author: HAYS, Circuit Judge:

text:
    NATIONAL ASSOCIATION OF INDEPENDENT TELEVISION PRODUCERS AND DISTRIBUTORS, Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. WESTINGHOUSE BROADCASTING COMPANY, INC., Petitioner, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. WARNER BROS., INC., and Columbia Pictures Industries, Inc., Petitioners, v. FEDERAL COMMUNICATIONS COMMISSION and United States of America, Respondents. American Broadcasting Companies, Inc., et al., Intervenors.
    Nos. 1026, 1027 and 1047, Dockets 74-1168, 74-1283 and 74-1348.
    United States Court of Appeals, Second Circuit.
    Argued April 5, 1974.
    Decided June 18, 1974.

      Katrina Renouf, Washington, D. C. (Margot Polivy, Edward J. Kuhlmann, and Renouf, McKenna & Polivy, Washington, D. C., on the brief), for petitioner National Association of Independent Television Producers and Distributors.
    John D. Lane, Washington, D. C. (J. Carter McKaig, Ramsey L. Woodworth, and Hedrick & Lane, Washington, D. C., on the brief), for petitioner Westinghouse Broadcasting Co., Inc.
    Stuart Robinowitz, New York City (Theodore C. Sorenson, George P. Felle-man, Donald E. Brown, and Paul, Weiss, Rif kind, Wharton & Garrison, Jerome S. Boros and Fly, Shuebruk, Blume & Gaguine, New York City, on the brief), for petitioners Warner Bros., Inc. and Columbia Pictures Industries, Inc. and intervenors National Committee of Independent Television Producers and Samuel Goldwyn Productions.
    Ronald S. Konecky, New York City (Hardee, Barovick, Konecky & Braun, New York City, Peter Bierstedt and Pierson, Ball & Dowd, Washington, D. C. , on the brief), for intervenor Time-Life Films, Inc.
    Arthur Schemer, Washington, D. C. (Robert D. HadLand Wilner & Scheiner, Washington, D. C., on the brief), for intervenor MCA, Inc.
    Kenneth A. Cox, Washington, D. C., for Sandy Frank Co. as amicus curiae.
    Thomas N. Frohock, Washington, D. C. (James A. McKenna, Jr. and McKenna, Wilkinson & Kittner, Washington, D. C., on the brief), for intervenor American Broadcasting Companies, Inc.
    J. Roger Wollenberg, Timothy B. Dyk, Sally Katzen, and Wilmer, Cutler & Pickering, Washington, D. C. and Eleanor S. Applewhaite, New York City, on the brief, for intervenor Columbia Broadcasting System, Inc.
    Joseph A. Marino, Associate Gen. Counsel, Federal Communications Commission (Daniel R. Ohlbaum, Acting Gen. Counsel, Daniel M. Armstrong and Philip V. Permut, Counsel, Federal Communications Commission, Washington, D. C., on the brief), for respondents Federal Communications Commission and United States of America.
    Thomas E. Kauper, Asst. Atty. Gen., and Howard E. Shapiro, Atty., Dept, of Justice, Washington, D. C., on the brief, for United States of America.

      Before HAYS, and OAKES, Circuit Judges, and CHRISTENSEN, District Judge.

       Of the United States District Court for the District of Utah, sitting by designation.

   HAYS, Circuit Judge:

This action comes to us on petitions to review an order of the Federal Communications Commission which amended the Prime Time Access Rule (PTAR). 47 C.F.R. § 73.658(k) (1973). We hold that the Commission failed to allow adequate time for the amendments to become effective. We enjoin the Commission from making the amendments effective before September 1975. Otherwise we dismiss the petitions without prejudice to their renewal after the Commission has had an opportunity to conduct any further proceedings it may deem desirable.

I.

In May 1970 the FCC, after lengthy preliminary studies and extensive hearings, enacted the Prime Time Access Rule. 23 F.C.C.2d 382, 401-02, modified on reconsideration, 25 F.C.C.2d 318, 336-37. Simply stated, the rule prohibited television stations in the fifty largest metropolitan areas from broadcasting network programs in more than three of the four evening hours in which most people watch television (“prime time”). To assure that the remaining hour (“access time”) would be available for independently created programs, the rule prohibited the showing of feature films recently televised within the market or “off-network” programs (previous network programs, or “re-runs”) during access time.

The FCC enacted the rule to combat the stranglehold the three major networks had acquired over prime time programing. The three networks had acquired virtually exclusive power to determine what millions of television viewers could watch every evening. The Commission found that “[t]he public interest requires limitation on network control and an increase in the opportunity for development of truly independent sources of prime time programing.” 23 F.C.C.2d at 394.

On petitions for review we held that PTAR and the financial interest and syndication rules neither exceeded the Commission’s statutory authority nor violated the First Amendment. Mt. Mansfield Television, Inc. v. FCC, 442 F.2d 477 (2d Cir. 1971). On the constitutional issue we held that the rule, “far from violating the First Amendment, appears to be a reasonable step toward fulfillment of its fundamental precepts .” Id. at 477. However, we recognized the experimental nature of the rule and warned that our holding did not preclude a further review of experience with the rule if it proved to. be inimical to the public interest. Id. at 479.

The FCC from the start also conceded the experimental nature of the rule and declared its intent to review its effects from time to time. 23 F.C.C.2d at 401. On October 30, 1972, the Commission issued a Notice of Inquiry and Notice of Proposed Rule Making, 37 F.C.C.2d 900, in which it announced its intention to consider modifications in or repeal of the rule. More than forty parties filed comments with the Commission. On July 30 and 31, 1973, the FCC conducted oral hearings. On November 29, 1973, the Commission announced that it had decided on certain changes in the rule. These were formally adopted in a Report and Order dated February 6, 1974 (hereinafter referred to as “Report”). 44

F.C.C.2d- (1974). The petitions now

before us attack the modifications of the rule ordered by the Commission.

The Commission modified the rule in several ways. First, it eliminated access time altogether on Sunday evenings, reduced access time to one half-hour other evenings, and pegged access time to a particular time slot (7:30-8 P.M. in the Eastern and Pacific Time Zones, 6:30-7 P.M. in the Central and Mountain Zones). Second, the Commission provided that a station might devote one half-hour of access time each week to certain types of network programing (children’s specials or documentary or public affairs programs). Third, the Commission made certain adjustments for time zone differences and sports “runovers” and sports associated programs. Fourth, the Commission completely barred feature films from access time.

Two groups of petitioners have attacked the revised rule. The first group, which we shall identify with the National Association of Independent Television Producers and Distributors (NAITPD), seeks a return to the original PTAR. This group contends that the Commission did not give the rule an adequate test period and that the modifications of the rule subvert the purposes behind the original rule, increase network dominance, and impose unconstitutional restraints on speech. The group further argues that the effective date of the modifications is unreasonable.

A second group, which we shall identify with Warner Bros., Inc., seeks total repeal of the rule. The group maintains that experience with PTAR shows that it has increased network dominance and has failed to improve program diversity. The group argues further that the ban on feature films and off-network programs in access time is contrary to the public interest and violates the First Amendment.

In view of our disposition of the case we need not consider the merits of either of the attacks on the revised rule or the FCC’s justifications for its action.

II.

