author: JOHN W. PECK, Circuit Judge.

text:
    Petition of UNITED STATES STEEL CORPORATION, as Owner of the STEAMSHIP CEDARVILLE, and the Petition of Den Norske Amerikalinje A/S, as Owner of the M/V TOPDALSFJORD, for Exoneration From or Limitation of Liability. Barbara J. FUHRMAN, Administratrix of the Estate of Arthur J. Fuhrman, Deceased, et al., Claimants-Appellants, v. UNITED STATES STEEL CORPORATION and Den Norske Amerikalinje A/S, Petitioners-Appellees. UNITED STATES STEEL CORPORATION and Den Norske Amerikalinje A/S, Cross-Appellants, v. Billy R. HOLLEY et al., Cross-Appellees.
    Nos. 72-1667, 72-1668.
    United States Court of Appeals, Sixth Circuit.
    Argued Dec. 5, 1972.
    Decided May 1, 1973.

      Joseph Keig, Jr., Chicago, 111., Lucian Y. Ray, Cleveland, Ohio, for United States Steel Corp. & Den Norske Amer-ikalinje A/S; Roman T. Keenen, Lucian Y. Ray, Cleveland, Ohio, on brief for United States Steel Corp.; Ray, Robinson, Keenen & Hanninen, Cleveland, Ohio, of counsel; Thomas O. Murphy, Cleveland, Ohio, Edward S. Silber, Chicago, 111., on brief for Den Norske Amer-ikalinje A/S; Price, Cushman, Keck & Mahin, Chicago, 111., Johnson, Branand & Jaeger, Cleveland, Ohio, of counsel.
    Abraham E. Freedman, Philadelphia, Pa., for Barbara J. Fuhrman, Billy R. Holley and others; Martin J. Vigder-man, Freedman, Borowsky & Lorry, Philadelphia, Pa., J. Harold Traverse, Cleveland, Ohio, on brief.
    Before PHILLIPS, Chief Judge, and WEICK and PECK, Circuit Judges.
   JOHN W. PECK, Circuit Judge.

This admiralty case is making its third appearance before this Court. It arose out of a ship collision in the Straits of Mackinac in May 1965 between ships owned by United States Steel and Den Norske. Claimants are the seven seamen who were allegedly injured and the widows and administratrices of the estates of the three seamen who lost their lives when the bulk steamship Cedarville, owned by United States Steel, sunk following its collision with the Norwegian ship Topdalsfjord, owned by Den Norske. All the decedents and surviving claimants were crewmembers of the Cedarville. The parties shall be referred to as claimants or shipowners, or by their proper names.

Both shipowners admitted liability to the seamen involved, leaving open the question of punitive damages against United States Steel and compensatory damages against both shipowners. The issues as to damages were then split. The District Court awarded punitive damages but we reversed on appeal. United States Steel v. Fuhrman, 407 F.2d 1143 (6th Cir. 1969). To resolve the issue of compensatory damages, the District Court appointed two Commissioners to receive evidence and make findings. Five of the wrongful death claims and seven of the personal injury claims were the subject of the District Court proceedings. The District Court confirmed the Commissioners’ report and entered judgments in favor of all the claimants in the amounts determined by the Commissioners. On appeal, it was concluded, inter alia, that principles of maritime law governed and loss of consortium and loss of companionship to children were therefore not compensable. Certain psychiatric testimony was found to have been incompetent and the causes were remanded for a reevaluation and further findings on the basis of the record and the principles enunciated in that opinion. United States Steel Corporation v. Lamp, 436 F.2d 1256 (6th Cir. 1970). On remand, the District Court ordered that no further evidence be adduced, but allowed the proffer of the evidence into the record. A recomputation based upon this Court’s opinion was prepared and all exceptions and objections thereto were overruled. This action followed and concerns three death claims (two were settled since the previous hearing by this Court) and the seven personal injury claims. The total award for the ten claimants upon this appeal is $763,317.70 as compared to the total award of $1,-793,543.00 which was before this Court in the last appeal. Both the shipowners and the claimants have appealed the decision of the District Court. The shipowners concede the propriety of the death awards but appeal the personal injury awards. The claimants appeal all the awards as being inadequate.

Since the District Court’s implementation of our remand instructions is at issue on this appeal, we shall review at the outset some applicable principles. It is clear that when a case has been remanded, the trial court must upon the remand proceed in accordance with the mandate and law of the case as established by the appellate court. Ex parte Sibbald v. United States, 12 Pet. (37 U.S.) 488, 9 L.Ed. 1167 (1838); IB Moore’s Federal Practice § 0.404 [10] (2d ed. 1965). This is known as the “law of the case” doctrine and operates to preclude reconsideration of identical issues. The basis of the doctrine is that:

“ . . . ‘there would be no end to a suit if every obstinate litigant could, by repeated appeals, compel a court to listen to criticisms on their opinions or speculate of chances from changes in its members. [sic]’ Roberts v. Cooper, 20 How. [61 U.S.] 467, 481, 15 L.Ed. 969; and it would be impossible for an appellate court to perform its duties satisfactorily and efficiently if a question once considered and decided by it were to be litigated anew in the same case upon any and every subsequent appeal. Great Western Telegraph, 162 U.S. 339, 344, 16 S.Ct. 850, 40 L.Ed. 991.” General American Life Insurance Co. v. Anderson, 156 F.2d 615, 618 (6th Cir. 1946).

This doctrine is not, however, recognized as an inexorable command. Directed to a court's good sense so as to relieve a court of rigid adherence to its former decisions the doctrine includes consideration of the sound public policy that litigation be decided and then put to an end. Accordingly, we must find some cogent reason to show the prior ruling is no longer applicable. Lumbermen’s Mutual Casualty Co. v. Wright, 322 F.2d 759, 762 (5th Cir. 1963). Such reasons may include substantially different evidence raised on subsequent trial; a subsequent contrary view of the law by the controlling authority; or a clearly erroneous decision which would work a manifest injustice. White v. Murtha, 377 F.2d 428, 431-432 (5th Cir. 1968); cf. Trice v. Commercial Union Assurance Co., 397 F.2d 889, 890 (6th Cir. 1968). Appellants do not allege substantially different evidence nor do they claim our controlling authority has since issued contrary decisions. Thus, we consider as appropriate to our review only whether a clearly erroneous decision which would work a manifest injustice has been made.

I. CLAIMANTS’ APPEAL (No, 72-1667)

The thrust of the claimants’ appeal is that the District Court reduced the awards to “unconscionably inadequate” amounts. Each of the claimants’ three alleged errors will be treated separately.

A. Loss of Earning Capacity

First, claimants complain the District Court confused the loss of future earning capacity with the deprivation of past earnings. They argue that, in fixing the loss of earning capacity, the District Court erroneously averaged the past four years’ earnings and made this the basis for determining future earning capacity. They claim the District Court should have used the collective bargaining agreement, which covered the jobs held by the claimants, to ascertain the future earnings by projection. Their view is that past earnings should be considered only when there are no other factors to depict an economic horizon. We disagree.

We find that the claimants’ arguments regarding future earning capacity were impliedly rejected by this Court earlier:

“The claimant must first establish his normal annual earning capacity, which, in the absence of evidence of special circumstances indicating an ability to rise beyond his prior level of employment, would consist of a projection of claimant’s earnings history, taking into account all available data relevant to wage adjustment.” 436 F.2d at 1270 (re personal injury claims).
“As we have hereinabove indicated in connection with the personal injury claims, however, the base should be the higher of the year immediately preceding the incident or the average of the four years preceding it.” 436 F.2d at 1275 (re death claims).

In recomputing the personal injury and death claims, earnings history was selected as the base for determining lost earnings or earning capacity. This of course would be subject to change if the individuals had employment prospects other than their employment at the time of their death or injury. The record does not contain evidence of such prospects and claimants have not suggested otherwise.

As for the claimants’ argument that the collective bargaining agreement should have been relied upon, this Court previously pointed out that “ . . . the documentary evidence in the record in the form of the collective bargaining agreements under which the decedents would have continued to have been employed had they lived” showed an annual wage increase of approximately 1 %% per annum. This rate was used by the District Court in their recompu-tation. Claimants have persistently argued the bargaining agreement reflects a 4-5% increase. This was rejected previously and we must reject it again as unsupported by the agreement.

We can only conclude that the prior opinion clearly sets out the procedure to be followed by the District Court in determining the future earnings loss of both the death and the personal injury claims, and that these awards are not clearly erroneous.

B. Psychiatric Testimony

The claimants contend that the District Court erred in not granting a new trial in order for the claimants to introduce testimony upon the remand. In ordering the remand, this Court instructed the District Court “ . . .to make . . . [s]uch further findings and reevaluation ... on the basis only of the evidence herein held to have been properly received and in accordance with the principles herein enunciated.” 436 F.2d at 1272 (emphasis supplied).

Claimants argue that the rule of Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1968), requires that they be permitted to introduce new psychiatric evidence on the issue of the claimants’ damages in the District Court.

We find no merit to the claimants’ argument for several reasons. First, in Byrd v. Blue Ridge, supra, the petitioner sued in the District Court to recover for injuries allegedly caused by respondent’s negligence. Respondent asserted as an affirmative defense that petitioner was respondent’s employee for purposes of the State’s Workmen’s Compensation Act and that the Act provided the exclusive remedy. After hearing the respondent’s evidence on this issue, the trial judge struck the defense. In accordance with this ruling, the judge did not permit the petitioner to offer evidence on this issue. The Court of Appeals reversed as to the availability of the defense and, without a remand to receive evidence of the petitioner on the issue, made its own determination on the record and directed a judgment for the respondent.

The Supreme Court vacated the directed verdict and remanded to the District Court in order that the petitioner could present evidence in his favor on the issue. The stated reason for the remand was that the petitioner’s evidence, although irrelevant under the view of the law taken by the District Court, became relevant and necessary under the corrected interpretation of the defense.

In the instant case, instead of excluding testimony later found to be admissible, the District Court admitted evidence (the psychiatric testimony) which was later found inadmissible by this Court. Thus, it is clearly distinguishable from the situation where a decision was rendered without the aid of relevant and necessary evidence, as occurred in Byrd. Here, a decision was rendered with the aid of evidence which should not have been before the trial court. The Byrd decision is simply inapposite.

Yet, despite Byrd’s inapplicability to the instant case, it might be said that the usual remand where inadmissible evidence has been introduced requires the District Court to retry the case. However, that principle does not apply here.

This Court previously excluded the testimony of the claimants’ psychiatrist on the basis that he was consulted solely to gain qualification as a witness for the claimants; he was not consulted for the purposes of care or treatment. 436 F. 2d at 1263, citing Padgett v. Southern Railway Co., 396 F.2d 303, 308 (6th Cir. 1968).

