author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Ralph BEN DAVID et al., Plaintiffs, Appellees, v. Anthony P. TRAVISONO et al., Defendants, Appellants.
    No. 73-1314.
    United States Court of Appeals, First Circuit.
    Heard March 7, 1974.
    Decided April 8, 1974.
    See also 373 F.Supp. 177.
    W. Slater Allen, Jr., Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for appellants.
    Ralph J. Gonnella, Providence, R. I., with whom Hodosh, Spinella, Hodosh & Angelone, Providence, R. I., Max D. Stern, Burnham, Stern & Shapiro, Boston, Mass., and Stanley Bass, New York City, were on brief, for appellees.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

This is an appeal from a preliminary order of the district court enjoining and restraining Rhode Island prison officials and state police, and their agents,

“1. from perpetrating or suffering to be perpetrated the physical and mental abuse, brutalization and beatings of plaintiffs and members of plaintiffs’ class by the defendants and their agents;
2. from taking any action in retaliation against plaintiffs and members of plaintiffs’ class or of depriving plaintiffs and members of plaintiffs’ class of any and all rights and privileges on account of plaintiffs and members of their class participating, assisting, or volunteering any facts or circumstances in the furtherance of this lawsuit.”

The court issued the order soon after Rhode Island prison inmates had brought suit, individually and as class representatives, alleging that prison rules had been suspended and that they were being subject to unconstitutional treatment in the form of beatings, mental abuse, inhumane and unsanitary conditions, mail censorship, and the like. Plaintiffs had requested “orders for the protection of plaintiffs and their class . to insure a complete and thorough investigation of the claim raised herein.” The court thereupon held a three day hearing on that request, and then dictated from the bench a Memorandum and Order reciting that inmates had testified to “a parade of horribles” such as beatings, gassing and “strip” lockups, and that they feared further harassment and beatings. The court went on to announce that, for reasons to be stated, it need not make specific factual findings,

“which would either stigmatize law enforcement or brand the inmates’ allegations as prisoner paranoia. It suffices that I do find serious accusations have been made and give the-plaintiffs the benefit of the doubt that they fear for the harassment — that is, retaliation if they co-operate in the preparation of the substantive action.”

The court supported its position by distinguishing a “writ” in aid of jurisdiction under the All Writs Act, 28 U.S. C. § 1651, from ordinary protective orders, F.R.Civ.P. 26(c), or preliminary injunctions, F.R.Civ.P. 52. Characterizing its order as the former, it stated that it need not comply with the ordinary requirement that the court make findings of fact and state “reasons for its issuance.” F.R.Civ.P. 65(d). Cf. F.R.Civ.P. 52(a). Instead, analogizing to Harris v. Nelson, 394 U.S. 286, 89 S.Ct. 1082, 22 L.Ed.2d 281 (1969), the court found that such an order was essential 'to guarantee a “fair and meaningful evidentiary hearing” and an “adequate inquiry” into plaintiffs’ claims. It found no need, as a predicate to issuance of the protective “writ”, to consider the usual criteria for preliminary injunctions, such as probability of success and balancing of equities.

The state officials appeal on the ground that the preliminary order could not be entered without the findings disclaimed by the court.

We think the court unnecessarily confused its substantive power to protect its inquiry into plaintiffs’ complaints with the procedural requirements governing the use of such power. The latter incorporate the common sense rule that a court should let the parties and an appellate court know why it acts, and on what factual basis. United States v. Merz, 376 U.S. 192, 84 S.Ct. 639, 11 L. Ed.2d 629 (1964); United States v. Forness, 125 F.2d 928, 942 (2d Cir. 1942). Whether proceeding under the All Writs Act or not, a district court has no license to ignore that requirement. Cf. Golden State Bottling Co. v. NLRB, 414 U.S. 168, 177 n. 4, 94 S.Ct. 414, 422 n. 4, 38 L.Ed. 388 (1973).

All the court seems to have meant here is that its order, being intended to combat the subjective fear of the inmates rather than any as yet well-established likelihood of official misconduct, did not need to be buttressed by a finding that the latter was probable.

In other words, the court took the position that where the purpose of an in-junctive order of this sort was to reassure fearful witnesses and thereby to assist the court’s fact-finding, the actual likelihood of the enjoined conduct was secondary. Such a theory, if correct, as in these unique circumstances we believe it was, does not exempt the court from the requirement that it make relevant findings; it merely alters the character of such findings. The findings necessary to support such a protective order are simply that the plaintiffs reasonably fear retaliation and that the court’s fact-finding may be materially impaired unless there is provided the tangible protection of a suitable court order. Normally, perhaps, in order to show that retaliation is reasonably feared it might be necessary to show that it was objectively probable; however, in a prisoner setting, given the charges and counter charges revealed here, a court might well conclude that an inmate would be fearful of retaliation even without an entirely objective basis: rumor, suspicion, and the dependency of the inmate might parlay even a low objective probability of misconduct into a substantial subjective fear. Cf. Smith v. Robbins, 454 F.2d 696 (1st Cir. 1972).

Here we think the court’s finding that the plaintiffs “fear for the harassment — that is, retaliation if they co-operate in the preparation of the substantive action” was sufficient to support a protective order. We give weight not only to the. court’s finding, but to the extensive evidence of prison unrest, by whomever caused; the discretion customarily allowed to a trial court in such matters; and the court’s undoubted desire to avoid inflammatory statements which might appear to prejudge issues yet to be tried. Hence when the court spoke of giving the plaintiffs “the benefit of the doubt,” we do not, under the circumstances, read this as undercutting the force of its finding of actual fear.

We are concerned, however, by the wording of the order itself. Paragraph 1 is indistinguishable from a preliminary injunction; its language is not tailored to its protective purpose and, what is more, under whatever label, it is too vague. Those enjoined, since under threat of judicial punishment, are entitled to be told “precisely what conduct is outlawed.” Schmidt v. Lessard, 414 U. S. 473, 94 S.Ct. 713, 715, 38 L.Ed.2d 661 (1974). See Sucrs. De A. Mayol & Co. v. Mitchell, 280 F.2d 477 (1st Cir.), cert. denied 364 U.S. 902, 81 S.Ct. 235, 5 L. E.2d 195 (1960). Paragraph 1 prevents “brutalization”, whatever that may be thought to mean, and “suffering to be perpetrated . . . mental abuse.” Such phraseology is too indefinite, and it is also unfortunate because it suggests, as doubtless plaintiffs meant it to suggest, that those enjoined are capable of any enormity. While defendants are in professions where skins must be reasonably thick, they may not be forced, in the absence of £he specific findings here lacking, to endure language like that. Accordingly we find paragraph 1 to exceed the court’s authority, both because of its vagueness and because it crosses the line from a limited protective order, which we hold permissible, to a more expansive preliminary injunction appropriate only upon express findings that the prohibited conduct is likely.

Paragraph 2 is, on the other hand, sufficiently within the court’s discretionary authority. Paragraph 1 of the order is therefore stricken, and the order as so modified is affirmed.

So ordered.

      . The rules had been promulgated in settlement of a civil rights action. Morris v. Travisono, 310 P.Supp. 857 (D.R.I.1970).

      . Defendants denied any brutal conduct, although they admitted that one suicidal inmate was kept naked in a cell for three days- and that tear gas had been used to control a raucous group of inmates.

      . Cf. Maine v. Fri, 486 F.2d 713 (1st Cir. 1973).

      . Similar terms, such as “molesting” or “harassing”, have been held too vague. See, e. g., Alberti v. Cruise, 383 F.2d 268 (4th Cir. 1967). Cf. Galena v. Onassis, 487 F.2d 986 (2d Cir. 1973).


source: Caselaw Access Project

author: CELEBREZZE, Circuit Judge.

license: Public Domain

text:
    Levorne GLINSEY, Adm’x, et al., Plaintiffs-Appellees, v. BALTIMORE & OHIO RAILROAD CO., Defendant-Appellant.
    No. 73-1545.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 28, 1973.
    Decided April 16, 1974.

      Charles F. Clarke, Cleveland, Ohio, for defendant-appellant; Henry D. Light, Lee E. Larson, Cleveland, Ohio, on brief; Squire, Sanders & Dempsey, Cleveland, Ohio, of counsel.
    Donald P. Traci, Spangenberg, Shib-ley, Traci & Laneione, Cleveland, Ohio, for plaintiffs-appellees.
    Before EDWARDS, CELEBREZZE and McCREE, Circuit Judges.
   CELEBREZZE, Circuit Judge.

This is an appeal from a judgment against Appellant in the amounts of $135,000 for the estate of Willie Glinsey and $20,000 for James Glinsey. Federal jurisdiction is founded on diversity of citizenship. The case arose from a railroad-highway crossing accident, in which Willie Glinsey was killed and James Glinsey was injured. The collision occurred on December 5, 1969, at 9:30 p. m., in a light industrial and residential area of Elyria, Ohio.

Appellees James Glinsey and Levorne Glinsey, administratrix of Willie Glin-sey’s estate, sued the Baltimore & Ohio Railroad Company (B&O), claiming that the train which struck the Glinseys’ ear had failed to blow its whistle and sound its bell as required under an Ohio statute, thus causing the accident. Before trial, Appellees filed a motion in limine, seeking to exclude evidence that Willie Glinsey may have been intoxicated and that the Glinseys’ car may have been stolen.

At a pre-trial conference Appellees argued that such evidence was not relevant because section 4955.34, Ohio Rev. Code, imposes absolute liability and deprives a railroad which has violated section 4955.32 of the defense of contributory negligence. By arguing that section 4955.34 imposes such liability, Ap-pellees were employing a legal theory which apparently had not before been urged upon an Ohio state court. The District Court agreed with Appellees and imposed “strict liability” on Appellant, thus excluding evidence of the driver’s conduct. The District Court ruled that, as a matter of law, the train’s failure to sound its whistle and bell (if proven) was at least one proximate cause of the accident. The jury’s role was thus relegated to determining whether the train had sounded its whistle and bell before striking the Glinseys’ ear. The jury decided against the B & O on this question.