NAITPD and Time-Life Films have attacked the effective date of the new rule as unreasonable because it does not give independents who have produced programs for access time in reliance on the rule sufficient opportunity to withdraw from these ventures without unnecessary expense. We agree.

The FCC first mentioned the September 1974 effective date in its informal report of January 24, 1974. The Commission formally adopted that effective date in its Report and Order of February 6, 1974. Thus the parties will have had notice of the effective date for only eight months or less.

The FCC claims that the effective date is unassailable because it complies with section 4(c) of the Administrative Procedure Act, 5 U.S.C. § 553(d) (1970), which provides that a regulation may be made effective “not less than 30 days” after publication. As the language of the statute indicates, this provision merely establishes a minimum period of notice. It does not authorize the use of an effective date that is arbitrary or unreasonable. Cf. 5 U.S.C. § 706(2) (A) (1970).

In its Report the Commission noted that Warner Bros, and MCA had urged that immediate repeal of PTAR was feasible, while others had proposed a notice period much longer than eight months. Report fifí 75, 76, 44 F.C.C.2d at -•. The Commission decided to make the changes effective in September 1974. Id. fl 113, 44 F.C.C.2d at-. The Commission based this decision on a finding that “the public interest is served by making improvements in any rule effective at a reasonably early date” and that a lengthy lead time was unnecessary “in view of the limited expansion of network programing which we have decided to permit.” Id. 44 F.C.C.2d at — •.

In promulgating the original rule the Commission allowed a much longer grace period. The Commission permitted the networks sixteen months to phase out their domestic syndication and foreign distribution activities. 23 F.C.C.2d at 399. This enabled the networks to dispose of their inventories of re-runs without incurring larger losses. The Commission also allowed sixteen months before making PTAR effective. Id. On reconsideration of its original order the Commission postponed for a further year the prohibition on off-network programs and feature films “to permit ample time for changeover.” 25 F.C.C.2d at 334-35.

The Commission has not shown that the public interest in making rule changes effective “at a reasonably early date” and the need for lead time are any different in this proceeding than they were in promulgating the original rule.

The evidence before the Commission strongly indicated that a longer lead time would be desirable. First, by reducing access time from fourteen to six or fewer half-hours per week the Commission sharply restricted the market for programs produced by independents for access time. Even if the Commission’s claim that the modifications are not great is correct with respect to the networks, the modifications have a very great impact on the independents producing for access time. This is especially true for one hour shows planned for access time. It may prove very, difficult to market these shows at all. The longer grace period permitted the networks to cushion the adverse impact of the original rule should also have been granted the independents in this case.

The networks themselves (including NBC and CBS, both of which advocate total repeal of the rule) testified that program planning begins twelve to eighteen months before the start of the season and that a shorter lead time would produce lower quality network programming. This directly contradicts the Commission’s claim that a shorter time would be in the public interest. We note also that the uncertain status of the revised rule pending this appeal may well have further delayed network planning, thereby further reducing the possibility that quality network programming will be ready by September 1974.

The position of Warner Bros, and MCA concerning the effective date of the amended rule must be viewed in the light of their position as to what substantive changes should have been made. They demanded total repeal of PTAR, and of the ban of feature films in particular, on the ground that it was inimical to the public interest. The Commission rejected that argument and indeed strengthened the ban on feature films. Having rejected the substantive proposals, the FCC can hardly give great weight to views of Warner Bros, and MCA on when the modifications adopted by the Commission should become effective.

Thus virtually all the relevant testimony recommended a longer grace period than the Commission allowed.

The Commission contends that a rule is not invalid merely because it has retroactive consequences or modifies preexisting interests. The Commission relies primarily on General Telephone Co. v. United States, 449 F.2d 846, 863-864 (5th Cir. 1971). But the court in General Telephone found that petitioners there should not have relied on the Commission’s acquiescence in their activities because the Commission had for many years hinted that it might curtail those activities. Id. In the present case petitioners had good reason to rely on their status under the rule. The FCC did not merely acquiesce in petitioners’ activities, it invited and encouraged them. Part of the avowed purpose of PTAR was to urge independents to produce programs for prime time and to foster a healthy syndication industry. Notice of intent partially to reverse this policy came only eight months before the effective date. Having justifiably relied on the Commission’s prior policy, petitioners are entitled to more opportunity to adjust to the new rule.

The court in General Telephone made it clear that a rule with retroactive consequences must be reasonable. Any implication by the FCC that this court may not consider the reasonableness of the retroactive effect of a rule is clearly wrong.

We conclude that any effective date earlier than September 1975 would be unreasonable because it would cause serious economic harm to independent producers and because it gives networks inadequate time to plan additional programming. We remand the case to permit the Commission to specify precisely what the effective date should be.

III.

In view of our disposition of the foregoing issue we have decided to postpone consideration of the merits of the petitions before us. The Commission may choose to utilize the additional time available to it to reconsider its changes in the rule. Further experience with the original rule may aid its deliberations and our own. We therefore dismiss the petitions without prejudice to their being renewed after the Commission has had an opportunity to conduct any further proceedings it deems desirable.

While we refrain from directing the Commission to hold further hearings or to determine the character of those hearings if they are held, we call the Commission’s attention to certain policy issues raised by the petitions.

A. Economic Factors

The FCC originally justified PTAR, and we upheld it, as a means to weaken network domination of prime time television. The Warner Bros, petitioners have argued that PTAR has not accomplished this goal and indeed has increased network dominance. They claim that by shrinking network prime time to three hours per night the rule has created an “artificial scarcity” of network prime time and thereby increased the networks’ leverage in that time over independent producers, stations, and advertisers.

In making these arguments petitioners rely heavily on the report of Alan Pearce, the FCC’s communications economist. At the outset this report states its major conclusion in dramatically blunt fashion: “Overall network power has been strengthened, not weakened, by the prime-time access rule.” Economist’s Report 1.

The Commission rejected the arguments of the Warner Bros, petitioners and of its economists as “speculative.” Of course, the findings of the economist are not binding on the Commission or on this court. Other economists also expressed views on the matter. See Report, Appendix D, 44 F.C.C.2d at -. The Commission might accept an opposing view or formulate its own conclusions, so long as it fully explains its reasons for so doing. Our task on review is only to determine whether the findings of the Commission are supported by “substantial evidence.” Administrative Procedure Act § 10(e)(B)(5), 5 U.S.C. § 706 (2)(E) (1970).

The Department of Justice submitted a brief in these proceedings in which it noted that it had urged the FCC to adopt PTAR. It expressed the view that the modification of the rule “represents a serious weakening [of] its basic purpose,” to reduce network dominance. However, the Department cited no factual basis for its assumption that PTAR had reduced or would reduce network dominance and its brief discloses no awareness of the Economist’s Report. Though unhappy with the impact of the modifications of PTAR on competition, the Department ultimately concludes that, in light of the factors other than competition which the Commission had to consider, the FCC “acted within its rule-making and policy-making responsibilities” in enacting those modifications.