Of course, the testimony of this psychiatrist could not subsequently become legitimatized by a change of his function to “treating psychiatrist” five years after the sinking of the Cedarville Similarly, the testimony of another “treating psychiatrist” consulted at that late date could have been no more than a sham attempt at circumventing the holding that testimony of a non-treating psychiatrist is inadmissible.

We conclude that there was no necessity for the reopening of proofs after the prior appeal and, a fortiori, no such necessity exists at this time. Nor do we find the presence of clear error.

C. The Awards

Lastly, the claimants contend “the awards were reduced to sums which deprive [them] of their lawful damages and are unconscionably inadequate.” We will discuss their claims regarding the death and personal injury cases separately.

1. Death Claims

Following the remand as ordered by this Court, the Commissioners recomputed the death awards. For example, they eliminated compensation for the loss of consortium and counsel to the widows; they eliminated the compensation for the loss of guidance and counsel to the adult emancipated children; they reduced the earnings bases in determining earning capacity loss for both the future and the four year period from incident to judgment. As a result, the total awards were substantially reduced from the original awards. The shipowners do not challenge the recomputed awards and have set aside the funds for their payment.

Claimants have cited the claim of the Fuhrman estate as being representative of their argument that the recomputed awards should be held invalid for being “unconscionably inadequate.” After the original trial, the District Court awarded $338,095 to the Fuhrman estate; on remand, the" figure was reduced to $137,-801. Claimants argue the award should be $776,400.39.

The claimants contest almost every calculation made by the Commissioners. Once again they attack the averaging of historical earnings for the period of four years from the incident to the judgment. They attack the date of judgment as being the date the District Court issued its judgment upon the remand and not the date the District Court issued its original judgment. They attack the application of the 1% % annual growth factor and seek a 5 % factor. They complain that an award for the value of decedent’s services around the house and the widow’s loss of counsel and guidance was improperly deleted. Amounts allocated to personal consumption by the decedent are questioned and, allegedly, the District Court has failed to adequately assess and include a long list of economic appendages such as overtime, holiday pay, vacation pay, bonus pay, annual service awards, pension and welfare benefits. Claimants also argue that the earning capacity is the amount of money which a claimant could earn if he worked full time.

Although we may agree with the claimants that the Commissioners’ efforts throughout this case were less than thorough and meticulous, we do not agree that all their calculations are susceptible to attack. An analysis of the elements of the figures advanced by the claimants demonstrates their vulnerability.

Regarding the calculation of Fuhr-man’s earning capacity loss, the Commissioners first used as a base the 1964 earnings of $5,889. Shipowner United States Steel objected on the basis that Fuhrman’s highest earnings ($7,044) occurred not in the year immediately preceding the incident (1964) but rather in 1963. Apparently the shipowners’ point is that the year immediately preceding the incident can be used only if it reflected the highest annual earnings of the four year period. It would appear the District Court acceded because an addenda changes the basis of the earning capacity loss to the 1961-64 average earnings of $5,645.

Our previous opinion required the District Court to use the higher of two earning periods as a base. The periods are: (1) the year immediately preceding the incident or (2) the average of the four years preceding the incident. 436 F.2d at 1275. A consideration of the year reflecting the highest annual earnings is simply not germane. Therefore, the original recomputation was improperly amended.

Also, in the recomputation the Commissioners apparently increased by the annual growth factor the estimated earnings for 1968-69 to obtain a base for future earning capacity loss. The objection to this was sustained by the District Court. The addenda made the correction by using, as the base, the estimated 1968-69 earnings without any increase. Our previous opinion did not instruct on the point and we cannot say that the method used is clearly erroneous. However, we consider these two adjustments regarding selection of a base for computing earning capacity loss as minor.

Regarding future losses, the claimants would have the Court compute a base rate of pay and fringe benefits as if they had worked on the ships twelve months per year every year. We reject this contention. The indisputable fact shown by the record is that the shipping business is seasonal; many months of the year there is not shipping at all. Thus, it is not appropriate to look at a monthly base rate of pay and fringe benefits and project the rates to a full working year as the claimants argue.

Claimants also include alleged losses that were specifically excluded by this Court in the prior appeal. For example, at page 23 of their brief, the claimants state that even though this Court excluded recovery for loss of Fuhr-man’s counsel and guidance to his wife, “ . . . there is evidence in the record showing that the decedent did counsel and guide his wife as to money matters and other matters affecting their home and lives. ...” The claimants then urge the addition of $3,000 per year for this item. Previously we rejected this argument on the basis that “ . there was no evidence . . . [that these services] could ‘only be supplied by the service of another for compensation,’ much less any showing [the service had] pecuniary value.” 436 F.2d at 1277-1278. Claimants have not convinced us that the rejection of these and other alleged losses constitute clear error. We again reject the claims.

Finally, the claimants use figures and percentages that they contend are more appropriate than those used by the Commissioners. It is, however, not the function of this Court to decide the more appropriate figure for the losses. Rather, the function is to determine whether the figures used by the District Court below are clearly erroneous. We do not find that level of error to be present.

2. Personal Injury

In the main, claimants’ arguments are repetitive. They again complain that earning capacity should not be limited to past earnings, that the psychiatric evidence was improperly deleted, and that the original awards were improperly stricken or reduced upon the remand.

For example, claimants argue that the amounts originally awarded for maintenance and cure were improperly stricken and cite Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), as authority. We are satisfied our previous opinion properly resolved this point. See, 436 F.2d 1270-1271. There we found “ . . . there is no objective evidence that any of the claimants resumed gainful employment for reasons other than their voluntary determination to do so, nor is there any evidence that any of the claimants made any request for medical attention which was wilfully ignored by United States Steel.” 437 F.2d at 1271. Claimants have presented nothing which has not been previously considered or which would warrant a reopening of our prior judgment.

II. SHIPOWNERS’ APPEAL (No. 72-1668)

As stated previously, the shipowners contest only the personal injury awards. The seven individual personal injury awards range in amounts from $14,000 to $92,733, with the aggregate accumulating $352,649.70. Originally, the District Court awarded a total of $997,332, with the individual awards ranging from $82,-160 to $251,976. See footnote 2, swpra. On this appeal, the shipowners contend the recomputed awards remain excessive and are not justified by the record.

A. Pain and Suffering for the Incident

The shipowners first complain that the awards for pain and suffering experienced during the sinking itself violate this Court’s mandate in that the amounts awarded three claimants are exactly the same as the original awards. The failure to alter the awards is inexplicable in view of our previous opinion that “ . . .we regard the awards for pain and suffering on the occasion of the sinking as excessive.” 436 F.2d at 1266.

B. Pain and Suffering from Incident to Judgment

Next, the shipowners complain that three claimants were improperly awarded damages for pain and suffering for the four year period from incident to judgment. With respect to these awards, we previously stated:

“However, also as in the case of the ‘For the May 7th event’ awards, the fact remains that although there is some evidence in the record as to the claimants’ discomfort for a past period, we conclude the amount of the awards to be excessive. . . . ” 436 F.2d at 1266-1267.

As in “A” above, these awards did not change upon the remand. There are no additional findings of fact and indeed the basis for the awards remain as elusive as we noted in our previous decision. The failure to follow the mandate of this Court constitutes a flagrant disregard of its specific directions. We have reviewed our previous opinion, 436 F.2d at 1265-1267, and we find the awards indicated in “A” and “B” above to be clearly erroneous.

C. Future Pain and Suffering

The shipowners also attack the award to two claimants for future pain and suffering. In our previous opinion we stated:

“The awards for future pain and suffering . . . present a similar picture [to the other claims for pain and suffering].” 436 F.2d at 1267.
“ . . . the awards to Mulka . based solely on the incompetent psychiatric testimony, must fail completely.” 436 F.2d at 1267.
Earnings lost 0
Days lost from work for causally related complaints after-June 3, 1965 14
Days of hospitalization 4
Surgery for causally related complaints
Number of claimants seeking medical treatment after June 1, 1965 (for claimed causally related complaints) 2
Number seeking psychiatric treatment 0
Total of medical and psychiatric expenses 0
Job advancements 5
Job demotions 0
“The awards to the other five claimants must fail in part also since it is clear that they were based in part on the incompetent psychiatric testimony.” 436 F.2d at 1267.

On the remand the District Court awarded Mulka $525 and reinstated the original award of $17,500 to Przybyla. Again, this disregard of our specific directions violates our mandate. We find these awards to be clearly erroneous.

D. Loss of Life’s Pleasures

Two claimants were awarded amounts for the loss of life’s pleasures. Despite this Court’s statement that “ . the awards for loss of life’s pleasures are so grossly excessive as to be clearly erroneous,” 436 F.2d at 1268, three of the awards were exactly the same on recomputation. As stated previously, satisfactory findings of fact are absent. We find the awards clearly erroneous.

E. Loss of Earning Capacity

In addition, four claimants were awarded amounts for their loss of earning capacity. At the outset, we note that our previous opinion set forth specific guidelines for computing such loss. We stated that the first step is to establish the claimants’ “normal annual earning capacity.” Next, we stated that “ . . . the claimant must establish the reduction, if any, in his earning capacity proximately resulting from the injury by showing the existence of some condition which demonstrably limits his opportunities for gainful activity.” 436 F.2d at 1270. Again we find there are no findings by the Commissioners and further we find a lack of support in the Commissioners’ report for findings. In fact, the record provides evidence that the parties increased their earnings in the years following the incident. There is no evidence to support the contention that earnings would have increased to an even higher level but for the injuries. Yet there were awards of $72,000; $36,-000; $29,000; and $18,400.

We vacate the awards for the reason that they are unsupported by the evidence in the record. Nowhere do we find evidence that any of these four claimants has had his earning capacity reduced as a proximate result of an injury arising out of the collision. The Commissioners’ report, as adopted by the District Court, does not provide any basis for the awards, nor can we. We find the awards to be clearly erroneous.

III. MODIFICATION OF THE AWARDS

Our prior opinion required the District Court, upon the remand, to reevaluate and recompute the awards “ . in accordance with the principles herein enunciated.” 436 F.2d at 1272 and 1280. As indicated above, the District Court has failed in several instances to follow those specific instructions. To specifically instruct the District Court for the second time would seem to be of little value and, accordingly we proceed to modify the awards entered on the remand.

There is no question of this Court’s inherent ability to modify a district court judgment and enter a final order thereon. As provided in part by 28 U.S.C. § 2106:

“The Supreme Court or any other court of appellate jurisdiction may . modify . . . any judgment, decree or order of a court lawfully brought before it for review. JJ

However, a question arises relative to the appropriate scope or standard for the modification of the District Court’s findings with respect • to damages; i. e., whether this Court can independently determine the appropriate amount of damages or whether it is constrained under the “clearly erroneous” standard for review.

McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954), settled that question when it stated that “[n]o greater scope of review is exercised by the appellate tribunals in admiralty eases than they exercise under Rule 52(a) of the Federal Rules of Civil Procedure.” 348 U.S. at 20, 75 S.Ct. at 8. Clearly, then, this Court is restricted to the “clearly erroneous” rule.

Therefore, in modifying an award entered by the District Court, this Court cannot merely exercise its independent judgment as to the proper damages, but can only modify to that maximum amount of damages which could have been awarded by the district court without constituting reversible error. See, Mitchell v. Evelyn C. Brown, Inc., 310 F.2d 420, 426 (1st Cir. 1962); cf., Traylor v. United States, 396 F.2d 837 (6th Cir. 1968).

IV. THE AWARDS

The compensatory damages to be discussed in this section include “loss of earning capacity,” “pain and suffering” and “loss of life’s pleasures.” By their nature, such items are inherently speculative.

The Commissioners assigned a per an-num figure to each item of injury and, having made a determination of duration, then multiplied that figure by the individual claimant’s life expectancy in the case of those found to be permanently injured and by a determined period of disability as to the others. A lump sum award based on common sense and experience would seem preferable were we the original triers of fact, but particularly since we are modifying only a portion of the awards, we do not choose to change the approach.

We have reviewed most if not all reported cases awarding pain and suffering damages resulting from maritime casualties. Among those cases is Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2d Cir. 1961), where a District Court awarded $300 per hour for pain and suffering to survivors of a sunken ship who were adrift in shark-infested waters for 46-50 hours with no food and water. The Court of Appeals found the $300 rate excessive and reduced the rate to $150 per hour. Additional sums were included for future pain and suffering.

In the Petition of the United States, 418 F.2d 264 (1st Cir. 1969), a seaman was washed overboard into water so cold that his arms and legs became numb and paralyzed. The seaman was in the water for some thirty minutes before he was hauled aboard a' boat where he then lost consciousness. The Court found that the seaman sustained a severe chronic neurosis as a result of the accident and awarded $10,000 for past and future pain and suffering.

In re Sincere Navigation Corp., 329 F.Supp. 652 (D.C.La.1971), concerned, in part, two seamen who were in inner compartments of their ships which began to flood and sink almost immediately after collision. Both men escaped and swam to a buoy where they were rescued some 45 minutes later. One man remained in the hospital for 4 or 5 days. His primary suffering was emotional; his physical injuries were relatively insignificant. The other spent 1% days in the hospital and was treated for minor cuts and a left shoulder injury. Each was awarded $10,000 for physical and mental pain and suffering.

These cases, while obviously in no sense controlling, serve to provide information as to awards which have been made in other jurisdictions on the basis of damages generally similar to those with which we are here concerned. We turn from them to a consideration of the individual claims before us.

A. Pain and Suffering

MICHAEL J. IDALSKI— Claimant Idalski almost did not get off the ship. As the ship started to capsize to the starboard, Idalski ran to the port lifeboat and tried to get in but the boat was swinging out and, being off balance, he was thrown into the water. He apparently floated on a bumper block for 45 minutes before being pulled up onto a life raft. He found his hands and feet numb. At the hospital he was x-rayed and treated for cuts and abrasions and discharged the same day. Idalski saw a U. S. Public Health doctor three times subsequent to the accident for treatment of his knee and elbow. On June 3, 1965, he resumed sailing aboard a U. S. Steel ship. From the time of his return to work and until the trial, Idalski did not miss a day of work due to an accident related injury nor did he seek medical assistance for any such injury. Claimant’s orthopedic expert testified to progressively disabling and pain producing injuries resulting from the accident. The orthopedic expert presenting the shipowners’ analysis disputed the findings, although he conceded a shoulder problem and did not dispute claimant’s report of pain in the shoulder. During the period from incident to trial, Idalski admitted he saw doctors on at least three occasions for items bearing no relation to the accident and each time failed to mention any effects of the accident.

We find the record indicates with reasonable certainty that Idalski incurred pain and suffering on the day of the accident and accordingly we affirm this award of damages to the extent of $8,000. For pain and suffering from the time of incident to date of judgment, we conclude that claimant was reasonably certain to experience pain and suffering from his injuries and accordingly we affirm the award to the extent of $6,000.

In this award, as well as the other awards for pain and suffering and loss of life’s pleasures, the Commission-ms in their recomputation considered the expert opinion testimony of the shipowners’ psychiatrist as evidence of mental disabilities. That testimony was provided in rebuttal to the claimants’ expert psychiatric opinion testimony which was previously held inadmissible. 436 F.2d at 1262-1265. Consequently, we view that testimony as irrelevant for the remand proceedings. Further, the reasons that dictated the inadmissibility of claimants’ forensic medical expert also require exclusion of the shipowners’ similar evidence.

WALTER TULGETSKE— Claimant Tulgetske jumped into a lifeboat, but as the ship began to capsize he jumped from it into the water. By his own estimate, he spent about thirty minutes in the water. Upon rescue, he was taken to the hospital, but he was discharged the same day. He complained of being numb and cold. His chest and arms were later noticeably black and blue. The medical testimony is fairly consistent in supporting the physical claims although the degree of disability is disputed. Examination revealed back limitations in the lumbar spine. Accordingly, we affirm the award to Tulgetske to the extent of $9,000 for pain and suffering incurred on the day of the accident.

BILLY R. HOLLEY — Claimant Holley was a hero of this accident. From the time of the collision until rescue, he displayed leadership in saving lives and tending to his comrades. Upon rescue, he was seen to be visibly shaking. There is no testimony, even from himself, indicating that he spent any time in the water. At the hospital he was treated for abrasions and dismissed the same day. Black and blue spots on his back and shoulder were noted. Later that day he complained of pain, called a doctor and returned to the hospital where he remained until discharge the next morning. X-rays revealed no broken bones and tests yielded negative results. The medical testimony indicated that Holley suffered a degeneration of the lumbo-sacral intervertebral disc. We find that the award to claimant Holley should be affirmed to the extent of $15,000 as damages for his pain and suffering on the date of the accident.

STANLEY P. MULKA — The Commissioners found a temporary partial mental disability for ten years from the date of the incident for claimant Mulka. The recomputation is apparently based on the testimony of the shipowners’ psychiatrist who offered that the incident aggravated pre-existing problems. As stated previously, this testimony will not support an award.

RONALD G. PIECHAN — In the case of claimant Piechan, claimant’s orthopedic expert diagnosed injuries to his knee joints and right hand. The shipowners’ orthopedic expert found a progressive arthritic condition but attributed it to aging. He did not diagnose the alleged right hand or right knee joint injuries. Piechan returned to work on May 24, about two and one-half weeks after the accident. He subsequently complained of pain in the leg and hand areas, sought medical advice on several occasions and received medication. He has not lost any time off from work. We affirm the award to the extent of $3,500 for pain and suffering incurred during the period from incident to judgment.

RAPHAEL A. PRZYBYLA— As to claimant Przybyla, the Commissioners found a permanent partial physical disability. The medical testimony indicated that this claimant’s injuries include back injuries and conceded that the injuries would result in pain. The medical authorities appeared consistent in their diagnosis of the injuries of this claimant, although they did disagree as to the degree of disability. Claimant had not missed any time from work between incident and judgment for medical reasons and had not sought medical treatment of any kind since the accident. A visit to the U. S. Public Health Service doctor two weeks after the incident was for examination purposes only.

We find it reasonably certain that claimant did incur pain and suffering from his physical disabilities during the period from incident to judgment and we therefore affirm the award to him to the extent of $4,000 as damages. As to future pain and suffering, we likewise find it reasonably certain that such pain and suffering may continue to provide some degree of limitation in the future. We therefore affirm the award of damages to the extent of $8,750 on this account.

B. Loss of Life’s Pleasures

As stated in our previous opinion, awards for this item are provided “ . . .to claimants who, by reason of their injury, are deprived of the opportunity to participate in the normal activities, social, athletic or recreational, in which a person without such injury could engage.” 436 F.2d at 1267. With this in mind, we shall consider the individual claims before us.

RONALD G. PIECHAN — Testimony has indicated that claimant Piechan suffered injury to his knees and his right hand. We find evidence in the record to support the finding that there was an impact on the normal activities in which claimant may have otherwise had opportunity to participate. We affirm the award to the extent of $3,600 for the period from incident to judgment.

RAPHAEL A. PRZYBYLA— Claimant Przybyla was awarded $10,000 for the loss of life's pleasures for the period from incident to judgment and $17,500 for future loss. We conclude that the medical testimony as referenced in our discussion of the pain and suffering awards would support a finding that claimant would experience some reduced ability to participate in normal social, athletic or recreational activities. Accordingly, we affirm the award of damages in the amount of $5,000 for the period from the incident to judgment and of $8,750 for the future loss of life’s pleasures.

C. Earning Capacity

As to the awards for the loss of earning capacity, we find.that none of the vacated awards regarding personal injury claims may be reinstated in any amount (See Section II, SHIPOWNERS’ APPEAL, part E., pp. 16-17). As stated therein, there is simply no basis for awards to these four claimants (Przybyla, Piechan, Holley and Tulgetske), as there is no evidence supporting a reduced earning capacity proximately related to their experience in the collision.

RAPHAEL A. PRZYBYLA — Claimant Przybyla had been sailing for only six months at the time of the accident. For the preceding 18 years, excluding a two-year tour of duty with the U. S. Army, he worked for his father. After the sinking, he returned to his father’s business at his father’s request and with an increase in salary. On January 1, 1968, claimant’s father entered semi-retirement and left actual control of the business to claimant.

RONALD G. PIECHAN — Claimant Piechan has continued to work for U. S. Steel since the accident. He had maintained the same position that he held for 12 years prior to the sinking. This is as far as he can go in his profession as long as he remains unlicensed.

BILLY R. HOLLEY — Claimant Holley has continued to work for U. S. Steel as a Stokerman, a position he held for the ten years prior to the accident. From August 1965 through 1967 (when this suit was originally filed), he had only one absence due to illness (a pre-existing hemorrhoid condition). He was elected a member of the union negotiating team by his shipmates and has served as the ship’s delegate since the accident.

WALTER TULGETSKE — Claimant Tulgetske has been sailing with U. S. Steel since the accident. In 1966, he was promoted to Chief Engineer with appropriate increase in earnings.

We have previously discussed certain corrections to the death awards for the loss of future earning capacity. The corrections refer to the calculation of an earning capacity base (See Section I, CLAIMANTS’ APPEAL, Part C, pp. 11-12). Applying those corrections, we modify the District Court’s award to Claimant Barbara Fuhrman so as to read “$139,276.” See pp. 27-28.

