before HAYS and OAKES, Circuit Judges, and CHRISTENSEN, District Judge.

       Of the District of Utah, sitting by designation.

   OAKES, Circuit Judge:

These are appeals and cross appeals by the owners of the tug Betty Moran and the M/S Antonio Ferraz (“Ferraz”) from an interlocutory decree (settling all issues save for the question of damages) of the district court holding both responsible for a collision between the Ferraz and the barge Eastern No. 2, owned by Mystic Steamship Corp. The collision occurred in the early morning of June 11, 1968, off Cape Henry, Virginia, at the entrance to Chesapeake Bay. The place of collision was outside the area where the Navigation Rules for Inland Waters, 33 U.S.C. §§ 151-232, apply. The bow of the Ferraz and the starboard quarter of the barge were in collision, causing damage to both vessels. Because the court below found the collision caused by the negligence of both the tug and the Ferraz, the decree was that the damage be borne equally by the offending parties. The Schooner Catharine v. Dickinson, 58 U.S. (17 How.) 170, 177, 15 L.Ed. 223 (1855). Nee Weyerhaeuser Steamship Co. v. United States, 372 U.S. 597, 603, 83 S.Ct. 926, 10 L.Ed.2d 1 (1963).

The tug Betty Moran, which was under bareboat charter to and operated by the Moran Towing Corp., was a tug of 289 gross tons, 136 feet long and 35 feet beam, driven by a 43,000 h.p. diesel engine with twin screw and wheel house control. The barge under tow, which was sailing unmanned, was a converted Liberty Ship with no propulsion machinery or crew space, having a length of 444 feet and a beam of 57 feet; she was carrying a cargo of 13,000 tons of coal and had a draft of 27 feet 7 inches forward and 31 feet 4 inches aft. The tow consisted of a chain some 60 feet long running from the bow of the barge through a bull-nose shackled onto a steel wire hawser about 2)4 inches in diameter, which in turn was wound onto a drum on the steering engine at the stern of the tug. It is of some significance that, at the time of the collision, the hawser was out 1,500 feet so that the total length of the tow line was 1,560 feet and of the flotilla about 2,140 feet. The tow in question was one from Lamberts Point, Norfolk, Virginia, to New York City, and the collision occurred when the tug was under the navigation of her mate, Captain James Brogan, with a deckhand and an engineer on watch.

The Ferraz was a vessel of 12,667.90 gross tons, some 553 feet long, bound from Rio de Janeiro to Baltimore loaded with about 16,000 tons of iron ore. The Ferraz was headed toward Cape Henry, Virginia, where she was to take on a pilot for Baltimore, and she was at the time of the collision in the charge of her master, with the first, second and third mates and a helmsman on the bridge, two lookouts on the prow, and a boatswain’s mate and seaman stationed at the bow. The collision occurred at or about 4:06 a. m. when the barge came into contact with the bow of the Ferraz, at an angle of about 60 degrees. It rather ridiculously took place early on a clear morning when, there was visibility of at least eight miles. Versions of how the collision occurred, needless to say, differ.

On the tug’s story, the tug and barge proceeded out of Norfolk down the Bay around Sewell’s Point and down Thimble Shoal Channel at a speed of about eight knots. When the tug and barge came to the end of the channel, just outside of which the Inland Rules no longer applied, the hawser was let out to 1,500 feet and the tug set a course of 105 degrees true. Just before the tug came abeam of buoy R “2” Horn, it changed course to starboard to 135 degrees true. At that point Captain Brogan said he noticed the green starboard running light and white range lights open to the right of a ship, later identified as the Ferraz, about 5 to 10 degrees off the starboard bow of the tug in the vicinity of buoy R “2CB,” a distance he estimated to be seven miles. When Captain Brogan first noticed the Ferraz, he thought the vessels were on diversion courses and that if both held to the line, they would pass starboard to starboard at least a half-mile apart. He testified that, when the Ferraz was about three-quarters of a mile away, he observed both red and green sidelights and that her range lights were in line, indicating that the Ferraz had altered her course to starboard. He flashed his light twice to indicate a starboard-to-starboard passing and to inform the Ferraz that he had a tow. Obtaining no reply, he said he repeated the signal 15 seconds later, but again received no reply, and gave two blasts from his horn. He repeated this again, but still received no reply. He concluded that the Ferraz would miss the tug, but was concerned about the barge and therefore slowed down to let the towing hawser fall to the bottom. He then turned his search light on the barge for about six to seven seconds. Interestingly, those on the tug did not realize that the barge was struck by the Ferraz until the following day, when the hawser was shortened to enter New York Harbor, at which time it was observed that the starboard quarter of the barge had been damaged.