Appellant asserts that the District Court committed several errors. The most significant alleged error stems from Appellant’s contention that sections 4955.32 and 4955.34 do not deprive a railroad of the defense of contributory negligence. A second error asserted is that the District Court removed from the jury the question of proximate cause. Third, Appellant asserts that evidence should have been admitted to show that James Glinsey was engaged in a joint enterprise with driver Willie Glinsey, so as to impute the driver’s alleged negligence to the passenger. Fourth, Appellant asserts that Appellees’ evidence concerning the failure to sound the bell and whistle should have been excluded. Fifth, Appellant challenges the District Court’s jury instruction that Ohio law requires a train to sound its whistle from 80 to 100 rods from the crossing and continuously until the train has reached the crossing.

We deal first with Appellant’s contentions concerning contributory negligence and proximate cause. Ohio law governs our answers to these questions, since the District Court has jurisdiction solely on the basis of diversity of citizenship. Erie R. R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). We must apply Ohio law as we believe the Ohio Supreme Court would state it, if it had the opportunity to do so in this ease. See Pomerantz v. Clark, 101 F. Supp. 341, 344-345 (D.Mass.1951); Essex Universal Corp. v. Yates, 305 F.2d 572, 580-582 (Friendly, J., concurring) (2d Cir. 1962).

The statute invoked by Appellees states:

“Every company shall attach to each locomotive engine passing upon its railroad a bell of the ordinary size in use on such engines and a steam or compressed air whistle. When an engine in motion and approaching a turnpike, highway, or street crossing or private crossing where the view is obstructed by embankment, trees, curve, or other obstruction to view, upon the same line with the crossing, and in like manner where the railroad crosses any other traveled place, by bridge or otherwise, the engineer or person in charge of such engine shall sound such whistle at a distance of at least eighty and not further than one hundred rods from such crossing and ring such bell continuously until the engine passes the crossing.” § 4955.-32.
“Every engineer or person in charge of an engine who fails to comply with section 4955.32 of the Revised Code is personally liable [to the state for a penalty from $50 to $100] — The company in whose employ such engineer or person in charge of an engine is, as well as the person himself, is liable in damages to a person or company injured in person or property by such neglect or act of such engineer or person.” § 4955.34

Thus, a railroad must blow its whistle at a certain distance from each crossing and ring its bell until it reaches the crossing. Section 4955.34 imposes liability in damages for injuries caused by a failure to do this.

These two sections were first interpreted in Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66 (1877), where the Ohio Supreme Court stated:

“It is evident from [the statutory] language that the failure to give signals must have occasioned the accident, that is, must have been the proximate cause of it before recovery can be had. The injury must happen “by neglect” of the engineer. If it occurred from some other cause, liability can not arise therefor, under that statute. Indeed, this statutory duty is not different in the responsibility it imposes upon railroad companies from that arising under the common law. Railroads must be careful. If they neglect this duty and such neglect occasions damage, they are responsible. But, though they may be negligent in some degree, if no damage arises, no liability exists. That is, if the injury complained of was not brought about by the negligence in question, but by something else not chargeable to the company, they can not be held.
Before, therefore, plaintiff can recover, because signals were not given, he must cause it to appear that this failure of duty brought about the disaster; for if his own imprudence was the moving cause, he can not maintain his action, although the company may not have observed the provisions of the statute.”

The Rathgeb syllabus stated Ohio law-:

“Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so, without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed.”

Subsequent Ohio decisions followed the Rathgeb holding, often finding as a matter of law that a plaintiff’s failure to use “ordinary prudence” and his sight and hearing had been the cause of the accident, despite the railroad’s failure to obey statutory or administrative duties. Baltimore & O. R. R. v. McIlyar, 77 Ohio St. 391, 83 N.E. 497 (1908) (plaintiff landowner’s refusal to allow railroad onto his property to mend fencing as required by statute “proximately contributed” to bring about the dangerous fencing, which later caused injury to plaintiff’s horse); Pennsylvania R. R. v. Rusynik, 117 Ohio St. 530, 159 N.E. 826 (1927) (plaintiff “directly contributed” to the accident by failing to look for an approaching train); Cobb v. Bushey, 152 Ohio St. 336, 89 N.E.2d 466 (1949) (plaintiff’s inattention in crossing the tracks was “the sole proximate cause” of the collision); Capelle v. Baltimore & O. R. R., 136 Ohio St. 203, 24 N.E.2d 822 (1940) (plaintiff’s negligence was “the approximate cause of the collision,” with the railroad’s statutory violation a “mere condition” of the accident); Patton v. Pennsylvania R. R., 136 Ohio St. 159, 24 N.E.2d 597 (1939) (decedent’s failure to exercise due care was “the proximate cause” of his death.)

For a railroad’s violation of a safety statute to have been “the proximate cause” of an accident, it must be shown that the accident would not have occurred if the railroad had met its obligations. Thus, if a driver would not have avoided an accident even if the train had fulfilled its legal duties, the railroad would not be liable for injuries suffered, since its legal violation would not have been the proximate cause of the accident. North v. Pennsylvania R. R., 9 Ohio St.2d 169, 224 N.E.2d 757 (1967); Zuments v. Baltimore & O. R. R., 27 Ohio St.2d 71, 271 N.E.2d 813 (1971).

Of course, it is not clear from the face of the Ohio whistle-bell statute whether this conclusion mandates a contributory negligence instruction or merely requires a plaintiff to prove proximate causation. The Ohio Supreme Court has, however, resolved this question. See Rathgeb, supra. In Bahm v. Pittsburgh & L. E. R. R., 6 Ohio St.2d 192, 217 N.E.2d 217 (1966), the Court reaffirmed that contributory negligence was a defense. However, the Court pointed out that it would not constitute a defense if a plaintiff had been only slightly negligent. The Court’s' syllabus stated:

“Use of the phrase, ‘in the slightest degree,’ or the phrase, ‘in any degree,’ in connection with contributory negligence in a charge to a jury constitutes prejudicial error whether the phrase pertains to the issue of proximate cause or to the issue of negligence itself.”

In 1971 the Ohio Supreme Court reaffirmed this view in another railroad crossing case, where the Court said:

“The driver of a motor vehicle about to pass over a railroad grade crossing on a public highway is required both to look and to listen for approaching trains, and the looking and listening must be at such time and place and in such manner as to be effective for that purpose. Where the uncontrover-tible physical facts demonstrate that plaintiff’s decedent did not so do, then such failure on his part was a proximate cause of the collision as a matter of law. North v. Pennsylvania Rd. Co. (1967), 9 Ohio St.2d 169, 224 N. E.2d 757; Boles v. Baltimore & Ohio Rd. Co. (1959), 168 Ohio St. 551, 156 N. E.2d 735.” Zuments v. Baltimore & O. R. R., 27 Ohio St.2d 71, 72, 271 N. E.2d 813, 814 (1971).

In North v. Pennsylvania R. R., the Ohio Supreme Court reversed the Court of Appeals, affirming the trial court’s grant of summary judgment to the railroad on grounds of contributory negligence.

The syllabus in North provided:

“The driver of a motor vehicle, about to pass over a railroad grade crossing on a public street, must exercise his senses of sight and hearing to discover whether trains are also about to pass over such crossing, and such exercise of the senses must be made at such time and place as to be effective for the purpose. (Syllabus of Boles v. .Baltimore & Ohio Rd. Co., 168 Ohio St. 551, 156 N.E.2d 735, approved and followed).” North v. Pennsylvania R. R., 9 Ohio St.2d 169, 224 N.E.2d 757 (1967).

Given this wealth of Ohio judicial support for the concept of contributory negligence in railroad crossing cases, we conclude that the District Court erred in denying an instruction on that defense and in excluding evidence to bolster the railroad’s contentions to that end. Appellees’ novel argument would have us discard a century of case law that has weaved contributory negligence into the tapestry of Ohio railroad accident law. We do not believe that the Ohio Supreme Court would do this, despite the force of Appellees’ argument, and we may not do that which we believe Ohio’s highest court would refuse to do.

Thus, we reject Appellees’ contention that the recent case of McCallie v. New York Central R. R., 23 Ohio App.2d 152, 261 N.E.2d 179 (Lorain Co.Ct.App. 1969), dictates a contrary conclusion. In McCallie, an Ohio Court of Appeals held that section 4955.33 (failure to maintain a “crossbuck” sign at a crossing) imposes “absolute liability for damages . . . and, hence, precludes contributory negligence as a defense to an action brought for a violation of such section.” The McCallie case, heavily relied upon by the District Court, deals with a statutory obligation requiring railroads to give what may be the only visual notice a driver has that he is approaching a railroad crossing. Without such notice a driver cannot always be expected to be on the lookout for an approaching train, so that his failure to be alert in the absence of a warning that he should be alert may properly be irrelevant to his right to recover. When a railroad fails to blow its whistle and ring its bell, however, a driver may still be warned of an approaching train by a shining headlight or a properly maintained warning sign. Furthermore, the McCallie court itself recognized that “negligence and contributory negligence” are issues under sections 4955.32 and 4955.34. Thus, no significant support exists for Appellees’ contention that Ohio law precludes a defense of contributory negligence in cases concerning the whistle-bell statute.

We point out, however, that the defense of contributory negligence itself may be overcome if the plaintiff is able to show “a reasonable excuse” for failing to discover an approaching train. Rathgeb syllabus, 32 Ohio St. at 66. One is not charged with a duty to hear a whistle that has not been sounded or see a train which cannot be seen. Given evidence that ho warning sounds were given and that there were obstructions along the highway to obscure the train from the driver’s view, the jury could believe that the Glinseys exercised ordinary prudence in approaching the crossing and that the train’s failure to sound its whistle or bell was the proximate cause of the accident. Sturgell v. Detroit, T. &. I. R. R., 107 Ohio App. 5, 156 N.E.2d 477 (Pike Co. 1958); Cleveland, C. & C. R. R. v. Crawford, 24 Ohio St. 631 (1874). “[A] person to whom a duty of care is owing may assume that it will be performed, so that failure to anticipate negligence does not operate to defeat an action for injuries sustained.” 16 Ohio Jur.2d Railroads § 351 (1961). See Meek v. Pennsylvania Co., 38 Ohio St. 632 (1883); Hart v. Devereux, 41 Ohio St. 565 (1885). In short, “if a traveler, acting as a reasonably prudent person, is misled by the absence of signals or warnings required of a railroad company into believing that he might cross the tracks in safety and is struck by a train while attempting to do so, he is not precluded from recovering damages.”' 46 Ohio Jur.2d Railroads § 353, p. 387 (1961). See Schweinfurth v. Cleveland, C., C. & St. L. Ry., 60 Ohio St. 215, 54 N.E. 89 (1899); Cleveland, C., C. & St. L. Ry. v. Kuhl, 123 Ohio St. 552, 176 N.E. 222 (1931).