V. REDUCTION OF FUTURE DAMAGES TO PRESENT VALUE

The Commissioners discounted the awards of future damages at 4% compounded annually. Our application of their factors provides a significant variance from their reported results, and their meager explanation of the calculations gives us no clue as to the resolution of variance. We are simply unable to reconcile their calculations. We have therefore recalculated the present worth of each future damage award. Our present worth factor source is the Financial Compound Interest and Annuity Tables, Financial Publishing Co., Boston, 1st ed., 1947. As the most appropriate, we have chosen the table located therein at page 639 and entitled “Present Worth of 1 Per Period.” The rate is 4%, compounded annually. This table has been chosen since it is based on annual (or periodic) payments which is consistent with the per annum approach used by the Commissioners in determining damages. Our approach has been (1) to calculate the actual annual awards to each claimant and (2) to apply the present worth factor as selected from the table referenced above.

Regarding the factors selected from the table, it should be understood that the factor for any given period reflects the value as though a payment were made at the end of that period. Since the theory here is that a payment would be made at the beginning of the period, we have followed the standard actuarial practice of taking the factor for the prior period and adding the whole number 1 to the factor. For example, in looking at the claimant Fuhrman’s award for a period of 32 years, we note that the factor would be 17.873551 (rounded to six places) for period 32. However, we have adopted the factor for 31, which is 17.-588494, and added the whole number 1 to get a factor of 18.588494. This method, of course, benefits the claimant in that the year in which the award is received is not included in the discounting.

BARBARA J. FUHRMAN

A. Earning Capacity Loss — Mr. Fuhrman had a remaining work-life expectancy of 32 years. An annual earning capacity of $6,158 is used and a 2% factor for personal productivity and general economic growth is applied. For the first 15 years, the family unit has four members and decedent’s personal consumption during this period is calculated at 30 %. For the next two years the family has three members and a personal consumption rate of 40% is applicable. For the final 15 years just two members remain as the two children reach majority. The personal consumption rate is set at 50%.

1. 15 years x $6,158 $92,370

Deduct 30%, personal consumption 27,711

64,659

Add 15%, fringe benefits 9,699

74,358

Add 2%, growth 1,487

Total amount, 15 years 75,845

Average annual amount for the period 5,056

2. 2 years x $6,158 12,316

Deduct 40%, personal consumption 4,926

7^390

Add 15%, fringe benefits 1,108

8,498

Add 2%, growth 170

Total amount, 2 years 8,668

Average annual amount for the period 4,334

3. 15 years x $6,158 92,370

Deduct 50%, personal consumption 46,185

”46,185

Add 15%, fringe benefits 6,928

53,113

Add 2%, growth 1,062

Total amount, 15 years 54,175

Average annual amount for the period 3,611

4. Expressing the average amounts cumulatively:

$3,611 for each of the 32 years

$ 723 for each of the first 17 years

$ 722 for each of the first 15 years

5. Applying the present worth factors.

a. $3,611 for each of 32 years = $115,552

Present worth factor for 32 = 18.588494

(18.588494) ($3,611) = $67,123

b. $723 for each of 17 years = $ 12,291

Present worth factor for 17 = 12.652296

(12.652296) ($723) = $ 9,148

c. $722 for each of 15 years = $ 10,830

Present worth factor for 15 = 11.563123

(11.563123) ($722) = $ 8,349

d. Total future damages:

$115,522 + $12,291 + $10,830 = $138,673 Present worth of $138,673 =

$67,123 + $9,148 + $8,349 = $ 84,620

B. Decedent’s Counsel and Guidance to Minor Children:

1. James Arthur

$600 for each of 15 years = $9,000

Present worth factor for 15 = 11.563123

(11.563123) ($600) = $6,938

2. June Ann

$600 for each of 17 years = $10,200

Present worth factor for 17 = 12.652296

(12.652296) ($600) = $ 7,591

3. Total future damages-

$9,000 + $10,200 = $19,200

Present worth of $19,200 =

$6,938 + $7,591 = $14,529

C. Grand Total Future Damages:

$138,673 + $19,200 = $157,873

Present worth of $157,873 1=

$84,620 + $14,529 = $ 99,149

ELIZABETH HASKE

A. Earning Capacity Loss — Mr. Haske had a remaining work-life expectancy of 25 years. We have used an annual earning capacity of $8,438 and have adjusted for personal productivity and general economic growth by using a 2% factor. For the first 3 years there are five children and a 10% personal consumption rate for decedent is used; for the next two years, there are four children and a 15% consumption rate is used; the next year, three children and a 22% rate; the next 6 years, there are two children and a 28% rate; the next 3 years, one child and a 40% rate; the last 10 years, no children and a 50% rate is applied.

1. 3 years x $8,438 $25,314

Deduct 10%, personal consumption 2,531

22,783

Add 15%, fringe benefits 3,417

26,200

Add 2%, growth 524

Total amount, 3 years 26,724

Average annual amount for the period 8,908

2. 2 years x $8,438 16,876

Deduct 15%, personal consumption 2,531

14,345

Add 15%, fringe benefits 2,152

~16T497

Add 2%, growth 330

Total amount, 2 years 16,827

Average annual amount for the period 8,414

3. 1 year x $8,438 8,438

Deduct 22%, personal consumption 1,856

6,582

Add 15%, fringe benefits 987

7,569

Add 2%, growth 151

Total amount, 1 year 7,720

Average annual amount for the period 7,720

4. 6 years x $8,438 50,628

Deduct 28%, personal consumption 14,176

36,452

Add 15%, fringe benefits 5,468

41,920

Add 2%, growth 838

Total amount, 6 years 42,758

Average annual amount for the period 7,126

5. 3 years x $8,438 25,314

Deduct 40%, personal consumption 10,126

“Í5.188

Add 15%, fringe benefits 2,278

17,466

Add 2%, growth 349

Total amount, 3 years 17,815

Average annual amount for the period 5,938

6. 10 years x $8,438 $84,380

Deduct 50%, personal consumption 42,190

42,190

Add 15%, fringe benefits 6,328

~T8~518'

Add 2%, growth 970

Total amount, 10 years 49,488

Average annual amount for the period 4,949

7 Expressing the average amounts cumulatively:

$4,949 for each of the 25 years

$ 989 for each of the first 15 years

$1,188 for each of the first 12 years

$ 594 for each of the first 6 years

$ 694 for each of the first 5 years

$ 494 for each of the first 3 years

8. Applying the present worth factors:

a. $4,949 for each of 25 years = $123,725

Present worth factor for 25 - 16.246963

(16.246963) ($4,949) ^ $ 80,406

b. $989 for each of 15 years ■= $ 14,835

Present worth factor for 15 11.563123

(11 563123) ($989) = $ 11,436

c. $1,188 for each of 12 years $ 14,256

Present worth factor for 12 - 9.760477

(9.760477) ($1,188) $ 11,595

d. $594 for each of 6 years = $ 3,564

Present worth factor for 6 5.451822

(5.451822) ($594) $ 3,238

e. $694 for each of 5 years $ 3,470

Present worth factor for 5 . 4.629895

(4.629895) ($694) $ 3,213

f. $494 for each of 3 years $ 1.482

Present worth factor for 3 2 886095

(2 886095)($494) $ 1,426

g. Total future damages.

$123,725 -j- $14,835 4- $14,256 4

$3,564 -j- $3,470 + $1,482 ^ $161,332

Present worth of $161,332 --

$80,406 -4- $11,436 + $11,595 4-

$3,238 + $3,213 + $1,426 111,314

B. Decedent’s Counsel and Guidance to Minor Children:

1. Gregory Stanley

$600 for each of 3 years - $1,800

Present worth factor for 3 = 2.886095

(2.886095) ($600) = $1,732

2. Kenneth Raymond

$600 for each of 5 years - $ 3,000

Present worth factor for 5 4.629895

(4.629895) ($600) - $ 2,778

3. Alan Mitchell

$600 for each of 6 years — $ 3,600

Present worth factor for 6 5.451822

(5.451822)($600) ^ $3,271

4. Brian Keith

$600 for each of 12 years = $ 7,200 Present worth factor for 12 9.760477

(9.760477) ($600) -= $ 5,856

5. Steven Paul

$600 for each of 15 years — $ 9,000

Present worth factor for 15 = 11.563123

(11.563123) ($600) = $ 6,938

6. Total future damages:

$1,800 + $3,000 +

$3,600 + $7,200 + $9,000 = $24,600

Present worth of $24,600 =

$1,732 + $2,778 + $3,271 +

$5,856 + $6,938 = $20,575

C. Grand Total Future Damages:

$161,332 + $24,600 = $185,932

Present worth of $185,932 =

$111,314 + $20,575 = $131,889

MARION JONES

A. Earning Capacity Loss — Mr. Jones had a remaining work-life expectancy of 4 years. An annual earning capacity of $8,232 is used and we have adjusted for personal productivity and general economic growth by applying a 3% factor. There are four family members throughout this period. A personal consumption rate of 25% is also applied.

