author: COLEMAN, Circuit Judge:

text:
    BEAIRB-POULAN, INC., Plaintiff-Appellant, v. DEPARTMENT OF HIGHWAYS, STATE OF LOUISIANA, Claude S. Brinegar, and Secretary of Transportation, Defendants-Appellees.
    No. 73-3453.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.
    Rehearing Denied Aug. 21, 1974.
    Thomas J. Wyatt, Cecil E. Ramey, Jr., Shreveport, La., for plaintiff-appellant.
    Donald E. Walter, U. S. Atty., Robert H. Shemwell, Asst. U. S. Atty., Shreveport, La., William W. Irwin, Jr., D. Ross Banister, Jessee S. Moore, Jr., Baton Rouge, La., Wallace H. Johnson, Dept, of Jus., Edmund B. Clark, George R. Hyde, John J. Zimmerman, Attys., Washington, D. C., for defendants-appellees.

      Before TUTTLE, COLEMAN and AINSWORTH, Circuit Judges.
   COLEMAN, Circuit Judge:

Section 221 of the Uniform Relocation Assistance and Real Property Acquisitiop Policies Act of 1970 (Relocation Act), 84 Stat. 1894, 42 U.S.C., § 4601 note, provides:

“(a) Except as provided in subsections (b) and (c) of this section, this Act and the amendments made by this Act shall take effect on the date of its enactment.
“(b) Until July 1, 1972, sections 210 and 305 shall be applicable to a State only to the extent that such State is able under its laws to comply with such sections. After July 1, 1972, such sections shall be completely applicable to all States.
“(c) The repeals made by paragraphs (4), (5), (6), (8), (9), (10), (11) and (12) of section 220(a) of this title and section 306 of title III shall not apply to any State so long as sections 210 and 305 are not applicable in such State.”

This statute became generally effective on January 2, 1971. States which, because of their laws, could not comply as of that date were given until July 1, 1972 to come into compliance. The legislative history shows that the latter provision [42 U.S.C., § 4601(b)] was, in fact, made for the benefit of the State of Louisiana because Congress believed [although erroneously, as will be seen later] that the laws of Louisiana rendered that State unable, at the time, to comply, see Conference Report, No. 91-1780, U.S.News, 91st Cong., 2d Sess., pp. 5465, 5466 (1970).

The Relocation Act specifically stated its purpose:

“The purpose of this title is to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole.” (Relocation Act, § 201).

Article IY, § 12 of the Louisiana Constitution of 1921, at times pertinent to this litigation, provided as follows:

“The funds, credit, property or things of value of the State, or of any political corporation thereof, shall not be loaned, pledged or granted to or for any person or persons, associations or corporations, public or private; nor shall the State, nor any political corporation, purchase or subscribe to the capital stock or stock of any corporation or association whatever, or for any private enterprise. Nor shall the State, nor any political corporation thereof, assume the liabilities of any political, municipal, parochial, private or other corporation or association whatsoever, except as otherwise’ provided in this Constitution; nor shall the State undertake to carry on the business of any such corporation or association, or become a part owner therein; provided, the State, through the Legislature, shall have power to grant the necessary rights of way through its public lands for the construction of any railroad, or flood control or navigation canal; and provided, police juries and municipal corporations may, in providing for destitute persons, utilize any charitable institutions within their corporate limits for the care, maintenance and asylum of such persons; and all appropriations made to such institutions for the purpose aforesaid, shall be accounted for by them in the manner required of officials entrusted with public funds. . . . ”

This, in general, states the legal background for the litigation, here under review.

In April and May, 1971, in connection with the construction of an interstate highway at Shreveport, Louisiana, Beaird-Poulan, Inc., the plaintiff-appellant, in response to expropriation (condemnation) proceedings brought by Louisiana, was required to move machines, equipment, office supplies, and other items from its manufacturing plant and offices to a new location. The cost of the move is alleged to have been $217,082.46. The Louisiana Department of Highways refused to pay said expenses or to process any administrative claim therefor in compliance with the Relocation Act. The Secretary of the United States Department of Transportation declined to amend grants, contracts, and agreements with the Louisiana Department of Highways to include the cost of relocation expenses.

Beaird-Poulan filed suit against the Department of Highways for the recovery of its cost and for injunctive relief requiring the Secretary of Transportation to enforce the Relocation Act as to it and others similarly situated.

The Department of Highways answered that the complaint failed to state a claim upon which relief might be granted and further answered that because of the constitutional prohibition appearing in Article IV, § 12, it could not comply with the Act.

The United States, on behalf of the Secretary of Transportation, moved to dismiss for lack of jurisdiction and because the complaint failed to state a claim upon which relief could be granted.

The District Court dismissed the complaint.

This was done in reliance upon the provisions of the Louisiana constitutional provision and the decision of the Louisiana Supreme Court in Department of Highways v. Southwestern Electric Power Company, 243 La. 564, 145 So.2d 312 (1962). It was further pointed out that Louisiana, under the law then existing, was not required (emphasis ours) to pay compensation for relocation costs incurred in expropriation cases, citing Gray v. Department of Highways, 250 La. 1045, 202 So.2d 24 (1967); Louisiana Highway Commission v. DeBouchel, 174 La. 968, 142 So. 142 (1932); Rapides Parish School v. Nassif, 232 La. 218, 94 So.2d 40 (1957); Department of Highways v. Levy, 242 La. 259, 136 So.2d 35 (1962), and Housing Authority of Shreveport v. Green, 200 La. 463, 8 So.2d 295 (1942).

The District Court concluded that any payment of relocation costs by the State of Louisiana would constitute a gratuity and that such a donation was prohibited by its Constitution, Article IV, § 12. Further, since the Louisiana law prevented the Department of Highways from complying with the Relocation Act, the Secretary of Transportation should likewise be dismissed.

It is beyond doubt that in the existing state of the law Louisiana was not required to pay relocation costs. As we view the issue, however, this did not necessarily mean that, in the words of the federal relocation statute, it was unable to do so.

We do not read Department of Highways v. Southwestern Electric Power Company, supra, as shedding any precedential light on this litigation. In that case, the Power Company refused to move its lines and poles from city streets which were to be converted into the interstate highway system unless it was paid for the cost of the relocation. The Louisiana Supreme Court denied removal expense relief on the ground that removal was required by the franchises which had granted the use of the streets in the first place, for, indeed, under Louisiana law a corporation may not acquire any proprietary interest in a street.

This case was decided in 1962, eight years before the enactment of the federal relocation act. The Federal Highway Act of 1956, as then written, did authorize the payment of relocation costs to public utilities. Of this, the Louisiana Supreme Court said:

“Finally, counsel, citing the Federal Highway Act of 1956 (23 U.S.C. Sec. 123), assert that, since Congress recognized therein that relocation of utility facilities was a necessary part of highway construction in the interstate highway system and specifically authorized the use of Federal funds to reimburse states for the Government’s proportion of the amounts paid to the utilities for costs of relocation of their facilities, it has evidenced its intent that such relocation costs are unprecedented and should not be required to be borne by the utilities. From this predicate, it is argued that it is improper to hold that the costs of removal should not be paid by plaintiff forasmuch as the law of Louisiana does not prohibit reimbursement and since a proportionate part (90% in this instance) of all monies plaintiff would be required to pay could be recovered from the Federal Government.
“We find no substance in this contention. Liability of plaintiff for the costs of removal of the utilities’ facilities from the public way is not to be determined on its right under the Federal statute to obtain reimbursement of a large proportion of the costs from the United States. On the contrary, such liability is to be resolved by the laws of this State. The fact that our law may not prohibit reimbursement ■ of the utilities has nothing to do with the plaintiffs’ liability for reimbursement. We hold that no such liability legally exists.”

Article IV, § 12 of the Louisiana Constitution was not mentioned in the opinion of the Court. It dealt, very clearly, with an authorization that federal funds might be contributed toward the relocation costs of public utilities. It did not deal, as here, with a specific congressional command that such relocation costs should be paid, the only exception being the provision that a state should not be required to comply prior to July 1, 1972 if its laws rendered it unable to do so.

Left, as we are, with no definitive decision of the Louisiana Supreme Court on the pertinent aspects of Article IV, § 12, we must construe it according to its own terms. We see nothing in it to prohibit the expenditure of public funds for a lawfully authorized state purpose. Such could in no wise be considered a loan, a pledge, a grant, or a mere donation.

In another context, the Louisiana Supreme Court has so held. See Caldwell Brothers v. Board of Supervisors, 176 La. 825, 147 So. 5 (1933), wherein it was stated:

“The purpose of this article was not to hamper state agencies or boards in the exercise of their proper functions, or in the conduct of their legitimate affairs, but to put an end to the practice of the Legislatures to pledge the credit of the state to aid private enterprises. Benedict v. City of New Orleans, 115 La. 645, 39 So. 792.” 147 So. at p. 7. (Emphasis added).