Thus, the District Court’s denial of a directed verdict for the railroad was proper. The disputes concerning Appel-lees’ ability to see the approaching train’s headlight, the presence of warning signs, and related issues should be submitted to the jury for factual resolution.

Because we remand for a new trial on the issues of proximate causation and contributory negligence, we see no reason to respond to several other of Appellants’ objections. One point, however, cannot escape our attention, because of its patent erroneousness. The District Court charged the jury that Ohio law requires that

“both the horn or whistle and the bell must be continuously sounded until such engine passes the crossing. . Accordingly, if you find in this case that the engineer Johnson failed to either ring his bell for the full 1320 or more feet, or that he failed to continue to sound his horn while his train covered the 1320 feet up to and over the Parmely Road crossing, then you must thereby find that the railroad has violated the Ohio law. ...”

This charge was incorrect because it interprets Ohio law to require that the train’s whistle (or horn) be sounded continuously for the entire distance of 1320 feet to the crossing.

Section 4955.32 states: “. . [T]he engineer . . . shall sound such whistle at a distance of at least eighty and not further than one hundred rods from such crossing and ring such bell continuously until the engine passes the crossing.” The language of this section attaches one condition to the blowing of the whistle and one requirement to the ringing of the bell. The whistle’s sounding must occur between 80 to 100 rods from the crossing. The bell ringing must be continuous from that point. The whistle need not be blown continuously. Pennsylvania R. R. v. Stegaman, 22 F.2d 69 (6th Cir. 1927). Appellees argue that the Stega-man result was overruled in 1953, when the Ohio Revised Code replaced the General Code. The General Code provision had a comma between “from such crossing” and “and ring such bell continuously,” making explicit the application of “continuously” solely to the ringing of the bell. An argument that the Ohio legislature intended to change the railroad’s whistle requirement by removing a comma, when the change occurred amidst the wholesale structural and grammatical revision of Ohio’s statutory laws, is frivolous. In fact, the Revised Code simply corrected the grammatical error in the General Code section, since a comma should ordinarily not be inserted between two verbs when they are conjoined by the word “and”.

The judgment is reversed, and the cause is remanded for a new trial, to be conducted in conformance with this opinion.

      . All subsequent statutory citations are to the Ohio Revised Code.

      . . District Court Memorandum Opinion and Order, reported at 356 F.Supp. 984 (N.D. Ohio 1973).
      The District Court ruled that evidence Appellant would have presented concerning Ap-pellees’ conduct was legally inadequate to establish Appellees’ conduct as the “sole proximate cause” of the accident. The proffered evidence was testimony that the driver had a 0.127 per cent blood alcohol content, that the car contained wine and beer bottles, that the car was traveling around 50 miles per hour toward the crossing, and that the train’s headlight was burning and would have been seen by an alert driver approaching from Appellees’ direction.

      . The Ohio Supreme Court states Ohio law only through its syllabi. Individual opinions of the justices do not carry precedential weight. Thackery v. Helfrich, 123 Ohio St. 334, 336, 175 N.E. 449 (1931). See 14 Ohio Jur.2d § 250. This rule does not apply to opinions from the Ohio Courts of Appeals. See Carruthers v. Kennedy, 121 Ohio St. 8, 166 N.E. 801 (1929); Royal Indemnity Co. v. McFadden, 65 Ohio App. 15, 29 N.E.2d 181 (Ham.Co.1940); Parkview Hospital v. Hospital Service Ass’n, 8 Ohio App.2d 315, 222 N.E.2d 314 (Franklin Co. 1966); Gustin v. Sun Life Assurance Co., 154 F.2d 961, 962 (6th Cir.), cert. denied, 328 U.S. 866, 66 S.Ct. 1374, 90 L.Ed. 1636 (1946).

      . Railroads must comply with a host of safety requirements. See 46 Ohio Jur.2d §§ 256-275 (1961).

      . Were we sitting as a court with authority to interpret Ohio law, we might find Appel-lees’ arguments persuasive. The same basic consideration in McCallie (“a statutory direction to perform a duty, coupled with a liability in damages for a failure to perform that duty”) that precluded a contributory negligence defense under section 4955.33 exists under sections 4955.32 and 4955.34. Furthermore, if contributory negligence is not precluded by the final sentence in section 4599.34, then it seems to be surplusage, since under ordinary negligence law a plaintiff’s situation would be identical without the presence of that sentence. We are, however, limited to a best estimate of what the Ohio Supreme Court would do if it could consider Appellees’ contentions. Our best estimate is that the Ohio Supreme Court would reaffirm its prior holdings rather than accept Appel-lees’ point of view.


author: PERRY, Senior District Judge. STEVENS, Circuit Judge

text:
    Complaint of Charles N. WASSON, doing business as Wasson Towing Company, owner of the MOTOR VESSEL DEL RIO, and Wasson Towing Service, Inc., Bareboat Charterer of the Motor Vessel Del Rio, for exoneration from or limitation of liability.
    No. 73-1225.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 15, 1974.
    Decided April 17, 1974.

      William K. Johnson, Stuart B. Bradley, Chicago, 111., for appellant.
    William J. Voelker, Jr., John E. Cassi-dy, Jr., Peoria, 111., for appellee.
    Before SWYGERT, Chief Judge, STEVENS, Circuit Judge, and PERRY, Senior District Judge.

       Senior District Judge Joseph Sam Perry of the Northern District of Illinois is sitting by designation.

   PERRY, Senior District Judge.

This is an appeal from the decision of the District Court in an admiralty action for exoneration from or limitation of liability, founded upon 46 U.S.C. §§ 183-189 and brought by Charles N. Wasson as owner of the motor vessel DEL RIO and by Wasson Towing Service, Inc., as bareboat charterer thereof (collectively called “Wasson”), with respect to a casualty which occurred in the Illinois River at Peoria, Illinois, when a grain-loaded barge being pushed by the DEL RIO collided with a pier of a railroad bridge which spans the river between Peoria and East Peoria and is owned by the Toledo, Peoria and Western Railroad Company (called “T P & W” or “railroad company”).

The complaint alleged that on February 12, 1970 the DEL RIO was proceeding down the Illinois River, pushing a tow of barges, when it collided with a pier of a railroad bridge of the T P & W at Peoria, Illinois, causing severe damage to the bridge pier, Pier No. 3, and moderate damage to the port lead barge, BARGE M-4.

The complaint alleged that the DEL RIO was free from fault, and that Was-son was free from privity and knowledge ; and prayed for relief under applicable statutes and rules.

Claims were filed by the bridge owner (T P & W, the railroad company) and by the barge owner (Cargo Carriers, Inc). The proceeding was tried without a jury. The active parties in the trial were Wasson and T P & W. Cargo Carriers, Inc., took no part, electing to abide the outcome.

At the conclusion of the trial the District Court found what he called “all of the essential issues” in favor of the railroad company. The court then entered judgment in favor of the railroad company and against the petitioners (Was-son) in the sum of $878,650; and in favor of Cargo Carriers, Inc., and against the petitioners, in the sum of $13,993.90.

At the conclusion of the trial on July 19, 1972, the District Court made findings pertinent to this appeal summarized as follows:

(1). On February 12, 1970 at about 6:05 A.M., the tow of the DEL RIO,— specifically BARGE M-4, the port lead barge of the tow, — came into contact with the left descending, or east pier, of the railroad bridge, with resulting damage to the barge and to the bridge.

(2) . As known to the management of its owner and its charterer, on February 12, 1970 the DEL RIO was pushing 12 grain-loaded barges arranged 3 barges wide and 4 barges long. The total length of the tow was 785 feet for the starboard and center strings and 780 feet for the port string. The total length of the DEL RIO and its tow was 896.3 feet. The width of the tow was 105 feet.

(3) . In such configuration, this vessel or tow was too wide at that length to be safely navigated through the various bridges at Peoria without damage to the bridges or to their appurtenances.

(4) . The Franklin Street Bridge is located immediately upriver from the T P & W railroad bridge. Because the railroad bridge crosses the river at an angle rather than directly perpendicular to the river, the distance between the east channel pier of the Franklin Street Bridge and the east channel pier of the railroad bridge is approximately 350 feet.

(5) . The railroad bridge was originally built in the mid-eighteenth century. Pier No. 3 of the railroad bridge (the east channel pier here involved) was renewed in 1906 or 1907.

(6) . On February 12, 1970, the date of the collision, Pier No. 3 was not protected by previously-existing guidewall, —sheer fencing,- — or by timber wale protection, such previously-existing protection having been destroyed by numerous prior hammerings of river traffic, primarily large tows of steel barges.

(7) . The towboats LA SALLE and KAY-A and their respective tows had collided with the sheer fencing protecting Pier No. 3 on February 4th and February 19th, respectively, in 1969. The sheer fencing was not repaired or replaced following those collisions.

(8) . When the port lead barge of the DEL RIO tow, the M-4, came into contact with the substantially-unprotected Pier No. 3 on February 12, 1970, the pier broke off, causing the fixed bridge span resting thereon to collapse.

(9) . Immediately following the collision, BARGE M-4 rode up onto the stub of Pier No. 3 a distance of approximately the width of the pier and came to rest on top of the pier stub about one foot above the then-existing river level.

(10) . The claim of Cargo Carriers, Inc., the owner of BARGE M-4, in the sum of $13,993.90 shall be allowed as damages payable only in case of liability of the DEL RIO or its owners or operators, and subject to the court’s determination of the possible proportionate liability or limitation of liability as sought by Wasson.

(11) . The primary and effective cause of the collision on February 12, 1970 between the DEL RIO and the railroad bridge was the excessive width of the tow of 3 barges of a total width of 105 feet, in conjunction with a length of four barges and a weight in excess of 40 million pounds, in conjunction with the known opening between bridge piers of successive bridges not over 400 feet apart involving openings of about 120 feet, leaving less than 15 feet for lateral maneuvering between those bridges and the spans of the bridge piers, requiring maneuvering close to the shore with the recognized possibility of unfavorable navigational conditions developing therefrom and the inability of the vessel, rigged as 'aforesaid, to stop forward motion when the danger of collision became apparent.

