author: GOLDBERG, Circuit Judge: LEWIS R. MORGAN, Circuit Judge BY THE COURT: PER CURIAM:

text:
    Wyman WESTBERRY, Plaintiff-Appellant, v. GILMAN PAPER COMPANY et al., etc., Defendants-Appellees.
    No. 73-3268.
    United States Court of Appeals, Fifth Circuit.
    Jan. 22, 1975.
    Rehearing En Banc Granted March 18, 1975.
    Opinion Withdrawn May 23, 1975.
    Lewis R. Morgan, Circuit Judge, dissented with opinion.

      Fletcher N. Farrington, William T. Coleman, III, Savannah, Ga., for plaintiff-appellant.
    John M. Gayner, III, Brunswick, Ga., Guy O. Farmer, II, Jacksonville, Fla., John J. Sullivan, Savannah, Ga., for defendants-appellees.
    Before GOLDBERG, GODBOLD and MORGAN, Circuit Judges.
   GOLDBERG, Circuit Judge:

This case pushes us to the frontiers of Fourteenth Amendment interpretation. We must address ourselves to a question which the Supreme Court postponed in Griffin v. Breckenridge: does the Fourteenth Amendment, through the vehicle of 42 U.S.C. § 1985(3), provide a cause of action against purely private parties?

Today we hold that the amendment and the statute operate in tandem to provide such a cause of action. In so holding, we join a unanimous en banc decision by the Eighth Circuit and a decision by the Third Circuit.

I

Our discussion begins with Griffin v. Breckenridge, supra, in order to establish the background against which we evaluate the matter sub judice.

In Griffin v. Breckenridge, Negroes traveling on a Mississippi highway were stopped and beaten by white private citizens. The beatings were racially motivated; defendants acted on a mistaken belief that the plaintiffs were civil rights workers. The Supreme Court found that plaintiffs had a 1985(3) cause of action. In his opinion for the Court, Justice Stewart first held that by its history and on its terms the statute would cover the action. 403 U.S. 96-102, 91 S.Ct. 1790. In debate on the provision, which originated as section 2 of the Ku Klux Klan Act of 1871, Congress appears to have assumed that it reached private action. And, while section 1 of the Act explicitly pertains to actions under color of law, section 2 lacks any wording establishing such a requirement. Moreover, since other parts of the Ku Klux Klan Act related to lesser degrees of state involvement than that encompassed in section 1, section 2 must have been intended to reach purely private action if it was not to be mere surplusage. Finally, the Court noted that the Act is directed in part against people who “go in disguise on the highway”, which people are unlikely to be officers on their governmental rounds.

In coming to its decision the Court found that two aspects of a 1985(3) action were not dependent on the literal terms of the statute itself. First, the Court read the words “equal protection” and “equal privileges” in the statute to mean “the equal enjoyment of rights secured by the law to all” free from all interference. 403 U.S. 102, 91 S.Ct. 1798. Second, the Court limited liability under the statute to those instances in which there is some “racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators’ action.” 403 U.S. at 102, 91 S.Ct. at 1798.

Justice Stewart then went on to discuss the constitutional bases upon which such a statute could rest. While the statute was passed under the Fourteenth Amendment and its language is identical to language used in the Fourteenth Amendment, the Court avoided a discussion of the strength of such a foundation. Rather, the Justices concluded unanimously that the Thirteenth Amendment empowers Congress to determine what the badges and incidents of slavery are and to create a statutory cause of action for those deprived “of the basic rights that the law secures to all free men”. 403 U.S. 105, 91 S.Ct. 1800. In addition, eight Justices found that interstate travel is constitutionally protected as a right and privilege of national citizenship, does not necessarily rest on the Fourteenth Amendment, is assertible against private interference and is within the power of Congress to protect by appropriate legislation. 403 U.S. 105—106, 91 S.Ct. 1790.

II

Plaintiff in the instant case, Wyman Westberry, is a white man who was employed at defendant Gilman Paper Company’s [Gilman or the Company] Saint Marys, Georgia, mill. Defendants George Brumley, Robert Harrison and Tommy Thomas were, respectively, executive vice-president, counsel and an agent of the Company. Plaintiff claims that he was active in local environmental groups which were attempting to secure investigations of the Company for possible violations of federal pollution laws. He also claims that he sought to reform the local tax structure, which he felt resulted in Gilman’s paying too little in taxes; and that he supported local candidates who were opposed by the Company. He alleges that the three individual defendants, acting for Gilman, conspired to take his life, and conspired and effectuated his dismissal from his job. He claims their action denied him the equal protection of the laws of the United States and Georgia, including the rights to speech, association and assembly, petition for redress of grievances, security of person and his right not to be deprived of life, liberty or property without due process of law. Defendants, on the other hand, deny that there was any conspiracy to kill Westberry and claim that he was fired because he had poured acid on a black worker who was using the formerly all-white restroom at the mill.

In his final order below, 60 F.R.D. 447, the district judge maintained:

It could be claimed that Westberry was a member of some group or class that opposed the corporation’s practices and sought reform of its pollution and tax policies. But there is nothing to show that Gilman Paper Company conspired with its agents to strike at any such class or group of employees or persons Plaintiff has failed to show existence of any class-based, invidiously discriminatory animus behind the alleged actions of the conspirators. Accordingly, the motions of defendants for summary judgment are granted and the complaint is dismissed on the ground of lack of jurisdiction.

We disagree with the resolution of the trial judge.

In the arbitration hearings on West-berry’s termination, which were made part of the trial court record, see Arbitration Hearing Record, pp. 203 — 204, the following colloquy took place between the plaintiff and a lawyer for the Company:

Q Now, this newspaper dated September, 1972, which is marked as an exhibit, this is not the first time that you’ve had your name in the newspaper as being critical of the Gilman Paper Company, is it?
A Let’s see. When I testified before the Federal Grand Jury at Savannah, there was a statement there which I did not make. I never met the individual who printed the story. I don’t know where he got the story from, but I did testify before the Federal Grand Jury in Savannah and I think somebody printed it. I was millwright at the Gilman Plant.
Q Now, isn’t it a fact that you have been openly critical of the Company for several years?
A If telling the truth is being openly critical, I have told the truth.
Q And the truth as you see it and have spoken of it are things that the Company has done wrong in its relationship with the community on environmental issues. Is that correct?
A Yes, sir.
Q So, back to my original question: September of 1972 was not the first time that you have been outspokenly critical of the Gilman Paper Company?
A As far as in the newspaper, I would say September 19th probably was, because I made no statement prior to that.
Q It’s a matter of common knowledge that you were extremely active insofar as the environmental issue and the Paper Company is concerned. Isn’t that a fact?
A I don’t know if it was common knowledge.
Q Well, is it true?
A That I was what, now?
Q That you were openly critical of the Gilman Paper Company in connection with their allegedly polluting the environment.
A Yes.

Nor did the defendants allege facts in affidavits, depositions or testimony at the arbitration hearing which in any way sought to counter plaintiff’s testimony about his environmental activism. If anything, defense counsel’s remarks in the arbitration hearing support plaintiff’s contention on this issue. See Arbitration Hearing Record p. 11. Thus plaintiff had no F.R.C.P. Rule 56(e) responsibility to make a further pre-trial showing of his environmental activities or memberships.

The district judge also made clear that he was not granting summary judgment for lack of a showing by plaintiff of a conspiracy to murder.

We believe that the indication of Westberry’s alignment with environmental causes, coupled with the judge’s finding on the conspiracy to murder issue raises a sufficient inference that there may have been a “class-based, invidiously discriminatory animus behind the alleged actions of the conspirators” to evidence subject matter jurisdiction in the district court under § 1985(3) and to raise genuine issues of material fact which make summary judgment inappropriate. Keating v. Jones Development of Missouri, Inc., 5 Cir. 1968, 398 F.2d 1011, 1013; Harvey v. Great Atlantic and Pacific Tea Co., 5 Cir. 1968, 388 F.2d 123, 124; Marsden v. Patane, 5 Cir. 1967, 380 F.2d 489, 491. We note in this regard that “[tjhe court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue requires a determination of state of mind.” Croley v. Matson Navigation Co., 5 Cir. 1970, 434 F.2d 73, 77; NLRB v. Smith Industries, Inc., 5 Cir. 1968, 403 F.2d 889, 895.

Ill

Justice Stewart has shown us that by its terms, context and legislative history § 1985(3) was intended to apply to private acts. He further remarks that the judicial standard of review of such statutes supports such an interpretation, for, since Collins v. Hardyman, 1951, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253, the Court has accorded Reconstruction civil rights statutes “a sweep as broad as their language”, which standard would allow the application of § 1985(3) here.