This reduces us to the ultimate question : Did the laws of Louisiana in April and May, 1971, render the State [the Department of Highways] unable to spend highway funds for relocation costs necessitated by the interstate highway system? We think not.

On the authority of Short & Murrell v. Department of Highways, 233 La. 735, 98 So.2d 170 (1957), involving payment for the construction of a Highway Department Headquarters building, we have no doubt that the State Department of Highways had the authority to contract with the United States for the construction of interstate highways, including all matters necessary, appropriate, or incidental thereto.

Particularly pertinent to this decision were Sections 48:22 and 48:26 of the Louisiana Revised Statutes, which read as follows:

“§ 22. Powers
The department has all of the rights, powers, and immunities incident to corporations. It may acquire, own, administer, alienate, and otherwise dispose of all kinds of property, movable and immovable, tangible and intangible; contract; adopt, alter, or destroy an official seal; sue and be sued, implead, and be impleaded.”
“§ 26. Incidental powers
Except as otherwise expressly provided by this Chapter, the department may perform every act necessary, convenient, or incidental to the exercise of its power and authority, the discharge of its duties, or the performance of its functions.”

Even more appropriate to the issue now under consideration is Section 48:212 of the Louisiana Revised Statutes:

“§ 212. Agreements with federal government
A. The department may enter into any agreements with the federal government or with any federal agency for the purpose of building or improving public highways and flight strips, to the extent that the federal government or its agency is authorized by federal statutes to enter into such agreements, and with the same limitations.”

From all this we conclude that while the State of Louisiana, acting by its Department of Highways, was not required by its own law to pay relocation costs it was, nevertheless, clearly able under those laws to comply with the Relocation Act of 1970. The cited statutes authorized such a course and Article IV, § 12 of the Louisiana Constitution does not prohibit it.

The defenses raised by the Secretary of Transportation originate in the argument that Louisiana could not lawfully comply with the Act. Assuredly, he was, and is, willing to comply. Our decision moots the issues raised by him and thus we do not decide them.

The judgment of the District Court is reversed and remanded for further proceedings not inconsistent herewith.

Reversed and remanded.

      . By March 12, 1972, Louisiana had amended its Constitution and statutes in a manner intended to remove all doubt of its ability to comply with the Relocation Act. Thus, in this case, we deal with an apparently non-recurrent type of lawsuit.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    James D. HODGSON, Secretary of Labor, United States Department of Labor, Plaintiff-Appellee, v. IDAHO TROUT PROCESSORS COMPANY, a corporation, Defendant-Appellant.
    No. 72-2415.
    United States Court of Appeals, Ninth Circuit.
    May 21, 1974.

      Dale Clemons, Randall C. Fredricks, of Clemons, Cosho, Humphrey & Samuel-sen, Boise, Idaho, for defendant-appellant.
    Donald S. Shire, Carin Ann Claus, Richard F. Schubert, U. S. Dept, of Labor, Washington, D. C., Altero D’Agostini, Alfred G. Albert, Alan M. Raznick, Dept, of Labor, San Francisco, Cal., for plaintiff-appellee.
    Before KOELSCH, WALLACE and SNEED, Circuit Judges.
   OPINION

PER CURIAM:

This appeal concerns § 13(a)(6) of the Fair Labor Standards Act (29 U.S.C. § 213(a) (6)), the provision which exempts employers of “employees employed in agriculture” from the wage and hour requirements of the Act (29 U.S.C. §§ 206 and 207). More specifically, the question is whether the district court erred in determining that employees of Idaho Trout Processors Company (Trout Processors) were within the purview of the Act and hence Trout Processors was liable to them for back pay.

Trout Processors was incorporated in 1959 under the laws of Idaho, as a nonexempt cooperative corporation, for the purpose of cleaning, processing, freezing, packing, and marketing trout raised by the three member trout farms. Rainbow Trout Farm, Canyon Trout Farm and Frame Trout Farm are the three stockholders. Trout Processors regularly employs from 7 to 15 employees, whose labors are confined to the processing plant and not to the actual raising of trout. Earl M. Hardy is president and treasurer of Trout Processors and also one of the shareholders of Rainbow Trout Farm.

Trout Processors leases the land for its plant from Kaybar Corporation, whose sole shareholder, is Earl M. Hardy. The land upon which the plant is situated adjoins Rainbow Trout Farm 1. Rainbow Trout Farm, pursuant to a management agreement, is paid a five per cent fee for managing the affairs of Trout Processors, part of which fee is paid directly to Earl M. Hardy.

After deducting the processing and marketing expenses of Trout Processors, the proceeds of trout sales are distributed to the three member farms based upon a percentage derived by dividing the number of pounds of trout processed from each member by the total number of pounds of trout processed.

In Farmers, etc., Irrigation Co. v. McComb, 337 U.S. 755, 69 S.Ct. 1274, 93 L.Ed. 1672 (1949), the Supreme Court elucidated the meaning of the word “agriculture” as defined in § 3(f) of the Act (29 U.S.C. § 203(f). As the Court pointed out at 762-763, the statutory definition of the term has two distinct “branches”: (1) a primary meaning which includes farming in all its branches, such as cultivation and tillage of soil, growing and harvesting of crops, and (2) a secondary meaning which includes other farm practices, but only if they are performed by a farmer or on a farm.

The activities of Trout Processors’ employees do not fall within the primary meaning because they do not consist of any of the elemental farming operations set forth in § 3(f) of the Act. The employees neither cultivate nor raise anything ; their labor consists solely of processing operations.

Nor do their activities come within the secondary meaning, for the work is not performed “by a farmer or on a farm” as an incident to or in conjunction with farming operations. The employees work for Trout Processors, not the farms, and their work is performed entirely on the land of Trout Processors’ plant.

Trout Processors argues, however, that its processing operation is so integrated with the farming activities of the three farms that it is still a part of the over-all farming function. We are not persuaded.

In Farmers, etc., Irrigation Co., supra, the controlling fact was that the company had been set up by the farmers as an independent entity to operate an integrated, unitary water supply system. The Court observed at 768;

“There is a difference between the hiring of mutual servants by a group of employers and the creation by them of a separate business organization, with its own officers, property, and bonded indebtedness, which in turn hires working men. Those working men are in no real sense employees of the shareholders of the organization. They are hired by the organization, fired by the organization, controlled and directed by the organization, and paid by it.”

From the stipulation of facts it appears that Trout Processors was set up as an independent entity to clean, process, freeze, pack, and market trout from the three member farms and others, that its employees are employed directly by it, and that the member farms do not interfere with its operations. The case is thus governed by Farmers, etc., Irrigation Co.

Trout Processors’ reliance on Dofflemyer v. N.L.R.B., 206 F.2d 813 (9th Cir. 1953), is misplaced. In that decision, this court held that workers in a packing shed, who picked grapes grown by their three employers, came within the agricultural exemption. As we pointed out in distinguishing Farmers, etc., Irrigation Co., the operation of the packing shed in Dofflemyer was an “informal family enterprise” wherein the three employers ran both the production of grapes and their preparation for market, and the packing shed employees did not exclusively work in the shed but performed part of their duties in the fields. Thus it was “unrealistic to view the partnership as a separate legal entity apart from the individuals who made it up.” 206 F.2d at 814.

In this case, however, Trout Processors’ employees work exclusively for the processing plant, there is a formal separation and division of function between the plant and the farms, and the farms do not supervise the plant, nor do they hire, fire, or pay Trout Processors’ employees. In short, this case is governed by Farmers, etc., Irrigation Co.

The judgment is affirmed.

      . Section 3(f) of the Fair Labor Standards Act, 29 U.S.C. § 203(f), provides in pertinent part as follows:
      “(f) ‘Agriculture’ includes farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities * * *, the raising of livestock, bees, fur-hearing animals, or poultry, and any practices * * * performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.”


author: PHILLIPS, Chief Judge.

text:
    LOCAL 98, UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF the PLUMBING AND PIPE FITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO and Larry Delehant, Respondents-Appellants, v. NATIONAL LABOR RELATIONS BOARD, Petitioner-Appellee.
    Nos. 71-1413 and 72-1044.
    United States Court of Appeals, Sixth Circuit.
    Argued April 4, 1974.
    Decided June 6, 1974.

      Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Paul Elkind, Chief, Contempt Litigation, Peter Ames Eveleth, Associate Chief, Contempt Litigation, Charles Donnelly, Atty., National Labor Relations Board, Washington, D. C., on brief, for petitioner-appellee.
    Boaz Siegel, Detroit, Mich., on brief, for respondents-appellants.
    Before PHILLIPS, Chief Judge, and PECK and MILLER, Circuit Judges.
   PHILLIPS, Chief Judge.

This is a civil contempt proceeding filed by the National Labor Relations Board against Local 98, United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFLCIO (the Union) and its agent, Business Representative Larry Delehant.