(12) . Under these conditions the vessel in that configuration was not seaworthy, and that lack of seaworthiness under the conditions then known to exist, was with the knowledge and privity of both the owner and the charterer of the vessel.

(13) . There was no ' contributory negligence on the part of the railroad company in permitting its bridge to exist on February 12, 1970 under the circumstances here otherwise found.

In addition to the foregoing findings, the District Court made, inter alia, the following findings in its Decision And Order On Damages, entered November 16, 1972:

1. The railroad fully complied with its War Department permit concerning the bridge, until the State of Illi.nois, in 1967, removed its continuance sheer fence for a distance of 208.8 feet downstream from the Franklin Street Bridge.

2. Neither government authority nor any shipping or barge freight interests asked or ordered the railroad to alter its fencing or pier protection.

The District Court concluded as a matter of law, that there could be no exoneration, and that petitioners Wasson were liable for the damages to the T P & W Railroad Company and to Cargo Carriers, Inc., without limitation.

At the time of the occurrence herein there was in existence an Illinois statute, Chapter 121, Section 193a, Illinois Revised Statutes, 1969, which reads as follows:

§ 193a. Bridge pier protections, construction of.] § 1. Every person, firm or corporation owning, leasing or managing any bridge over a navigable portion of the Illinois River shall construct and maintain in good repair, contiguous to the channel of the river, adequate pier protection for the piers of such bridge, of modem construction, and adequate to meet navigation requirements existing at the time or reasonably to be expected in the future during the life of such piers.

At the trial the petitioners introduced the following evidence which was not contradicted or impeached:

(1) By a War Department permit signed April 22, 1936 by the Chief of Engineers, the T P & W Railroad was authorized to reconstruct the timber guide walls (sheer fencing) at its bridge. As of August 31, 1936, the reconstruction work had been completed in substantial accordance with the plans and the provisions of the War Department permit.

(2) Prior to the issuance of the permit, Lt. Col. Connolly, District Engineer, Corps of Engineers, wrote the following letter to the Superintendent of the T P & W Railroad Company:

T. P. & W. R. R. Co.
Union Station Peoria, Illinois
Attention: Mr. O. W. Limestall, Superintendent
Gentlemen:
On April 9, 1934, your application for a permit to rebuild the fenders at your Illinois River bridge at Peoria was returned with the request that the plans be modified to provide principally for greater strength.
The City of Peoria is now completing work on the extensive reconstruction of fenders at its Franklin Street bridge located just upstream, and in September, 1932, the Illinois Terminal Railroad System completed work on the reconstruction of fenders at its bridge located just downstream. The fenders at your bridge are now the weak and unsafe section in the continuous fender system through these three bridges and are a serious hazard to navigation.
In the interest of safety to your bridge structure as well as to navigation, may we ask that you resubmit your application with duly revised drawings for a permit to carry out the badly needed work at an early date.
Very truly yours,
Donald H. Connolly Lt. Col., Corps of Engineers District Engineer

(3) In 1936, subsequent to the issuance of the permit, Captain Karriek, Acting District Engineer, wrote the following letter to the Superintendent:

May 29, 1936
Toledo, Peoria & Western Railroad Union Station Peoria, Illinois
Attention: Mr. O. M. Limestall, Superintendent
Gentlemen:
Reference is made to the War Department permit issued by the Chief of Engineers on April 23, 1936, authorizing the reconstruction of the fenders along the channel span of your Illinois River bridge at Peoria, Illinois. At the time this permit was issued, it was understood that the proposed work was to be done immediately, but construction has not yet commenced.
Report has now been received that the left upstream fender is leaning four feet or more out into the channel and is in danger of falling into the channel at any time. Thus an actual hazard to navigation is created at an already narrow, inadequately protected bridge.
It is requested that the reconstruction of the fenders be started at once. Please acknowledge receipt of this letter, stating the dates for commencement and completion of work.
Very truly yours,
S. N. Karriek
Captain, Corps of Engineers
Acting District Engineer

(4) The timber sheer fencing as constructed under the permit and as maintained for over 30 years thereafter, consisted of an unright piling every 4 feet, backed by a support piling known as a batter piling, set at an angle behind the main piling. These pilings were driven by a pile driver to the rock at the bottom of the river. The upright piling and the batter piling consisted of 12" by 14" timbers. The vertical piles were connected to the batter piles with cross members or braces. Along the length of the guidewall were horizontal timbers, called walers, which were bolted into place. The resulting timber guide wall, “sheer fencing” (or “shear fencing”), appears as illustrated in the photograph appearing hereafter.

(5) The sheer fencing, as thus constructed, remained essentially intact from 1936 through 1966. During that period the sheer fencing was frequently struck and damaged by river tows.

(6) Repairs to the sheer fencing were continually made during the period of its existence. As the result of the repairs, the sheer fencing remained essentially as originally constructed in 1936.

(7) The sheer fencing joined with upstream sheer fencing and formed a continuous, connecting, and joining wall of fencing from the railroad bridge to the Franklin Street Bridge upstream — a distance of approximately 350 feet. The railroad maintained its 166 feet of fencing and the owner of the Franklin Street Bridge — the City of Peoria— maintained the balance.

(8) In 1965 the State of Illinois became the owner of the Franklin Street Bridge and changed the manner of protecting it. The State replaced their portion of the sheer fencing with 4 protective cells, each cell made of sheet steel filled with concrete and of approximately 30 feet diameter.

(9) Mr. C. L. Patteson, President of the T P & W Railroad, testified that the railroad made a decision not to repair the sheer fencing or to replace it with clump pilings. He explained that the railroad was trying to collect from the people who knocked the sheer fencing down before the railroad company would have the funds to replace the sheer fencing.

(10) In February, 1969, the upstream sheer fencing was struck by the tow of the river towboat KAY-A and the tow of the LA SALLE. These two collisions took out all but 20 feet of the 166 feet of sheer fencing that had been maintained by the railroad company for over 30 years.

(11) The railroad company obtained estimates for repairing the sheer fencing. The bids were under $6,000 for the repair of ■ the damage done by the LA SALLE collision, and approximately $20,000 for repairing the damage done by the KAY-A. Contracts, however, were not entered into.

(12) On November 3, 1969 the tow of the WARREN HOUGLAND, consisting of 3 empty barges, demolished the remaining 20 feet of the sheer fencing and, with the fencing gone, collided with and damaged bridge Pier Number 3.

(13) Damage to the bridge pier consisted of a structural crack in the base of the pier just above the waterline. Engineering observations indicated, however, that the pier was still structurally sufficient for handling heavy trains.

The questions raised on appeal are:

(1) Did the District Court err in finding Wasson liable ?
(2) Did the District Court err in finding the railroad company free from liability?

We shall dispose of the first question by stating that we agree with the District Court’s findings regarding the unseaworthiness of the DEL RIO as rigged at the time of the collision, and that we affirm the conclusion of the District Court that the unseaworthiness of the DEL RIO imported liability to her owner and charterer for the collision between the DEL RIO and the railroad bridge.

Wasson clearly admitted that when a vessel operator attempts to move a 105-feet wide tow through a 118-feet bridge span, an inherently dangerous situation is created, — a situation providing an insufficient margin of safety to allow for natural hazards such as the risk of bank suction. It is clear from the testimony of the witnesses that such bank suction did in fact occur and that it was a contributing cause to the collision. Under these circumstances, we agree with the District Court’s determination that the DEL RIO, as rigged, was unseaworthy for the purpose of navigating through the railroad bridge.

There remains the question of whether the railroad company had a duty to maintain reasonable protection to the channel side of Pier No. 3. If it had such a duty and breached it, we must hold that, in accordance with our decision in N. M. Paterson & Sons, Ltd. v. City of Chicago, 324 F.2d 254 (7th Cir. 1963), damages must be equally divided between Wasson and the railroad company.

We are of the opinion *that a bridge owner has a duty to protect the piers of the bridge, both for the protection of the bridge and for the protection of water-borne commerce. We so held in City of Milwaukee v. Kensington S. S. Co., 199 F. 109, 111 (7th Cir. 1912), where the owner of a steamer brought suit to recover for damages incurred when the steamer, while being towed through a drawbridge, struck a stone abutment of the bridge. This Court held that the bridge owner, the City of Milwaukee, had a duty to protect the bridge abutments, which duty it breached when the timbers by which the stone abutment had been protected were allowed to rot away. There the court held as follows:

. The ledge was a dangerous obstruction to navigation. Easily remedied by the maintenance of piles, it was the duty of the city to put them there, and there keep them. Failure to do this was negligence, the proximate cause of the injury. The bridge itself was an obstruction to navigation, permitted only to serve the convenience of commerce on land. Clearly it was the duty of the city to make it as safe as was reasonably possible.

Earlier, in Vessel Owners’ Towing Co., et al. v. Wilson, et al., 63 F. 626 (7th Cir. 1894), the faces of the piers of a drawbridge were built out under the surface of the water. Contractors, in replacing the bridge, removed piles which had been driven around the piers to ward off vessels. This Court stated:

That portion of the abutment below the surface of the water was . . . a concealed and imminently dangerous obstruction to the navigation of the river. As it was placed there by the city of Chicago, so it became the duty of the city, so long as the obstruction was maintained, to so guard it that injury therefrom should not result to vessels navigating the river. Philadelphia R. Co. v. Philadelphia, etc., Towboat Co., 64 U.S. 209, 23 How. 209, 16 L.Ed. 433. That duty was sought to be discharged by maintaining spiles along the face of the obstruction, which were effectual to prevent vessels passing the draw of the bridge from coming in collision with the projecting footing courses of the abutment. The maintaining in place of these spiles, in the absence of other safeguards, was an imperative duty. Their removal was an act of negligence contributing to produce the injury here complained of. Acting under authority of the city, the contractor, as well by its contract as by the law, was liable for damages arising from the removal of the protection.