(A)

There is no precedential lighthouse pointing us to a constitutional mooring in this case. We must find such a constitutional basis, of course, before a statute may be used for any particular purpose.

Plaintiff’s 1985(3) action cannot be sustained under the Griffin Court’s Thirteenth Amendment rationale. The aim of the amendment is to provide protection for racial groups which have historically been oppressed, Jones v. Mayer, 1968, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189 or those chafing under the hands of involuntary servitude. Clyatt v. United States, 1905, 197 U.S. 207, 25 S.Ct. 429, 49 L.Ed. 726. Plaintiff is neither in a racially oppressed group nor serving involuntarily.

The Supreme Court has found jurisdiction for statutory protection where the deprivation has been worked by “state action”, whose finding summons the constitutional patronage of sections 1 and 5 of the Fourteenth Amendment. See, e. g., United States v. Price, 1966, 383 U.S. 787, 86 S.Ct. 1152, 16 L.Ed.2d 267. In this case, however, state officers do not appear to be either the generators or the mechanisms of the claimed deprivation.

Finally, Griffin’s “right to travel” rationale cannot, of course, dispose of this case since neither the aim nor the effect of the alleged conspirators’ acts was to infringe on plaintiff’s freedom of movement.

(B)

Initially, we must determine whether First Amendment protections, which plaintiff here invokes, are binding on the states through the Fourteenth Amendment. Second, we must see whether section 5 of the Fourteenth Amendment allows Congress to pass legislation effective against private parties if Congress believes such legislation is necessary to insure due process and equal protection of the laws.

1. The guarantees in the First Amendment are protected by the Fourteenth Amendment. See, e. g., Williams v. Rhodes, 1968, 393 U.S. 23, 89 S.Ct. 5, 21 L.Ed.2d 24; Cox v. Louisiana, 1965, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686; Edwards v. South Carolina, 1963, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697; N.A.A.C.P. v. Button, 1963, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed.2d 405, and eases collected in Action v. Gannon, 450 F.2d 1227, 1234 n. 9. The Fourteenth Amendment no more allows the state to say “this ballotbox or platform shall be open to Republicans and Democrats only” than to say “this pool shall be open to white persons only”.

2. There are three reasons for believing that private discriminatory acts come within the purview of section 5 of the Fourteenth Amendment should Congress believe that a preclusion of such acts is helpful in insuring the effectuation of section 1. First, we find such an indication in the legislative history behind the Act. Second, we find such a conclusion expressed by a majority of the members of the Supreme Court sitting in United States v. Guest, 1966, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239. Third, decisions in previous cases, allowing a cause of action, are difficult to distinguish from the case before us.

(a) Unfortunately, responses to the question of whether the Fourteenth Amendment applies to private intrusions on legal rights have not been uniform among the legislators who drafted it, nor among the theses of the metaphysicians who have pondered the intentions of these legislators. Most commentators, however, believe that the drafters and supporters of the Fourteenth Amendment intended that section five of the amendment should allow Congress to legislate in regard to private actions.

Thus Prof. H. E. Flack wrote in his The Adoption of the Fourteenth Amendment (1908):

[According to the purpose and intention of the Amendment as disclosed in the debates in Congress and in the several state Legislatures and in other ways, Congress had the constitutional power to enact direct legislation to secure the rights of citizens against violation by individuals as well as by States.

Id. at 277. J. tenBroek provides evidence that “the protection intended was not merely against state action.” His Antislavery Origins of the Fourteenth Amendment (1951) states:

That proof consists of the emphasis, at the hearing of the Joint Committee on Reconstruction, on individual violation of the rights of freedmen and southern loyalists . . . The index to the report of the hearings contains two full pages of entries.on “Freemen, evidence of general hostility and occasional cruelty towards,” Witness after witness spoke of beatings and woundings, burnings and killings, as well as deprivations of property and earnings and interference with family relations — and the impossibility of redress or protection except through the United States Army and the Freedmen’s Bureau
The evidence of individual invasions of the rights of Negroes particularly, but also of loyalists, accordingly, was not fortuitously brought forward as an unimportant incident of other matters regarded as primary. Elicited mainly by leading questions, the evidence was deliberately adduced by the committee for its bearing upon a principal feature of the proposed amendment, the precise wording of which was at the very moment under discussion by the committee. There can be little doubt not only that the members of the committee were aware of these individual violations but that the majority of the committee took pains to get them into the record— an odd procedure, to say the least, if they were not to be comprehended within the amendment which the committee was then perfecting.

Id. at 186-87.

tenBroek concludes:

While section 1 of the Fourteenth Amendment was thus declaratory and confirmatory, section 5 corrected the one great constitutional defect, the one pressing want which years of systematic violation of men’s natural rights had demonstrated. It gave Congress power to protect those rights. The violations and denials most often mentioned were, of course, those occurring under state laws and carried on by state officials. These were the sources, the perpetrators, of flagrant, commonly observed, and systematic invasions of those rights. But the absence of and need for protection against private invasions were adverted to almost as frequently.

Id. at 217.

We also note the conclusion reached by Prof. R. J. Harris in his Quest for Equality (1960):

[Djespite differences of opinion concerning the scope of congressional power under the amendment, a majority of the members of the Thirty-ninth, Forty-second, and Forty-third Congresses, some of whom were members of all three and of the Committee of Fifteen on Reconstruction, believed that the equal protection clause did more than condemn official or state action. They believed that it vested Congress at the very least with a primary power to set aside unequal state laws and a secondary power to afford protection to all persons in their enjoyment of constitutional rights when the states failed in their primary responsibility to do so either by neglecting to enact laws or by refusal or impotence to enforce them.

Id. at 53. See also, Frantz, Congressional Power to Enforce the Fourteenth Amendment Against Private Acts, 73 Yale L.J. 1353 (I960).

(b) Guest v. United States, supra, involved the efforts of private individuals to deny the use of public facilities to black citizens. Justice Stewart wrote for the Court that state action could be found in that the defendant’s scheme looked toward causing the arrest of Negroes on false reports of criminal activity. But in their agreement with the result, six Justices rested on the conclusion that state action need not be found and that section 5 of the Fourteenth Amendment would allow Congress to pass a statute which reached purely private action. Justice Clark, joined by Justices Black and Fortas, said in concurrence:

. [TJhere now can be no doubt that the specific language of § 5 empowers the Congress to enact laws punishing all conspiracies — with or without state action — that interfere with Fourteenth Amendment rights.

383 U.S. at 762, 86 S.Ct. at 1180, 16 L.Ed.2d at 252.

Justice Brennan was joined by Chief Justice Warren and Justice Douglas in a partial concurrence. He said:

A majority of the members of the Court expresses the view today that § 5 empowers Congress to enact laws punishing all conspiracies to interfere with the exercise of Fourteenth Amendment rights, whether or not state officers or others acting under the color of state law are implicated in the conspiracy. Although the Fourteenth Amendment itself, according to established doctrine, “speaks to the State or to those acting under the col- or of its authority,” legislation protecting rights created by that Amendment, such as the right to equal utilization of state facilities, need not be confined to punishing conspiracies in which state officers participate. Rather, § 5 authorizes Congress to make laws that it concludes are reasonably necessary to protect a right created by and arising under that Amendment; and Congress is thus fully empowered to determine that punishment of private conspiracies interfering with the exercise of such a right is necessary to its full protection. .
Viewed in its proper perspective, § 5 of the Fourteenth Amendment appears as a positive grant of legislative power, authorizing Congress to exercise its discretion in fashioning remedies to achieve civil and political equality for all citizens.

383 U.S. at 782-784, 86 S.Ct. at 1191.

(c) Third, as Professor Cox has noted, it is difficult to find a distinction between the power of Congress to regulate private interference with constitutionally protected rights in other instances and the Congressional power to prevent the sort of interference plaintiff alleges here.

A long-standing series of circuit court cases, Bullock v. United States, 6 Cir. 1959, 265 F.2d 683, cert. denied, 1959, 360 U.S. 909, 932, 79 S.Ct. 1294, 3 L.Ed.2d 1260; Kasper v. Brittain, 6 Cir. 1957, 245 F.2d 92, cert. denied, 1957, 355 U.S. 834, 78 S.Ct. 54, 2 L.Ed.2d 46; Brewer v. Hoxie School Dist. No. 46, 8 Cir. 1956, 238 F.2d 91, have upheld judicial power to deal with individual activities aimed at preventing the state from performing its Fourteenth Amendment duties. These eases have rested on judicial authority but as Professor Cox writes “The power of Congress, acting under section 5, to reach private obstructions to the fulfillment of a state’s Fourteenth Amendment duties must be at least as broad as the authority of the courts.”