On May 27, 1971, and January 25, 1972, this court entered consent judgments enforcing unreported Board orders against the Union, in Board cases Nos. 7-CC-605(4) and 7-CC-646, respectively. The orders of the Board which were enforced by the consent judgments of this court each require the Union, its officers, agents and representatives, to cease and desist from:

(a) [Ejngaging in, or inducing or encouraging any individual employed by any . . . person engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport or otherwise handle or work on any goods, articles, materials or commodities or to perform any service, or
(b) threatening, coercing or restraining . . . any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require - . any . person, to cease using, selling, handling, transporting, or otherwise dealing in the products of or to cease doing business with Certified Contractors Corporation.

Thereafter the Board- filed a petition in this court for adjudication in civil contempt and for other civil relief charging that the respondent Union had disobeyed and failed and refused to comply with the consent judgments of this court. This court entered a show cause order against respondents. The union filed its answer denying that it was in contempt of this court or that it had disobeyed said judgments of enforcement. This court thereupon entered an order of reference appointing Honorable Thomas P. Thornton, Senior Judge, United States District Court for the Eastern District of Michigan, as Special Master to hear evidence and report to this court as to whether respondents are in civil contempt for violating, disobeying and failing and refusing to comply with the judgments.

After hearing evidence which is preserved in a transcript of more than 400 pages, the Special Master adopted findings of fact and conclusions of law, holding that respondents are in civil contempt of the aforesaid judgments of this court, because of the Union’s picketing and other acts by which respondents induced and encouraged employees to engage in strikes and work stoppages at several construction sites with the object of forcing or requiring neutral employees to cease doing business with Certified Contractors Corporation (Certified).

The findings of fact of the Special Master are summarized as follows:

Certified is a Michigan corpoi'ation engaged as a plumbing and heating contractor in and around Detroit, Michigan. Certified’s journeymen and apprentice

plumbers were at all material times represented under a collective-bargaining contract between Certified and Local 124 of the United Construction and Trades Union International.

A. The Red Cross Jobsite

In late April 1972, Certified began plumbing work for Campbell Construction Company (Campbell) at the Detroit Red Cross Building, under the supervision of Master Plumber Joseph Grates. On May 8, approximately 25 craftsmen and general laborers employed by eight subcontractors, including Certified, were scheduled to work at the site. On that morning however, the Union picketed the Red Cross jobsite with signs protesting Certified’s failure to pay Union wages and benefits. The pickets marched on sidewalks on three sides of the jobsite (the fourth side, a small alleyway, was not picketed). In the course of the picketing, the pickets patrolled in front of the main employee entrance to the jobsite. As a result, employees of all the various subcontractors engaged in performing work on the job-site, with the exception of Certified and Guardian Electric, refused to work and left the site. The picketing continued in the same manner on May 9 and only Cex'tified and Guardian Electric continued to work in face of the picketing.

On May 10, Certified established an entrance exclusively for use of its own employees. and suppliers which was located in an alley bounding one side of the jobsite. At this location, Certified erected a sign designating the entrance as reserved for its sole use and that of its suppliers. In addition, at the main employee entrance, which was being picketed, a sign (Gate 1) was erected which forbade use of that entrance by Certified’s employees and suppliers and restricted its use to employees and suppliers of neutral contractors. After the reserved gates were erected, no employee or supplier of Certified used any entrance other than Gate 2. Despite the fact that Certified was thus excluded from use of the main entrance, the Union continued to picket that gate and did not picket Certified’s alley entrance. On May 10, only Certified and Guardian Electric employees worked, while on the following day, Guardian Electric ceased to work. The Union’s picketing persisted until May 15, with the pickets continuing to station themselves at the main entrance. As a result of the picketing, Campbell, the general contractor, cancelled Certified’s plumbing subcontract ; thereafter the Union discontinued its picketing of the jobsite.

B. The Cyril Burke Jobsite

Certified was also the plumbing subcontractor on a construction project in Sterling Heights, Michigan in the Detroit area for the Cyril Burke Rental Equipment Company. In early June, Certified’s employees completed installation of underground plumbing. On June 5, under the supervision of Master Plumber Harold Doubles, Certified’s employees collected their tools, equipment and vehicles with the exception of a company trailer (which they padlocked) and departed from the jobsite, intending to return only after the electrical subcontractor (Starlite Electric) and other subcontractors had performed work preliminary to further plumbing installation.

On the morning of June 6, five or more Union pickets appeared at the Burke site with signs identical to those used at Red Cross and proceeded to picket the three employee entrances despite the fact that Certified was not working at the site. ■ The picketing was at all times conducted under the direction of Business Agent Larry Delehant. Shortly after the picketing began, Starlite Electric’s foreman, Kenneth Walters, arrived at the site to work on scheduled electrical installation and was confronted by Delehant. Delehant announced that the Union was picketing Certified and instructed Walters to contact his own business agent for advice about working while the site was being picketed. As a result of the picketing and Delehant’s instructions to Walters, Starlite Electric did not work at the Burke site on June 6, although it was scheduled to lay floor conduit that day.

At noon on June 6, Delehant also approached a carpenter, Clifford Kniffen, who was working at Burke for C. D. Lewis Construction Company (Lewis), the general contractor at the site. Delehant asked Kniffen to call the Carpenters Union business agent, but Kniffen refused. Later, a Carpenters Union business agent, after speaking with the Union pickets at the jobsite, spoke to Kniffen and warned him that he “could be fined” for working behind the picket line. As a result of the foregoing, Kniffen refused to work at the Burke site.

The Union continued to picket the Burke site for several days after June 6, despite the fact that on June 7, Delehant learned that Certified had by telegram notified the Union that they had ceased working at the site on June 5 and would not return for several weeks. As already indicated, Certified could not work because Starlite had not completed its electrical work. On June 8, Starlite foreman Walters again attempted to work at the Burke site. However, Union pickets stated that the Union would “appreciate it” if Walters refused to work in response to the picketing. As a result of the foregoing, he again refused to work at the site.

Later on the same day, Certified roped off the site and, with appropriately worded signs, established a gate reserved exclusively for the use of its own employees and suppliers (Gate 2). In addition, at the main employee entrance it erected a sign prohibiting use of the entrance by its own employees and reserving it for use by neutral employees and suppliers (Gate 1). Even after these entrances had been created, however, three or more Union pickets congregated at the main entrance set aside for use by neutrals. Picketing at the main entrance continued for several days after the reserved entrances had been established, although Certified was not working at the site. Further, employees of subcontractors who came to the site to work refused to do so because of the Union’s picketing.

The Union resumed picketing the Burke site on Monday morning, June 12. Delehant made an inquiry of the general contractor's superintendent about the identity of the replacement for Certified as plumbing contractor. Apparently satisfied that Certified would not be returning, the pickets then left the site. Later in the day, the Starlite crew and other subcontractors returned to the site and resumed working.

C. The Detroit Bank and Trust Jobsite

Similarly, in October 1972, Certified was engaged as mechanical subcontractor in the construction of a suburban branch of the Detroit Bank and Trust. After completing the underground plumbing work on October 20, Doubles and his crew ceased working and removed the tools, materials and vehicles from the site and departed, as they could proceed no further until the concrete floor had been poured. Certified intended to return no sooner than late November.

On Monday, October 23, the Union picketed the site with signs protesting Certified’s failure to pay Union wages and fringes. In the course of the picketing, a picket stationed himself at the main employee entrance to the jobsite. As a result, employees of at least one subcontractor on the job refused to perform any work at the site. As noted, as Certified had no work scheduled, it was not present at the site on that date. Picketing continued on October 24 and 25 at the main entrance, and as a result, necessary and scheduled electrical work was not performed. On the morning of October 25, Certified established “reserved gates” at the site, as at Red Cross and Burke. Certified employees and suppliers were thereby restricted to an entrance (Gate 2) separate and apart from the main employee entrance (Gate 1). However, the Union continued to picket the main entrance reserved for neutrals. Sometime later that day, the Union confined its picketing to Certified’s entrance and ceased picketing the neutral entrance.

On account of the above-described conduct, the Master concluded that the Union and Delehant disobeyed the judgments of this Court of May 27, 1971 and January 25, 1972, in that the Union and its agents induced and encouraged individuals employed by persons engaged in commerce or in an industry affecting commerce to engage in strikes or refusal to use, manufacture, process, transport or otherwise handle or work on any goods or to perform services, and threatened, coerced and restrained said persons, where in both cases, an object thereof was to force or require such persons to cease doing business with Certified. The Master further stated that the Union “has demonstrated a proclivity to engage in unlawful secondary activity in furtherance of its labor disputes with various primary employers in addition to Certified.”