Whether the FCC or this court need weigh the views of the Department of Justice on issues other than competition is a question we need not now decide. It is clear, however, that the nation’s policy favoring competition is one which the FCC must incorporate in regulating the broadcast media. FCC v. RCA Communications, Inc., 346 U.S. 86, 94, 73 S.Ct. 998, 97 L.Ed. 1470 (1953); National Broadcasting Co. v. United States, 319 U.S. 190, 218, 63 S.Ct. 997, 87 L.Ed. 1344 (1943); cf. FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 137, 60 S.Ct. 437, 84 L.Ed. 656 (1940). It would seem that the views of the Department of Justice as to the impact of proposed rule modifications on competition would be relevant to the Commission’s deliberations. Yet the Commission does not indicate that the Department participated in the proceedings, see Report, Appendix B, 44 F.O.C.2d at-, and its discussion of the effect of PTAR on network dominance makes no reference to the views of the Department. Again, our review could be facilitated if the Commission solicited and evaluated the views of the Department on this issue.

Another economic issue raised by the current petitions is the impact of PTAR on employment of Americans, sometimes referred to by thé Commission and the parties as “the impact on Hollywood.” A substantial portion of access time has been filled with programs produced outside the United States. The Commission’s Report displays the same ambiguity about this development as it shows on many other issues. First the Commission states that the use of foreign shows is “grounds for concern.” Next the Commission asserts that the issue involves “areas outside the normal ambit of the Commission’s expertise” and “questions of general national policy which are basically beyond our jurisdiction to decide.” Report j[ 98, 44 F.C.C.2d at -. Finally, the Commission finds the whole issue too uncertain and complex. Id. jf 99, 44 F.C.C.2d at -. A more decisive statement by the Commission on whether it sees “the impact on Hollywood” as a legitimate matter for concern, what it finds that impact to be, and how it weighs that impact in its regulations would aid our review.

B. Consideration of Views of Various Groups

As we have noted, Congress has directed the FCC to make the public interest paramount in regulating the broadcast media. Communications Act of 1934 § 303, 47 U.S.C. § 303 (1970). The Supreme Court has repeatedly stressed the primacy of the interests of the viewing public in the FCC’s exercise of its powers. See, e. g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 390, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). Thus the Commission must place the public interest above private interests in carrying out its duties, FCC v. Pottsville Broadcasting Co., 309 U.S. 134, 138, 60 S.Ct. 437, 84 L.Ed. 656 (1940), and must identify the public interest basis for its actions. Greater Boston Television Corp. v. FCC, 143 U.S.App.D.C. 383, 444 F.2d 841, 852 (1970), cert. denied, 406 U.S. 950, 92 S.Ct. 2042, 32 L.Ed.2d 338 (1971); WAIT Radio v. FCC, 135 U.S. App.D.C. 317, 418 F.2d 1153, 1157 (1969), cert. denied, 409 U.S. 1027, 93 S.Ct. 461, 34 L.Ed.2d 321 (1972).

These dictates should apply with even greater force where the Commission’s conduct has as broad an impact on the public as the Prime Time Access Rule. The rule directly affects what millions of Americans watch on television for an hour every night and, indirectly, may affect all prime time programming.

The courts have held that under such circumstances the FCC and other federal agencies must listen to the views of groups representing various segments of the public before taking action. As we stated in Scenic Hudson Preservation Conference v. FPC, 354 F.2d 608, 620 (2d Cir. 1965), cert. denied, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966), the role of the Commission

“does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it; the right of the public must receive active and affirmative protection at the hands of the Commission.”

The Commission may reach compromises, Gross v. FCC, 480 F.2d 1288, 1290 (2d Cir. 1973); GTE Service Corp. v. FCC, 474 F.2d 724, 729 (2d Cir. 1973); WBEN, Inc. v. United States, 396 F.2d 601, 614 (2d Cir.), cert. denied, 393 U.S. 914, 89 S.Ct. 238, 21 L.Ed.2d 200 (1968), but it may not simply compromise between the interests of different broadcasting groups and gloss over the more fundamental public interest. See WBEN, Inc. v. United States, supra, 396 F.2d at 618.

If parties do not volunteer to represent the various facets of the public interest the Commission must take the initiative to seek out such parties and develop a meaningful record. Calvert Cliffs’ Coordinating Committee v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1119 (1971); Office of Communication of United Church of Christ v. FCC, 138 U.S.App.D.C. 112, 425 F.2d 543, 548-549 (1969).

We cannot say that the FCC totally failed to entertain or consider the views of groups other than the two major warring groups who are petitioners here. For example, with respect to the “impact on Hollywood” the Commission took comments from several labor union groups. See Report, Appendix D 1-7, 44 F.C.C.2d at-. It also considered the complaints of parents and children in promulgating the exemption for children’s specials. Id. at ff 83, 44 F.C.C.2d at-.

However, without holding that the Commission’s efforts were insufficient as a matter of law or requiring the Commission to conduct further proceedings, we do suggest that the Commission might have done more. Many persons and groups may have comments about the rule. The Commission should not only receive and carefully consider these comments but, as we have said, should affirmatively seek them out. One need not delve too deeply into the agency’s report to ascertain that it has concentrated primarily on the comments of the two groups of petitioners, for it has admitted as much.

We have already mentioned that the Commission might solicit the views of the Department of Justice concerning the impact of the rule on competition. It might also consult consumer groups and others on the effect of the rule on television advertising in prime time. Minority groups might discuss the impart of the rule on programming for minorities. Playwrights and actors could offer their views on the effects of the rule on their professions. These are, of course, merely suggestions as to persons who might participate. The list is not binding and certainly not exclusive.

IV.

We wish to emphasize once more that we do not intend the foregoing discussion to intimate any views on the merits of the various petitions before us. Nor do we direct the Commission to undertake any further proceedings, though, as we have indicated, it might be helpful if it did so. Neither should our failure to discuss other claims raised by petitioners be construed to suggest any views on the merits of those claims.

The petitions are granted to the extent that respondents may not enforce the proposed modifications of the Prime Time Access Rule prior to September 1975. Otherwise, we dismiss all petitions without prejudice to their being brought anew after the Commission has had fhn opportunity to conduct such further proceedings as it deems appropriate.

      . For descriptions of events leading to adoption of PTAR see Report and Order, In re Consideration of the Operation of the “Prime Time Access Rule,” Section 73.658(k) of the Commission’s Rules (Feb. 6, 1974) [hereinafter “Report”] IfH 4-12, 44 F.C.C.2d-,-(1974); Mt. Mansfield Television, Inc. v. FCC, 442 F.2d 470, 473-476 (2d Cir. 1971); In re Amendment of Part 73 of the Commission’s Rules and Regulations, 23 F.C.C.2d 382, 382-83 (1970); In re Amendment of Part 73 of the Commission’s Rules and Regulations, 25 F.C.C.2d 318, 319-20 (1970). The original rule as i)romulgated read:
      “(k) Prime time access rule.
      “(1) After October 1, 1971, no television stations, assigned to any of the top fifty markets in which there are three or more operating commercial television stations, shall broadcast network programs offered by any television network or networks for a total of more than three hours per day between the hours of 7:00 p. m. and 11:00 p. m. local time, except that in the Central Time Zone the relevant period shall be between the hours of 6:00 p. m. and 10:00 p. m.
      “(2) For the purpose of subparagraph (1) of this paragraph, network programs shall be defined to exclude special news programs dealing with fast-breaking news events, on-the-spot coverage of news events and political broadcasts by legally qualified candidates for public office.
      “ (3) The portion of the time from which network programming is excluded by sub-paragraph (1) hereof may not after October 1, 1972, he filled with off-network programs ; or feature films which within two years prior to the date of broadcast have been previously broadcast by a station in the market.
      “(4) The top fifty markets shall be determined on an annual basis as of September 1 according to the most recent American Research Bureau prime time market rankings (all home stations combined) throughout the United States.
      “(5) Nothing in this paragraph shall be construed to apply to educational, non-commercial, or public broadcasting station licensees in their use and exhibition of program materials supplied through one or more noncommercial, educational, or public broadcasting television network systems.”