The Brewer, Kasper and Bullock cases differ from the instant case in only one respect — the immediacy of the relationship between the state and the injured person. In criticizing a distinction based on this ground, Prof. Cox notes: “In this view, the lynching of a Negro in the custody of the state might be made a federal offense, because of the relationship between the police officials and the prisoner, but the United States could not punish a homicide on Boston Common even though it resulted from racial prejudice, because there would be no relationship between the victim and the state.” 80 Harv.L.Rev. at 116. A constitutional distinction cannot reasonably rest on the mere presense or absence of a non-injuring state representative if we are to retain the amendment’s focus on protection of the victim. Once it is recognized that private actors may be curtailed to insure equal protection of the laws, Congress has the responsibility to determine at what point along the continuum of private activities it wishes to provide a cause of action.

Further authority for our decision today is drawn from other Supreme Court cases, whose logical implication is that Congress has the power to punish private actors who interfere with enjoyment of Fourteenth Amendment protections. In United States v. Waddell, 1884, 112 U.S. 76, 5 S.Ct. 35, 28 L.Ed. 673, a conspiracy was aimed at driving a homesteader from his federally bequeathed land. The conspirators could be punished under Congressional mandate since they tried to frustrate the enjoyment of a federal right. In Logan v. United States, 1892, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429, private conspirators were held open to prosecution for attempting to do violence to a prisoner in the hands of a United States Marshal. Professor Cox notes that in Waddell and Logan:

The rights of the homesteaders and federal prisoners were against the United States. If those rights implied an obligation of private parties not to interfere with the receipt of benefits under the relationship, the grant of a right to. equal protection against a state might, by the same reasoning, be held to imply an obligation of private parties not to interfere with the receipt of benefits under the individual’s relationship with the state. A fortiori one could infer that Congress was given power to impose such a duty as implementary legislation.

80 Harv.L.Rev. at 113, (footnote deleted).

The words of a majority of the Court in Guest and the implications of these other cases independently indicate that Congress has the power under section 5 of the Fourteenth Amendment to reach private acts.

IV

Our disposition in the present case by no means implies the creation of a federal tort law. Powerful limitations exist on the right to bring an action under section 1985(3).

First, of course, the terms of the statute itself must be met. This requires that the complainant show that there was a conspiracy, that such conspiracy be for the purpose of depriving an individual of the equal protection of the laws; that the conspirators acted in furtherance of their conspiracy; and that the plaintiff was injured in his person or property or actually deprived of a citizen’s right or privilege. Second, as the Supreme Court noted in Griffin: “[T]he language [of 1985(3)] requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators’ action.” 403 U.S. at 102, 91 S.Ct. at 1798, 29 L.Ed.2d at 348.

Third, “equal protection” does not mean that a person has a right to be treated equally in every instance of his existence. There is no “deprivation” of a “right” where other constitutional provisions create a right in another party to act in a way which functionally creates barriers for a potential section 1985(3) plaintiff. Perhaps most importantly, no one could sustain an action based upon every exclusionary act since the First Amendment creates a right of free association whose significance in some instances substantially outweighs the value of “equal treatment” to environmentalists.

Finally, there is discretion in the United States Congress to decide that, in fact, certain forms of action are not necessary additions to the judicially enforcible substantive terms of the Fourteenth Amendment. Of course, Congress may not act in such a way as to deny to the judiciary the power to enforce Fourteenth Amendment guarantees. Katzenbach v. Morgan, 1966, 384 U.S. 641, 651 n. 10, 86 S.Ct. 1731, 16 L.Ed.2d 828.

Y

Constitutional viability is not a theorem, it is a fact in our volatile jurisprudence, without which the past would stultify the present and the heavy hand of history would stunt our ethical growth and enervate our powers to meet governmental responsibilities. Here, we do not erect a new structure for a constitutional law of torts but rather enter a door which Griffin left ajar.

In his opinion, Judge Lawrence reviewed the multitude of issues which this case involved and presented to us a full view of the legal theories and factual conclusions under which he operated. While we disagree with his ultimate conclusion, we are grateful for the manner in which he has expedited the judicial process.

In order to prevail at trial West-berry must show that he was a member of a class of environmentalists, or of a tax equity group. A solo and subjective commitment would not seem to be enough to meet the “class-based animus” requirement. There need not necessarily be an organizational structure of adherents, but there must exist an identifiable body with which the particular plaintiff associated himself by some affirmative act. It need not be an oath of fealty; it need not be an initiation rite; but at least it must have an intellectual nexus which has somehow been communicated to, among and by the members of the group. Once such a nexus is established the burden will fall to defendants — to show that, in fact, there was no “class-based discriminatory animus” to their actions.

Reversed and remanded.

LEWIS R. MORGAN, Circuit Judge

(dissenting):

I respectfully dissent from the majority. The majority opinion turns 42 U.S.C. § 1985(3) into a “general federal tort law.” In Griffin v. Breckenridge, 403 U.S. 88 at 102, 91 S.Ct. 1790, 29 L.Ed.2d 338, the Supreme Court clearly avoided any such interpretation. In an able opinion which discusses thoroughly the issues of law, Judge Alexander A. Lawrence dismissed this action on the ground of lack of jurisdiction. There is nothing I could add to the opinion of the district court. See, 60 F.R.D. 447.

I would affirm the district court.

ON PETITION FOR REHEARING AND PETITION FOR REHEARING EN BANC

Before BROWN, Chief Judge, and WISDOM, GEWIN, BELL, THORNBER-RY, COLEMAN, GOLDBERG, AINS-WORTH, GODBOLD, DYER, SIMPSON, MORGAN, CLARK, RONEY and GEE, Circuit Judges.

BY THE COURT:

A member of the Court in active service having requested a poll on the application for rehearing en banc and a majority of the judges in active service having voted in favor of granting a rehearing en banc.

It is ordered that the cause shall be reheard by the Court en banc with oral argument on a date hereafter to be fixed. The Clerk will specify a briefing schedule for the filing of supplemental briefs.

PER CURIAM:

Since it appears that the matters giving rise to this cause are moot, the opinion of this court, 507 F.2d 206 (5th Cir. 1975), is withdrawn, and the previous judgment of this court is vacated. The judgment of the district court is likewise vacated, and the cause is remanded to the district court with directions to dismiss as moot, so that it will spawn no legal precedents. See United States v. Munsing-wear, 340 U.S. 36, 71 S.Ct. 104, 95 L.Ed. 36 (1950); Troy State University v. Dickey, 402 F.2d 515 (5th Cir. 1968).

      . 1971, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338.

      . Sections 1 and 5 of the Fourteenth Amendment read:
      Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
      Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

      . Section 1985(3) provides, in relevant part:
      If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws;
      in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators.

      . Action v. Gannon, 8 Cir. en banc, 1971, 450 F.2d 1227. Chief Judge Matthes did not take part in the decision. The opinion, by Judge Heaney, is especially well researched on the questions of the applicability of Section 1985(3) to private actors and the legislative history of the Fourteenth Amendment, which the Court in Action finds was meant to apply to non-state perpetrators.

      . Richardson v. Miller, 3 Cir. 1971, 446 F.2d 1247; see also, Cameron v. Brock, 6 Cir. 1973, 473 F.2d 608; cf., Thomas v. Economic Action Comm., 5 Cir. 1974, 504 F.2d 563.

      . In a deposition, Westberry made some con-clusory remarks that he felt he was being watched by city officials. The only incidents he alleges are that the Fire Chief drove down Westberry’s street while he was talking to two F.B.I. agents, and then circled back; that, after Westberry told the F.B.I. about the threat on his life, a policeman watched his house one night; and that another unidentified policeman — in this town of 3,400 people — told him to stay out of politics. West-berry cites no evidence to connect any of these alleged incidents to the defendants, nor have these officials been made a party to this suit.

      . We note in this context that legislative jurisdiction in this case may not even require a Fourteenth Amendment basis. In Griffin v. Breckenridge, supra, the right to interstate travel was used as an alternative basis for the Court’s holding. Justice Stewart noted that “the ‘right to pass freely from state to state’ ” has been explicitly recognized as "among the rights and privileges of national citizenship.” Many commentators agree with the Court that such a right is an aspect of the fundamental liberties to be guaranteed all Americans. See sources collected in Note, The Right to Travel: Another Constitutional Standard for Local Land Use Regulations? 39 U.Chi.L.Rev. 612, 632 n. 115 (1972). But no theory which has come to our attention holds that such a right is more “fundamental” than the rights guaranteed in the First Amendment or explains why that principle should apply against “private” actions where First Amendment principles should not. Thus we conclude that the rationale the Supreme Court relied upon to support this conception of the right to travel — as a kind of basic interest protected against all — should be applicable to the rights of speech and association as well.