He concluded as a matter of purgation that “a broad cease and desist order is necessary in order to prevent future unlawful secondary conduct toward neutral employers.” Accordingly, he recommended that an order issue enjoining Delehant and the Union from exerting unlawful secondary pressure against Certified “or any other person.” In addition, he recommended that respondents be required to post and mail appropriate notices and to pay the Board’s costs and expenses. Finally, to assure a cessation of violations of the court’s decree, he recommended that the court assess a prospective fine, in an amount to be fixed by the Court, for each and every further violation.

The standard of proof in this civil contempt action is whether the Board has shown by clear and convineing evidence that the respondents have engaged in contumacious conduct. N. L. R. B. v. Local 5881, United Mine Workers of America, 323 F.2d 853, 854 (6th Cir. 1963). Clear and convincing evidence on the record as a whole supports the findings of the Special Master in the present case that respondents, by picketing and by direct oral inducements deliberately sought to enmesh neutral employees in the primary dispute between respondents and Certified. We hold that the Master’s finding of conduct constituting civil contempt is supported more than amply by clear and convincing evidence.

Section 8(b)(4) of the National Labor Relations Act, embodied in the judgments of this court, provides that it shall be an unfair labor practice for a labor organization or its agents:

“ . . .to engage in, or to induce or encourage any individual employed by any person engaged in commerce or an industry affecting commerce to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, or articles, materials, or commodities or to perform any services ; or . . .to threaten, coerce, or restrain any person engaged in commerce or an industry affecting commerce;

where in either case, an object thereof is:

“forcing or requiring any person to cease using, selling handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person.

These provisions reflect the “dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own,” N. L. R. B. v. Denver Building and Construction Trades Council, 341 U.S. 675, 692, 71 S.Ct. 943, 953, 95 L.Ed. 1284 (1951). See also, N. L. R. B. v. Nashville Building and Construction Trades Council, 425 F.2d 385, 391 (6th Cir. 1970). Thus, in this case, the Union was entitled to bring pressure to bear directly upon Certified in connection with its primary dispute. However, as this Court has recognized, subcontractors are neutral with respect to the labor disputes of each other. N. L. R. B. v. Nashville Building and Construction Trades Council, supra, 425 F.2d at 390. They are, therefore, entitled to the protection of the Act’s secondary boycott provisions. Accord: N. L. R. B. v. Denver Building and Construction Trades Council, supra, 341 U.S. at 690; N. L. R. B. v. Nashville Building and Construction Trades Council, 383 F,2d 562, 564-566 (6th Cir. 1967). Since the Union here had no dispute at any of the jobsites involved in this proceeding with any of the general contractors or subcontractors, except Certified, these neutral employers were entitled to be free of economic pressure from the Union on account of its dispute with Certified. Accordingly, to the extent possible, the Union and Delehant were under a duty to relieve the secondary effects of picketing at the “common situs” construction projects here involved. This court has recognized that a failure to minimize effects is strong evidence that “an object” of the picketing is one proscribed by the statute. See N. L. R. B. v. Nashville Building and Construction Trades Council, supra, 425 F.2d at 392.

Respondents contend that they should not be adjudged in contempt because of their primary labor dispute after this court entered the order of reference to the Special Master in this proceeding. The settlement of this dispute did not occur until the eve of the contempt hearing before the Master, long after the respondents had resorted to the conduct which the Master found to be contumacious. Assuming that the Union now has made peace with Certified, this does not foreclose the prospect that it may resort to the same objectionable conduct in the future if it wishes to bring pressure to bear on neutral subcontractors in another dispute. In an analogous situation in N. L. R. B. v. Local 825, IUOE, 430 F.2d 1225, 1227 (3rd Cir. 1970), cert. denied, 401 U.S. 976, 91 S.Ct. 1200, 28 L.Ed.2d 326 (1971), the court said:

“If such repeated violations of particular prohibitory decrees of this court have occurred, a civil proceeding is appropriate to determine whether the misconduct amounted to contempt and, if so, what civil sanctions are appropriate and reasonably calculated to cause the union to abandon a course of intermittent flouting of our decrees whenever such misconduct may seem to serve its purposes.”

To the same effect, see N. L. R. B. v. Heck’s Inc., 369 F.2d 370, 371 (6th Cir. 1966); N. L. R. B. v. Robinson, 251 F.2d 639; 642 (6th Cir. 1958); N. L. R. B. v. United Mine Workers of America, District 23, 195 F.2d 961, 963 (6th Cir. 1952), cert. denied, 344 U.S. 920, 73 S.Ct. 387, 97 L.Ed. 709 (1953), and N. L. R. B. v. Prettyman, 117 F.2d 786, 792 (6th Cir. 1941).

Upon consideration of the briefs and oral arguments of the parties and the entire record, including the transcript of the evidence before the Special Master, this court concludes that the findings of fact of the Special Master are supported by clear and convincing evidence and should be approved and confirmed in all respects.

The following order will be entered:

The National Labor Relations Board having filed a petition to adjudge in civil contempt Local 98, United Association of Journeymen and Apprentices of the-Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO and its agent, Larry Delehant, in that respondents have failed and refused to comply with the judgments of this court entered on May 27,1971, and January 25, 1972; and Senior United States District Judge Thomas P. Thornton in his capacity as Special Master having made a report recommending that respondents be adjudged in civil contempt of this court and be required to purge themselves thereof:

It is ordered that the findings of fact and conclusions of the Special Master be approved and confirmed in all respects.

It is further ordered that Local 98 and its agent, Larry Delehant, are hereby adjudged in civil contempt of this court for violating and disobeying the aforesaid judgments.

It is further ordered that the respondent Union and its officers, representatives, agents, successors and assigns, including respondent Larry Delehant, shall purge themselves of such contempt by:

(a) Complying fully with and obeying the Board’s orders as enforced by this court’s consent judgments of May 27, 1971, and January 25, 1972.

(b) Ceasing and desisting from engaging in, or inducing or encouraging any individual employed by any person engaged in commerce or in an industry affecting commerce, to engage in, a strike or a refusal in the course of his employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform ány service; or in any manner or by any means, threatening, coercing or restraining any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is to force or require any person to cease using, selling, handling, transporting, or otherwise dealing in the products of or to cease doing business with Certified Contractors Corporation or any other person.

(e) Immediately posting in conspicuous places in business offices, meeting halls, and all places where notices to members are customarily posted, for a period of 60 days, copies of a notice in the form prepared by the Board, signed by an appropriate officer on behalf of the Union and by Larry Delehant which states that the Union and Delehant have been adjudicated in civil contempt of this Court for violating and disobeying the Court’s judgments of May 27, 1971, and January 25, 1972, and that they will forthwith undertake appropriate action in purgation, such notices and a copy of the contempt adjudication to be maintained in clearly legible condition throughout such posting period and insuring that such notices are not altered, defaced, or covered by any other material.

(d) Signing and mailing sufficient copies of said notice to the Regional Director for the Seventh Region of the National Labor Relations Board, 500 Book Building, 1249 Washington Boulevard, Detroit, Michigan 48226, for posting at the offices of the secondary employers named in the petition should such secondary employers be willing.

(e) Signing and máiling copies of said notice and the adjudication to all employers in the construction industry with whom the Union has a signed agreement; and signing and mailing copies of the notice and adjudication to all members of the Union; and reading said notice by an officer of the Union at a special meeting called for said purpose, on reasonable notice.

(f) Filing separate sworn statements with the aforesaid Regional Director in writing within ten days after the order of adjudication and again upon termination of the posting period, showing what steps have been taken by the Union and the individual respondent to comply with the court’s direction.

(g) Paying to the Board all costs and expenses incurred in the investigation, preparation and final disposition of this proceeding for an adjudication in civil contempt, but not including counsel fees.

In order to insure compliance with the foregoing provisions, it is further ordered that upon the failure of the respondents to purge themselves of contempt as herein provided, this court shall impose a compliance fine of $1,000 on the respondent Union and a further compliance fine of $100 per day so long as such noncompliance continues. The court will deal further with the matter by such other means as the court shall then determine, including the issuance of a body attachment upon any officer, representative or agent responsible for such noncompliance. See N. L. R. B. v. Local Union No. 80 Sheet Metal Workers’ International Association, AFL-CIO, 491 F.2d 1017 (6th Cir. 1974).

      . Unless otherwise indicated, all dates hereafter refer to 1972.

      . The pickets revealed to Walters that their dispute was with Local 124 with whom Certified had a labor agreement and that “we’re out to stop them”.


author: SIMPSON, Circuit Judge:

text:
    Roy C. WILLIAMS, Plaintiff-Appellant-Cross Appellee, v. BRASEA, INC., and VESSEL CIAPESC I, her engines, etc., Defendants-Appellees-Cross Appellants, Bender Welding & Machine Co., Inc., Defendant-Appellee-Cross Appellant, Construction Machinery Company, Defendant-Appellee-Cross Appellant.
    No. 72-3623.
    United States Court of Appeals, Fifth Circuit.
    July 5, 1974.

      See also, D.C., 320 F.Supp. 658.