1. 4 years x $8,232 $32,928

Deduct 25%, personal consumption 8,232

24,696

Add 40%, fringe benefits 9,878

35,574

Add 3%, growth i 037

Total amount, 4 years 35,611

Average annual amount for the period 8,903

2. Applying the present worth factor:

$8,903 for each of 4 years — $ 35,612

Present worth factor for 4 = 3.775091

(3.775091) ($8,903) = $ 33,610

B. Decedent’s Counsel and Guidance to Minor Children:

1. Drew Allen

$1,000 for each of 10 years = $10,000

Present worth factor for 10 = 8.435332

(8.435332) ($1,000) = $8,435

However, only $600 was awarded for first 4 years; therefore, $1,000 — $600 = $400:

$400 for each of 4 years = $ 1,600

Present worth factor for 4 = 3.775091

(3.775091) ($400) = $ 1,510

Total Future Damages:

$10,000 - $1,600 = $8,400

Present worth of $8,400 =

$8,435 - $1,510 = $6,925

2. Rose Marie

$1,000 for each of 13 years = $13,000

Present worth factor for 13 = 10.385074

(10.385074) ($1,000) = $10,385

However, only $600 was awarded for first 4 years; therefore, $1,000 — $600 = $400:

$400 for each of 4 years = $ 1,600

Present worth factor for 4 = 3.775091

(3.775091) ($400) = $ 1,510

Total Future Damages:

$13,000 - $1,600 = $11,400

Present worth of $11,400 =

$10,385 - $1,510 = $ 8,875

3. Total Future Damages.

$8,400 + $11,400 - $19,800

Present worth of $19,800 =

$6,925 + $8,875 = $15,800

C. Grand Total Future Damages:

$35,612 + $19,800 = $55,412

Present worth of $55,412 --

$33,612 + $15,800 = $49,412

BILLY R. HOLLEY (34 year life expectancy)

A. Future Pain and Suffering:

$500 for'each of 34 years = $17,000

Present worth factor for 34 = 19.147646

(19.147646)($500) = $ 9,574

B. Loss of Life’s Pleasures:

$200 for each of 34 years $ 6,800

Present worth factor for 34 19.147646

(19.147646) ($200) $ 3,830

C. Grand Total Future Damages:

$17,000 + $6,800 $23,800

Present worth of $23,800 —

$9,574 + $3,830 $13,404

RAPHAEL PRZYBYLA (35 year life expectancy)

A. Future Pain and Suffering:

$250 for each of 35 years = $ 8,750

Present worth factor for 35 = 19.411198

(19.411198) ($250) = $4,853

B. Loss of Life’s Pleasures:

$250 for each of 35 years = $ 8,750

Present worth factor for 35 = 19.411198

(19.411198) ($250) = $4,853

C. Grand Total Future Damages:

$8,750 + $8,750 = $17,500

Present worth of $17,500 =

$4,853 -j- $4,853 = $ 9,706

RONALD G. PIECHAN (34 year life expectancy)

A. Future Pain and Suffering:

$300 for each of 34 years = $10,200

Present worth factor for 34 = 19.147646

(19.147646) ($300) = $5,744

B. Loss of Life’s Pleasures:

$100 for each of 34 years $ 3,400

Present worth factor for 34 19.147646

(19.147646)($100) $ 1,915

C. Grand Total Future Damages:

$10,200 + $3,400 $13,600

Present worth of $13,600 =

$5,744 + $1,915 $ 7,659

MICHAEL IDALSKI (19.2 year life expectancy)

A. Future Pain and Suffering:

$500 for each of 19.2 years = $ 9,600

Present worth factor for 19.2 = 13.754225

(13.754225) ($500) = $ 6,877

$500 for each of 10 years = $ 5,000

Present worth factor for 10 = 8.435332

(8.435332) ($500) = $ 4,218

B. Grand Total Future Damages:

$9,600 + $5,000 = $14,600

Present worth of $14,600 =

$6,877 + $4,218 = $11,095

WALTER TULGETSKE

A. Future Pain and Suffering:

$500 for each of 25.2 years ^ $12,600

Present worth factor for 25.2 = 16.321986

(16.321986) ($500) = $ 8,161

$500 for each of 15 years = $ 7,500

Present worth factor for 15 = 11.563123

(11.563123) ($500) = $ 5,782

$500 for each of 10 years — $ 5,000

Present worth factor for 10 — 8.435332

(8.435332) ($500) = $ 4,218

Total Future Damages:

$12,600 + $7,500 + $5,000 = $25,100

Present worth of $25,100 =

$8,161 + $5,782 + $4,218 = $18,161

B. Loss of Life's Pleasures:

$500 for each of 15 years = $ 7,500

Present worth factor for 15 ^ 11.563123

(11.563123) ($500) = $ 5,782

$500 for each of 10 years = $ 5,000

Present worth factor for 10 = 8.435332

(8.435332) ($500) = $ 4,218

$500 for each of 5 >cars $ 2,500

Present worth factor for 5 4.629895

(4.629895) ($500) $ 2,315

Total Future Damages:

$7,500 + $5,000 + $2,500 = $15,000

Present worth of $15,000 =

$5,782 + $4,218 + $2,315 = $12,315

C. Grand Total Future Damages:

$25,100 + $15,000 = $40,100

Present worth of $40,100 =

$18,161 4- $12,315 = $30,476

VI. CONCLUSION

The awards of the District Court are modified as set forth in this opinion and are summarized as follows:

Damages

Futuie Other Total

Bathara Fuhiman, Administratrix of the Estate of Arthur Fulnman, Deceased $ 99,149 $40,127 $139,276

Elizabeth Ilaske, Administratrix

of the Estate of Stanley Haske, Deceased 131,889 59,166 191,055

Marion Jones, Administratrix of the Estate of Eugene Jones, Deceased 49,410 46,710 96,120

Jerome Kierzek 14.000 14,000

Stanley Mulka 14.000 14,000

Raphael Pizybyln 9,706 19,000 28,706

Ronald Piechan 7,659 17,000 24,659

Billy Holley 13,404 29,000 42,404

Michael Idalski 11,095 14,000 25,095

Walter Tulgetske 30,476 37,000 67,476

CA750H

Interest shall attach to the awards as of the date of the original District Court judgment, May 7, 1969. See Swartz-baugh Manufacturing Co. v. United States, 289 F.2d 81, 85 (6th Cir. 1961).

      . The facts are detailed in Petition of Den Norske Amerikalinje A/S, 276 F.Supp. 163 (N.D. Ohio, 1967).

      Original Award Recomputation
      2. Barbara Fuhrman, Administratrix of the Estate of Arthur Fuhrman, deceased $338,095.00 $137,801.00
      Elizabeth Haske, Administratrix of the Estate of Stanley Haske, deceased 308.702.00 182,129.00
      Marion Jones, Administratrix of the Estate of Eugene Jones, deceased 149.414.00 90.738.00
      Jerome Kierzek 88,860.00 14,000.00
      Stanley Mulka 92.740.00 14.525.00
      Raphael Przybyla 196.288.00 69.327.00
      Ronald Piechan 82.160.00 37.065.00
      Billy Holley 251.976.00 92.329.00
      Michael Idalski 89,420.00 32,670.60
      Walter Tulgetske 195.888.00 92,733.10

      . See, generally, IB Moore’s Federal Practice §§ 0.404 [1], 0.404 [10] (2d ed. 1965).

      . White v. Higgins, 116 F.2d 312 (1st Cir. 1940).

      . See, generally, IB Moore’s Federal Practice § 0.404 [4] (2d ed. 1965).

      . United States of America and Interstate Commerce Commission v. United States Smelting, Refining and Mining Co., 339 U.S. 186, 70 S.Ct. 537, 94 L.Ed. 750 (1950).

      . 436 F.2d at 1275.

      . “The only apparent basis for such assumption on the part of the Commissioners was the testimony of expert actuaries and economists which tended generally to show that all wages tend to increase from 5% to 6% annually as the result of increased productivity and inflation. However, in making the assumption, the Commissioners apparently ignored the documentary evidence in the record in the form of the collective bargaining agreements under which the decedents would have continued to have been employed had they lived. Those agreements showed that the annual wage increase which the hourly employees would have been entitled to receive in the four years from date of death to the date of judgment approximated 114% per annum, not the 4% to 5% per annum increase found by the Commissioners.” 436 F.2d at 1275.

      . See also, 436 F.2d at 1266, 1267, 1268 and 1270.

      . In regard to the exclusion, the claimants state, “Although it is not stated in this Court’s opinion, it is assumed that the reason lay in the fact that the questions to the psychiatrist were not posed as hypothetical questions in accordance with the practice in the state courts of Ohio.” Claimants’ brief, p. 16. If this were the case, this Court would indeed have remanded with instructions to retry the case; this time with questions posed in the proper form. However, the basis for the exclusion is clearly elucidated in the opinion, 436 F.2d at 1262-1265.

      . On remand, the District Court followed this Court’s instructions with respect to the exclusion of the psychiatric testimony find refused to reopen the case for further proof. We note that the claimants’ proffer was virtually the same testimony of the psychiatrist presented in the original trial. On this narrow ground alone, this Court would be justified in rejecting the claimants’ argument that they should be able to retry their case.

      . The Cedarville sank on May 7, 1965. This Court’s opinion in the prior appeal was filed on December 23, 1970. Thus, there would be at least a 5% year period between the injury and the “treatment.”

      . It would seem that claimants had ample opportunity during the four year history of the trial to introduce all admissible testimony.

      . Welfare benefits include life insurance, sickness and accident insurance, and hospital and physician services.

      . One of the few items claimants accept is the figure approved for the decedents’ conscious pain and suffering. We previously stated: “The awards for pain and suffering in the death cases will not be disturbed.” 436 F.2d at 1276.

      . The lows: gross earnings of the decedents in the years prior to 1965 were as fol-
      FUHRMAN HASKE JONES
      1961 $4,632 $8,156
      1962 5,014 8,050 7,412
      1963 7,044 8,213 8,650
      1964 5,889 7,856 7,428
      4-yr. avg.: 5,645 8,069 7,872

      . As it turns out, only Fuhrman had an average earning less than the year immediately preceding the incident. See footnote 16, supra.

      . Alexandervieh v. Gallagher Bros. Sand & Gravel Corp., 298 F.2d 918 (2d Cir. 1961), cited by claimants, does not support their proposed method of calculating earnings.

      . Claimants intimate that the shipowners’ failure to voluntarily pay maintenance and cure caused the return to work by some claimants. This is unsupported by the record.

      . The shipowners support their argument in part with the following chart:

      . Our previous opinion expressly noted the failure of the Commissioners to satisfactorily set forth the basis of their awards. 436 E.2d at 1261-1262. We find, however, that the recomputation for this award and the others provides little more insight into the conclusary determinations as made by the Commissioners. Not only do we fail to find precise support for the present pain and suffering awards but we.fail to find any explanation for the divergence from our previous direction.

      . Since July 1, 1966, the Federal Rules of Civil Procedure have been expressly applicable to admiralty cases.

      . A partial collection of cases that have modified awards in admiralty and entered a final order thereon is as follows : Cates v. United States, 451 F.2d 411 (5th Cir. 1971) ; Alexandervich v. Gallagher Bros. Sand & Gravel Corp., 298 F.2d 918 (2d Cir. 1961) ; Moore-McCormack Lines, Inc. v. Richardson, 295 F.2d 583 (2d Cir. 1961) ; Texas Co. v. R. O’Brien & Co., 242 F.2d 526 (1st Cir. 1957) ; Imperial Oil Ltd. v. Drlik, 234 F.2d 4 (6th Cir. 1956) ; Menefee v. W. R. Chamberlin Co., 183 F.2d 720 (9th Cir. 1950).

      . Neither Idalski nor any of the other claimants were injured by the impact of the collision.

      . In calculating the annual earning capacity for the three death claimants, the Commissioners have applied the 1%% annual growth rate for each of the years 1965-1969 to the 1964 gross earnings of each decedent (see footnote 16, supra). The year 1969 marks the date of the original judgment and thus is the benchmark for calculating future earnings.


source: Caselaw Access Project

author: GEWIN, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Scott Eric HARRIS, Defendant-Appellant.
    No. 72-3120.
    United States Court of Appeals, Fifth Circuit.
    June 4, 1973.