According to the Ferraz — and her contemporaneous chart is in evidence — at about 2:58 a. m., while on a course headed directly northwest toward the Chesapeake Bay sea buoy, she altered her course to the west 273 degrees and at 3:12 a. m. passed directly south of the sea buoy. Maintaining this course at 3:41 a. m., according to her own chart and the testimony of her witnesses, she passed 1,300 to 1,400 yards north of buoy R “2CB,” as opposed to the passing south which Captain Brogan thought he had seen when the Betty Moran first sighted the Ferraz. In any event, the Ferraz continued on her course of 273 degrees until 3:45 a. m., at which time she altered her course about 30 degrees to starboard in a northwesterly direction directly toward the pilotage area of Cape Henry. In this area a pilot boat carrying the Ferraz’ pilot was cruising in the vicinity of buoy “R2,” several miles north-northeast of Cape Henry Light. When the Ferraz made her course alteration to starboard, her engines were put on standby and her engine speed varied between complete shutdown and slow forward. At about 3:50 a. m. her engine speed was reduced to half ahead and then to slow ahead, and at 3:58 a. m. her engines were stopped. Significantly, the tug was not observed by the Ferraz until 4:03 a. m., approximately three minutes before the collision. Those on the Ferraz claimed the tug crossed the bow of the Ferraz from port to starboard at about 4:04 a. m. The Ferraz crew claimed that the tug made a 90 degree turn northward some 300 meters off the bow of the Ferraz.

There is every reason for supporting the district judge fully in his finding that the Ferraz was at fault in three respects — failing to maintain a proper lookout, failing to reverse her engines sooner, and altering her course to starboard to cross that of the tug and barge. It is quite plain the Ferraz did fail to see the tug “flotilla” — despite an eight-mile range of vision- — until three minutes before the collision. The Ferraz gave no signals and apparently heard or saw none from the tug. The inattention may have resulted from a change of watch at 3:45 a. m. which, however, is not clearly disclosed in the chartroom records in evidence. In any event, as the district court said, doubtless the crew was preoccupied in locating the pilot boat. As stated by Mr. Justice Brown in The New York, 175 U.S. 187, 204, 20 S.Ct. 67, 73, 44 L.Ed. 126 (1899), “Her officers failed conspicuously to see what they ought to have seen or to hear what they ought to have heard. This, unexplained, is conclusive evidence of a defective lookout.” See also Rice v. United States, 168 F.2d 219, 220 (2d Cir. 1948); Gulf Oil Corp. v. The Socony No. 16, 162 F.2d 869, 870 (2d Cir. 1947).

Had the Ferraz reversed her engines sooner, rather than approximately two minutes prior to the collision — when they were put in reverse at half speed- — or one minute prior when they were put in reverse at full speed, the collision could easily have been avoided. Doubtless this failure to maneuver was in turn precipitated by the defective lookout.

Quite clearly the Ferraz did alter her course to starboard to cross that of the tug and barge. According to her own gyro course recorder readings, having proceeded for several minutes on a 303 true degree course, at 0356 she began a starboard turn. This took her at

0357 to 310°,
0358 to 320°,
0359 to 328°,
0400 to 333°,
0401 to 340°,
0402 to 347°,
0403 to 360°,
0404 to 14°,
0405.7 to 27°,
0406.1 to 40°,
0406.5 to 50°.

She finally leveled out at 0407 at around 60°, swinging back slightly thereafter. Whether this was proper action under the International Rules in effect in the waters of the collision will be discussed below in connection with our discussion of the action of -the tug, Betty Moran.

The court below also found the tug at fault on two grounds, first, because in lengthening the hawser to 1,500 feet at the end of Thimble Shoal Channel the barge became less maneuverable and more vulnerable to collision in the pilot-age area off Cape Henry and, second, by virtue of a breach of the tug’s duty, in a crossing situation governed by Rule 19 of the International Rules, 33 U.S.C. § 1081, to keep out of the way of the Ferraz because the Ferraz was to starboard of the tug. Judge Bonsai’s conclusion that the length of the tow line prevented the tug from keeping the barge out of the way of the Ferraz and was thus a contributing cause of the collision was in reliance on The Fred B. Dalzell, Jr., 1 F.2d 259, 262 (2d Cir. 1924).

The charts make it clear, however, that the collision occurred outside the line for use of the Inland Rules, although in a “restricted area” where anchoring, trawling, fishing and dragging are prohibited. The distance from the point of collision beyond Inland Rules waters was about two miles and the mouth of Thimble Shoal Channel is about four miles within Inland Rules waters. It was at the end of the channel and, the trial judge held, within Inland Rules waters that Captain Brogan had lengthened his tow line. Had the collision occurred in these waters the tug would have been subject to those Rules which require, with an exception mentioned below, a maximum length of 450 feet for a tow. 33 U.S.C. § 152, 33 C.F.R. § 84.10. A barge is, however, plainly less maneuverable with a long hawser than a short one; indeed here Captain Brogan estimated that it would take four minutes to change the course of his barge 10 degrees. Perhaps the thrust of the district court’s finding of fault is that the tow was still unduly long because Captain Brogan had made this run 60 to 100 times and “should have known that his course passed the area off Cape Henry where vessels coming into the bay picked up pilots for Norfolk or Baltimore.”