      . To supplement PTAR the Commission also enacted the “financial interest” and “syndication” rules, 47 C.F.R. § 73.658 (j) (1973). These rules prohibit each network from acquiring any financial interest in a program not produced solely by that network and from syndicating programs for non-network or foreign television.

      . Section 73.658(k) was amended to read:

        “Evening programming requirements. The provisions of this paragraph apply to stations in the top-50 U.S. television markets which are regular affiliates of, or commonly owned with one of the three national television networks (as defined in paragraph (j) of tliis section), with respect to their evening programming starting on the date between September .1 and October 1, 1974, which their network designates as the start of its ‘new season’.
      “(1) After such date in September 1974, each station shall devote not less than six (6) half-hours between 7 :30 p. m. and 8 :00 p. m. E.T. and P.T. (6:30 and 7:00 p. m. CT and MT) Monday through Saturday to programs which are not network, off-network or feature film; Provided, however, That;
      (i) one (1) of these six (6) half-hours each week may consist of children’s specials, documentaries or public affairs programming, either network originated or off-network.
      (ii) ‘documentary’ programming means any program which is non-fictional and educational or informational, but not including programs where the information is used in a contest among participants.
      “(2) The following types of material are not considered ‘network programming’ for purposes of this paragraph, so that they may be presented without limitation during the Monday-Saturday time periods mentioned in subparagraph (1) hereof :
      (i) ‘Runovers’ of sports events carried on the network during late afternoon or early evening hours, if the telecast of the event (and accompanying pre-game and post-game material, if any) is scheduled so that in the normal course it would be concluded by 7:00 p. m., ET.
      (ii) For stations in the Mountain and Pacific time zones, the ‘live’ broadcast of any ‘simultaneous’ network programming, such as sports events or some other special events, which are broadcast simultaneously throughout the 48 contiguous states; provided the network’s schedule for the evening including such telecasts complies with the provisions of this paragraph with respect to stations in the Eastern and Central time zones.
      (iii) Telecasts of an international sports event such as the summer or winter Olympic games, New Tear’s Day college football games, or any other network programming of a ‘special’ nature other than sports events or motion pictures, when the network devotes all of its time after 8 p. m. E.T. or P.T. (7 p. m. C.T. or M.T.) the same evening to the same programming, or all of it except brief incidental ‘fill’ material.
      (iv) ‘Pre-game shows’ in connection with important sports events carried by the networks (e. g., the World Series), on no more than five occasions per broadcast year.
      (v) Special news programs dealing with fast-breaking news events, on-the-spot coverage of news events or programming related to such events, and political broadcasts by or on behalf of legally qualified candidates for public office.
      (vi) Material carried on a commercial or other network other than the three national networks as defined in paragraph (j) of this section.
      “(3) For those portions of the Eastern and Central times zones where ‘daylight saving time’ is not observed for part or all of the year, during the portion of the year when it is not observed, the times which must be ‘cleared’ of network, off-network and other feature film material shall be one hour earlier than those specified in sub-paragraph (1) of this paragraph, except for stations which regularly delay network evening programs and rebroadcast them an hour later.” Report, Appendix A, 44 F.C.C. 2d at-.

      . The Report also contained the following at II 3(c).
      “Although not stated in the rule, it is expected that some of the five or six half-hours thus ‘cleared’ of network, off-network and feature film material will be used by stations for programs relating to minority affairs, children’s progams, or other programs directed to the needs and problems of the station’s community and coverage area, as disclosed in its ascertainment process.” 44 F.C.C.2d at-.

      . American Broadcasting Companies, Inc. filed a brief in support of the rule as modified. The Columbia Broadcasting System, Inc. originally advocated repeal of the rule but now supports the Commission’s action as a reasonable compromise. The Justice Department also filed a brief in support of the modified rule.

      . Westinghouse Broadcasting Company, Inc. commenced an independent action for review seeking essentially the same relief as NAITPD. Time-Life Films, Inc. intervened and also supports the views of NAITPD. Sandy Frank Co. appeared as an amicus curiae and expressed similar views.

      . Columbia Pictures Industries, Inc. joined the petition of Warner Bros. The National Committee of Independent Television Producers, Samuel Goldwyn Productions, and MCA, Inc. intervened and also support the views of Warner Bros.

      . Moreover, in proceedings concerning the original rule, MCA claimed that it needed about one year to prepare a program series. 25 F.C.C.2d at 335.

      . See 23 F.C.C.2d at 386, 395.

      . “Where a rule has retroactive effects, it may nonetheless be sustained in spite of such retroactivity if it is reasonable." 449 F.2d at 863 (emphasis added). “[T]he Commission should be enabled to remedy the problems ... by retroactive adjustments, provided they are reasonable." Id. (emphasis added).

      . As the Supreme Court stated in SEC v. Chenery Corp., 332 U.S. 194, 203, 67 S.Ct. 1575, 1581, 91 L.Ed. 1995 (1947):
      “[Sluch retroactivity must be balanced against the mischief of producing a result which is contrary to a statutory design or to legal and equitable principles. If that mischief is greater than the ill effect of the retroactive application of a new standard, it is not the type of retroactivity which is condemned by law. See Addison v. Holly Hill Co., 322 U.S. 607, 620, 64 S.Ct. 1215, 1222, 88 L.Ed. 1488.”

      . Final Report, “The Economic Consequences of the Federal Communications Commission’s Prime-Time Access Rule on the Broadcasting and Production Industries” (September 1973) [hereinafter “Economist’s Report”]. Page references are to the typescript of the report.

      . “It was vigorously urged that the rule works to increase network control and dominance, rather than lessening it, by creating an artificial scarcity of prime time and strengthening the networks’ control over what remains vis-a-vis advertisers and program suppliers. This must be regarded as somewhat speculative, in view of the strong degree of dominance inherent in the networks’ position, as long as they are three sellers on the one hand, ,as against hundreds of potential national advertiser customers, and three buyers on the other hand facing more than 100 producer-sellers. By contrast, the reduction in control through removing 11 or 12 hours a week from ‘the network funnel’ is definite and readily apparent. It is true that the role of the owned stations in the success of access-period material is considerable, but this appears to be somewhat less true now, when these stations are buying some- • what less as a group. We do not find in these considerations any reason, at this time, to act to relax the rule any more than indicated above.” Report f 97, 44 F.C.C.2d-.

      . The extent of the resulting impact, if any, on American employment was vigorously disputed by a number of parties. See Report KU 32(5), 32(6), & Appendix D, 44 F.C.C.2d at —,-, & .

      . Several passages in the Commission’s Report might be construed to mean that it had reached just such an impermissible compromise. See, e. g., Report If 82, 44 F.C.C.2d at-.