Other courts, too, have recognized the duty of a bridge owner to install and maintain structures to protect vessels from colliding with a bridge pier or abutment, or to break the force of such collision when they cannot be altogether prevented. In Pennsylvania R. R. v. The Buchanan Boys, 155 F.2d 585 (2d Cir. 1946), the railroad company sued the towboat BUCHANAN BOYS and the City of New York to recover for damages which were incurred when a barge towed by the towboat collided with the stone abutment of a drawbridge maintained by the city across the Harlem River. The Court of Appeals affirmed a decree of the District Court holding the city solely liable for negligence in opening the drawbridge, and in failing to keep the fender of the bridge abutment in proper condition.

In Southern Transp. Co. v. Philadelphia, B. & W. R. Co., 196 F. 548 (D.Md. 1912), aff’d, 205 F. 732 (4th Cir. 1913), the owner of a bridge across the Potomac River was held liable for damage to a barge which, when passing through the draw of the bridge, struck an under-water, iron-shod timber projecting from the pier of the bridge. The court rejected the contention of the bridge owner that it was the duty of vessels to keep away from the piers and abutments of the bridge and if any vessel failed to do so, it must bear its own loss and make good any damage it did to the bridge. Said the court:

Rough and simple craft like scows and barges well serve many commercial purposes. They are more or less unwieldly. They cannot always be depended on to move with absolute precision. Collisions between them and the piers and abutments of the bridges crossing the waters over which they are towed will be not altogether infrequent.
******
The respondent’s witnesses say that had it not been for the fender piling [,] collisions with this particular pier would have been not uncommon. Properly placed and maintained piling will usually keep vessels from coming into contact with the piers and abutments of drawbridges, and will greatly reduce the destructive effects of many of the collisions which cannot be altogether prevented.

In Cleveland-Cliffs Iron Co. v. Grosse lie Bridge Co., 239 F.Supp. 872 (E.D. Mich.1964), which involved a collision between a steamer and a pier of a swing bridge spanning the Detroit River, the court held that the bridge owner was negligent in failing to maintain in good condition a floating fender system erected at the pier principally for the purpose of safeguarding passing vessels.

In M. P. Howlett, Inc., v. The Catherine Carrol, 56 F.Supp. 466 (E.D.N.Y. 1944), a railroad company which owned a drawbridge crossing Newark Bay failed to maintain protecting piles at the bridge abutments.. The court held that this condition of the bridge constituted a menace to navigation, and found the railroad company liable for damages incurred in a collision resulting from the aforesaid condition. Said the court:

It is common knowledge that fenders are provided at Bridge abutments, both for the protection of the abutment, and the boats passing through.

E. I. Du Pont de Nemours & Co. v. Pennsylvania R. R., 167 F.Supp. 80 (D. Del.1958), involved a collision between a towed barge and a railroad swing-type bridge. The court found the railroad company, owner of the bridge, liable because of negligence constituting the sole proximate cause of the damage to the barge which had sunk after striking submerged longitudinal beams not protected by fenders. The railroad company was negligent, held the court, in waiting until the last day of the month during which the river was closed to navigation before it commenced to repair a fender system which the railroad knew was in a state of disrepair.

As found by the District Court in the case at bar, the railroad company at the time of the casualty had not maintained the pier protection required by the War Department permit issued in 1936. We think that the failure of the railroad company to maintain the bridge in compliance with the War Department permit made the railroad company presumptively negligent and liable under the doctrine enunicated by the United States Supreme Court in The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L.Ed. 148 (1874), where the Supreme Court held that damages incurred in a collision between a steamship and a sailing bark were to be equally divided between the vessels inasmuch as both were in fault, the steamship for proceeding too swiftly in a very dense fog in the track of inward-and outward-bound vessels, and the sailing bark for ringing a bell as a fog signal (instead of sounding a foghorn) in violation of an Act of Congress Fixing Certain Rules and Regulations for Preventing Collisions on the Water. (Act of April 29, 1864, 13 Stat. 58).

The Pennsylvania rule was stated in the following words of the Supreme Court in 86 U.S. at page 136, 22 L.Ed. 148 {supra):

. But when, as in this case, a ship at the time of a collision is in actual violation of a statutory rule intended to prevent collisions, it is no more than a reasonable presumption that the fault, if not the sole cause, was at least a contributory cause of the disaster. In such a case the burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been. Such a rule is necessary to enforce obedience to the mandate of the statute.

The Pennsylvania rule is long-settled law and should be strictly applied. Richelieu & Ontario Navigation Co. v. Boston Marine Ins. Co., 136 U.S. 408, 422, 10 S.Ct. 934, 34 L.Ed. 398 (1890); Belden v. Chase, 150 U.S. 674, 699, 14 S.Ct. 264, 37 L.Ed. 1218 (1893); Lie v. San Francisco & Portland S.S. Co., 243 U.S. 291, 298, 37 S.Ct. 270, 61 L.Ed. 726 (1917). That the Pennsylvania rule applies to bridges is made clear by the following cases: Nassau County Bridge Authority v. Tug Dorothy Mc-Allister, 207 F.Supp. 167, 171 (E.D.N.Y.1962), aff’d 315 F.2d 631 (2d Cir. 1963); Dorrington v. City of Detroit, 223 F. 232, 245 (6th Cir. 1915); The Fort Fetterman v. South Carolina State Highway Dep’t., 261 F.2d 563 (4th Cir. 1958), rehearing granted on other grounds, 268 F.2d 27 (4th Cir. 1959), cert. denied, 364 U.S. 910, 81 S.Ct. 272, 5 L.Ed.2d 225, rehearing denied, 364 U. S. 944, 81 S.Ct. 458, 5 L.Ed.2d 375; Shell Petroleum Co. v. Peschken, 290 F. 2d 685, 687 (3rd Cir. 1961), cert. denied, 368 U.S. 900, 82 S.Ct. 172, 7 L.Ed.2d 96; Conners Marine Co. v. New York & Long Branch R. R., 87 F.Supp. 132, 135 (D.N.J.1950).

We follow the line of cases which hold that a violation of the provisions of a War Department permit imposes on the bridge owner the burden of showing that the violation could not have contributed to the casualty. In The Fort Fetterman v. South Carolina State Highway Dep’t., 261 F.2d 563 (4th Cir. 1958), rehearing granted on other grounds, 268 F.2d 27 (4th Cir. 1959), a bascule-type bridge was constructed in 1923-1925 under authority granted by the South Carolina Legislature. The plans and specifications were submitted to the War Department and a permit was issued. The permit required that the bascule spans, when fully open, be raised to an angle of 82 degrees, but in fact the spans could only be raised to a maximum angle of 71 degrees. While attempting to pass under the bridge, a vessel “crabbed” into it. Although the vessel was navigated improperly, the court ordered a division of damages because the bridge owner had not met the burden of proving that the violation of the War Department permit could not have contributed to the collision. Pertinent language of the court appears at page 567, 261 F.2d, and is set out below.

It is the legal presumptions and conclusions of the lower court with which we must disagree. It is said by the district judge that any deviation from the approved War Department permit should not be considered unless such deviation was the proximate cause of, or contributed to, the collision and damages. We believe that the factual situation here presented calls for the clear application of the rule as stated in The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148, to the effect that the burden rests upon the party guilty of a statutory fault to show, not only that probably his fault did not contribute to the disaster, but that it could not have done so.

To like effect is Petition of McMullen & Pitz Construction Co., 230 F.Supp. 726 (E.D.Wis.1964), which involved a collision at Manitowoc, Wisconsin, between a ship being towed and a bascule bridge owned by a railroad company and built after a permit had been issued to the railroad company in 1925 by the Secretary of War. The bridge owner brought a libel against the ship and her owner. Claim was also made against the owner of the towboat. The shipowner filed a cross-libel against the bridge owner, alleging that the bridge did not have an adequate fender system and that the bridge owner was guilty of a statutory violation in that the bridge was constructed in violation of the terms of the permit as to the degree to which it could be opened. The plans for the bridge, as submitted to and approved by the Secretary of War, illustrated a bridge open to an angle of about 84 degrees and 30 minutes. The bridge as constructed opened .only to a maximum angle of 79 degrees and 3 minutes. On page 730 the court made the following statement of the law, which we approve:

Where a bridge owner fails to comply with the plans its [sic] submits for approval, it is not per se liable for damages resulting from a collision if the violation had nothing to do with the collision. City of Milwaukee v. Kensington S. S. Co., 199 F. 109 (7th Cir., 1912); Missouri River Packet Co. v. Hannibal & St. Joseph R. Co., 2 F. 285 (C.C.W.D.Mo.1880). This Court believes that the question as to whether this violation was causal is speculative except for the rule hereinafter set forth. The law imposes a burden upon the statutory violator to show that the breach could not have contributed to the disaster with any reasonable possibility where the variance is substantial. The Pennsylvania, 19 Wall. 125, 86 U.S. 125, 22 L.Ed. 148 (1873); The Fort Fetterman v. South Carolina State Highway Dept., 261 F.2d 563 (4th Cir., 1958), rehearing granted on other grounds, 268 F. 2d 27 (4th Cir., 1959).

Applying the above-stated rule of law, the court then said, 230 F.Supp. at 731:

. This court is bound by the rule of The Pennsylvania ease. It is unable to say that the deviation from the approved plans did not with a reasonable possibility contribute to this accident. Therefore, the Court finds that the bridge must be held causally negligent due to its deviation from the approved plans.