      . Much of the contrary argument comes from the pen of Alvin Avins, who contends that most supporters of the Fourteenth Amendment did not intend that it apply to private intrusions. See Avins, The Ku Klux Klan Act of 1871: Some Reflected Light on State Action and the Fourteenth Amendment, 11 St. Louis U.L.J. 331 (1967).

      . Cox, Foreword: Constitutional Adjudication and the Promotion of Human Rights, 80 Harv. L.Rev. 91, 108-121 (1966).

      . In Congress of Racial Equality v. Clemmons, 5 Cir. 1963, 323 F.2d 54, this Court held that plaintiff city officials could not bring a 1985(3) action against private persons. But each of the reasons given reflects circumstances clearly distinguishable from those of the instant case. In Clemmons the court noted “[t]he absence of a purpose on the part of the defendants to deprive anyone of equal protection of the laws. . . .” 323 F.2d at 61. In the instant case, the plaintiff-appellant alleges just such a purpose. In Clem-mons the Court stated that the claim was defective because there was no deprivation of federally created rights enforcible on the states since defendants had only blocked traffic. In the instant case, plaintiff-appellant does claim a denial of federally created rights. Finally, the Clemmons Court relying on the authority of Collins v. Hardyman, 1951, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253, held that 1985(3) and the Fourteenth Amendment did not apply to private actions. Since the decision in Clemmons Griffin v. Breckenridge, supra, has specifically held that 1985(3) covers private actions; six Justices of the Supreme Court in United States v. Guest, have held that the Fourteenth Amendment can reach private actions and the Court in Griffin has said that, at the least, the applicability of the Fourteenth Amendment to private persons is an open issue.

      . 80 Harv.L.Rev. at 112, (1966).


source: Caselaw Access Project

author: WISDOM, Circuit Judge:

license: Public Domain

text:
    Donnie E. SPINKS, Plaintiff-Appellant-Cross Appellee, v. CHEVRON OIL COMPANY and Barge Facilities, Inc., Defendants-Third-Party Plaintiffs-Appellees-Cross Appellants, LABOR SERVICES, INC., et al., Third-Party Defendants-Appellees-Cross Appellants. Donnie E. SPINKS, Plaintiff-Appellant, v. LABOR SERVICES, INC., Defendant-Appellee (two cases).
    No. 73-3618.
    United States Court of Appeals, Fifth Circuit.
    Jan. 27, 1975.
    Rehearing Denied March 10, 1975.

      Philip E. Henderson, Houma, La., for Spinks.
    Lloyd C. Melancon, New Orleans, La., for Chevron Oil Co.
    Tom F. Phillips, John R. Tharp, Baton Rouge, La., for Labor Services et al.
    James H. Drury, New Orleans, La., for Surplus Lines Ins.
    T. C. W. Ellis, New Orleans, La., for Steamship Mutual, etc.
    Donald M. Pierce, Donald V. Organ, New Orleans, La., for Seguros America Banamex.
    Lawrence D. Wiedemann, New Orleans, La., for Welch Sales & Service.
    Before RIVES, WISDOM and COLEMAN, Circuit Judges.
   WISDOM, Circuit Judge:

Donnie E. Spinks, plaintiff-appellant, employed by Labor Services, Inc., was injured while performing work for Chevron Oil Company on one of Chevron’s drilling barges in the Gulf of Mexico. The accident generated three suits by Spinks and multitudinous pleadings, including third party demands, counterclaims and cross-claims for indemnity and attorney’s fees. The suits were consolidated for trial and on appeal. The principal issue is whether the district court erred in denying relief to Spinks; the court found that Spinks’ “negligence was the sole proximate cause of the accident.” Another issue is whether, although Spinks was a borrowed servant of Chevron, he remained, for purposes of the Jones Act, an employee of Labor Services, his original employer. We reverse in part and remand.

In Civil Action No. 70-251 Spinks sued Chevron for damages under the general maritime law alleging that he was injured as a result of the Chevron’s negligence and the unseaworthiness of its jack-up drilling barge, the S-66. Chevron filed a third party complaint against Labor Services claiming indemnity and attorney’s fees, under the terms of a contract obligating Labor Services to defend Chevron in any suit brought against it by any of Labor Services’ employees. Labor Services counterclaimed against Chevron for indemnity or contribution, should Labor Services be cast in judgment. It also demanded that Chevron indemnify it for medical expenses and maintenance paid by Labor Services as a result of plaintiff’s injury. The counter-claim rests on the theory that Spinks was the borrowed employee of Chevron. The district court granted judgment for Chevron on the merits.

In No. 70-252 Spinks sued only Labor Services (his immediate employer), Travelers Insurance Company, and the excess insurers of Labor Services, basing his suit on the Jones Act, 46 U.S.C. § 688, and the general maritime law. Labor Services filed a third party complaint against Chevron and Chevron filed a cross complaint against Labor Services. The district court dismissed this action.

In No. 71 — 150 (389) Spinks sued Labor Services for maintenance during a limited period of time, about four weeks, during which Labor Services discontinued the payment of maintenance while he was convalescing from his first disc surgery. According to Labor Services, the payments were discontinued to enable the employer to recover overpayment of maintenance. Before trial the parties stipulated that the plaintiff was not seeking future maintenance and cure.

Labor Services, which had, through its insurers, paid maintenance and cure to the plaintiff sought to recover these payments from Chevron. The district court enforced the agreement between Labor Services and Chevron subjecting Labor Services for liability for maintenance and cure payments.

The court did not enforce the agreement as to attorney’s fees. The court concluded that “the ends of justice would best be met by Chevron and Labor Services each being responsible for its own cost of defense.”

I

Chevron’s jack-up drilling barge, the S-66, has a crew of thirty-five or thirty-six men who work, eat, and sleep aboard the barge. Of these, about eighteen are employees of Labor Services who the year around do maintenance work on the barge and perform the labor in jacking the barge up and down at each marine destination. Part of Labor Services’ business is the supplying of laborers to work on oil rigs and drilling barges.

In March 1970 oil sprayed from a Chevron platform blew on the barge S— 66. Chevron rented a small, portable steam-cleaning machine. The rental invoice reflects that the machine was used from March 3, 1970 to April 20, 1970 and that it was returned with the notation “unit inoperative”. The regular Labor Services crew used the steam-cleaning machine every day after its arrival. Labor Services made the operation of the steam-cleaning machine a two-man job, one man to handle the nozzle and the other man to keep the machine running. The machine was equipped with a forty foot long hose. Keeping the machine running required supplying the machine with diesel fuel and with liquid detergent. Five-gallon cans were provided for carrying the fuel and the detergent. Each can when filled weighed forty pounds. The man who had the job of “keeping the steam-cleaning machine going” had the duty of “watching the machine” and spraying the belt with a nonslip compound to attempt to keep the machine from over-heating and stopping. The machine leaked liquid soap almost constantly.

Donnie Spinks was injured on the morning of April 8, 1970 when he stepped on a ramp aboard the S-66. He was nineteen years old at the time, a seaman, and a member of the crew of the barge. He had been employed by Labor Services for about eight months, all of which time had been spent aboard the S-66. On the day of the accident he was working with William Walker in steam-cleaning the heliport. Walker, an older and more experienced man, had been on the barge for about two and a half years. Walker’s job was to handle the nozzle and Spinks’ job was to supply the soap and diesel and keep the machine running. Their “pusher” (supervisor or foreman) was George Hanks. Walker and Hanks were also employees of Labor Services. Labor Services provided Spinks’ pay slips, withheld social security payments and taxes from his salary, and listed him as its employee. As noted, its contract with Chevron made it responsible for maintenance and cure payments for the employees furnished Chevron. Chevron controlled the operations of the S-66, supplied the tools and equipment, and assigned general tasks. The details of work were left to the pushers.

The heliport was connected to the barge proper by a ramp. This ramp was about three to four feet wide and ten to fifteen feet long, on about a three-step incline, and was equipped with handrails. Spinks had to make periodic trips to the barge for soap and fuel used in the spraying machine. Hanks knew that Spinks had made several trips carrying two buckets, one in each hand. Neither Hanks nor anyone else told Spinks to carry or not to carry two buckets. The district court found that the soapy condition on the walkway, which Hanks knew about, had existed for at least four hours. The court found that “it had not been washed down as it should have been and plaintiff and his co-worker must bear the responsibility for that failure.” There was available on the barge an absorbent substance known as Dresser-Dri, the use of which might have made the footing less slippery. Spinks could have used it without permission, but did not. Nor did Hanks direct him to use it. The Chevron barge maintenance foreman testified that Labor Services pusher was the one to initiate the placing of the Dresser-Dri in the area where men would work.