      . For a list of the parties who participated in the proceeding see Report IHf 26-28, Appendix B, 44 F.G.C.2d at-.

      . “Most of the discussion [in the Report] is based on the 12 longer comments filed [by the major producing and broadcasting interests].” Report H 31, 44 F.C.C.2d at

      . One objection raised to the rule is that it produced an increase of commercials in access time. Proponents of the rule respond that this development was offset by increased opportunity for local advertisers. See Report n 32(4), 100, 44 F.C.C.2d at-.


source: Caselaw Access Project

author: GARTH, Circuit Judge. ALDISERT, Circuit Judge

license: Public Domain

text:
    De LAVAL TURBINE, INC., a California corporation, Appellant in No. 73-2032, v. WEST INDIA INDUSTRIES, INC., et al. Appeal of WEST INDIA INDUSTRIES, INC., No. 73-2033. Appeal of HEAVY LIFT SERVICES, INC., No. 73-2034.
    Nos. 73-2032 to 73-2034.
    United States Court of Appeals, Third Circuit.
    Argued April 29, 1974.
    Decided June 21, 1974.
    Aldisert, Circuit Judge, concurred in part and dissented in part and filed opinion.

      Irwin J. Silverlight, Nichols & Silver-light, St. Croix, V. I., for De Laval Turbine Inc.
    Robert A. Ellison, St. Croix, V. I., for West India Industries, Inc.
    Thomas Alkon, Isherwood, Colianni, Alkon & Bernard, St. Croix, V. I., for Heavy Lift Services, Inc.
    Warner Alexander, Merwin, Alexander & O’Brien, St. Croix, V. L, for Frank Catanach.
    John P. Burke, Jr., Bryant, Costello & Burke, Christiansted, St. Croix, V. I., for West India Shipping.
    Before ALDISERT, ADAMS and GARTH, Circuit Judges.
   OPINION OF THE COURT

GARTH, Circuit Judge.

We are called upon to review the District Court’s assessment of responsibility in a multi-party negligence and breach of contract action.

I.

On or about February 17, 1969, plaintiff De Laval Turbine, Inc. (De Laval), a California corporation, entered into a contract of affreightment with defendant West India Industries, Inc. (Industries). Pursuant to this agreement, Industries contracted to transport De Laval’s 16-ton generator from Palm Beach, Florida to the Gallows Bay dock in Christiansted, St. Croix, and thence to the job site of the Virgin Islands Water and Power Authority, a short distance from the dock. Paragraph 8 of the contract of affreightment contained a promise by Industries to secure liability insurance.

The generator was transported to Christiansted on June 30, 1969 by defendant West India Shipping Co. (Shipping) , a subsidiary of Industries and operator of Industries’ vessels. Shipping, on behalf of Industries, contracted with defendant Heavy Lift Services, Inc. (Heavy Lift), a stevedoring corporation specializing in the on-loading and offloading of heavy cargo, to off-load the generator at St. Croix. Heavy Lift selected two of its experienced employees, Walter Hotaling and Floyd Miller, to meet Shipping’s vessel (the Inagua Pilot) at St. Croix. Also involved in the unloading was stevedore Frank Catan-ach, d/b/a Island Transport. Defendant Catanach, as Shipping’s agent in St. Croix, supplied equipment for the transportation of Shipping’s cargo from the Christiansted dock to the St. Croix destination.

Catanach owned two trailer bed trucks —a single axle trailer and a double axle trailer — that were apparently capable of transporting De Laval’s generator to its destination. When “general” cargo was loaded by Island Transport, Catanach ordinarily allowed his dock manager to determine which truck would be utilized in transport. On the other hand, when the cargo was not “general”, Catanach preferred to make the truck allocation determination for himself. Catanach did not regard De Laval’s generator as “general” cargo and thus advised Hotal-ing (Heavy Lift’s employee) that he wished to be present when the generator was off-loaded.

Hotaling failed to advise Catanach of the time of the off-loading. In the absence of his employer, Island Transport’s dock manager selected the single axle flatbed trailer for the De Laval generator. With Hotaling operating the crane, the generator was lowered onto the single axle trailer some time during the day of July 1, 1969. Hotaling positioned the generator towards the front of the trailer. An Island Transport employee suggested that the equipment be positioned closer to the rear, but Hotal-ing rejected this advice upon the urging of Catanach’s truckdriver. The driver then began to back the trailer away from shipside. In the course of this maneuver, the generator slipped off the trailer and was virtually destroyed.

The instant litigation ensued. Bringing this action pursuant to the Virgin Islands district court’s general jurisdiction, De Laval sought to recover for the loss of its generator on a number of theories. In Count 1, De Laval sought recovery against Industries for failure to perform the affreightment contract. In Count 2, De Laval sought recovery from the same defendant for breach of its promise to obtain insurance. In Count 3, De Laval sued Industries, Shipping, Heavy Lift, and Catan-ach in a negligence cause of action. As might be expected, the defendants filed numerous cross-claims. Heavy Lift cross-claimed against each of the other defendants; Shipping cross-claimed against Catanach and Heavy Lift; Ca-tanach cross-claimed against the three other defendants and counter-claimed against De Laval; and Industries cross-claimed against Catanach and Heavy Lift.

The case was tried to the Court without a jury. Midway through the trial, plaintiff’s complaint as against Shipping was dismissed. Upon completion of the trial, the district court entered a memorandum opinion and order in which the court found that:

(a) Industries was liable to De Laval for breach of a. promise to insure the generator;
(b) Heavy Lift (on a theory of re-spondeat superior) and Catanach negligently caused the accident and accordingly were liable to De Laval; and
(c) Through its contractual arrangements with Industries, De Laval limited Catanach’s liability to $500.

In addition, Judge Christian dismissed all cross-claims (and the counter-claim, sub silentio). After declaring that the evidence foreclosed all cross-claims against Shipping, the court stated with regard to the three other defendants:

For the reason that I deem consideration of [defendants] comparative negligence inappropriate, and further because I find that they are interlocked, so to speak, in their negligence, their several cross-claims all fail.

Judgment was entered on September 28, 1973.

Heavy Lift appeals from the district court’s final judgment, contending that the court erred: (1) in admitting the testimony of a particular expert witness, (2) in failing to conclude that De Laval had agreed (with Industries) to limit Heavy Lift’s liability to $500, and (3) in dismissing its cross-claims. In addition, two cross-appeals have been filed. De Laval claims that the court erred in limiting Catanach’s liability to $500, and Industries claims that as an insurer, its liability cannot exceed the liability of its agent, Catanach. We hold that the district court acted appropriately in admitting the testimony of the expert and in refusing to limit Heavy Lift’s liability. However, we also find that the court erred in limiting Catanach’s liability and in summarily dismissing Heavy Lift’s cross-claim against Catanach. Pursuant to this Court’s decision in Gomes v. Brodhurst, we remand for a determination of the comparative negligence of Heavy Lift and Catanach.

II.

Pursuant to Fed.R.Civ.P. 16, the sixth paragraph of the district court’s pretrial order provided that:

The names, addresses and general subject matter of testimony of witnesses shall be reported to opposing counsel at least ten days prior to trial. This restriction shall not apply to rebuttal witnesses, the necessity of whose testimony cannot reasonably be anticipated before the time of trial.