      M. W. Meridith, Jr., Corpus Christi, Tex., for Const. Mach. Co.
    C. D. Kennedy, William M. Jensen, Houston, Tex., Jack G. Carinhas, Jr., Brownsville, Tex., for Brasea.
    A. J. Watkins, Bill R. Bludworth, Houston, Tex., for Bender.
    William R. Edwards, Corpus Christi, Tex., W. A. Cleveland, Jr., Jacksonville, Fla., for Williams.
    Before GEWIN, THORNBERRY and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

The shrimp trawler CIAPESC I, out of Freeport, Texas was trawling for shrimp in the Gulf of Mexico, when the events leading to this involved lawsuit took place. Roy C. Williams, the plaintiff below and appellant (and cross-appellee) here, was master of the CIAPESC I at the time he was seriously injured aboard the vessel. Williams prevailed below in this action against the owner of the vessel, Brasea, Inc. (Bra-sea), its builder, Bender Welding and Machine Company, Inc. (Bender), and the designer-manufacturer Construction Machinery Company (CMC), of the winch assembly involved in the accident. As to Brasea the action was premised upon unseaworthiness of the CIAPESC I and negligence under the Jones Act, Title 46, U.S.C. Sec. 688. Bender and CMC were sued on theories of negligence and products liability. Brasea cross-claimed for a right of indemnity as against Bender and CMC, and Bender cross-claimed for indemnity from CMC.

The several claims and cross-claims were tried together to the district court without a jury. Final judgment was entered for Williams in the sum of $316,500, which was reduced from a finding of damages in the amount of $527,500, by 40% ($211,000.00), the proportion of damages the court found to represent Williams’ contributory negligence. Liability was found as to Brasea based on the negligence of employee Terry, a crewman aboard the vessel, and unseaworthiness of the CIAPESC I. Bender and CMC were found liable on the theory of products liability set forth in the Restatement of Torts 2d, Sec. 402A. Both Bender and CMC were further found not to have been negligent, and both cross-claims for indemnity were denied. By amendment to the final judgment, the liability found was changed from joint and several against the defendants to primary-secondary. Williams gave timely notice of appeal and all defendants filed cross-appeals. After review of the briefs, record, and argument we remand for further findings in connection with the negligence issues and reverse on the issue of products liability.

I FACTS

On December 10, 1969, the CIAPESC I was trawling for shrimp in the Gulf of Mexico off the Texas coast. Aboard were Williams, master of the vessel, and two crewman, Edward Terry and Jeremiah Rieho. The accident involved a power winch designed and manufactured by CMC and installed by Bender during the ship’s construction. The winch had three drums which revolved when power was supplied to the winch. Two machined steel winch heads, called “cat-heads”, were attached to and extended from the drums. Catheads resemble large empty spools perhaps a foot high and of somewhat smaller diameter. Their function largely is to assist in pulling “whiplines”, a whipline being a line attached to a shrimp net and run thence through a block and tackle down to the deck of the ship from the A-frame boom which supports it. By wrapping the loose end of the whipline around the cathead and engaging the power, a crewman uses the rotation of the cathead to pull the net alongside the vessel and from there out of the water and up to the deck.

There were two catheads on board the CIAPESC I. A push-pull handle for engaging the power to the winch, and thus the catheads, was located between the two. A low platform on which to stand in front of the handle facilitated reaching it. On the day in question, with both port and starboard nets out, in the 25-fathom area, they hit a “bad bottom” and Williams, the master, ordered the crew to pick up the nets. As the port net was being retrieved the whipline running from the net through the snatch block to and around the cathead became tangled around the cathead. , Terry cut the power to the cathead and Williams, who had been below, came on deck to see what had happened. Recognizing the problem, he instructed Terry to pull on the line in order to create some slack. Williams then began untangling the line around the cathead with his hands.

From all the testimony it appears that, at this precise moment, Terry was standing on the platform in front of the on-off power handle, between the two catheads. Williams was on the other side of the cathead on which the line was tangled, perhaps two feet away. Richo was about six feet away, but was not watching Terry or Williams. A factual dispute exists with respect to what immediately ensued. Terry testified that Williams ordered him to cut on the power of the winch and he did so. Williams denied giving any such order. Richo did not hear anything, but that fact is by no means conclusive, becase he was not paying attention and because extraneous noises existed at the time.

When the power came on the cathead began to turn and the line quickly became taut. Williams’ left hand caught in the line on the cathead and he yelled for Terry to take it out of gear. The cat-head continued to turn for three or four revolutions after it was disengaged, as do all catheads mounted on winches that lack a brake. While trying to free himself, Williams caught his right hand in the line on the cathead and this arm was pulled further into it. He was cut loose after having been carried over the cat-head several times thus entangled. The resulting injuries required the amputation of both of Williams’ arms. There was further conflict in the evidence as to who actually turned the power off and whether it was before or after Richo freed Williams by cutting the line. Terry further testified that he looked at Williams just before he was ordered to turn on the power and, while he could not see his hands, he seemed to be in the clear.

II APPEAL BY WILLIAMS

Williams appeals from several aspects of the court’s final judgment. Most significant in his attack on the 40% reduction of the judgment because of his asserted contributory negligence. He first urges that he was not in fact contributorily negligent, and second that, even if he were, the court made no factual findings to support its 40% comparative negligence figure. In our view the question of Williams’ contributory negligence vel non is inextricably tied to the issue of (a) Terry’s, and (b) hence Brasea’s, negligence. We deal first therefore with the competing negligence claims of Williams and Bra-sea.

The district court’s memorandum-opinion and order contains two references to the dispute as to whether Williams ordered Terry to engage the power and its relevance to liability. The court initially stated that “[w]hether plaintiff told him to do so or not, when Terry turned on the power without making a reasonable effort to be sure plaintiff was clear of danger, he was negligent, .” App. at 1746. Later in its opinion the court observed that “[t]he Court is not prepared to find that Plaintiff gave Terry specific instructions to turn on the power, . . .” App. at 1758. The lower court clearly reasoned that Terry was negligent in turning on the power even if he was ordered by Williams to do so.

Williams’ contributory negligence was put on a different footing. There was testimony regarding alternative methods Williams might have used in an effort to untangle the line around the cathead, such as prying it loose with a Stillson wrench or simply cutting it with a knife. This was perhaps the basis of the district judge’s 40% comparative negligence figure, since in his reference to the reduction he stated that “(h)e took the hard way, a dangerous way, in trying to untangle the rope (h)e disregarded the existing danger, when, if careful, he could have avoided being caught by the tangled rope, when the rod was pushed in”. App. at 1757.

We determine that the present findings of fact in the record will not support the trial court’s legal conclusions as to negligence and contributory negligence, and accordingly remand for further factual determination consistent with the following discussion.

As noted above, the trial court declined to find whether or not Williams instructed Terry to engage the power. Williams asserts that the burden of proof on that issue rested with Brasea by reason of its allegation that Williams gave the order in support of its contributory negligence claim. From there Williams argues that, since the court made no finding, and the burden of proof was on Brasea, a failure to carry that burden below means that we must assume on appeal that the order was not given. We find that argument imaginative but unavailing. The fact that the court did not make a factual finding is the functional equivalent of not passing on whether the burden of proof was carried — not a premise from which to infer that the burden was not carried. Specifically, the district court held that Terry was negligent even if the order was given; thus that it was unnecessary to resolve the factual dispute.

On the subject of Terry’s negligence, we review the record mindful that factual determinations are to be overturned only if clearly erroneous. F.R.Civ.P. 52(a). McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. This court has consistently interpreted that rule to mean that a finding of fact should not be reversed if supported by substantial evidence. Lentz v. Metropolitan Life Ins. Co., 5 Cir. 1970, 428 F.2d 36. We reiterate that the lower court concluded that Terry was negligent because he failed to make a reasonable effort to be sure that Williams was free from danger when he cut the power on, even if Williams had ordered him to cut it on. We consider that conclusion clearly erroneous in the absence of an additional finding that Terry acted without a direct order.

Brasea’s brief accurately demonstrates the fallacy in this finding of the lower court. The real question is whether Terry was negligent, assuming Williams gave the disputed order. Terry and Williams were but two feet apart, and Terry testified he observed that Williams appeared to be in the clear just as he reached for the power lever. Williams’ hands were not visible to Terry, since his vision was blocked by the cat-head itself. Thus, in order to exercise the level of care found lacking by the district court, Terry would have had to descend the platform, walk to the side of the cathead to observe Williams’ hands, then return to the platform in order to cut on the power; and all this coming after receipt of a direct order from Williams to turn the power on.