      Louis Vernell, Miami, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Robert Norris Reynolds, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before WISDOM, GEWIN and CLARK, Circuit Judges.
   GEWIN, Circuit Judge:

On May 18, 1972, a two-count indictment was returned charging appellant Scott Harris with two violations of the Dyer Act. On August 2, 1972, Harris’ first trial resulted in a deadlocked jury; thus the district court declared a mistrial. Subsequently on August 15, a newly empaneled jury found Harris guilty of both counts. After denying Harris’ motion for a new trial, the district court sentenced him to 30 months on each count, the sentences to run concurrently.

The crucial issue presented by Harris on this appeal is whether the trial court erred in refusing to suppress the evidence allegedly seized by an officer of the Los Angeles City Police Department from the glove compartment of the stolen automobile which Harris possessed at the time of his arrest. A peripheral problem, but one which is necessarily interrelated with the legal resolution of this controversy, is the propriety of the district court’s decision to reconsider its previous order suppressing certain evidence on the Government’s representation that further testimony would clarify the circumstances surrounding the seizure. We affirm.

Prior to Harris’ first trial, he made a motion to suppress evidence seized at his arrest on the basis that the seizure was without probable cause and thus violated the fourth amendment. Accordingly, the lower court held a suppression hearing to determine whether the seizure by the arresting officers could pass constitutional muster.

Since there was admittedly no search warrant issued, the burden of proof was on the Government to sustain the validity of the arresting officers’ actions. It was incumbent on the Government to show that the circumstances surrounding the arrest eliminated the necessity for a search warrant. The Government presented only the testimony of Wolfgang P. Weinzierl, one of the arresting officers. Officer Weinzierl testified that on December 15, 1971, he and his patrol partner, Thomas Isgrigg, observed Harris, while he was driving a 1972 Lincoln Continental, make an illegal left turn off Van Nuys Boulevard in Pacoima, California. The officers pursued Harris and proceeded to issue him a routine traffic citation.

After the officers stopped the automobile, Harris alighted and walked to the rear toward the police cruiser. Both officers got out of the cruiser and in response to a request for his drivers license and automobile registration by Isgrigg, Harris presented his drivers license and Isgrigg commenced to write out the traffic citation.

While Isgrigg made out the citation, Weinzierl radioed for a cheek of Harris’ license plates to the National Crime Information Center (N.C.I.C.) to determine if they were stolen. Approximately a minute later the N.C.I.C. responded that the license plates were indeed stolen. Weinzierl testified that he immediately proceeded to the passenger side of Harris’ automobile and asked the other occupants to get out. They joined Harris at the rear of the automobile.

At this point, Harris was placed under arrest for auto theft. Weinzierl testified that Isgrigg then proceeded to search the glove compartment for registration and title papers. He removed the papers and displayed them to Wein-zierl who was standing behind him at the rear of the automobile with Harris and the other passengers. Weinzierl informed the lower court that neither he nor Isgrigg sought or was given permission for the glove compartment search.

Officer Weinzierl stated he further sent in the vehicle identification number of the 1972 Lincoln Continental which was on the automobile registration paper to verify his suspicions that it was stolen. Since the number had been altered, the N.C.I.C. replied that the number did not correspond with any stolen vehicle. Thus Weinzierl’s testimony revealed that even though Harris was arrested for grand theft of an automobile, an initial check negated this conclusion.

After reviewing the apparent facts underlying the search established by Wein-zierl's testimony, the trial court ordered the evidence seized from the vehicle’s glove compartment suppressed. The court concluded that once the officers decided to arrest Harris on the basis of the N.C.I.C. report and impound the automobile, the only issue which remained regarding fourth amendment search limitations was “whether or not there is time enough — that is, opportunity to obtain a search warrant.” Answering in the affirmative, the lower court concluded that under the factual circumstances presented a prior search warrant should have been obtained.

Harris’ first trial then ensued resulting in a mistrial. Prior to the second trial, the Government moved the trial court to reconsider its suppression order. At this second hearing the Government offered the testimony of Officer Isgrigg to sustain the validity of the contested search. Isgrigg testified that he requested Harris to give him the automobile registration papers so he could complete the traffic citation form. This request was made prior to Harris’ arrest. Isgrigg stated that Harris readily agreed to the request and they went to the passenger side of Harris’ automobile where his wife produced the papers from the glove compartment. Upon receipt of the registration papers, Isgrigg completed the citation. He placed Harris under arrest only after Weinzierl informed him the plates were stolen and removed the other occupants from the automobile, placing them under arrest. Following the arrests he determined that the automobile would have to be impounded and requested the trunk key from Harris so he could make a routine inventory of its contents. Harris replied that he had lost the keys but that the trunk lid could be raised by means of a button inside the glove compartment. Isgrigg got into the car and opened the glove compartment for the purpose of raising the trunk cover.

Thus by Isgrigg’s version of the arrest, the Government attempted to show that Harris had readily consented to a production of the automobile registration papers for the purpose of completing a routine traffic citation. At this hearing counsel for Harris strenuously objected to the testimony of Isgrigg asserting that it directly contradicted the testimony of Weinzierl given at the prior hearing. Harris’ counsel argued that the Government should not be allowed to impeach its own witness especially since the Government had not suggested that it was surprised by Weinzierl’s version at the previous suppression hearing. Defense counsel finally asserted that since the two officers’ testimony had completely discredited the Government’s attempt to prove that the search was permissible that the testimony given at the previous hearing by Harris and his wife should be given added weight.

The trial court noted that Isgrigg’s testimony had completely changed the complexion of the suppression issue. He observed that Isgrigg’s version was particularly relevant since he had dealt directly with Harris in issuing the citation, while Weinzierl was involved with other duties such as calling in the license plates to the N.C.I.C. The court decided to credit Isgrigg’s version noting that Weinzierl was not immediately present when the transfer of the registration papers occurred. . The court stated that it was a completely proper and customary procedure to request a driver’s automobile registration papers for the purpose of completing a traffic citation.

Harris here contends that the district court committed reversible error by entertaining the Government’s motion to reconsider the court’s previous suppression order. The basis for this assertion is that the Government was thereby improperly allowed to impeach one of its previous witnesses. Additionally by adopting literally Weinzierl’s version of the arrest, Harris contends that Isgrigg’s apparent seizure of the contents in the glove compartment violated the fourth amendment. After a painstaking and tedious review of the testimony given at both suppression hearings we perceive no error as a result of the district court’s reversal of its prior suppression order. Although conflicting in some respects, Isgrigg’s testimony is reconcilable with Weinzierl’s previous statements with respect to the crucial issue presented. Furthermore, giving credence to the testimony of Is-grigg removes the necessity of responding to Harris’ second contention.

First, viewing the testimony of both officers as a whole, we feel that their accounts of the circumstances surrounding the arrest are not necessarily in irreconcilable conflict and thus the Government did not impeach the testimony of its previous witness. We will not attempt to reconcile every statement given by Weinzierl with those of Isgrigg. They gave their testimony over eight months after the arrest and therefore it can not be expected that they could recall every detail of the arrest or reconstruct all of the events exactly alike. Further we note that Weinzierl was present when Isgrigg testified and it is rather perplexing that Harris never sought to call Weinzierl if he felt that somehow the Isgrigg version of the arrest was completely contradictory of the version formerly given by his fellow officer.

Integrating the testimony given by the two officers, we feel that the following summary adequately explains the circumstances surrounding the production of the registration papers. While Wein-zierl radioed in the license plate number, Isgrigg requested the registration papers so he could complete the traffic citation. Thus while Weinzierl busied himself on the radio, Harris’ wife produced the papers from the glove compartment at her husband’s request. The two men then returned to the front of the police cruiser where Isgrigg completed the citation.

After being informed by his partner that the license plates were stolen which led to the arrest of Harris, Isgrigg determined that the Lincoln Continental would have to be impounded and asked Harris for the trunk keys so he could make a routine inventory of the car’s contents. Harris responded that he had lost the keys but that the trunk cover could be raised by using a button in the glove compartment. Isgrigg proceeded to the glove compartment to open the trunk. Weinzierl mistakenly believed that his partner was at that time searching the glove compartment for the automobile registration papers since he had not witnessed the previous production of the papers by Harris’ wife. In short, it appears that Weinzierl correctly testified to what he saw at the scene of the arrest but merely misinterpreted the meaning of these objective acts.

The facts surrounding the search thus reveal that Harris consented to a production of the registration papers for the purpose of completing the traffic citation. Consent is a question of fact, and the lower court’s. determination of the facts which surrounded the instant arrest cannot be said to be clearly erroneous.

The judgment of the district court is affirmed.

      . Count one of the indictment charged that Harris had transported a stolen motor vehicle in interstate commerce in violation of 18 U.S.C. § 2312. Count two charged that Harris “did receive, conceal, store, barter, sell, and dispose of a stolen motor vehicle” in interstate commerce in violation of 18 U.S.O. § 2313.

      . See Coolidge v. New Hampshire, 403 U.S. 443, 455, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Williams v. United States, 382 F.2d 48, 50 (5th Cir. 1967).

      . We have no cause to review the correctness of the lower court’s conclusion. However, in view of the information from the N.C.I.C. that the license plates were stolen a strong argument could be made to sustain a search of the vehicle. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L. Ed. 543 (1925); United States v. Pearson, 448 F.2d 1207 (5th Cir. 1971); United States v. Johnson, 431 F.2d 441 (5th Cir. 1970) (en banc) affirming 413 F.2d 1396 (5th Cir. 1969); United States v. Jackson, 429 F.2d 1368 (7th Cir. 1970). At oral argument, in response to questions by the court, government counsel stated that the government did not appeal from the initial suppression order because the motion to suppress came late and the order was issued after the trial jury had been selected. The government felt that jeopardy had probably attached at that point.

      . In its motion to reconsider the government alleged, among other facts, the following :
      COMES NOW the United States of America by and through its undersigned United States Attorney and respectfully petitions this Honorable Court to reconsider its judgment entered on August 1, 1972, suppressing certain physical evidence in the above styled cause on the grounds that:
      1. Defendant’s Motion for Suppression was not filed nor did the government have knowledge of the contents of said motion until the day originally set down for trial.
      2. Any and all government witnesses who had knowledge of the events which were the subject of the suppression hearing resided in and had to come from the State of California.
      3. As a result of the untimely filing of defendant’s motion the government was unaware of any problems which might arise concerning the suppressed evidence for the reason that the suppressed documents had never been put in issue prior to filing of the suppression motion.
      4. The witnesses having knowledge of the seizure of the suppressed physical evidence had not been interviewed with respect to said seizure prior to the filing by defendant of his suppression motion for the reason that any and all pretrial motions by defendant were ordered due by United States Magistrate Peter R. Palermo within twelve days of said magistrate’s order of July 11, 1972, to-wit: July 23, 1972, and the motion by defendant not being filed until eight days thereafter.