In J. F. Schoellkopf, Jr. — Canal St. Bridge, 1961 American Maritime Cases 391 (N.D.Ind.1960), the Canal Street Bridge was a double-leaf bascule bridge which crossed the Indiana Harbor Canal. It was constructed under a War Department permit issued in 1927 and requiring the presence of 3 rows of fender timbers along the face of each bridge abutment. In 1943 the War Department issued a permit requiring 2 additional fender pile clusters. Up until 1952 the bridge owner had maintained the fender protection in compliance with the permits. Since 1952, however, the bridge was out of operation and both leaves of the bridge had been fixed in a raised position. On July 15, 1957, as a result of various accidents involving the bridge and its appurtenances, no protection fenders remained along the northwest abutment of the bridge. On that date the steamer J. F. Schoellkopf, Jr. collided with the northwest abutment of the bridge. The Indiana District Court of this seventh circuit found the bridge owner negligent for failing to maintain fender protection at the situs of the collision. Said the court, in its Conclusions of Law:

7. At all times material hereto the City of East Chicago, Indiana, had the absolute duty to maintain and repair the Canal Street Bridge and its appurtenances and the pile cluster lake-ward of the Northwest bridge abutment in strict conformity with the War Department permits under which they were erected so as to permit vessels to negotiate the bridge draw with safety.
8. As they were maintained at the time and place in question, the Northwest abutment of the Canal Street Bridge and the pile cluster just lake-ward thereof deviated materially from the War Department permits under which they were erected and together created a condition whereby the bridge was a nuisance, a menace and an unlawful, unreasonable and dangerous obstruction to navigation.
9. Had the Canal Street Bridge, its abutments and appurtenance, and the pile cluster been maintained as required, the steamer’s starboard side either would have contacted only the pile cluster or would have contacted fender timbers instead of the concrete abutment and either she would have incurred no damage at all or her damage would have been substantially reduced.
1961 American Maritime Cases, at 397-398.

In the case at bar Wasson contends that the railroad company, in addition to violating the provisions of the War Department permit issued in 1936, violated the provisions of an Illinois statute, Ch. 121, § 193a, Ill.Rev.Stat. 1969, which requires bridge owners to maintain adequate pier protection for their bridges. Against this contention the railroad company appears to argue that the Federal Government, by virtue of the enactment of the Rivers and Harbors Appropriations Act of 1899 (Act of March 3, 1899, 30 Stat. 1151, 33 U.S.C. § 401 et seq.), has divested The State of Illinois from all jurisdiction or authority over the Illinois River so far as the erection therein of structures affording protection to bridge piers is concerned, and that the Illinois statute is therefore void. We cannot agree.

At the outset, we take judicial notice of the fact that the Illinois River lies wholly within the State of Illinois. See Hubbard v. Dunne, 276 Ill. 598, 612-613, 115 N.E. 210 (1917). Next, we point out that the United States Supreme Court has repeatedly held that where a Federal law is applicable requiring consent of the Federal Government, there is a concurrent or joint jurisdiction of the State and Federal Governments over the erection of structures obstructing the navigation of a navigable stream lying wholly within a state. Lake Shore & M. S. Ry. v. Ohio, 165 U.S. 365, 17 S.Ct. 357, 41 L.Ed. 747 (1897); Cummings v. Chicago, 188 U.S. 410, 23 S.Ct. 472, 47 L.Ed. 525 (1903); Montgomery v. Portland, 190 U.S. 89, 23 S.Ct. 735, 47 L.Ed. 965 (1903).

In Lake Shore & M. S. Ry. Co. v. Ohio, supra, the United States Supreme Court held that the Congressional delegation to the Secretary of War of authority to direct changes in existing bridges over navigable waters of the United States or in bridges to be erected under legislative authority of any state, for the purpose of preventing obstructions to navigation, showed no intention by Congress to exercise exclusive control over navigable waters lying entirely within a state, and did not deprive states of their power to compel the removal or alteration of bridges erected over such waters without their authority.

It is long-established doctrine that the authority of a state over navigable waters lying entirely within its limits is plenary, subject only to such action as Congress may take in execution of its power to regulate commerce among the several states. Montgomery v. Portland, 190 U.S. 89, 23 S.Ct. 735, 47 L.Ed. 965 (1903), where the Supreme Court said, 190 U.S. at 106, 23 S.Ct. at 737:

. we hold that, under existing enactments, the right of private persons to erect structures in a navigable water of the United States that is entirely within the limits of a State, cannot be said to be complete and absolute without the concurrent or joint assent of both the General and state Governments.

In Escanaba Co. v. Chicago, 107 U.S. 678, 683, 2 S.Ct. 185, 27 L.Ed. 442 (1883), the question was the validity of regulations made by the City of Chicago in reference to the closing of bridges across the Chicago River between certain hours of each day. These regulations were alleged to be inconsistent with the power of Congress over interstate commerce. The Supreme Court said:

The Chicago River and its branches must, therefore, be deemed navigable waters of the United States, over which Congress under its commercial power may exercise control to the extent necessary to protect, preserve, and improve their free navigation.
But the States have full power to regulate within their limits matters of internal police . . . This power embraces the construction of roads, canals, and bridges, and the establishment of ferries, and it can generally be exercised more wisely by the States than by a distant authority . Illinois is more immediately affected by the bridges over the Chicago River and its branches than any other State
When its power is exercised, so as to unnecessarily obstruct the navigation of the river or its branches, Congress may interfere and remove the obstruction. If the power of the State and that of the Federal government come in conflict, the latter must control and the former yield . . . But until Congress acts on the subject, the power of the State over bridges across its navigable streams is plenary. ... 107 U.S. at 683, 2 S.Ct. at 188.

Likewise, in Cummings v. Chicago, 188 U.S. 410, 430, 23 S.Ct. 472, 47 L.Ed. 525 (1903), the Supreme Court held that the tenth section of the Rivers and Harbors Appropriations Act of 1899, upon which the permit of the Secretary of War was based, was not so worded as to compel the conclusion that Congress intended to ignore altogether the wishes of the State of Illinois in respect of structures in navigable waters that are wholly within its limits. Said the court:

The effect of that act, reasonably interpreted, is to make the erection of a structure in a navigable river, within the limits of a State, depend upon the concurrent or joint assent of both the National Government and the state government. The Secretary of War, acting under the authority conferred by Congress, may assent to the erection by private parties of such a structure. . Without such assent the structure cannot be erected by them. But under existing legislation they must, before proceeding under such an authority, obtain also the assent of the State acting by its constituted agencies.
188 U.S. at 431, 23 S.Ct. at 477.

Several courts have applied the Pennsylvania rule to the violation of state statutes or local ordinances. The Amiral Cecille, 134 F. 673 (D.Wash.1905), involved an' ordinance of the City of Tacoma which prohibited the anchoring of a vessel in a prescribed area of the harbor without first receiving a permit from the harbor master. A vessel violated the ordinance and, while unlawfully anchored, was hit by another vessel in a dense fog. The court found the moving vessel at fault because it was not navigated with care appropriate to existing conditions. The court also found that the anchored vessel was a contributing cause of the collision because it did not satisfy its burden, as imposed by the Pennsylvania rule, of showing that its statutory violation could not have contributed to the accident.

In both The Limon, 35 F.2d 730 (1st Cir. 1929), and The Vera, 224 F. 998 (D.Mass.1916), aff’d, 226 F. 369 (1st Cir. 1915), a Massachusetts statute delegated to the harbor master of Boston the power to establish anchoring areas in Boston Harbor. Vessels anchored outside the permitted areas were involved in collisions and, in each instance, the court held that the anchored vessel had the burden of proving that her violation of the harbor regulations could not have contributed to the collision.

It has repeatedly been said that the violation of “any statutory requirement” causes a presumption against the party in default, and that when a collision occurs it is obligatory upon the party who has failed to comply with the statute to show that such default certainly did not and could not possibly contribute to the disaster. See The Hercules, 80 F. 998, 1001-1002 (4th Cir. 1897); The Jay Gould, 19 F. 765, 769 (E.D.Mich.1884).

It is our opinion, so far as the Illinois River is concerned, that Congress in enacting the Act of March 3, 1899, 30 Stat. 1151 (33 U.S.C. §§ 401, 403) dealing with the construction of bridges over navigable rivers and with obstructions to navigable waters in general, did not intend to dispossess the State of Illinois of authority to legislate regarding the protection of bridge piers. We think that Congress simply intended by this legislation to subject bridge owners, who by Illinois statute are obligated to protect the piers of their bridges, to the further obligation of erecting pier-protection structures in accordance with plans approved by the Secretary of War (now the Secretary of Transportation).

We find and conclude that there is no conflict between the aforementioned Illinois statute and existing Federal statutes, and that the Illinois statute does not run afoul of the supremacy clause of the United States Constitution. We are of the opinion that it is a valid statute.

As to whether the Illinois statute was violated by the railroad company, we believe that the findings of the District Court and the evidence in the record have established beyond question that the railroad company was in violation of the Illinois statute at the time of the collision.

Applying the Pennsylvania rule to the case at bar, we are of the opinion that the railroad company failed to meet its burden of showing that its non-compliance with the permit issued by the War Department could not have been one of the causes of the collision between Barge M-4 and the bridge pier; further, we are'of the opinion that the evidence clearly showed that the railroad company violated the provisions of Chapter 121, § 193a, Ill.Rev.Stat.1969, and that here, also, the railroad company failed, under the Pennsylvania rule, to meet its burden of showing that such violation of the state statute could not have been one of the causes of the aforesaid collision.

The District Court found that the railroad company complied with the War Department permit only up to 1967,— thus clearly implying non-compliance after 1967, — and the District Court made no determination that the failure of the railroad company to comply with the permit could not have contributed to the 1970 collision with any reasonable possibility. In view of all of the foregoing, the District Court erred in its determination that the railroad company was free from contributory fault and hence free from any liability.

It was error for the District Court to have failed to apply the Pennsylvania rule in view of its findings and the evidence in the case. Under the well-established admiralty rule of divided damages, where two parties are at fault in causing a collision and resulting damages, both parties must bear equally the damages caused by the collision.

The admiralty doctrine of an equal division of damages in the case of collision between two vessels when both are at fault, has long prevailed in this country as well as in England. Belden v. Chase, 150 U.S. 674, 14 S.Ct. 264, 37 L.Ed. 1218 (1893). Holding, as we do, that the District Court was in error in finding the railroad company free from liability, and being of the opinion that this case clearly calls for the application of the divided-damages rule of admiralty, the judgment of the District Court is hereby

Affirmed in part, reversed in part, and remanded for further proceedings in conformity with this opinion.

STEVENS, Circuit Judge

(concurring).

There is some uncertainty in my mind concerning the railroad’s obligation under the War Department permit after 1967 when the State of Illionois removed its upstream portion of the sheer fencing connecting the railroad bridge and the Franklin Street bridge. I am also uncertain about the legal significance of the Illinois statute in this kind of proceeding. However, I have no doubt that there was mutual fault because the railroad completely failed to discharge its duty to provide adequate pier protection. Cf. City of Milwaukee v. Kensington S. S. Co., 199 F. 109 (7th Cir. 1912). I therefore agree that the damages should be divided. See N. M. Paterson & Sons, Ltd. v. City of Chicago, 324 F.2d 254, 257-258 (7th Cir. 1963).