While we entertain some doubt as to whether this would be negligence as between two crewmen (a question we need not consider), we have no doubt that it was not such as between the master of a vessel and a crewman. A seaman’s duty to obey orders from his immediate superior overrides the postulate that the seaman must delay execution of the order until he makes a reasonable effort to be sure that following the order will not injure the superior who gave the order. On this reasoning we determine that the district court’s conclusion was clearly erroneous and based on a false legal premise. Indeed, a seaman may not be contributorily negligent for carrying out orders that result in his own injury, even if he recognizes possible danger. Darlington v. National Bulk Carriers, 2 Cir. 1946, 157 F.2d 817. Terry’s conduct reflects less in the way of culpability than did that of the seaman in Darlington, and we perceive no valid reason for holding him to a higher standard of care.

It needs emphasis here that our contrary determination on this point flows directly from the necessary assumption that Williams gave the order to turn on the power. If that assumption is dispelled upon remand by a factual determination adverse to Brasea that no such order was given, it may follow that Terry was in fact negligent. Our present holding is simply that such a finding cannot stand in the face of an assumption that Williams ordered him to turn on the power.

The clearly erroneous talisman of Rule 52(a) F.R.Civ.P. governs in considering the merits of Williams’ appeal from the district court’s finding that he was contributorily negligent. While his argument focuses upon events leading up to the accident, we feel that solution of this problem is inseparably linked to the issue of Terry’s alleged negligence discussed above.

The district judge stated that Williams employed the most dangerous of several alternative methods for untangling the line from the cathead. This appears from study of his memorandum-opinion to be the sole undergirding for reducing the final award by 40%. As noted above, the opinion stressed that instead of using his hands, he could have pried the line loose with a Stillson wrench or crowbar, or he could have cut the line anywhere above the cathead. Williams attacks this, arguing: (1) that the alternative methods were either drastically impractical or not necessarily safer; (2) that a finding of contributory negligence cannot stand when there was a lack of proximate cause due to the intervening, unforeseeable negligence of Terry; and (3) that the district court erred in not relating how it computed the figure of 40% for reducing the final award.

The lower court did not find Williams contributorily negligent because he gave an order to turn on the power while untangling the line with his hands, but appeared rather to rely entirely on the use by Williams of his hands when other methods were available. We do not doubt that if Williams in fact ordered the power turned on, it was negligence on his part to do so when one or both of his hands were entangled in the whipline around the cathead. The difficulty arises when we assume the opposite, that he did not give the order. We proceed to an analysis of each of Williams’ claims utilizing that assumption.

The first question is whether Williams’ use of his hands, was contributory negligence in and of itself. The suggested alternative of cutting the line is frail indeed. According to the testimony, lines frequently tangle on cat-heads, and to cut one each and every time seems both impractical and demonstrative of an extraordinary rather than an ordinary and usual standard of care. But the use of a crowbar or Stillson wrench may have been a practical, viable, and safer option under the circumstances. This point seems to us so close as to require that we defer to the judgment of the trial court as not clearly erroneous.

Williams’ second argument poses a more difficult question: assuming that Terry acted without an order from Williams, was his action intervening unforeseeable negligence, depriving Williams’ contributory negligence of proximate causation with respect to his injury? As to this point we find Williams’ argument persuasive.

While the hornbook rule advanced by Williams with respect to intervening negligence needs no citation, it is likewise not without exception: “It is not always necessary, however, to find intervening conduct specifically foreseeable. Courts have held tortfeasors responsible when their conduct threatens a particular sort of result and an unanticipated force intervenes to produce that result. “Watz v. Zapata Off-Shore Co., 5 Cir. 1970, 431 F.2d 100, 116. In Watz a chain manufacturer sold a chain in which a link had been negligently fused and was thereby rendered weaker than it should have been. Despite negligent use by the purchaser, the damage that resulted when the link failed was found to be proximately caused by the negligent fusion of the link.

We recognize the difficulties inherent in drawing fine lines between foreseeable negligence and contributory negligence, but conclude that Williams’ situation differs from that which obtained in Watz to the extent that Watz is not controlling here. The focus in Watz was upon the threat posed by selling a chain with a defective link. The danger was that it might fail even when used in lifting loads within its stated capacity. While abuse of the chain was not specifically foreseeable, the chain manufacturer’s negligence threatened a particular sort of result, i. e. the breaking of the chain. But the same observation does not fit Williams’ conduct, which did not threaten any sort of result, save the untangling of the line, until the completely unforeseeable intervention of Terry’s (assumed) negligence. • On remand, should the district court find that Terry was not acting under Williams’ order, it should conclude that Williams’ negligence was not a contributing proximate cause of his injury.

We need spend little time with Williams’ assertion of error in the trial court’s failure to state the underpinning for its 40% reduction of the amount of his award because of contributory negligence. This feature of the decision below falls with our reversal for further findings as to Brasea’s (and Terry’s) negligence and Williams’ contributory negligence. If upon remand Williams is again found contributorily negligent, the percentage reduction of his award should be related to the evidence by an appropriate finding.

This analysis disposes of the most significant aspect of both Williams’ and Brasea’s appeals, but several other issues are raised and require consideration. Williams also attacks the trial court’s modification of final judgment by which the originally found joint and several liability of the defendants was changed to primary-secondary. This was done by applying the divided damages rule, limited to maritime law, under which each tortfeasor is assessed primary liability for only his proportionate share, in this case one-third, and secondary liability as to the remainder. See, e. g., Crain Bros., Inc. v. Wieman & Ward Co., 3 Cir. 1955, 223 F.2d 256. Williams argues that the divided damages rule is limited to collision eases and was thus improperly applied below in this case. The Supreme Court has recently ruled otherwise in Cooper Stevedoring Co., Inc. v. Fritz Kopke, Inc., et al., 1974,-U.S.-, 94 S.Ct. 2174, 40 L.Ed.2d 694 [decided May 28, 1974] where this Court’s award of contribution between joint tortfeasors in a noncollision maritime case, 5 Cir., 479 F.2d 1041, was affirmed as proper under the circumstances. Cf. also Empire Seafoods v. Anderson, et al., 5 Cir. 1968, 398 F.2d 204. We determine, infra, that Bender and CMC are not liable in damages, so that the applicability of the divided damages rule need not be answered here.

Williams argues also that it was improper to reduce his judgment by 40% under the comparative negligence doctrine of maritime law as against Bender and CMC, who were found liable under a products liability theory. The argument is that since strict liability under Sec. 402A of the Restatement is not barred by contributory negligence, that negligence should not be used to effect a percentage reduction of an award premised upon a violation of that section. We recognize at least arguable merit in Williams’ position, but resolution of the issue must await an appropriate case, since this point also is moot in light of our reversal of the trial court’s finding of liability on the part of Bender and CMC.

Finally, Williams alleges that the district court erred by failing to enter judgment in rem against CIAPESC I despite the fact that the vessel was found to be unseaworthy. The point is well taken. The lower court specifically found the CIAPESC I unseaworthy, App. at 1754, and that finding is not challenged on appeal by Brasea either on brief or at oral argument. The district court on remand should make the appropriate modification on its final order.

III BRASEA’S CROSS-APPEAL

Brasea’s liability was grounded upon both the negligence of Terry, under the doctrine of respondeat superior, and the unseaworthiness of the CIAPESC I. On cross-appeal Brasea asserts error with respect to the lower court’s finding of negligence by Terry and its denial of indemnity as against Bender and CMC. We have already dealt with the interrelated negligence issues, and ordered a remand on the subject. We turn our attention to the indemnity issues.

There is more than one string to Bra-sea’s indemnity bow, and we will summarize each briefly. First it is argued that the indemnity principles of Ryan should be applied in this case. Ryan established the now familiar doctrine that a stevedoring contractor’s agreement to perform all of a shipowner’s stevedoring operations necessarily includes the consensual implied obligation to stow cargo properly and safely, (now usually referred to in the eases as WWLP, or warranty of workmanlike performance), and affirmed the Second Circuit’s award to the shipowner of indemnity against the stevedoring company for the amount recovered by one of the contractor’s longshoremen employees for injuries sustained while unloading a ship due to improper stowage, and held that shipowner’s failure to discover and correct contractor’s own breach of contract could not excuse such breach. The exclusiveness of liability provision of the Longshoremen’s and Harborworkers’ Compensation Act, Sec. 5, 33 U.S.C. Sec. 905 was held by the Court to be no bar to the indemnity claim.

The inappositeness of Ryan to the present case is apparent. Naturally, if on remand Terry (and hence Brasea) is found to have been negligent, then the sole cause of Brasea’s liability will not be the conduct of either Bender or CMC. The analogy fails for added reasons. Ryan was limited to a situation of contract breach, but no such obligation existed here. Most importantly, the stevedore in Ryan was found negligent. Bender and CMC were expressly found not to have been negligent, and we reverse, as will be seen below, Parts IV and V, the strict liability judgment. Nothing is left upon which Brasea can base an argument for indemnity flowing from contractual or quasi-contractual breach.