      . At the first suppression hearing Harris testified that Isgrigg had removed the registration papers from his glove compartment after he was arrested and handcuffed.

      . See Perkins v. Henderson, 418 F.2d 441, 442 (5th Cir. 1969); Landsdown v. United States, 348 F.2d 405, 410 (5th Cir. 1965).

      . See United States v. Resnick, 455 F.2d 1127, 1133 (5th Cir. 1972).


author: DUNIWAY, Circuit Judge:

text:
    Richard A. HANDVERGER et al. Plaintiffs-Appellants, v. Richard A. HARVILL et al., Defendants-Appellees.
    No. 71-1557.
    United States Court of Appeals, Ninth Circuit.
    May 22, 1973.
    Rehearing Denied June 13, 1973.
    W. Edward Morgan (argued), William Messing, of Messing & Hirsh, Tucson, Ariz., for plaintiffs-appellants.
    Thomas Chandler (argued); of Chandler, Tullar, Udall & Richmond; Lesher & Scruggs, Tucson, Ariz., for defendants-appellees.
    Before BARNES, DUNIWAY and TRASK, Circuit Judges.
   DUNIWAY, Circuit Judge:

OPINION

Plaintiffs brought this action in the district court under 42 U.S.C. § 1983 and 28 U.S.C. § 1343. The district court held for the defendants, and the plaintiffs appeal. We affirm.

The seven appellants claim that they suffered damages when they were prevented from holding a meeting styled a “Vietnam Commencement” on the grounds of the University of Arizona. Six of the appellants were students or professors at the university; one was on the faculty of another university and was to be a guest speaker at the “commencement”. The appellees were officials of the university.

In early May of 1968, a reservation for May 29 was made on behalf of the Student Peace Association (SPA), a recognized campus group, for the senior ballroom located on the campus. The purpose of the reservation was to set aside a time and place for the “commencement.” The “commencement” was to honor those draft-eligible men of the university who signed pledges not to serve in the armed forces until the United States was no longer involved militarily in Southeast Asia. Also to be honored were those persons, not eligible for the draft, who pledged their support to those pledging to refuse induction. Various speakers were to be featured, most of them from the university community. On about May 7, approximately 2,200 invitations to the “commencement” were mailed to senior and graduate students at the university. These invitations contained the statement, “please feel free to invite your parents, relatives, and friends.”

At about this time appellee Johnson, vice president of the university in charge of community relations, learned of the planned activity. After consultation with appellee Harvill, president of the university, Johnson cancelled the reservation. It was felt that the reservation was improperly made, that use of the term “commencement” might mislead the public to the conclusion that the university was sponsoring the event, that the activity might touch off violence, and that the event probably involved illegal activity. Later, Johnson met with leaders of the SPA. They said that they would be willing to change the name of the event from “commencement” to “convocation,” and would be willing to limit the meeting to faculty and students. However, Johnson refused to change his mind. The court found that Johnson acted in good faith.

The SPA then tried to arrange to hold the “commencement” off campus. A local church agreed to make its facilities available. This offer was withdrawn just a few days before the event was to be held.

On the morning of May 28, 1968, appellant Axler, a leader of the SPA, telephoned President Harvill to see whether the “commencement” could be held on campus after all. Harvill refused, for the reasons discussed above. Later that same morning Axler had delivered to Harvill a letter informing him that the SPA intended to use the campus for the ceremony, whether permission was granted or not. Harvill got in touch with ap-pellee Hall, a lawyer and advisor to the Board of Regents and administration, and showed him the Axler letter. Har-vill told Hall that if he, Harvill, could legally stop the “commencement” from taking place on university property, he wanted to do so. He asked Hall to find out if this could be accomplished. Hall talked with various university officals, and then talked again with Harvill. He told Harvill that in his opinion the activity would likely violate federal law, and that he was going to discuss the matter with the office of the Attorney General of the State of Arizona. The Attorney General is by statute legal ad-visor to the University of Arizona Board of Regents and administration. Hall talked with the Attorney General’s office, and was told to take the matter up with William Kimble and Robert Lesher, attorneys who were special assistants to the Attorney General.

That afternoon a meeting was held involving Kimble, Lesher, Johnson, Hall, and other university officials. Harvill was not present. At the meeting various manners of responding to the threatened “commencement” were discussed, including the use of a temporary restraining order. Another meeting was held the next morning, May 29, involving substantially the same group. By the end of that meeting a final decision had been made to seek a restraining order. The court found that this decision was made independently by Lesher and Kimble on the basis of the information that they had been given. The basis of the decision was their opinion that the “commencement” would involve illegal activity. The decision had the approval of the administration officials present. A Superior Court judge issued a temporary restraining order at about 1:30 P.M. on May 29, in response to a complaint drawn up by Kimble and Lesher. The judge handled the request on an ex parte basis.

When the appellants and others arrived at the campus that evening, they were served with a temporary restraining order restraining them from entering the campus. The group did not try to enter the campus, but instead assembled at an area near a student union building, which they apparently believed was not university property. There the group attempted to begin the ceremony, but were informed that they were on university property and were asked to leave. Subsequently the group, by then substantially reduced in number, assembled at a public park where the “commencement” was held. There were no incidents of violence.

Appellants argue that the action of the university officials deprive them of their constitutional rights of free speech, association, and assembly. Appellees contend, inter alia, that they should not be held liable because their actions were taken in good faith. We agree.

The activity which the appellants were hoping to carry out arguably involved illegal activity. The invitation to the “commencement” stated as much. In relevant part the invitation reads:

“If you are a student who opposes the American involvement in Vietnam, and if you have decided not to participate in the war, we ask that you sign a pledge [‘Our war in Vietnam is unjust and immoral. As long as the United States is involved in this war I will not serve in the Armed Forces.’] to refuse induction, return it to Campus Draft Opposition, and attend a special university convocation — Vietnam Commencement — in honor of all such signers at the University of Arizona.
“If you are a faculty member, we ask you to consider pledging your support to students whom [sic] freely choose not to serve [‘Although I am not subject to the draft, my opposition to our government’s policy in Vietnam compels me to support those draft eligible Americans who have pledged to refuse induction. ... I pledge to support these young Americans with encouragement, counsel, and financial aid.’] and to attend the Vietnam Commencement to honor those students who have demonstrated their moral courage and integrity by signing a pledge to refuse induction. While we consider this an exercise of our 1st, 13th, and 14th amendment rights, both the signing of the faculty pledge and the performance of the acts described in it may be legally construed to be a felony as specified in the Universal Military Training & Service Act. The possibility of such charges being brought against any and all signers is subject to unpredictable political circumstances. The risks may be considerable, but we believe that the costs of inaction are far greater.” [Emphasis in original.]

50 U.S.C. App. § 462(a) provides in relevant part:

“[A]ny person . . . who knowingly counsels, aids, or abets another to refuse or evade registration or service in the armed forces . shall ... be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment. ft

Those conducting the “commencement” might be considered to have been counseling others — the draft-eligible group— to refuse induction. Those in the second group signing pledges might be considered as agreeing to carry out illegal activity — supporting others deciding to refuse induction.

Thus, the opinions of Hall, Kimble, and Lesher that the “commencement” would probably involve illegal activity were arguably well founded. Furthermore, there had been numerous threats made to Harvill, Johnson, and other administration officials that violence would occur if the “commencement” were to take-place. In this situation Harvill determined to stop the “commercement” if he could do so legally. He put the matter in the hands of Hall, a lawyer, who in turn sought the advice of two assistants from the Attorney General’s office, Kimble and Lesher. It was the opinion of Kimble and Lesher that the proposed activity would violate federal law, and also that in the circumstances a temporary restraining order prohibiting the activity from taking place was proper. The court’s findings make it clear that all defendants acted in good faith.

The defense of good faith to an action brought under 42 U.S.C. § 1983 is a recognized one. In Pierson v. Ray, 1967, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288, police officers arrested sit-in demonstrators for violating a state statute. The state statute was subsequently found unconstitutional. The Supreme Court held that the defense of good faith and probable cause was available to the officers in an action brought under 42 U.S.C. § 1983. The Court reasoned that the officers could not be required to predict the constitutionality of the statute. See also Dodd v. Spokane County, 9 Cir., 1968, 393 F.2d 330, 335; Wilhelm v. Turner, 8 Cir., 1970, 431 F.2d 177, 182-183; Gillibeau v. Richmond, 9 Cir., 1969, 417 F.2d 426, 429 n. 3; Banish v. Locks, 7 Cir., 1969, 414 F.2d 638. Here Harvill and the other university officials were obviously in a dilemma. They could stop the activity, and possibly abridge the “commencement” group’s constitutional rights. Or they could permit the activity, which they had been advised by counsel was probably illegal, to take place on campus. Their quandary was closely analogous to that of the police officers in Pierson.

That Harvill and other university officials acted in good faith is obvious. Fearing that the “commencement” would engender violence and involve violations of federal law, they turned the matter over to appropriate counsel. Counsel confirmed their fears of likely illegal activity, and advised that a temporary restraining order would be a proper means to prohibit its occurrence. We hold that the defense of good faith is available to appellees.

Affirmed.

      . There is a dispute over whether the reservation was properly made. The reservation was made through the Campus Draft Opposition Committee, not a recognized campus group. Appellants contend that this organization was but a subcommittee of the SPA, acting on behalf of SPA. "We will assume that the reservation was properly made, and that whatever activities were undertaken by the Campus Draft Opposition Committee were undertaken by the SPA.

      . The appellants have been careful to point out that with respect to the first group pledges were sought only from among those who had already decided not to participate in the war effort.

      . Specifically, that it would violate 50 U.S.C. App. § 462(a).

      . Sellers v. Regents of University of California, 9 Cir., 1970, 432 F.2d 493, involved facts similar to those here. In Sellers the challenge was to the constitutionality of a university regulation which prohibited illegal activity on campus. Acting under this regulation, and upon advice of counsel that the impending “Vietnam Commencement” involved illegal activity, university officials denied use of university jjroperty for the “commencement.” The court held that the regulation was neither unconstitutional on its face nor as applied.


author: BREITEN STEIN, Circuit Judge.

text:
    E. R. REID et al., Plaintiffs-Appellants, v. INTERNATIONAL UNION, UNITED AUTOMOBILE, AEROSPACE AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-AFL-CIO), DISTRICT LODGE 1093, Defendant-Appellee.
    No. 72-1596.
    United States Court of Appeals, Tenth Circuit.
    Argued and Submitted March 24, 1973.
    Decided May 24, 1973.
    Rehearing Denied June 15, 1973.
    Stephen I. Schlossberg, Detroit, Mich. (John A. Fillion, M. Jay Whitman, Detroit, Mich., Ungerman, Grabel, Unger-man & Leiter, Tulsa, Okl., and Rauh & Silard, Washington, D. C., of counsel, on the brief), for defendant-appellee.
    Jonathan C. Gibson, San Diego, Cal. (Rex H. Reed, Gall, Lane, Powell & Kil-cullen, Washington, D. C., Gibson & Kennerson, San Diego, Cal., and Kothe & Eagleton, Tulsa, Okl., on the brief), for plaintiffs-appellants.