Perhaps I should add that I cannot accept Wasson’s argument that the railroad should bear the entire loss because the increasing demands of commerce over the years since 1857, when the bridge was originally constructed, have transformed a once lawful structure into an illegal obstruction to navigation. Assuming arguendo that the legal premise is valid, I am nevertheless satisfied that a private party may not, with impunity, simply knock the bridge down with an unseaworthy tow of barges.


author: ALDISERT, Circuit Judge. ROSENN, Circuit Judge

text:
    UNITED STATES of America v. Roberto VALENCIANO, Appellant, and Marie Aguilar.
    No. 73-1767.
    United States Court of Appeals, Third Circuit.
    Submitted March 15, 1974.
    Decided April 12, 1974.

      Roberto Valenciano, pro se.
    John J. Barry, Richard S. Zackin, Asst. U. S. Attys., Newark, N. J., for appellee.
    Before ALDISERT, GIBBONS and ROSENN, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

In "Moorhead v. United States, 456 F. 2d 992 (3d Cir. 1972), we held that a federal defendant was entitled to an evi-dentiary hearing on an application pursuant to 28 U.S.C. § 2255 in which it was alleged that his counsel had made an actual out-of-court misrepresentation as to a “proposition” or arrangement relating to the guilty plea. We said that a hearing was mandated irrespective of the facial regularity of the in-court plea proceedings conducted in accordance with Rule 11, F.R.Cr.P. This appeal requires us to decide whether the principles expressed in Moorhead have been diluted by our subsequent per curiam opinion in Masciola v. United States, 469 F.2d 1057, 1059 (3d Cir. 1972), where “the only claim . . . [was] that • counsel inaccurately predicted the sentence.”

We hold that the Moorhead rule persists with continuing vitality and that the contrary result reached in Masciola was the product of particular facts and limited contentions. We find that in denying a request for an evidentiary* hearing in this case, the district court placed too broad an interpretation on Masciola. We vacate the judgment and remand for an evidentiary hearing.

Valenciano and his wife were indicted in the district courts of Florida and New Jersey on narcotics offenses, 21 U. S.C. § 841(a). Following pleas of guilty to Count II of the New Jersey indictment and to the Florida indictment, Rule 20, F.R.Cr.P., Valenciano received sentences of five years on the Florida indictment and two years on the New Jersey indictment, to run consecutively. In addition, he received a special parole term of three years. In his motion filed in the district court, Valenciano contended that his attorney transmitted to him the contents of an agreement entered into “between his attorney, the United States Attorney for the District of New Jersey and the United States Attorney for the District of Miami, Florida.” He alleged that the understanding reached before the entry of his plea was that the Florida sentence was to run concurrently with the New Jersey sentence, and that no mention was made of the Special Parole Term which follows incarceration. These same allegations are repeated in his pro se brief.

The Rule 11 plea proceedings were conducted through a Spanish-speaking interpreter. Explaining that the interpreter accompanied him during out-of-court conversations with his client, appellant’s counsel reported that an “agreement [was] reached between the U.S. Attorney and myself” as to a plea on one New Jersey count and an agreement to the Florida transfer. The record discloses:

MR. WILLIS: Your Honor, as to the indictment out of the Federal District of New Jersey, as to Count 1 of that indictment, I wish the Court to accept a plea of guilty to Count 2, your Honor. I have spoken to the defendant, Roberto Valenciano, concerning Count 2 of the indictment. At that time I brought with me to the West Side Federal Penitentiary Mr. Joseph Martinez, a Certified Court Reporter, to do the interpreting.
I questioned the defendant as to his guilt or innocence as to that charge. He professed his guilt, your Honor. No promises were made to the defendant by myself as to the sentence. I informed him that he could receive the maximum penalty under the law for that count.
Furthermore, I believe, after a thorough discussion, he understands that no one, myself, the United States, can make any promises to him as to what the sentence is to be.
I believe that the plea of guilty, if accepted by the Court, is a voluntary plea based upon the willingness of the defendant to admit his guilt to the second count, your Honor.
I ask the Court to question the defendant as to his plea of guilty.

Assuming that his counsel’s in-court declarations were translated to the appellant, he faces a formidable barrier in any evidentiary hearing to explain silence in the face of representations by his counsel that: “No promises were made "to the defendant by myself as to the sentence.” Notwithstanding appellant’s burden, Moorhead mandates a hearing. As therein stated by Judge Gibbons: “In the posture of the case before us there are several possibilities. Moorhead may be lying about what his attorneys told him. His attorneys may have told him what he alleges, and they may have been lying. His attorneys may have told him what he alleges and may in fact have had some arrangement with the prosecuting authorities. [N]one of [these] possibilities are conclusively negated by the files and records of the case. They depend upon matters outside the record.” 456 F.2d at 995.

We are also aware that appellant’s burden at an evidentiary hearing will be virtually herculean when confronted with the following passage from his plea proceeding:

Q. Has anybody threatened you or promised you anything to induce you to plead guilty to Count 2 ?
A. No, your Honor.
Q. Has anybody promised you or made you understand what sentence you may receive? Is there any understanding with any judge or lawyer or prosecutor?
A. No promise.

Facially, this record colloquy would seem to be conclusive, but the brute fact is that Congress has mandated an evidentiary hearing in a § 2255 proceeding “[u]nless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief. . . . ” 28 U.S.C. § 2255. The possibility exists that an inherent part of the out-of-court understanding was that appellant would respond negatively to an open court inquiry as to whether promises had' been made. In any event, the allegations are directed to evidentiary matters not in “the files and records of the case.”

Where the voluntariness of the plea is attacked with an assertion that one’s counsel or the prosecutor, or both, made an out-of-court arrangement or “proposition” as to the outcome of a sentence which differs from that pronounced by the court, an evidentiary hearing will ordinarily be necessary on a § 2255 motion attacking the voluntariness of the plea. A showing in the Rule 11 plea reception proceeding may, under certain circumstances, obviate a subsequent § 2255 hearing if the plea reception record discloses that (1) the defendant states that no promise, representation, agreement or understanding was made or that none other than that disclosed in open court was made to him by any person prior to the entry of the plea, and (2) the defendant affirmatively states that no out-of-court promise, representation, agreement or understanding required the defendant to respond untruthfully or contrary to the terms thereof in the in-court plea reception proceedings, and (3) that the defendant understands that he may not at a later time contend that any promise, representation, agreement or understanding was made by any person other than that set forth in open court. While such disclaimers may not obviate the necessity of subsequent § 2255 evidentiary hearings in all cases, it may be prudent for defense counsel, prosecutor, or the court to elicit such disclaimers from the defendant at the time of the reception of the guilty plea. We have previously urged the district courts to “inform the defendant that plea bargaining is specifically approved by the court and that he may truthfully inform the court of any plea negotiations ‘without the slightest fear of incurring disapproval of the court.’ ” Paradiso v. United States, 482 F.2d 409, 413 (3d Cir. 1973).

Masciola did not require an eviden-tiary hearing because'the alleged representation was no more than counsel’s inaccurate prediction of the sentence. The court pointedly observed: “He does not indicate on what basis the assurances were made, nor does he allege any Government involvement in communicating to him the assurances. He also does not allege any understanding between him and the United States Attorney’s office or the court. . . . An erroneous prediction of a sentence by a defendant’s counsel does not render a guilty plea involuntary. Wellnitz v. Page, 420 F.2d 935 (10th Cir. 1970). Here, with no facts alleged to indicate that counsels’ assurances were any more than predictions based on counsels’ knowledge and experience the Wellnitz principle is applicable.” 469 F.2d at 1058-1059. A fundamental distinction exists between an allegation of counsel’s erroneous prediction of sentence as in Masciola and an allegation of a bargained sentence as in Moorhead.

We therefore remand for an eviden-tiary hearing at which time the court will also have the opportunity of considering the possible application of Roberts v. United States, 491 F.2d 1236 (3d Cir. 1974).

The judgment of the district court will be vacated and the cause remanded for proceedings consistent with the foregoing.

ROSENN, Circuit Judge

(concurring) .

We must remand this case to the district court to vacate its judgment and permit the petitioner to plead anew to the indictment under our decision in Roberts v. United States, 491 F.2d 1236 (3d Cir. 1974). I therefore do not believe that the evidentiary hearing directed by the majority is necessary.

In Roberts v. United States, supra, petitioner contended that at the time he pleaded guilty to the offense of distribution of heroin, 21 U.S.C. § 841(b), he was not advised that a mandatory special parol term would attach to any sentence of imprisonment imposed. We held that knowledge of such fact was essential to an understanding of the consequences of a guilty plea and remanded the proceedings to the district court “with directions to vacate the judgment of conviction and sentence, to vacate the plea of guilty, and to afford appellant an opportunity to plead anew to the indictment.” Roberts v. United States, supra.

In the instant case, Valenciano contends that he was never made aware, prior to the time he received a time sheet from the Record Office of the United States Penitentiary in Atlanta, Georgia, that a special parole term of three years was to attach to his sentence. The Government does not argue in its brief that Valenciano was told of the mandatory special parole term at the time of his plea, nor does the transcript of the Rule 11 proceedings, held on April 12, 1972, reveal that Valenciano was so informed by the district court. Under these circumstances, Roberts dictates that we remand this case to the district court “with directions to vacate the judgment of conviction and sentence, to vacate the plea of guilty, and to afford appellant an opportunity to plead anew to the indictment.”

Should Valenciano again decide to plea guilty on remand, or should the district court in the future receive pleas of guilty in other cases, I believe that recurring attacks on the plea or sentence of the type addressed by the majority can be effectively avoided if an inquiry is first directed to counsel for the parties to ascertain if there has been plea bargaining. Judicial acceptance of the plea of guilty should be preceded by a statement of the court and inquiry as was suggested by this court in Paradiso v. United States, 482 F.2d 409 (3d Cir. 1973).