This provision was honored solely in its breach: none of the parties exchanged witness lists prior to trial.

At trial, defendant Catanach proffered the testimony of one Lester Man-hoo. Mr. Manhoo, a crane operator, testified (as an expert witness) that if he had been in Hotaling’s position, he would not have allowed the De Laval generator to remain on a single axle trailer. Heavy Lift sought to bar this testimony, claiming that the calling of an unlisted witness contravened the pretrial order and prejudiced its case. Recognizing that no counsel had complied with the sixth paragraph of the pretrial order, the court denied Heavy Lift’s application.

On appeal, Heavy Lift renews its claim that it was error for the court to permit contravention of its pretrial order by admitting the testimony of Lester Manhoo, an unlisted witness. It is certainly true that the district judge had the power to exclude the testimony by reason of Catanaeh’s failure to obey the pretrial order. See Southard v. Independent Towing Co., 453 F.2d 1115, 1119-1120 (3d Cir. 1971); LaMorte v. Penn Central Transportation Co., 450 F.2d 956, 957 (3d Cir. 1971) (per curiam) . However, the determination as to whether or not parties should be held to pretrial orders is a matter for the discretion of district judges. See Moore v. Sylvania Electronic Products, Inc., 454 F.2d 81, 84 (3d Cir. 1972); Southard v. Independent Towing Co., supra, 453 F. 2d at 1119-1120; Martella v. Great Atlantic & Pacific Tea Co., 418 F.2d 1246, 1247 (3d Cir. 1969) (per curiam); cf. Thomas v. E. J. Korvette, 476 F.2d 471, 476 (3d Cir. 1973) (reversing in part for failure to require compliance with a pretrial order, but noting that such determinations are normally a matter of discretion for the district court). Unless there is a clear abuse of discretion, this Court will not interfere with such determinations. See Ely v. Reading Co., 424 F.2d 758, 763-764 (3d Cir. 1970). We perceive no such abuse of discretion in the instant case.

We note, however, that even if there had been an abuse of discretion, the same would not constitute reversible error. It is well settled that in a non-jury case, an appellate court will not reverse on the basis of an erroneous admission of evidence unless (1) there is insufficient evidence other than the challenged evidence to support the district court’s conclusion, or (2) the district court is induced by the challenged evidence to make an essential finding that it would not have made otherwise. See Cain v. Commissioner of Internal Revenue, 460 F.2d 1243, 1244 (5th Cir. 1972) (per curiam); Holt v. Sarver, 442 F.2d 304, 307 (8th Cir. 1971); Caldwell v. Craighead, 432 F.2d 213, 219 (6th Cir. 1970), cert. denied, 402 U.S. 953, 91 S.Ct. 1617, 29 L.Ed.2d 123 (1971); Herlihy Mid-Continent Co. v. Northern Indiana Public Service Co., 245 F.2d 440, 444-445 (7th Cir.), cert. denied, 355 U.S. 894, 78 S.Ct. 269, 2 L.Ed.2d 192 (1957); Pursche v. Atlas Scraper and Engineering Co., 300 F.2d 467, 487-488 (9th Cir. 1961), cert. denied, 371 U.S. 911, 83 S.Ct. 251, 9 L.Ed.2d 170 (1962); Baumel v. Travelers Insurance Co., 279 F.2d 780, 783, n.4 (2d Cir. 1960); cf. Martella v. Great Atlantic & Pacific Tea Co., supra, 418 F.2d at 1247. Our review of the record convinces us that even without Manhoo’s testimony, the record amply supports both the district court’s finding that Hotaling was negligent and its conclusion that Heavy Lift was liable on a theory of respondeat superior. We are similarly convinced that the court would have reached these results even if Manhoo had not testified.

Accordingly, we conclude that the court did not commit reversible error by permitting Manhoo to testify.

III.

Section 4(5) of the Carriage of Goods by Sea Act (COGSA) provides that:

Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima fa-cie evidence, but shall not be conclusive on the carrier.

46 U.S.C. § 1304(5). While this provision would apply in general to the transportation of De Laval’s generator, it does not operate to limit the liability of Heavy Lift and Catanach. The limitation of liability provision is made applicable only to carriers and ships. The term “carrier”, in turn, is defined as including “the owner or the charterer who enters into a contract of carriage with a shipper.” 46 U.S.C. § 1301(a). Stevedores and agents do not fit within this definition, and accordingly are not covered by the COGSA limitation of liability provision. See Herd & Company v. Krawill Machinery Corp., 359 U.S. 297, 301-303, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959).

Both Heavy Lift and Catanach concede that COGSA does not expressly limit their liability. They contend, however, that De Laval agreed contractually with Industries to limit their liability. This contention is well sanctioned by contract law: parties to a bill of lading or contract of affreightment may extend the $500 COGSA limitation of liability to third parties. See Herd & Company v. Krawill Machinery Corp., supra, 359 U.S. at 303-305, 79 S.Ct. 766, 771; Rupp v. International Terminal Operating Co., Inc., 479 F.2d 674 (2d Cir. 1973); Cabot Corporation v. S.S. Mormacscan, 441 F.2d 476, 478 (2d Cir. 1971), cert. denied, 404 U.S. 855, 92 S.Ct. 104, 30 L.Ed.2d 96 (1971); Virgin Islands Corp. v. Merwin Lighterage Co., 177 F.Supp. 810, 811 (D.V.1.1956) (per Maris, J., sitting by designation). Any such extension, however, must be clearly expressed, Cabot Corporation v. S.S. Mormacscan, supra, 441 F.2d at 478 (viewing the bill of lading as a contract of adhesion), and will be strictly construed against the party seeking protection, Bernard Screen Printing Corporation v. Meyer Line, 464 F.2d 934, 936 (2d Cir. 1972) (per curiam). Thus, in Herd, the Supreme Court announced the applicable guidelines as follows:

[C] on tracts’ purporting to grant immunity from, or limitation of, liability must be strictly construed and limited to intended beneficiaries, for they “are not to be applied to alter familiar rules visiting liability upon a tortfeasor for the consequences of his negligence, unless the clarity of the language used expresses such to be the understanding of the contracting parties.”

359 U.S. at 305, 79 S.Ct. at 771.

Applying the above principles, the district court found that De Laval had clearly expressed an intent to limit Catanach’s'liability, but had not agreed to similarly protect Heavy Lift. Accordingly, the court limited Catanach’s exposure to De Laval to $500, while holding that Heavy Lift’s liability extended to the full amount of plaintiff’s damages, $80,548.96. De Laval’s cross-appeal and Heavy Lift’s appeal require us to review both of these conclusions.