Brasea’s second theory comes closer to the mark, but is still unavailing. The argument seeks to apply here the indemnity principles we employed in Tri-State Oil Tool Industries, Inc. v. Delta Marine Drilling Co., 5 Cir. 1969, 410 F.2d 178. In Tri-State indemnity was based upon a major-minor/active-passive tort theory, as opposed to the contractual theory of Ryan. A member of a drilling crew on board a submersible barge was injured as a result of defective equipment which had been furnished by Tri-State. Delta Drilling, whose sole liability was due to unseaworthiness because of the defective equipment, was held indemnified as the passive tortfeasor by TriState, whose active negligence brought about the condition of unseaworthiness.

Again, assuming that Terry is not found negligent on remand, the argument still must fail. Even if Bender and CMC were liable in products liability, that is simply another form of passive tort, analogous to unseaworthiness. Thus the parties would have been in pari delicto, as the district court found. But here again, our reversal on the strict liability, Parts IV and V, leaves Bender and CMC without any, much less passive, tort liability.

Apparently anticipating the fundamental flaw in its indemnity arguments, Brasea goes on to urge that the lower court erred in finding that Bender and CMC were not negligent. While Brasea may have thought that success here would cure the defect in its indemnity theory, our discussion of that issue amply demonstrates that the claim fails, regardless. But since we reverse on the products liability issue, it is appropriate for us to address the question of possible negligence in order to determine if Bender and CMC should sustain any liability whatever in this action.

Here again we are guided by F.R.Civ.P. 52(a), and may overturn only a finding of fact which we determine to be clearly erroneous. The district court discussed the roles of Bender and CMC in the litigation, then specifically found that neither had been negligent. We find substantial evidence to support that conclusion and approve it as correct.

Two allegations with respect to CMC’s negligence were considered by the lower court. First, there was a question to resolve as to whether the machined taper on the cathead would increase the likelihood of lines tangling. The district court found scant evidence for such a conclusion, after hearing from CMC engineer Koloc, who was called as an adverse witness by Williams. App. at 1748. We see no more evidence to support the allegation than did the lower court, and cannot label as erroneous its conclusion of a failure to carry the burden of proof.

The failure of CMC to install a braking mechanism on the winch-cat-head assembly was the second factor considered below. In essence, the district court concluded that it was feasible to install a brake and that its absence rendered the winch defective and unreasonably dangerous to users. However, the court also found that this did not constitute the exercise of less than the ordinary standard of care, and that no fault was attributable to CMC. App. at 1752. Support for the latter conclusion was based in part upon testimony that winches, and especially winches on shrimp boats, are practically never equipped with braking devices. CMC cannot be held to have failed to exercise ordinary care by the manufacture of a winch capable of producing injury only when used in such unusual situations as the one involved here. CMC was not shown to have departed from the required standard of care in its design, engineering and manufacture of the winch.

Brasea raises nothing to refute these conclusions. Rather, it points to the testimony of CMC engineer Koloe as proof that the winch was not properly tested prior to sale. That theory also was expressly rejected by the lower court, after consideration was given to all the relevant evidence on the point. App. at 1748. The record supports that conclusion and we discern nothing which would require reversal in this regard under the clearly erroneous standard.

The strict liability of Bender was based upon the manner in which it positioned the snatch-block frame above the cathead. This is the pulley device through which the whipline runs from the shrimp net to the cathead. Bender’s error was found to be .in positioning the block too far forward, thus depriving the line of a “fair lead,” which refers to the angle at which a line runs from the block to the cathead. App. at 1750. This situation increases the probability of lines tangling, and a tangled line was the first in a chain of events leading to Williams’ injury.

Brasea argues that this defect in positioning, together with the fact that the block was not tested under strain, requires a finding of negligence. But testing the line under strain would have revealed nothing germane to the fair lead problem; the court’s finding related rather to positioning. Additionally, the testimony of Thomas Bender was persuasive that his company did in fact exercise care in installation, despite the slightly improper location of the block and hanger frame.

Finally, Brasea postulates that CMC should be required to pay 90% of whatever damages are ultimately awarded. The theory is that but for the lack of a brake on the winch, Williams would have sustained relatively minor injury to his left hand, which was caught when he first yelled for the power to be cut. Medical testimony was introduced to the effect that had Williams only suffered this injury to his left hand he would still have been able to resume 90% of his normal daily activities after the accident. From this it is argued that CMC’s failure to provide a brake produced 90% of Williams’ full disability, and that it should therefore contribute a similar proportion to his monetary recovery. Authority for the argument advanced is asserted to be found in Horton & Horton, Inc. v. T/S J. E. Dyer, 5 Cir. 1970, 428 F.2d 1131. We acknowledge the novelty of the argument, but do not pass upon its merits or the possible application of Horton. Again, our resolution, infra Part V, of the negligence and products liability issues in CMC’s favor moots the discussion and its decision.

IV CROSS-APPEAL BY BENDER

At the outset we are met with Bender’s claim that the trial court lacked jurisdiction over it. Jurisdiction over Bender, an Alabama corporation, was claimed under the Texas Long Arm Statute, Vernon’s Tex.Rev.Civ.Stat.Ann., Art. 2031b (1959). The requisite activity within Texas for jurisdiction to attach is measured by the “minimum contacts” standard. We have earlier noted that “the Texas purpose [in enacting article 2031b] was to exploit to the maximum the fullest permissible reach under federal constitutional restraints.” Atwood Hatcheries v. Heisdorf & Nelson Farms, 5 Cir. 1966, 357 F.2d 847, 852. Bender’s motion to dismiss for lack of jurisdiction and to quash service addressed to the lower court, was denied by a well reasoned memorandum and order. Williams v. Brasea, Inc., S.D.Tex. 1970, 320 F.Supp. 658. For the reasons there well articulated we hold that the district court had personal jurisdiction over Bender, under the teachings of Hearne v. Dow-Badische Chemical Co., S.D.Tex.1963, 224 F.Supp. 90, applying International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, to the Texas Statute, Article 2031b.

Before reaching the merits of the products liability issues in this case, we pause to comment upon the theoretical posture in which they arose. The incorporation of products liability law into general maritime law is of most recent vintage. District courts have divided on the propriety of such incorporation, and only one appellate court has passed judgment thus far on the issue (by approving the incorporation). Lindsay v. McDonnell Douglas Aircraft Corp., 8 Cir. 1972, 460 F.2d 631. We do not believe that a case such as this, which in our judgment fails to establish liability under the theory, presents the appropriate vehicle for consideration of whether that theory should be made part of the maritime law in this circuit. Thus we qualify our holding by saying that even if products liability law is to be incorporated into our general maritime law, there can be no liability under the facts of this case. The question of incorporation vel non is left open for decision at a later date when more guidelines may be available.

The district court relied upon the theory of strict liability set forth in the Restatement of Torts 2d, Sec. 402A, which provides, in pertinent part:

“One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, . . .”

As is evident from the language of the Restatement, three elements of proof must be present: (1) defective condition ' of the product; (2) unreasonable danger to the user; and (3) proximate cause of injury. Assuming arguendo that Bender’s installation of the winch resulted in a lack of fair lead which may be termed a defective condition, our judgment is that it was neither unreasonably dangerous nor a proximate cause of Williams’ injuries.

The defect alleged was dangerous in that it increased the likelihood of lines tangling on the cathead. It is significant to note that it merely increased the likelihood of an event not at all uncommon on shrimp trawlers, i. e. lines tangling on a cathead. The district court in its Final Order expressly acknowledged this pre-existing likelihood. App. at 1747.

Assuming then that the tangling of lines is dangerous, the question then is whether a defect increasing the likelihood of that event makes it unreasonably dangerous. We find the answer in Sec. 402A com. i: “The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with ordinary knowledge common to the community as to its characteristics.” We are unable to conclude that the tangling which led to Williams’ injury was beyond the contemplation of seamen who had common knowledge that lines on shrimp boats frequently tangle. As a matter of elementary logic, such a conclusion would be a manifest non sequitur. We hold accordingly that the position of the snatch block frame was not unreasonably dangerous as a matter of law.

In the next place proximate cause is absent under the facts as given. To use common law terms for the moment, the requisite foreseeability was lacking; see Helene Curtis Industries, Inc. v. Pruitt, 5 Cir. 1967, 385 F.2d 841 (foreseeability as part of proximate cause considered in the field of products liability as to hair bleaching products). If Williams ordered the power on, Bender can hardly be charged with anticipating his doing so while his hands were in the line around the cathead. Alternatively, if Terry acted without authority, neither should Bender be charged with foreseeing that he would do so while Williams had his hands in the line.

The comments to See. 402A support this conclusion in even more precise terms. If Williams ordered the power turned on, comment n would be applicable: “voluntarily and unreasonably proceeding to encounter a known danger, (which) commonly passes under the name of assumption of risk, is a defense under this Section as in other cases of strict liability.” If Terry turned the power on without instruction from Williams, comment g would control: “The seller is not liable when he delivers the product in a safe condition, and subsequent mishandling or other causes make it harmful . . .” Lines tangle regardless of whether a fair lead problem may exist, but only Terry’s mishandling of the product, assuming he acted without authority, produced the injury. Under either or any of the foregoing posited analyses, we hold that Bender could not be properly held liable in products liability.