On the first step of the ramp, Spinks fell, while carrying the heavy buckets. He suffered spinal disc damage which required two surgical operations to repair.

The trial court found that both Labor Services and Chevron were negligent in permitting the soap machine to run on diesel fuel instead of kerosene, in not correcting the leak around the piston pump of the machine, and that this use of a faulty soap machine, “that is one with a leak in the pump area and one on which the belt frequently slipped, might be deemed to constitute an unseaworthy condition.” But the court held that their negligence and the “deemed” unseaworthiness were not proximate causes of Spinks’ injury. Indeed, the court found that Spinks’ negligence was the sole proximate cause of his injury, because of (1) his “and his co-worker’s” failure to wash down the deck and ramp, (2) his decision to carry two heavy buckets, (3) his failure to use handrails, and (4) his failure to use Dresser-Dri. The court held that, as far as Spinks was concerned, the vessel was not unseaworthy, for Spinks’ job was to repair the very conditions that were the subject of the unseaworthiness.

II

Spinks sued only Labor Services under the Jones Act. The district court granted an involuntary dismissal on the Jones Act claim, because (1) Labor Services was neither the owner nor the operator of the vessel, and (2) Spinks was the borrowed employee of Chevron. Spinks appeals this ruling, as well as the finding that his injury was caused by his sole negligence. He argues that (1) a seaman may have more than one Jones Act employer, and (2) under the admiralty doctrine of comparative negligence, at least some of the blame must be imputed to Labor Services through Hanks’ failure to supervise Spinks properly and Walker’s failure (with Spinks) to wash down the deck.

A. We conclude that the district court erred in denying recovery on the ground that Spinks’ negligence was the sole proximate cause of his injuries. An employer’s negligence need not be the sole proximate cause of an injury to result in his liability, but may merely be a contributing cause of the accident. Hern v. Moran Towing & Transp. Co., 2 Cir. 1943, 138 F.2d 900; Johnson v. Griffiths S.S. Co., 9 Cir. 1945, 150 F.2d 224; Norris, The Law of Seamen § 693 (3d ed. 1970); cf. Andrews v. Chemical Carriers, Inc., 3 Cir. 1972, 457 F.2d 636, cert. denied, 409 U.S. 874, 93 S.Ct. 120, 34 L.Ed.2d 126; Restatement 2d, Torts § 430, Com. b. In Sanford Bros. Boats, Inc. v. Vidrine, 5 Cir. 1969, 412 F.2d 958 this Court declared: “The question of proximate cause in an action under the Jones Act turns on whether the actions of the defendant contributed to the injury even in the slightest degree. Proximate cause is not destroyed merely because the plaintiff may also have contributed to his own injury.”

The trial judge regarded the issue of liability as close: The day before he held for the defendants, he announced that he would find the defendants liable. In addition, the district court found both Walker and Spinks negligent for failing to wash down the soapy deck. Since the fellow-servant rule is inapplicable in admiralty, Walker’s negligence must be imputed to his employer under familiar respondeat superior principles. Gilmore & Black, The Law of Admiralty § 6-20 (1957). At least some negligence must be assigned to Labor Services’ pusher, Hanks, who was aware of the dangerous condition and Spinks’ working methods. See Ballwanz v. Isthmian Lines, Inc., 4 Cir. 1963, 319 F.2d 457. If a pusher’s job does not include a duty to prevent accidents, it is difficult to understand what a pusher does. We note that the trial court found both defendants negligent — though not proximately negligent — for this was the first reason the court gave for refusing to allow Chevron attorney’s fees under its indemnity contract with Labor Services. In its final judgment the district court declared: “As indicated in this Court’s opinion, neither Labor Services nor Chevron were free from fault in this case. The Court simply found that neither the negligence of Chevron nor the negligence of Labor Services was a proximate cause of the accident involved in spite of the fact that there was evidence of negligence on the part of both of these defendants.”

B. The concept of proximate cause often obscures the true analysis of a tort. A court makes a policy judgment on the limits of liability when causation in fact has been established. Prosser, Torts § 42 (4th ed. 1971). This Court has applied in maritime law the legal cause analysis, as it is used in common law torts in admiralty. For example, in Watz v. Zapata Off-Shore Co., 5 Cir. 1970, 431 F.2d 100, we held that an independent intervening cause did not relieve a manufacturer of a defective hoist of liability, when its negligence was a substantial factor in bringing about the harm. We looked to the Second Restatement of Torts for guidance, citing section 435(1).

The American Law Institute’s Restatement 2d of Torts adopts the mod-era concept of legal cause. The elements of legal cause are negligence, a causal connection between the negligence and the injury, the invasion of a legally protected interest, and lack of a countervailing legally protected interest as a defense to liability. Restatement 2d Torts § 9. The defendant’s negligence must be a substantial factor in bringing about the harm, with no rule of law relieving the actor of fault. Id. § 431. “Substantial” means more than “but for” the negligence, the harm would not have resulted, (id. Com. a) and more than merely negligible negligence. Id. Com. b. The gist of it is that some responsibility for the effect must accompany the cause.

Because of strong policy considerations in admiralty, legal cause analysis is particularly suited to maritime tort law. Seamen as a class have often been styled “wards of the court”, and employers have been assigned a high standard of duty towards them. This policy of protecting seamen from the hazards of their profession is evidenced by the employer’s strict liability for providing a seaworthy vessel, and supplying maintenance and cure for ill seamen. In negligence cases, admiralty prohibits defenses of assumption of risk, see Neal v. Saga Shipping Co., 5 Cir. 1969, 407 F.2d 481, and contributory negligence, see Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. Under the Jones Act, even the slightest negligence suffices for a finding of liability. Ferguson v. Moore-McCormack Lines, Inc., 1957, 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511. It would be anomalous to allow an overly strict interpretation of proximate cause to defeat the remedial purposes of admiralty tort law.

C. The duty owed by an employer to a seaman is so broad that it encompasses the duty to provide a safe place to work. Vickers v. Tumey, 5 Cir. 1961, 290 F.2d 426, 429-432. See Gilmore & Black, The Law of Admiralty § 6-37 (1957); Norris, The Law of Seaman § 692 (3d ed. 1970). By comparison, the seaman’s duty to protect himself (the ground for any countervailing legal interest serving to exculpate the employer) is slight. His duty is to do the work assigned, not to find the safest method of work. This is especially true when his supervisor, Hanks in this case, knows the working method used by the seaman, and does nothing about it. See Ballwanz, 319 F.2d at 462; Adams v. United States, 9 Cir. 1968, 393 F.2d 903.

As between Spinks, a nineteen year old seaman, and his supervisor, it cannot be said that Spinks alone had the duty to realize that carrying two buckets was dangerous, or to apply the anti-skid material, or to see that the deck was washed down. As between Spinks and his co-worker, Walker was older, had worked on the barge two and a half years, and handled the nozzle applying the soap and steam in washing down the soapy deck. We state no opinion on the relative responsibility of these individuals. We do hold, however, that in the circumstances this case presents, the entire burden cannot be placed on the lowest member of the hierarchy.

III

We reverse the ruling that Labor Services was not Spinks’ Jones Act employer. The Jones Act, 46 U.S.C. § 688 (1970), is remedial legislation, extending to seamen the rights accorded railway workers under the Federal Employers’ Liability Act [FELA], 45 U.S.C. §§ 51-60 (1970). As such, it should be liberally construed in favor of injured seamen. Cortes v. Baltimore Insular Line, 1932, 287 U.S. 367, 375, 53 S.Ct. 173, 175, 77 L.Ed. 368, 373; See Norris, The Law of Seamen § 662 (1970).