The chart indicates, however, that the pilotage area is some four miles from the collision point, pilots being normally embarked in the vicinity of “R2” buoy. There was ample sea room for the Ferraz to navigate. Moreover, there is no International Rule limiting the length of tow, and the collision here was not subject to the Inland Rules. The case relied upon by the district court, The Fred B. Dalzell, Jr., is distinguishable because there a fleet of 11 barges being towed through the Kill von Kull on a long hawser was caught by the tide and swung across the channel into the path of an approaching vessel. The tug was held liable “not because of the length of the hawser, but because, using a hawser the length she employed, she failed to control her tow and to keep it in line in tidewaters, and permitted it to swing across the Flagler’s bow.” 1 F.2d at 263. In our case, the Betty Moran did control her tow, which was at all times directly behind the tug. The barge did not swing into the Ferraz, the Ferraz turned into the barge. See The Scow No. 27, 164 F.2d 778 (4th Cir. 1947); The Hamilton, 212 F. 1016 (E.D.Va.1914). The district court we think erroneously extended the line for observance of the Inland Rule towing regulations two miles into international waters. If Captain Brogan were at fault for extending his tow at the end of Thimble Shoal Channel, that fault was rendered legally irrelevant by the tow’s reaching international waters. If there were decreased maneuverability as a result of the longer tow, that decreased maneuverability on the part of the tug was hardly a contributing cause of collision when the Ferraz did not see the tow until three minutes before the collision and was in process of making approximately a 90 degree turn to starboard in order to collide with the barge.

As we have said, the Ferraz cannot claim that the Betty Moran made a 90 degree turn to port to effectuate the collision. Indeed, it well appears that these vessels were meeting — as the district court in effect found by indicating that the Ferraz should not have altered her course to starboard. In fact, the Ferraz was proceeding on a 303 degrees true reading ten minutes before the collision, and the Betty Moran’s evidence was that she was heading out on a course of 135 degrees true. This is quite consistent with the place of the mouth of Thimble Shoal Channel and the point of collision delineated by the Ferraz in her contemporaneous chart. The meeting rule set out in material part in the margin clearly requires vessels approaching starboard to starboard to hold course until they pass clear on their starboard sides.

According to the Betty Moran, the Ferraz bore on the Betty Moran’s starboard bow and was showing a green light with her range lights open to the right; the Ferraz and barge clearly would have passed had the Ferraz held her course instead of making her quite sharp turn to starboard. As J. Griffin, The American Law of Collision § 32, at 75-76 (footnote omitted) (1949), notes:

Article 18 of the International Rules [33 U.S.C. § 1080(a)] has no express provision for any case except that of steam vessels meeting end on or nearly so, so as to involve risk of collision. It says nothing about vessels approaching green to green, or each on the other’s starboard, — evidently for the reason that, since they are not end on or nearly so, there is no risk of collision. . . . They have merely to hold their courses. . . . [t]he obligation to pass starboard to starboard arises from the relative positions of the vessels.

The Ferraz argues, however, that when at 3:45 a. m. the Ferraz did change her course from 273 degrees to 303 degrees, the Ferraz was not frozen into a meeting and starboard-to-starboard situation, but rather it should have been plain to the

Moran that the Ferraz was headed for the pilotage area and the vessels were on a port-to-port meeting. What may have appeared to the Ferraz to be the Moran’s turning and passing by the bow, however, was really the Ferraz’s turning to starboard, as her gyro course recorder indicated. This is not a case like The Steel Inventor, 43 F.2d 958, 960 (2d Cir. 1930), where a course change two miles and five minutes away from the collision was held too remote to fault The Inventor, since there was opportunity for The Woolsey to comply with her duty under the starboard hand rule as the burdened vessel. Both of the vessels in our case were proceeding quite slowly, presenting a meeting situation, not a crossing one, even though the Ferraz would like to have it otherwise. See The Arfeld, 42 F.2d 745, 748 (E.D.La.1930); The S.S. Bylayl, 49 F.Supp. 439, 442-443 (S.D.N.Y.), aff’d on opinion below, 139 F.2d 348 (2d Cir. 1943). Had this been a port-to-port meeting, while the rule is that the vessels should hold their course, see Puratich v. United States, 126 F.2d 914 (9th Cir. 1942), the Ferraz’ turn to starboard would have taken her out of collision’s path. It is true that the application of the rules of the nautical road cannot be fixed precisely and indeed vary with the relation of courses, the speed of the vessels, the range of visibility, the character of the waters and all of the other infinitely varying conditions at sea. See Mr. Justice Clifford in New York & Liverpool United States Mail Steamship Co. v. Rumball, 62 U.S. (21 How.) 372, 383-385, 16 L.Ed. 144 (1859). Here, however, we had a rather sudden, if accountable alteration of course by the Ferraz, thereby creating a situation of peril where none before existed. To the extent that the district court considered that the crossing rules might have applied to require the Betty Moran to keep out of the way of the Ferraz, then it could not have faulted the Ferraz for turning to starboard. The court may have based its finding of a crossing situation upon an erroneous interpretation of the testimony of Captain Brogan. He had said that when he saw the Ferraz’ range lights line up and she opened up both side lights, “it was a meeting situation,” but he had changed his course and made it a crossing situation. There then ensued the following:

Q. Crossing in what respect?
A. In the respect that it was too close to do anything to help him get out of — my barge to get out of the way.
Q. How far away were you at that time?
A. I judged a half to three quarters of a mile.

In other words, when Captain Brogan originally said the Ferraz’ course “made it a crossing situation” he was not saying that the crossing rules were applicable; rather he was asserting that the vessels were still meeting but the Ferraz had made a change of course to head across the bow of the Betty Moran. At a half to three-quarters of a mile the Ferraz simply could not turn to starboard and require the Betty Moran and her tow to keep out of the way. As Griffin, supra, § 22 at 34-35 states: “Obviously, in order to have safety, one must have certainty, — if the rule to be applied kept changing as the vessels approached, there could be no certainty ... in other words the character of the situation does not change.”

In short we hold that the Betty Moran was not at fault in any respect and that the sole cause of the collision was the gross fault of the Antonio Ferraz in failing to keep an adequate lookout, turning to starboard toward the tug and the tow and not timely reversing her engines under the circumstances.

Judgment against Navegacao Mercantil S.A. and M/S Antonio Ferraz affirmed; judgment against the tug Betty Moran, her engines, tackle apparel, etc., and Moran Towing Corporation reversed; tug Moran exonerated.

      . In Union Oil Co. v. The San Jacinto, 409 U.S. 140, 141, 93 S.Ct. 368, 370, 34 L.Ed.2d 365 (1972), the Supreme Court had granted certiorari “to consider petitioner’s request that we abandon the divided-damages rule.” The Court did not reach that issue, however, because it found single liability. The obvious inequities of the “Procrustean” divided-damages rule have been subjected to abundant criticism, see G. Gilmore & C. Black, The Law of Admiralty 438-42 & cases cited therein (1957), but the parties here did not raise this issue below, nor do we reach it, given our disposition of the liability issue.

      . This signal, under the International Rules, 33 TJ.S.C. § 1090(a), should, if heard by the Ferraz, have indicated the tug’s intention to turn to port. The fact that the Ferraz neither heard nor acted upon the signal, coupled with the fact that the tug itself evidently did not turn to port, is sufficient to prove that the signal in no way contributed to the collision. Cf. Oriental Trading & Transport Co. v. Gulf Oil Corp., 173 F.2d 108 (2d Cir.), cert. denied, 337 U.S. 919, 69 S.Ct. 1162, 93 L.Ed. 1728 (1949).

      . Captain Medairy, the pilot, testified that at about 5 :00 a. m. he observed a tug and tow in an area the tug and barge might have reached had such a turn been made. The district court found, however, that — according to the chart —-the depth at the area where he made this observation was so shallow that it would not have allowed the passage of the barge, drawing as it did 31 feet 4 inches aft, so that Medairy must have observed a different tow. This conelusion is substantiated by the log of the tug, which shows that at 4:30 a. m. the Betty Moran rounded buoy B “2CB” — the buoy by which the Ferraz passed north or south depending on each party’s version of the facts. Moreover, Captain Brogan testified that he could not have made any such 90 degree turn, limited in maneuverability as he was with the barge in tow.

      . § 1081. Power-driven vessels crossing (Rule 19)
      When two power-driven vessels are crossing, so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way of the other.

      . Even the Inland Rules allow the master of the towing vessel some discretion, 33 C.F.R. § 84.10, following 33 U.S.C. § 152.

      . When two power-driven vessels are meeting end on, or nearly end on, so as to involve risk of collision, each shall alter her course to starboard, so that each may pass on the port side of the other. This section only applies to cases where vessels are meeting end on, or nearly end on, in such a manner as to involve risk of collision, and does not apply to two vessels which must, if both keep on their respective course, pass clear of each other. ... It does not apply . . . where the green light of one vessel is opposed to the green light of the other . ...
      33 U.S.C. § 1080(a).