V CROSS-APPEAL BY CMC

The sole basis of liability arrived at by the trial court as to CMC was its failure to provide a braking mechanism on the winch it sold to Bender. All the crewmen knew it lacked a brake, and the evidence was clear that winches with brakes were almost non-existent on trawlers used by the shrimping industry.

Although the district court perceived this omission by CMC as an unreasonably dangerous defect, that characterization is not, strictly speaking, permissible under these facts. According to the commentary, a defective condition obtains only when “the product is, at the time it leaves the seller’s hands, in a condition not contemplated by the ultimate consumer, . . . .” Sec. 402A com. g. The winch was not “defective” because all involved knew that it lacked a brake. This case falls into the category of defective design, situations in which the “defect” is said to inhere in the design of the product, i. e. lack of a safety device. The “defect” issue is thus subsumed into a determination of whether that design, though known full well to the user, rendered the product unreasonably dangerous to him. See, for example, Ross v. Up-Right, Inc., 5 Cir. 1968, 402 F.2d 943; Wade, Strict Tort Liability of Manufacturers, 18 S.W.L.J. 5 (1965).

The question then arises whether the lack of a brake made the winch “dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, . . . . ” Sec. 402A com. i. This proposition carries its own answer. The danger posed by the lack of a brake could scarcely be beyond the contemplation of crewmen who knew of its absence and worked with the winch in that condition on a daily basis.

Our conclusion is further supported by the theoretical approach advocated by Wade, supra, and others in defective design cases. Unreasonable danger is assessed under a cost-benefit analysis of the proposed safety device. Paraphrasing the variables suggested by Dean Wade, 19 S.W.L.J. at 17, we find the following in support of a “cost outweighs benefit” conclusion here: (1) catheads are practically indispensable to the shrimping business; (2) few, if any, are equipped with a braking device; (3) the likelihood of injury is remote, limited to peculiar circumstances such as occurred in this unusual case; (4) the inherent danger is obvious to all; (5) injury could have been avoided but for the misuse of the product; and (6) installation of a brake would substantially increase the cost of the winch.

When we come to the element of proximate cause, CMC occupies a position nearly identical to that of Bender. Depending on whether an order to turn on the power was given by Williams or not, either assumption of risk or unanticipated product misuse, as described in comments n and g, Sec. 402A, may properly be inferred. We further think it manifest that such action is not the foreseeable type of conduct which should give rise to a holding of strict liability against a manufacturer.

VI CONCLUSION

Our holdings are summarized as follows: (1) the case is remanded for a factual finding as to whether Williams ordered Terry to engage the power; (2) the district court is ordered to assess liability in re m as to the vessel CIAPESC I; (3) the district court’s dismissal of the indemnity claims is affirmed; (4) the district court’s finding that Bender and CMC were not negligent is affirmed; (5) the district court’s finding of product liability is reversed; (6) Bender and CMC are due to be dismissed as parties defendant.

Affirmed in part, reversed in part and remanded with directions.

      . While there may have been room for question at the time of trial as to whether Terry was an employee of Brasea for purposes of the latter’s vicarious liability, that issue is now settled adversely to Brasea. See Bishop v. United States, 5 Cir. 1973, 476 F.2d 977.

      . Ryan Stevedoring Company, Inc. v. Pan-Atlantic Steamship Corp., 1956, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133.

      . If Terry were to be found negligent, Bra-sea could not possibly be a “passive” tortfeasor. Contrary to its assertion to that effect on brief, vicarious liability through the doctrine of respondeat superior is not functionally equivalent to “passive” negligence. See Barrios v. Louisiana Construction Materials Co., 5 Cir. 1972, 465 F.2d 1157.


text:
    UNITED STATES of America, Plaintiff-Appellee, v. Clarence Lee FELTS, Defendant-Appellant.
    No. 74-1401
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    July 15, 1974.
    Rehearing Denied Aug. 8, 1974.

      Wayne H. Paris, Houston, Tex. (Court-appointed), for defendant-appellant.
    Anthony J. P. Farris, U. S. Atty., James Gough, Mary L. Sinderson, Asst. U. S. Attys., Houston, Tex., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

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

   PER CURIAM:

Appellant Clarence Lee Felts was convicted after a jury trial on five counts charging conspiracy, possession with intent to distribute heroin, and unlawful distribution of heroin in violation of 21 U.S.C. §§ 846 and 841(a)(1). He was sentenced for observation under the Youth Corrections Act, 18 U.S.C. § 5010(e) (1970). On this appeal, he contends that the district court erred in three respects: (1) refusing to instruct the jury on the defense of entrapment, (2) denying his motion for acquittal on the conspiracy count, and on counts four and five for lack of sufficient evidence, and (3) denying his pretrial motion for discovery. We affirm.

Felts and four co-defendants were charged in a nine-count indictment with conspiracy, possession with intent to distribute, and distribution of heroin. Felts was charged in only five counts of the indictment. Prior to trial each of the four co-defendants pled guilty to one count and the other counts were subsequently dismissed. An informant, Charles Reavis, directed Special Agent Thomas Ahr to Felts’ apartment where Ahr purchased one gram of heroin from Felts on July 30, 1973. Subsequently Ahr returned to the apartment on August 1 and purchased additional heroin from Stewart, a co-defendant and Felts’ .roommate, who informed Ahr that Felts had arranged the sale. Additionally, Ahr had conversations with Felts on August 10, 11 and 15 regarding future heroin sales.

The district court refused to give an entrapment instruction on the basis of our decision in United States v. Costello, 483 F.2d 1366 (5th Cir. 1973) finding that there was no evidence whatsoever of any government inducement or persuasion to commit the crime charged or that Felts was reluctant to engage in the drug transactions. Felts contends that Costello is not applicable to the instant case because there the defendant took the witness stand. This contention ignores the well-recognized rule that the initial burden of going forward with some evidence of inducement by law enforcement officials is on the defendant. If he fails to carry his burden of going forward, he is not entitled to jury instructions on the entrapment issue. United States v. Costello, supra; United States v. Groessel, 440 F.2d 602 (5th Cir. 1971); Pierce v. United States, 414 F.2d 163 (5th Cir. 1969).

A review of the record demonstrates that Felts did not meet his initial burden of going forward. He willingly sold heroin to Agent Ahr on their first encounter in the apartment and agreed to make future sales if the heroin was satisfactory. Moreover, the trial judge, in denying the request, tracked the language of the Costello case, and stated, . .1 feel in this case there is no evidence whatsoever of any inducement or persuasion, representations of any kind in the record, and I must deny the request.” This finding is fully supported by the record.

Felts alleges that the evidence introduced by the government indicated that several small conspiracies existed rather than one large continuing conspiracy. In our opinion the evidence establishes that an agreement existed among the co-defendants to engage in the sale of heroin and that several overt acts were performed by each of them to achieve this goal. Although some members of the conspiracy did not engage in every transaction, such proof is not required to establish a conspiracy. See United States v. Perez, 489 F.2d 51, 57-64 (5th Cir. 1973). There was sufficient evidence that each of the defendants conspired to possess and sell heroin.

Counts four and five of the indictment are concerned with the possession and distribution of heroin on August 1 by Felts and two other co-defendants. Felts asserts that he had no part in this transaction because he was attending a rock concert on that date. The evidence reveals that Agent Ahr purchased heroin from Felts on July 30, 1973 with the understanding he would purchase an ounce on August 1, if the previous purchase was satisfactory. When Felts left to go to the concert, he instructed his roommate, Stewart, to get Carlisle (another co-defendant) and make the sale to Ahr. In United States v. Spence, 425 F.2d 1079 (5th Cir. 1970) we held that a party who instigated the sale, negotiated the price, and caused the drug to be produced for the customer had constructive possession of it. Constructive possession is sufficient to support a conviction. See also Montoya v. United States, 402 F.2d 847 (5th Cir. 1968). There was sufficient evidence to convict Felts on counts four and five of the indictment.

Felts’ final contention concerning the denial of his pre-trial motion for discovery, is also without merit. In his motion, he sought to obtain information about informer Reavis (his address, any statements made by him, and any money paid to him). He alleges that this information was essential to his defense of entrapment and that he was prejudiced because he did not receive it before trial. He relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) for these contentions.

Reavis was the government’s second witness and testified to all the information requested by Felts. Some of the information was furnished by Agent Ahr, the first witness. Felts had adequate time to use the agents’ testimony to prove entrapment in the course of the four-day trial. This he failed to do. He has riot shown that he was prejudiced by the denial of his discovery motion.

Affirmed.