A. By the express terms of the Jones Act an employer-employee relationship is essential to recovery. Cosmopolitan Shipping Co. v. McAllister, 1949, 337 U.S. 783, 69 S.Ct. 1317, 93 L.Ed. 1692; Norris, The Law of Seamen § 670 (1970); Gilmore & Black, The Law of Admiralty § 6-21 (1957). The employer need not be the owner or operator of the vessel. Barrios v. Louisiana Construction Materials Co., 5 Cir. 1972, 465 F.2d 1157, 1164 — 1165. Independent contractors have been held liable under the Act. Barrios; Constance v. Johnston Drilling Co., 5 Cir. 1970, 422 F.2d 369; Mahramas v. American Export Isbrandtsen Lines, 2 Cir. 1973, 475 F.2d 165; Savard v. Marine Contractors Inc., 2 Cir. 1972, 471 F.2d 536, cert. denied, 412 U.S. 943, 93 S.Ct. 2778, 37 L.Ed.2d 404; cf. Hanks v. California Co., W.D.La. 1967, 280 F.Supp. 730, 738 n. 14; Hebert v. California Co., W.D.La.1967, 280 F.Supp. 754, 761 n.3.

The posture of this case is unusual in that most injured seamen seek to reach a more solvent prime contractor or shipowner by alleging an employment relationship under the borrowed servant doctrine. See Restatement 2d Agency §§ 220-227. The courts have been receptive to this theory. If a prime contractor has assumed enough of the incidents of an employer, such as the right to control an employee’s work, he will be deemed a seaman’s employer. United States v. W. M. Webb, Inc., 1970, 397 U.S. 179, 90 S.Ct. 850, 25 L.Ed.2d 207. See Gilmore & Black, The Law of Admiralty § 4-23 (1957).

B. That a seaman is a borrowed servant of one employer does not mean that he thereby ceases to be his immediate employer’s servant. Restatement 2d Agency § 227, Comment b. In any common sense meaning of the term, Labor Services was Spinks’ employer. He was hired and paid by Labor Services. That company, not Chevron, withheld taxes and social security payments from his salary, and forwarded them to the government as required of an employer by law. Labor Services employed Spinks’ co-worker Walker and his supervisor Hanks. Hanks could fire Spinks; the record strongly suggests that Chevron could not — it could merely have Labor Services recall and replace him. Labor Services made a profit for every day Spinks was aboard the S-66. Now that he is injured, Labor Services cannot forget him. We do not quarrel with the trial court’s finding that Chevron had sufficient control over him to be a borrowing employer. We merely hold that under the Jones Act, Labor Services remained his employer.

C. Much of the difficulty in this area stems from the Supreme Court’s dictum in Cosmopolitan Shipping Co. v. McAllis-ter, 1949, 337 U.S. 783, 791, 69 S.Ct. 1317, 1322, 93 L.Ed. 1692, 1698, that “ . . . under the Jones Act only one person, firm, or corporation may be sued as employer”. In that case the court held only that a seaman could have no Jones Act recovery from a general shipping agent when his wartime employer was the United States. Moreover, it has been held that a seaman may have but one Jones Act employer. See Mahramas v. American Export Isbrandtsen Lines, 2 Cir. 1972, 471 F.2d 165; Savard v. Marine Contracting Inc., 2 Cir. 1972, 471 F.2d 536.

If this means that an injured seaman must speculate at his peril on whether the trial court ultimately will find him a borrowed employee of the shipowner, or an employee of his immediate employer, we reject the theory. Such a rule can result in defeating Jones Act rights through contractual manipulations. See Mahramas, 471 F.2d at 173 (Oakes, J. dissenting), Hanks, 280 F.Supp. at 738. We see nothing offensive in suing an immediate employer under the Act, or even both employers in the alternative. The defendants can sort out which between them will bear the final cost of recovery, either through common law indemnity or contribution principles, or contractual provisions, as in the instant case. This is especially important in the area of offshore drilling operations, where oil exploration companies customarily contract for all labor.

The Jones Act incorporates standards established by the FELA. Under the FELA an employee may have more than one employer. It would seem reasonable therefore that a seaman may have more than one Jones Act employer. In Shenker v. B. & O. R. R., 1963, 374 U.S. 1, 83 S.Ct. 1667, 10 L.Ed.2d 709, an employee of the B & O was injured while working on another railroad company’s car. The Supreme Court held that his immediate employer owed him the duty of a safe place to work, which it breached. This Circuit has held that a railroad employee may have two employers. Porter v. St. Louis-San Francisco R.R., 5 Cir. 1966, 354 F.2d 840. But we need not, pass on the question whether Spinks could sue Chevron and Labor Services under the Jones Act; Spinks sued only one employer — Labor Services.

IV

Resolution of the proximate cause issue obviates the need to review the issue of contractual indemnity, because the trial court expressly based its holding on the defendants’ lack of fault for Spinks’ injuries. We observe, however, as did the trial court, that no public policy prohibits parties from using a contract to shift liability for payment of tort claims, as long as the injured seaman’s rights are not prejudiced thereby. Tidewater Oil Co. v. Travelers Ins. Co., 5 Cir. 1972, 468 F.2d 985.

There is no good reason not to enforce all of the contract, including Labor Services’ liability for attorney fees. Since the right is contractual, the court does not possess the same equitable discretion to deny attorney’s fees that it has when fashioning equitable remedies, or applying a statute which allows the discretionary award of such fees. No less than carrying adequate insurance, this liability is figured into the rates ycharged by independent contractors.

V

Traditionally, maintenance and cure is “a duty . . . annexed by law to a relation” owed by an employer to an injured seaman to the point of maximum cure. Cortes v. Baltimore Insular Line Inc., 1932, 287 U.S. 367, 53 S.Ct. 173, 77 L.Ed. 368. A line of cases has held that the Jones Act employer is also the maintenance and cure employer. See Braen v. Pfeifer Oil Transp. Co., 1959, 361 U.S. 129, 132, 80 S.Ct. 247, 4 L.Ed.2d 191; Vincent v. Harvey Well Service, Inc., 5 Cir., 1971, 441 F.2d 146. When the employer is an independent contractor, nonetheless he owes maintenance and cure. See, e. g., Mahramas, 475 F.2d at 171; Sims v. Marine Catering Service, Inc., D-La.1963, 217 F.Supp. 511. When, however, a prime contractor or shipowner has assumed control over an employee so that the independent contractor ceases to be his employer entirely, the borrowing employer becomes liable for maintenance and cure. Smith v. Dale Hart, Inc., W.D.La.1970, 313 F.Supp. 1164. Here, too, we pretermit deciding which employer owes maintenance and cure, for that would depend in large part on the resolution of the indemnity question. But it is clear that the fact that Labor Services has paid maintenance and cure to date should not be construed as an admission that it is Spinks’ maintenance and cure employer, as Chevron contends. Such a rule would discourage payments to injured seamen when they are most in need.

Spinks’ allegations concerning discontinuance of maintenance and cure payments for one month are better dealt with on remand.

VI

The trial court concluded that the soapy condition of the deck was created to correct a previous unseaworthy condition (the oil on the deck), and could not itself constitute an unseaworthy condition. Applying soapy solution to the deck was Spinks’ ordinary work aboard the S-66. We find no error in this holding. See Keel v. Greenville Midstream Service, Inc., 5 Cir. 1963, 321 F.2d 903; Lind v. American Trading and Production Corp., 9 Cir. 1961, 294 F.2d 342.

* * a.

We conclude that the cause must be reversed and remanded for (1) reconsideration of liability, both under the Jones Act and maritime law, consistent with the principles stated in this opinion; (2) reconsideration of the indemnity provisions of the contract between Labor Services and Chevron; and (3) the determination of damages, should the district court find for the plaintiff.

Reversed in part and remanded.

      . In the interest of brevity, we have simplified our discussion of the pleadings.

      . The contract, in part, provided that: “Contractor [Labor Services] agrees to defend and hold Company [Chevron] indemnified and harmless from and against any loss, expense, claim or demand for:
      ‘(a) Injury to or death of Contractor’s employees or for damages to or loss of Contractor’s property in any way arising out of or connected with the performance by Contractor of services hereunder; * * ”
      See footnote 4.

      . “Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply . . 46 U.S.C. § 688 (1970).

      . Before trial the district court rendered judgment in C.A. 70-251 and C.A. 70-252 granting Chevron’s motion for a partial summary judgment against Labor Services. The court explained that this judgment recognized that Spinks was contending that he was an employee of Labor Services; that in these suits Labor Services could have no right of indemnity from Chevron, if he were Chevron’s employee, “since, in that event, Labor Services would not be liable to the plaintiff anyway.” This ruling did not involve C.A.-150, the suit for maintenance and cure. In C.A.-150 Labor Services sued to recover the payments it had made to Spinks through its insurers. The court found that even if Chevron were found to be liable for maintenance and cure, “such liability has ultimately been shifted to Labor Services through their agreement.” Since the Court has “determined that there was no negligence on the part of Chevron proximately causing the accident . . . the indemnity agreement is unenforceable.” See Tidewater Oil Co. v. Travelers Ins. Co., 5 Cir. 1972, 468 F.2d 985. The counterclaim of Labor Services and Travelers was therefore dismissed.