      Before BREITEN STEIN and DOYLE, Circuit Judges, and DUR-FEE, Judge, Court of Claims.

       Sitting by designation.

   BREITEN STEIN, Circuit Judge.

Plaintiffs-appellants, nonunion employees of McDonnell Douglas Corporation, sued defendant-appellee International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW-AFL-CIO), District Lodge 1093, for declaratory judgment, injunctive relief, and damages, and alleged that over their objections, the Union wrongfully spent for political and ideological purposes agency fees which they were compelled to pay to the Union under a collective bargaining agreement between the Union and their employer. The trial court granted summary judgment in favor of the Union.

This case is here for the second time. The complaint named both the Union and the employer McDonnell Douglas as defendants. The trial court dismissed the action against the Union on the ground that the preemption doctrine created exclusive jurisdiction to hear the matter in the National Labor Relations Board and dismissed the employer because of the failure of the complaint to state a claim for which relief could be granted. In Reid v. McDonnell Corporation, 10 Cir., 443 F.2d 408, we affirmed the dismissal of the employer and reversed the dismissal of the Union. With regard to the Union we held, Ibid, at 412, that jurisdiction “conceivably” exists under Vaca v. Sipes, 386 U.S. 171, 87 S.Ct. 903, 17 L.Ed.2d 842, and like cases. In so holding we noted that we did not intimate that the plaintiffs have asserted a meritorious claim and that to establish a breach of the duty of fair representation the plaintiffs must show the “union’s conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.” 443 F.2d at 412, n. 13.

In 1965 and 1968, the employer or its predecessor and the Union made collective bargaining agreements which included provisions for an agency shop. As a condition of continued employment, employees were required either to be a member of the Union and pay Union dues or to pay to the Union monthly agency shop fees equivalent to the dues which Union members paid. The plaintiffs are not members of the Union. They allege that the Union used a portion of their compulsory agency fees in the support of political and economic doctrines, ideologies, and legislative programs to which they are opposed and which were not reasonably necessary to collective bargaining.

The Union concedes (1) it spends compulsory agency fees and union dues for the support of candidates for state and local office and for legislative, educational, citizenship, and social objectives of the Union, (2) it stands in a fiduciary relationship to plaintiffs and owes them the duty of fair representation, and (3) an employee who must pay agency fees as a condition of continued employment and who objects to the use of a portion of his fees for political and ideological purposes with which he disagrees has a right, after specifically informing the Union of his objection, to request and receive a pro rata rebate.

For several years before the filing of the complaint in November, 1967, the constitution of the Union provided that a member could divert the portion of his dues allocated to the “Local and International Citizenship' Funds” into a nonpartisan citizenship organization. In 1968 the Union replaced this provision with one which gives both a member and a payer of agency fees an intra-union remedy whereby he can receive a pro rata rebate of that portion of his dues or fees spent for political and ideological causes to which he objects. Identical language is found in the currently effective 1970 constitution of the Union. Another provision of the constitution gives nonmembers covered by agency shop clauses “all the material benefits to which members are entitled.” Thus, the rebate procedure is available to each of the plaintiffs. None of them have tried to utilize it or to exhaust appeal procedures available under the Union constitution. Those procedures culminate in the Public Review Board which is provided by the Union constitution and which is made up of seven persons not associated with the Union.

The Supreme Court has held that an agency shop arrangement which leaves union membership optional with employees but requires, as a condition of continued employment, nonunion employees to pay to the union sums equal to the dues of union members is not prohibited by §§ 7 and 8 of the National Labor Relations Act, 29 U.S.C., §§ 157 and 158, and that § 8(a)(3), 29 U.S.C. § 158(a)(3) does not prohibit such an arrangement. National Labor Relations Board v. General Motors Corp., 373 U.S. 734, 735, 83 S.Ct. 1453, 10 L.Ed.2d 670. In upholding federal jurisdiction in the instant case we expressed no opinion on whether the plaintiffs had asserted a meritorious claim, 443 F.2d at 413, n. 13, and cited Vaca v. Sipes, 386 U.S. 171, 190, 87 S.Ct. 903, 17 L.Ed.2d 842.

Plaintiffs argue that the Union breached the fair representation duty by the unlawful misappropriation of agency fees for political and ideological expenditures objectional to them. The first question is the lawfulness of this use of the fees. In Machinists v. Street, 367 U.S. 740, 770, 81 S.Ct. 1784, 6 L.Ed,2d 1141, the Supreme Court held that § 2 of the Railway Labor Act, 45 U.S.C. § 152, forbade the exaction of funds from members for the support of political causes to which they objected. This decision was followed by Railway Clerks v. Allen, 373 U.S. 113, 83 S.Ct. 1158, 10 L.Ed.2d 235, which discusses the relief which might be granted a dissenter in an appropriate case. Ibid. at 120-123, 83 S.Ct. 1158. The dissenter must make his objection known to the union, and it has the burden of establishing what percentage of total union expenditures are for political purposes. The opinion suggests that a decree might order refund of the exacted funds in the proportion that union political expenditures bear to total union expenditures and a reduction of future exactions by the same proportion. As to the latter, the court recognized the practical difficulty caused by fluctuating expenditures. Ibid, at 122, 83 S.Ct. 1158. The opinion concluded by reminding the parties “of the availability of more practical alternatives to litigation for the vindication of the rights and accommodation of interests here involved.” Ibid. at 124, 83 S.Ct. at 1164.

The Street and Allen decisions were under the Railway Labor Act. We are concerned with the National Labor Relations Act. Our first decision in this case recognized the difference and said that we cannot agree that the rationale of the Railway Act cases applies to the present controversy. 443 F.2d at 410-411. On this appeal the Union does not rely on the difference between NLRA and RLA. Instead, it says that in recognition of the RLA cases it has adopted a complying intra-union remedy.

The 1968 amendment to the Union constitution provides that any member may object to the expenditure of a portion of his dues for “activities or causes primarily political in nature.” The proportion of dues spent for political purposes is determined by a committee of the International Executive Board. Objections must be made to the International Secretary-Treasurer and renewed annually. If an objector is dissatisfied with the porportional allocation or the disposition of his objection he has appeal rights which culminate in the Public Review Board made up of nonunion personnel. Nonmembers covered by agency shop contracts have the rights of members.

We are not impressed by the plaintiffs’ attacks on the remedy which the Union has provided. We believe that it is a good faith effort to comply with the teachings of Street and Allen. No plaintiff has tried to utilize the procedure. We do not know how it will work in actual practice. We are not confronted with any dispute over its application or operation. Our problem is whether the record supports a claim of unfair representation.

Our first decision holds that plaintiffs’ claim of unfair representation is sufficient to establish jurisdiction in the federal courts under the doctrine of Vaca v. Sipes, 386 U.S. 171, 87 S.Ct 903, 17 L.Ed.2d 842. 443 F.2d at 411-412. It did not determine the merit of that claim. The question of merit must be determined under the standards mentioned in Vaca, 386 U.S. at 190, 87 S.Ct. 903, and those stated in the later decision of Motor Coach Employees v. Lockridge, 403 U.S. 274, 299, 301, 91 S.Ct. 1909, 29 L.Ed.2d 473. If those standards are not met, the claim of unfair representation falls. The standards are whether union conduct is arbitrary, discriminatory, or in bad faith, 386 U.S. at 190, 87 S.Ct. 903, and whether there is fraud, deceit, dishonest conduct, or discrimination that is intentional, severe, and unrelated to legitimate union activities. 403 U.S. at 299, 301, 91 S.Ct. 1909.

In the record before us we find no facts establishing discrimination, fraud or dishonesty. Plaintiffs, by speculative, conclusionary, and argumentative statements condemn the Union remedy as unfair, unreasonable, and unworkable. Those statements do not suffice to create an issue of fact. Bumgarner v. Joe Brown Company, 10 Cir., 376 F.2d 749, 750, cert. denied, 389 U.S. 831, 88 S.Ct. 99, 19 L.Ed.2d 90, and Applegate v. Top Associates, Inc., 2 Cir., 425 F.2d 92, 96. We have no concrete particulars to sustain any of the elements which the Supreme Court says are pertinent to a claim of unfair representation. At the most the statements are conjectures as to how the union remedy might work in imagined circumstances.

We attach no significance to the fact that the Union remedy is provided by a constitutional amendment adopted during the pendency of this litigation. It may be true that the Union saw the handwriting on the wall and decided that under Street and Allen some remedy must be made available. The question is whether that remedy, on its face, negates the unfair representation charge. We believe that it does.

This conclusion makes it unnecessary to decide whether exhaustion of union remedies is a prerequisite to court action, or whether the trial court erred in not permitting the case to proceed as a class action. The question of the plaintiffs’ right to amend their complaint or to file a supplemental complaint is committed to the discretion of the trial court. Rule 15(a) and (d), F.R.Civ.P.; Arp v. United States, 10 Cir., 244 F.2d 571, 574, cert. denied, 355 U.S. 826, 78 S.Ct. 34, 2 L.Ed.2d 40. The record shows no abuse of that discretion.

Affirmed.

      . Art. 16, § 7 of the 1968 constitution reads:
      “Any member shall have the right to object to the expenditure of a portion of his dues money for activities or causes primarily political in nature. The approximate proportion of dues spent for such political purposes shall be determined by a committee of the International Executive Board, which shall be appointed by the President, subject to the approval of said Board. The member may perfect his objection by individually notifying the International Secretary-Treasurer of his objection by registered or certified mail; provided, however, that such objection shall be timely only during the first fourteen (14) days of Union membership and during the fourteen (14) days following each anniversary of Union membership. An objection may be continued from year-to-year by individual notifications given during each annual fourteen (14) day period.
      “(b) If an objecting member is dissatisfied with the approximate proportional allocation made by the committee of the International Executive Board, or the disposition of his objection by the International Secretary-Treasurer, he may appeal directly to the full International Executive Board and tlie decision of the International Executive Board shall be appealable to the Public Review Board or the Convention at the option of said member.”