A. THE DOCUMENTS Paragraphs 1 and 2 of De Laval’s bill of lading provide, in pertinent part, that:

1. This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States of America, approved April 16, 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the Carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. The provisions stated in said Act (except as may be otherwise specifically provided herein) shall govern before the goods are loaded on and after they are discharged from the ship and throughout the entire time the goods are in the custody of the Carrier. The Carrier shall not be liable in any capacity whatsoever for any delay, non-delivery or mis-de-livery, or loss of or damage to the goods occurring while the goods are not in the actual custody of the Carrier. If this bill of lading is issued in a locality where there is in force a Carriage of Goods by Sea Act or Ordinance or Statute of a similar nature to the International Convention for the Unification of Certain Rules Relating to Bills of Lading at Brussels of August 25, 1924, it is subject to the provisions stated in such Act, Ordinance and rules thereto annexed which may be in effect where this bill of lading is issued.
(a) The carrier shall be entitled to the full benefit of, and right to all limitations of or exemption from liability authorized by any provisions of sections 4281 to 4286 of the Revised Statutes of the United States and amendments thereto and of any other provisions of the laws of the United States or of any other country whose laws shall apply. ... If, however, it shall be adjudged that any other than the owner or demised charterer is carrier and/or bailee of the goods all limitations and exonerations from liability provided by law or of the terms hereof shall be available to such other.
2. In this bill of lading the word “ship” shall include any substituted vessel or any craft, lighter or other means- of convenience owned, chartered or operated by the carrier used in the performance of this contract; the word “carrier” shall include the ship, her owner, master, operator, demised charterer and if bound hereby the time charterer and any substituted carrier whether the owner, operator, charterer or master shall be acting as carrier or bailee, (emphasis added)

Paragraph 17 of the bill of lading provides that:

In case of any loss or damage to or in connection with goods exceeding in actual value $500 lawful money of the United States per package, per customary freight unit, the value of the goods shall be deemed to be $500 per package or per unit, on which basis the freight is adjusted and the Carrier’s liability, if any, shall be determined on the basis of a value of $500 per package or per customary freight unit, or pro rata in case of partial loss or damage, unless the nature of the goods and a valuation higher than $500 shall have been declared in writing by the shipper upon delivery to the Carrier and inserted in this bill of lading and extra freight paid if required and in such case if the actual value of the goods per package or per customary freight unit shall exceed such declared value, the value shall nevertheless be deemed to be the declared value and the Carrier’s liability, if any, shall not exceed the declared value and any partial loss or damage shall be adjusted pro rata on the basis of such declared value.
Whenever the value of the goods is less than $500 per package or other freight unit, their value in the calculation and adjustment of claims for which the Carrier may be liable shall for the purpose of avoiding uncertainties and difficulties in fixing value, plus freight and insurance if paid, irrespective of whether any other value is greater or less.

Paragraph 2 of De Laval’s contract of affreightment provides that:

2. Carriage of Cargo: De Laval shall furnish the cargo ... at the port of Palm Beach, Florida. West India [herein Industries] shall furnish the vessel and trailers and transport the cargo above deck from said port to port of discharge Chris- • tiansted, St. Croix, Virgin Islands, and thence by trailer bed to alongside jobsite foundation or as near thereto as is reasonably accessible by trailer bed and equipment at the Christian-sted plant site of the St. Croix generating plant extension, Virgin Island Water and Power Authority Project.

Paragraph 4(c) of the contract provides that:

(c) Cargo will be discharged from trailer bed at jobsite by De Laval at its risk and expense as expeditiously as possible, but not to exceed eight (8) running hours per trailer load. Time used in excess of eight (8) hours would be subject to demurrage at the rate of $25.00 per hour or part thereof.

Finally, paragraph 7 of the contract of affreightment provides that:

Bill of Lading: West India form of Bill of Lading (per specimen attached) is to be used either in non-negotiable form reflecting De Laval as sole shipper and consignee or in negotiable form suitably claused as subject to this agreement. Provisions of such form of Bill of Lading are incorporated herein to the extent any provisions of this agreement are not patently and directly inconsistent therewith; such Bill of Lading provisions as would be so incorporated but for mention of “Bill of Lading” shall be deemed to contemplate this contract. It is expressly agreed that this Contract of Affreightment is subject to the following clause, which is to be included in all Bills of Lading issued hereunder:

U.S.A. Clause Paramount:

This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act of the United States approved April 16, 1936, which shall be deemed to be incorporated herein, and nothing herein contained shall be deemed a surrender by the carrier of any of its rights or immunities or an increase of any of its responsibilities or liabilities under said Act. If any term of this bill of lading be repugnant to said Act to any extent, such term shall be void to that extent, but no further.

B. HEAVY LIFT

The district court’s conclusion that Heavy Lift must bear full liability was based primarily upon the rationale of Cabot Corporation v. S.S. Mormacscan, 441 F.2d 476 (2d Cir.), cert. denied, 404 U.S. 855, 92 S.Ct. 104, 30 L.Ed.2d 96 (1971) and Rupp v. International Terminal Operating Co., Inc., 479 F.2d 674 (2d Cir. 1973).

In Cabot, a negligent stevedore claimed that a bill of lading entitled it to a $500 limitation of liability. The bill of lading contained a limitation provision virtually identical to paragraph 17 of De Laval’s bill. Similarly, the definition of “carrier” in the Cabot bill of lading tracked paragraph 2 of De Laval’s bill, except that the Cabot bill also protected “all persons rendering services in connection with performance of this contract.” 441 F.2d at 478. Reasoning that one “can only guess” whether the limitation provision incorporates all categories specified in the definition of “carrier” and whether that definition of carrier can be construed to include a stevedore, the Second Circuit held that the Cabot bill of lading did not clearly express an intention to limit the stevedore’s liability. The Court explained its conclusion as follows:

While there is no doubt that the parties to a bill of lading may extend a contractual benefit to a third party by clearly expressing their intent- to do so, Herd & Co. v. Krawill Machinery Corp., supra [359 U.S.] at 302, 79 S.Ct. 766, an intention to extend benefits of the limitation in the present bill to the stevedore would most naturally have been expressed by the addition of the term “stevedore” to the long list of various persons included under the definition of “carrier” in clause 2. In Carle & Montanari, Inc. v. American Export Isbrandtsen Lines, Inc., 275 F.Supp. 76 (S.D.N.Y.), aff’d per curiam, 386 F.2d 839 (2d Cir. 1967), cert. denied sub nom. Carle & Montanari v. John W. McGrath Corp., 390 U.S. 1013, 88 S.Ct. 1263, 20 L.Ed.2d 162 (1968), the benefit of the $500.00 limitation was extended to the same stevedore involved here, but the bill of lading included the language “all agents and all stevedores.” 275 F.Supp. at 78. The failure to include similar language here would lead one to believe that the protection of stevedores against liability was not intended. In any case such an intention was not expressed with sufficient “clarity of language.”
We will “not stretch the language when the party drafting such a form contract has not included a provision it easily might have.” The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 183, 79 S.Ct. 710, 712, 3 L.Ed.2d 723 (1959).

441 F.2d at 478-479. Construing the same bill of lading two years later, the Second Circuit reaffirmed Cabot in Rupp v. International Terminal Operating Co., Inc., supra.

We find the Second Circuit’s reasoning to be sound and persuasive. Had De Laval and Industries intended to protect Heavy Lift, the most logical method of doing so would have been to include the term “stevedore”, or a phrase clearly and specifically referring to the stevedoring function, within the bill of lading’s definition of a “carrier”. The parties did not do so. In the absence of such a provision, Herd places a heavy burden upon Heavy Lift to point to other language in the documents which clearly and concisely extends the limitation of liability to the stevedore.

In support of its position, Heavy Lift does no more than allude to random and generalized terms in the bill of lading and contract of affreightment. We hold that neither these provisions nor any other provision in the relevant documents, taken either individually or in combination, express with sufficient clarity an intent to limit Heavy Lift's liability. Accordingly, we agree with the district court that Heavy Lift’s liability should extend to the full amount of De Laval’s damages.