      . The Court gave as its first reason for this holding, that “neither Labor Services nor Chevron were free from fault”. Furthermore for purposes of a Jones Act or maritime claim the injury was not to an employee of Labor Services. “Insofar as the plaintiffs claim for [for four weeks] maintenance and cure is concerned, that portion of the case was insignificant insofar as legal fees are concerned.”

      . At the conclusion of the trial on liability and after hearing argument of counsel the district judge declared from the bench: “[Tjhere will undoubtedly be liability found against Chevron and in all probability liability will be found against Labor Services and there will also undoubtedly for sure be contributory negligence found against the plaintiff. So that will necessitate the taking of testimony in connection with quantum.
      MR..MELANCON: I didn’t hear, your Hon- or, I missed a part of it. You said there will be liability found on the part of Chevron?
      THE COURT: Yes, indeed.

        MR. MELANCON: And liability on the part of Labor Services?
      THE COURT: Yes, indeed.
      MR. MELANCON: And liability, or rather contributory negligence on the part of the plaintiff?
      THE COURT: Yes, indeed.
      MR. MELANCON: Now, your Honor, in view of the expression of the Court, would it state at this time whether or not the liability you are contemplating against Chevron is predicated upon an interpretation of an employer-employee relationship?
      THE COURT: No. It will be broad enough to hold Chevron responsible and Labor Services. I simply make this decision now in order to get on with the medical tomorrow, but there is no question — let me say this, gentlemen, there is no question but what the holding will say that the plaintiff was an employee of Chevron for the purpose of the Jones Act claim. There is no question about that. It may not make a great deal of difference, because in all probability, liability will also be predicated on negligence and upon unseaworthiness, as well as a possible finding of liability for Jones Act also.
      There will be a finding of liability also on grounds of negligence, as far as Labor Services are concerned. There will be found contributory negligence on the part of the plaintiff. In what degree, I can’t state at this time, but at least that will give sufficient notice to all of you where the liability will lie for the purpose of going forward now with the question of quantum.

      . See footnote 2.

      . Admiralty customarily follows common law tort developments, when they do not interfere with its basic policies. The doctrine of Palsgraf v. Long Island RR, 1928, 248 N.Y. 339, 162 N.E. 99, that an actor is not answerable in tort to a person to whom he owed no duty, was adopted in admiralty in Sinram v. Pennsylvania R.R., 2 Cir. 1932, 61 F.2d 767, 770. Similarly the holding of MacPherson v. Buick Motor Co., 1916, 217 N.Y. 382, 111 N.E. 1050 dispensing with privity (embodied in the First Restatement § 395 (1934)) came into admiralty in Sieracki v. Seas Shipping Co., 3 Cir. 1945, 149 F.2d 98, aff'd, 1946, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099. When a trend in the law advances the remedial purposes of maritime tort law, admiralty will adopt it in place of the prevailing state law. Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (comparative negligence). The theory of legal cause, because it is suitable for admiralty, should be preferred to proximate cause in maritime tort law.

      . See Sanford Bros. Boats, Inc. v. Vidrine, 5 Cir. 1969, 412 F.2d 958.

      . Justice Frankfurter, in his dissent in Rogers v. Missouri Pacific R.R., 1957, 352 U.S. 500, 77 S.Ct. 443, 1 L.Ed.2d 493, a companion case to Ferguson v. Moore-McCormack Lines, Inc., 1957, 352 U.S. 521, 77 S.Ct. 457, 1 L.Ed.2d 511, stated the Court’s view that “ . . .on the question of causality, the [FELA] has tried to avoid issues about ‘sole proximate cause,’ meeting the requirement of a causal relation with the language that the injury must result ‘in whole or in part’ from the employer’s negligence.” 352 U.S. at 538 n. 7, 77 S.Ct. at 467 n. 7, 1 L.Ed.2d at 528 n. 7.

      . In Ballwanz v. Isthmian Lines, Inc., 4 Cir. 1963, 319 F.2d 457, the court characterized the duty of employees in the status of Spinks as follows:
      His duty was to do his work as he was instructed. He was in no sense obligated to protest against the method of operation which he had been instructed to follow or to devise a safer method, nor was he obligated to call for additional or different equipment. If the doctrine of unseaworthiness means anything, it is totally repugnant to the doctrine of assumption of risk on the part of seamen. The plaintiff in this case was at the very bottom of the hierarchy of command, and the effect of the charge was to place too much responsibility upon him for the over-all operations of the stevedore.

      . Barrios v. Louisiana Construction Materials Co., 5 Cir. 1972, 465 F.2d 1157, specifically held that the seaman who was there employed by a contractor, Williams-McWilliams Company, on a barge owned and operated by one A. O. Rappellet had a Jones Act claim against Williams-McWilliams, even though the barge was owned and operated by Rap-pellet. The court there specifically treated and discussed cases cited for and against the proposition that a seaman employee can have a Jones Act claim against his employer who is not the shipowner or operator.

      . Q. (By Chevron’s attorney) Did Mr. Hanks have the power to hire or fire or run you off the job?
      A. (By Walker) Yes, sir, he did.
      Q. And was Mr. Spinks’ salary also paid by Labor Services?
      A. Yes, sir.
      ******
      Q. And you received your pay, your wages from Labor Services, did you not?
      A. (By Spinks) Yes, sir.

      . Q. (By Chevron’s attorney) Now, let us be quite specific, sir, and let us be specific about Mr. Spinks on April 5, 1970. Did you, sir, if you were on the S-66 on that day, have the power and authority to fire Mr. Spinks and run him off the job?
      A. (By Mr. Boren, Chevron’s barge foreman) No, sir.

        Q. Now assuming a situation presenting itself which to you was intolerable or not acceptable that Mr. Spinks was doing— whatever it may have been — what would have been the customary and routine procedure of your handling such a situation?
      A. I would have recommended to the pusher that he be let go or talked to, whichever the case might be ... But I could not personally fire the man. I had no authority of that kind.

      . In United States v. W. M. Webb, Inc., 1970, 397 U.S. 179, 90 S.Ct. 850, 25 L.Ed.2d 207, the Supreme Court held that a shipowner must completely divest himself of control, as in a bareboat charter, to avoid being a seaman’s employer. The same reasoning applies more forcefully to Labor Services, Spinks’ immediate employer.
      Furthermore, under the FELA an employer may be liable for the acts of its agents. “Agents” is liberally construed under that Act. Hopson v. Texaco, Inc., 1966, 383 U.S. 262, 86 S.Ct. 765, 15 L.Ed.2d 740 (carrying the FELA rule into admiralty). Whether phrased as dual employers or employer-agent, the result is the same: an injured seaman may reach either party through the Jones Act, unless of course, either has ceased completely to be his employer. Their status and liability inter se is not the injured seaman’s concern.

      . The Court may have meant that a seaman may not recover from more than one employer under the Jones Act. Norris, The Law of Seamen § 670 at 312 n. 11 (3d ed. 1970).

      . But in Mahramas the court specifically stated that the plaintiff, there a hairdresser employed by “The House of Albert” beauty shop on a luxury liner, was entitled to a Jones Act claim against The House of Albert despite the fact that The House of Albert was not the owner or operator of the vessel.

      . For example, the actively negligent party must indemnify the passively negligent party. Barrios, 465 F.2d at 1167; Constance v. Johnston Drilling Co., 5 Cir. 1970, 422 F.2d 369.

      . See footnote 3.

      . In Porter v. St. Louis-San Francisco Railway Company, 5 Cir. 1966, 354 F.2d 840, this Court ruled:
      The allegations that Porter was an employee of Union does not preclude plaintiff from showing, if she can, that under the circumstances that existed at the time of the injury Porter was an employee of Frisco within the meaning of that term as it is used in the Federal Employers’ Liability Act.
      “Under some circumstances a person may be the servant of two masters at the same time; and the general servant of the one master may, with his consent, be lent to another person and become his servant with respect to a particular transaction or piece of work.” 56 C.J.S. Master & Servant § 2d (2), p. 37.
      Carriers Insurance Exchange v. Truck Insurance Exchange, (D.C.Va.) 203 F.Supp. 764, 768, affirmed, 4 Cir., 310 F.2d 653.


author: PER CURIAM:

text:
    GREATER BATON ROUGE GOLF ASSOCIATION, Plaintiff-Appellant, v. RECREATION AND PARK COMMISSION FOR the PARISH OF EAST BATON ROUGE et al., Defendants-Appellees.
    No. 74-3449
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 23, 1975.
    Richard B. Nevils, Robert L. Kleinpeter, Baton Rouge, La., for plaintiff-appellant.
    David M. Miller, Walter G. Monsour, Jr., Baton Rouge, La., for defendant-ap-pellee.