In connection with their rule 11 inquiry on a plea of guilty, district judges should in essence inform the defendant that plea bargaining is specifically approved by the court and that he may truthfully inform the court of any plea negotiations “without the slightest fear of incurring disapproval of the court.” Inquiry should also be made of counsel for the parties as to any plea negotiations. Should inquiry reveal the presence of plea negotiations, counsel for the parties should be required to state of record whether he understands them and concurs. The court, of course, is not obligated to accept any recommendation or bargain reached by the parties, and it should so inform the defendant when any bargain is disclosed.

482 F.2d at 413. See also, Proposed Amendments to the Federal Rules of Criminal Procedure, 52 F.R.D. 409, 416-417 (1971); Hilliard v. Beto, 465 F.2d 829, 832 n. 11 (5th Cir. 1972).

I believe that the procedure announced by this court in Paradiso adequately meets the problem of “the escalating numbers of eases complaining of aborted plea bargains, involuntary pleas or frustrated plea expectations.” 482 F.2d at 413. I am not convinced, moreover, that the additional instructions proposed by the majority will significantly aid the courts in avoiding attacks on pleas of guilty allegedly improperly induced.

      . Apparently the district court did not have the advantage of a record of the Rule 11 plea proceedings at the time the § 2255 proceedings were before it. Testimony of the plea reception was transcribed at the direction of this court for the consideration of this appeal.

      . “A court may entertain and determine such motion without requiring the production of the prisoner at the hearing.” 28 U.S.C. § 2255.


author: BREITENSTEIN, Circuit Judge.

text:
    Paul UMDENSTOCK et al., Plaintiffs-Appellants, v. AMERICAN MORTGAGE & INVESTMENT CO. OF OKLAHOMA CITY et al., Defendants-Appellees.
    No. 73-1456.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted Jan. 23, 1974.
    Decided April 22, 1974.

      Murray Cohen, Oklahoma City, Okl. (Cohen & Pluess, and Don Porter, Oklahoma City, Okl., on the brief), for plaintiffs-appellants.
    Lynn J. Bullís, Jr., Oklahoma City, Okl. (Monnet, Hayes, Bullís, Thompson & Edwards, and James M. Robinson, Henry F. Featherly, Lamun, Mock, Featherly & Baer, Crowe, Dunlevy, Thweatt, Swinford, Johnson & Burdick, Y. P. Crowe, D. Kent Meyers, Harry A. Woods, Jr., William G. Paul, Lytle; Soule & Emery, and James C. Chandler, Oklahoma City, Okl., on the briefs) for defendants-appellees.
    Before BREITENSTEIN, McWIL-LIAMS and DOYLE, Circuit Judges.
   BREITENSTEIN, Circuit Judge.

Plaintiffs-appellants brought this class-action suit against a number of financial institutions, and asserted various claims all based on the non-payment of interest on funds escrowed to pay taxes, assessments, and insurance on mortgaged property. The trial court refused to permit the suit to be maintained as a class action, gave summary judgment to the defendants on each claim, and dismissed the action.

The complaint alleges five claims, (1) breach of trust, (2) unjust enrichment, (3) violation of the Truth in Lending Act, 15 U.S.C. § 1601 et seq., and particularly § 1636, by the lenders in sending periodic statements to the borrowers which misstate the annual percentage rate of the loan and fail to disclose that the escrows bear no interest, (4) violation of the same Act, particularly 15 U. S.C. § 1631, by the lenders in extending new credit with misstatement of the annual percentage rate and concealment of the non-interest bearing nature of the escrow accounts, and (5) conspiracy by the defendants to restrain and monopolize interstate trade in violation of the Sherman Act, 15 U.S.C. §§ 1, 2, and 3. After partial discovery, 24 defendants successfully moved for summary judgment and the trial court dismissed the action.

Plaintiffs-appellants Paul and Janice Umdenstock in January, 1971, borrowed $31,500 from defendant Oklahoma City Federal Savings & Loan Association and gave a first mortgage on their home as security. Under a contemporaneously executed contract the borrowers were required to pay monthly, in addition to the mortgage payments, 142th of the yearly taxes, assessments, and insurance due on the mortgaged property. These so-called escrow payments go into a non-interest bearing escrow account and are commingled with other funds of the lender for profit-making purposes. Lender properly and regularly applies the escrows to the payment of taxes, assessments, and insurance when due. The annual percentage rate of the loan is not calculated with reference to the fact that the lender holds the escrows without the payment of interest thereon. Mr. Umden-stock testified on deposition that at a 5% interest rate his damages for a given year would be about $25.00.

Plaintiff-appellant Jolly in April, 1964, borrowed $8,200 from Maxwell Mortgage Company and mortgaged her home as security. The Jolly loan is FHA secured, and the mortgage is on a printed FHA form which calls for monthly escrow payments similar in all important respects to those of the Um-denstocks. Maxwell Mortgage, apparently assigned the loan and mortgage to defendant Finance Corporation and Mrs. Jolly makes her monthly payments to that company. Mrs. Jolly estimated that at a 5% interest rate her annual loss would be about $3.50.

Plaintiffs say that they bring a class action “on behalf of all persons in the Oklahoma City metropolitan area who have borrowed money secured by a first lien on their homes from any of the defendant lending institutions * * The trial court found that those “similarly situated” exceed 100,000 single family loans. Defendants-appellees are all lending institutions having a principal place of business in Oklahoma County, Oklahoma.

The Truth in Lending Act does not support the plaintiffs. It requires certain disclosures both when consumer credit is extended and, if the lender chooses to send periodic statements, when they are sent. Among the required disclosures are the finance charge and the annual percentage rate. See 15 U.S. C. §§ 1636 and 1639. The finance charge is the sum of all charges payable by the debtor. 15 U.S.C. § 1605. Excluded from the finance charge are escrows payable in connection with the extension of credit secured by an interest in realty. 15 U.S.C. § 1605(e)(3). The annual percentage rate is the finance charge expressed as a percentage figure. See 15 U.S.C. §§ 1606 and 1639(a)(5). Nothing in the Act requires disclosure of the non-interest bearing nature of escrow accounts.

Because the annual percentage rate is based entirely on the finance charge, and escrows are exempted in the computation of the finance charge, the escrows need not be computed into the annual percentage rate. Stavrides v. Mellon National Bank & Trust Company, 3 Cir., 487 F.2d 953, 955; Foster v. Maryland State Savings & Loan Association, D.C., 369 F.Supp. 843, 847-848; and Munn v. American General Investment Corp., S.D.Tex., 364 F.Supp. 110, 112-113. This accords with administrative interpretation of the Act. Regulation Z of the Federal Reserve Board, 12 C.F.R. § 226.4(e)(3), specifically excludes escrow amounts from the finance charge in real estate transactions. See also Stavrides, supra, 487 F.2d at 956 n. 4.

Because Claims 3 and 4, based on the Truth in Lending Act, are without merit, we need not consider ancillary matters such as the propriety of a class action and the applicability of any statute of limitations. Summary judgment on Claims 3 and 4 was proper.

Claim 5 is based on the Sherman Act. Plaintiffs charge that the defendants conspired to act in concert in changing the manner of handling payments on account of taxes, assessments, and insurance, from that previously used to the escrow method, and that they fraudulently concealed the changes made. In granting summary judgment on this claim the trial court said that on the record presented some defendants never changed their method of handling escrow payments, and that those which did change did so individually and without any concert of action.

The first amended complaint was filed on October 10, 1972. On December 21, 1972, the trial court stayed all discovery until after determination of jurisdiction. At that time the only discovery by plaintiffs had been the filing of interrogatories. The anti-trust portion of the complaint is inartfully drawn, uses conclusory terms, and omits specific factual allegations. However, it does allege that parallel behavior of defendants is a result of a shift from previously divergent behavior. This is enough to give defendants proper notice of the claim asserted. Kinee v. Abraham Lincoln Federal Savings & Loan Ass’n, E.D.Pa., 365 F.Supp. 975, 980-981.

Summary judgment is not favored in anti-trust litigation because proof is largely in the defendants’ hands, Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 473, 82 S.Ct. 486, 7 L.Ed.2d 458, but it may be granted if, after adequate opportunity for discovery, the requirements óf Rule 56, F. R.Civ.P., are satisfied. See First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 284-290, 88 S.Ct. 1575, 20 L.Ed.2d 569; Clark v. United Bank of Denver National Association, 10 Cir., 480 F.2d 235, 240, cert. denied 414 U.S. 1004, 94 S.Ct. 360, 38 L.Ed.2d 240; and Semke v. Enid Automobile Dealers Association, 10 Cir., 456 F.2d 1361, 1371. In each of the cited cases there was adequate opportunity for discovery. In the instant case there was not. The stay order prevented plaintiffs from discovery which might develop facts to support their claim of “conscious parallelism.” See Theatre Enterprises, Inc. v. Paramount Film Distributing Corp., 346 U.S. 537, 541, 74 S.Ct. 257, 98 L.Ed. 273. On the record presented we cannot say with certainty that plaintiffs can prove no facts which would entitle them to the requested relief. See Rule 56, F.R.Civ. P., and Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80.

The summary judgment on the antitrust claim cannot be upheld. We express no opinion on the merits of this claim, or of any defenses thereto, or of the propriety of a class action based thereon. On remand the plaintiffs should be given an opportunity to amend this claim if they so desire and to conduct reasonable discovery.

Claims 1 (breach of trust) and 2 (unjust enrichment) can be considered only on the basis of pendent jurisdiction because no other basis is alleged. The exercise of pendent jurisdiction requires that the federal and nonfederal claims “ * * * derive from a common nucleus of operative fact.” United Mine Workers of America v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218. The exercise of jurisdiction is discretionary. 383 U.S. at 726, 86 S.Ct. 1130. No matter how liberally we treat the complaint, its allegations are insufficient to show a common nucleus of the non-federal claims and the federal antitrust claim. The trial court did not abuse its discretion in dismissing Claims 1 and 2. Munn v. American General Investment Corp., S.D.Tex., 364 F.Supp. 110, 113; and Kinee v. Abraham Lincoln Federal Savings & Loan Ass’n, E.D.Pa., 365 F.Supp. 975, 978-979.

The judgment is affirmed as to Claims 1, 2, 3, and 4. As to Claim 5, the anti-trust claim, the judgment is reversed and the case remanded for further consideration of this claim in the light of this opinion. Each party shall bear his own costs.