      Before COLEMAN, DYER and RO-NEY, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et at., 5 Cir., 1970. 431 F.2d 409, Part I.

   PER CURIAM:

On June 6, 1974, plaintiff Golf Association commenced this suit seeking in-junctive relief against defendant Recreation Commission under 42 U.S.C. § 1983 for alleged violations of certain of its civil rights. It was set down for a hearing at 10:00 A.M. on June 17, 1974.

The District Judge called the case promptly at 10:00 on June 17, at which time counsel for the plaintiff was not present in the courtroom. After waiting ten minutes for counsel to appear plaintiff’s case was dismissed with prejudice. Counsel appeared at approximately 10:28 A.M. and was informed of the Court’s action.

On June 27, 1974, plaintiff’s counsel filed a motion to vacate judgment under Rule 60(b) of the Federal Rules of Civil Procedure, 28 U.S.C.A. This motion was supported by affidavits alleging that counsel’s failure to make a timely appearance was due to circumstances beyond his control. The affidavits show that counsel for plaintiff was prepared to present his case and had made plans to appear in the United States District Court at 10:00 A.M. However, counsel was also involved in a hearing for a client in the State Circuit Court at 9:30 A.M. the same morning. The affidavits indicate that counsel apprised the State Circuit Judge of his 10:00 o’clock engagement in federal court and attempted to reschedule his argument in state court for a later hour so that his law partner, who was arguing a case in another state court, could appear in his place at the later hearing. However, the State Circuit Judge stated that he would begin counsel’s hearing promptly at 9:30 and that it would be finished in time for counsel to appear in federal court at 10 o’clock. Counsel accepted the state judge’s assurances and agreed to proceed. However, opposing counsel presented a lengthy oral argument in the state court proceeding and the hearing, though commenced at 9:30 A.M. was not completed until 10:20 A.M. At this time counsel left the state court and proceeded to the federal court one block away, where he arrived at 10:28 A.M.

Plaintiff’s motion to vacate under Rule 60(b) was set down for oral argument on July 19, 1974, but on July 16 the District Judge by minute entry denied the motion. Plaintiff appeals the denial of that motion.

Rule 60(b) of the Federal Rules of Civil Procedure is a remedial provision intended to prevent injustice by allowing parties their day in court even though some technical error has occurred which would otherwise be grounds for default or dismissal. Recognizing the remedial intention of the rule, this Court has noted that it should be given a liberal construction, Padgett v. United States, 5 Cir., 1959, 272 F.2d 774, 776. It is generally held that even where there may be evidence in the record which would call for dismissal, any doubt should be resolved in favor of a trial on the merits, Tozer v. Charles A. Krause Milling Co., 3 Cir., 1951, 189 F.2d 242; Bridoux v. Eastern Air Lines, 1954, 93 U.S.App.D.C. 369, 214 F.2d 207.

In Denman v. Shubow, 1 Cir., 1969, 413 F.2d 258, plaintiff failed to appear in the District Court when his case was called for assignment, and consequently the case was dismissed without prejudice. The record shows that at that time plaintiff was taking a prescribed medication which caused him to oversleep and miss his appearance in court. Once he awoke and realized that he had missed his appointment, he promptly contacted the clerk of the court and later drove to Boston to explain his sithation to the District Judge. The Court of Appeals reversed the District Court’s denial of plaintiff’s Rule 60(b) motion and remanded the case for a hearing on the merits. The Court emphasized that plaintiff’s tardiness under the circumstances was not sufficiently reprehensible to deny him his day in court. Further the Court noted that plaintiff’s prompt action to correct the situation militated in his favor, indicating his good faith and conscious diligence to pursue his claim.

In Bryan v. Groff, 1958, 104 U.S.App. D.C. 5, 259 F.2d 162, however, the Court of Appeals upheld the District Court’s denial of a Rule 60(b) motion where summary judgment had been entered on counsel’s failure to appear. In that case, plaintiff’s counsel was handling other litigation in Virginia on the date of argument of defendant’s motion for summary judgment. He informed neither the clerk of the court nor the District Judge of these circumstances and simply failed to appear when his case was called.

The case presently before us is not altogether unmixed. It seems clear to us that when counsel found out he might be detained in the state court he should have forthwith notified the United States District Judge of his situation and requested permission to be slightly late if that becáme necessary by reason of unexpected detention at the state court. Counsel must have known that courts are not noted for their ability to stay on schedule. Yet, he told the District Court nothing; he kept it in the dark and left it to cool its heels. We cannot say that this was excusable neglect.

On the other hand, counsel did go straight to federal court as soon as he was released from the state court. He was prepared to go forward with his case. He was only twenty eight minutes late. We are of the opinion that dismissal with prejudice was too harsh a remedy for this inept, although unintentional, conduct of counsel. Counsel might well have been disciplined for his tardiness, if all the facts and circumstances justified it, but to put the plaintiff out of court .with prejudice was, we think, not an appropriate sanction in this case.

Consequently, we reverse the denial of Rule 60(b) relief and direct that the case be reinstated.

Reversed.

      . Rule 60(b) of the Federal Rules of Civil Procedure provides parties with relief from final judgment in certain instances where the interests of justice dictate.
      Rule 60(b) in relevant part provides:
      “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise or excusable neglect . . . . or (6) any other reason justifying relief from the operation of the judgment.”

      . The following persons submitted affidavits in support of plaintiff’s motion to vacate judgment under Rule 60(b):
      (1) Richard B. Nevils, counsel for plaintiff.
      (2) Robert L. Kieinpeter, law partner of counsel for plaintiff.
      (3) The Honorable Luther F. Cole, Judge
      Nineteenth Judicial District Court. Judge Cole was presiding judge at the state court proceeding which Richard B. Nevils attended the morning of June 17, 1974 at 9:30 A.M. Judge Cole states in his affidavit that he assured Nevils that the proceeding in state court would be completed in time for him to make his appearance in federal court at 10:00 A.M.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Frank A. FLORES, Defendant-Appellant.
    No. 74-3261
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 27, 1975.

      Frank A. Flores, pro se.
    Frank D. McCown, U. S. Atty., Andrew Barr, W. E. Smith, Asst. U. S. At-tys., Fort Worth, Tex., for plaintiff-ap-pellee.
    Before BROWN, Chief Judge, and THORNBERRY and AINSWORTH, Circuit Judges.

       Rule 18, 5th Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5th Cir. 1970, 431 F.2d 409, Part I.

   PER CURIAM:

Appellant here attempts to appeal from an order of the district court dated July 26, 1974. This order denied appellant’s motion for rehearing of an earlier order denying his motion for reduction or modification of sentence pursuant to Fed.R.Crim.P. 35. Appellant was sentenced on September 21, 1973. On November 13, 1973 he filed, through his attorney, a timely motion to reduce or modify sentence, which the district court denied on November 15, 1973. Appellant did not appeal this order. Instead, on March 14, 1974 he filed a pro se letter motion asking the district court to reduce or modify sentence. This motion was denied the day it was filed. A later motion for “rehearing” of the November 15 and March 14 orders was likewise filed and denied on July 26, 1974. It is from this July 26 order that appellant now seeks to appeal. The district court, however, lost all jurisdiction to modify appellant’s sentence 120 days after the original sentencing. Fed.R. Crim.P. 35; 8A Moore, Federal Practice K 35.02[2]. Thus, since the district court had no jurisdiction to grant the requested relief, we have no jurisdiction of this appeal. United States v. Bryan, 5 Cir. 1974, 498 F.2d 366; United States v. Granville, 5 Cir. 1972, 456 F.2d 1073; United States v. Gorman, 5 Cir. 1970, 431 F.2d 632.

Appeal dismissed.

      . Appellee argues that because appellant’s notice of appeal was filed on August 9, 1974 without allegations of excusable neglect, we lack jurisdiction of this appeal under Fed.R. App.P. 4(b). We note, however, that appellant’s notice was dated July 31, 1974, well within the time for appealing the July 26 order. Because we find the Rule 35 issue dispositive, we need not pass on whether appellant’s notice of appeal was timely under Fallen v. United States, 378 U.S. 139, 84 S.Ct. 1689, 12 L.Ed.2d 760. Compare United States v. Mehrtens, 5 Cir. 1974, 494 F.2d 1172, 1176, with United States v. Grimes, 5 Cir. 1970, 426 F.2d 706, 707.