C. CATANACH, d/b/a ISLAND TRANSPORT

As with Heavy Lift, paragraph 2 of De Laval’s bill of lading does not expressly include the overland transporter (Island Transport) within the definition of a carrier. At the very least, one would have to “guess” (cf. Cabot, supra) whether that paragraph referred to the services provided by Catanach. The mere fact that paragraph 2 does not refer to Catanach does not, however, end our inquiry. Although the burden is indeed heavy, Catanach can succeed if other language in the documents expresses a clear intent to limit his liability.

Catanach argues that the combined effect of the contract of affreightment and the bill of lading establish the necessary clarity. The contract provides (in paragraph 2) that the cargo was to be transported from Palm Beach, Florida to the Virgin Islands Water and Power Authority Project. Since the bill of lading (in paragraph 1) limits liability after the - generator was discharged from the ship, Catanach contends that the obvious intent was to protect the overland transporter just as the overseas carrier was protected. The district court adopted and refined this argument, stating that:

The contract of De Laval and Industries necessarily contemplated the overland portion of the voyage. It might even be reasonable to infer, from the previous dealings of those parties, that it was known that Catan-ach, on behalf of Industries, would be fulfilling that portion of the act of carriage, and to that extent, he was a person ‘bound’ by the terms of the contract. True, there was no specific mention of Catanach or Island Transport but I cannot believe that to expressly extend the benefit, as Herd’s mandate requires, the beneficiary must be mentioned by name. Surely, De Laval received a copy of the bill of lading before shipping the generator and its contract amply demonstrates that it knew that the generator would be carried overland from the dock in Gallows Bay 'to as close to the construction site of WAP A as practicable. Unquestionably, plaintiff had to know that the $500 limit would apply to that portion of the carriage, certainly if Industries or Shipping had used a trailer bed of their own for that purpose. But, as I have said, by past practice, it was fairly to be contemplated that an Island Transport trailer would be used.

We do not dispute the findings of fact underlying this passage. We do, however, dispute their legal significance. The district court was not content with relying strictly upon the documentary provisions cited by Catanach (regarding the overland transport). Instead, the court found it necessary to look to extrinsic sources (e. g., the likely expectation of De Laval) in order to reach its conclusion. While we recognize that evidence of prior dealings is generally admissible to explain the intent of contracting parties, we understand Herd & Company v. Krawill Machinery Corp., supra, to preclude reliance upon such evidence in this context. It is inconsistent to require a clear expression of intent on the one hand while on the other resorting to extrinsic sources — of which the contracting parties may or may not have actually been aware — to interpret the documents. If the negotiating parties do not limit the liability of third parties within the “four corners” of the documents, we will not recognize an extension of COGSA protection. Accordingly, we cannot treat as dispositive the district court’s findings of fact with regard to the prior practices of De Laval.

Returning to the “four corners” of the documents, we recognize that the district court did point to one other documentary provision to support its conclusion that Catanach was intentionally protected by De Laval. The court noted, separate from its findings with regard to prior practices, that paragraph 1(a) of the bill of lading states that:

If, however, it shall be adjudged that any other than the owner or demised charterer is carrier and/or bailee of the goods all limitations and exonera-tions from liability provided by law or of the terms hereof shall be available to such other.

The district court found this section applicable by determining that Gatanach was a bailee.

For a variety of reasons, we conclude that the provision quoted above does not extend COGSA protection to Catanach. First, we note that the term “other” is ambiguous. Does the term refer to any other person/business ? Or is the term more limited, referring only to a particular class of persons (e. g., any other substituted carriers)? The bill of lading provides neither answers nor clues to these questions.

Secondly, we deem the term “bailee” too general a category to support a limitation of liability. The mere fact that Catanaeh may fit within the descriptive term is not determinative. See Cabot Corporation v. S.S. Mormac-scan, supra, (denying a stevedore limited liability despite the fact that “carrier” was defined as “all persons rendering services in connection with performance of that contract”). Rather, there must be a specific link between the contract term and the party to be protected in order to satisfy the clarity requirement of Herd & Company v. Krawill Company. Absent such a link, courts cannot be confident that the contracting parties intended to extend COGSA protection. Given the substantial risks undertaken by a party who accedes to limitations of liability, we will not extend such limitations to third parties on the basis of mere speculation.

Finally, we doubt whether the district court considered the above quoted provision as a sufficient ground in and of itself, to justify protection of Catanaeh. Had the court felt the provision to be sufficient alone, it no doubt would have extended the limitation of liability to Heavy Lift as well, since Heavy Lift was a bailee, albeit for only a short period of time. We note in this regard that Catanaeh, as appellee in De Laval’s cross-appeal, did not even cite this “bailee” provision in his brief on the issue of limited liability.

The ambiguities in the “bailee” provision, and lack of specific identification therein, lead us to the conclusion that De Laval and Industries did not clearly express by that provision an intention to limit Catanach’s liability. Rather than “stretch the language when the party drafting ... a form contract has not included a provision it easily might have,” we hold that neither the “bailee” provision nor any other documentary provision, alone or in combination with other provisions, clearly expresses an intention to protect parties which may transport the generator over land to its ultimate destination. Accordingly, we find reversible error in the district court’s limiting Catanaeh to a liability of $500.

IV.

In Gomes v. Brodhurst, 394 F.2d 465 (3d Cir. 1967), this Court undertook an analysis of proportionate liability amongst joint tortfeasors under Virgin Islands law. We concluded that fairness requires that the right of contribution exist1'among joint tortfeasors. 394 F.2d at 467-468. We further held that liability among joint tortfeasors is to be imposed in proportion to their comparative negligence. 394 F.2d at 469-470. Heavy Lift contends that the district court’s rejection of its cross-claim against Catanaeh contravenes these principles. Catanaeh responds by charging that appellant failed to raise the Gomes issue before the district court and therefore is estopped from arguing same on appeal.

We find no evidence in the record to suggest that Heavy Lift cited Gomes v. Brodhurst to the district court. Nevertheless, we are satisfied that the issue was raised in the pleadings to an extent sufficient to avoid es-toppel. In paragraph 7 of its cross-claim against Frank Catanach, Heavy Lift stated:

If defendant, Heavy Lift Services, Inc., be adjudged liable to any party herein, such liability being expressly denied, such liability will have been brought about and caused, in whole or in part, by the fault of the defendant, Frank Catanach, d/b/a Island Transport. Defendant, Frank Catanach d/b/a Island Transport should indemnify this defendant for an amount equal to the extent that any liability on the part of Heavy Lift Services, Inc. was caused, brought about or contributed to by Frank Catanach, d/b/a Island Transport, together with the costs and disbursements of this action including a reasonable amount for attorneys fees and disbursements.

The first sentence of this paragraph contains two allegations: in the alternative, Heavy Lift claims that Catanach was either wholly or partially responsible for the damage to the generator. By phrasing the allegation in the alternative, Heavy Lift in effect creates the framework for both indemnification and contribution claims. This framework is completed in the second sentence when Heavy Lift requests compensation proportionate to the extent of Catanach’s responsibility. We thus interpret Heavy Lift’s position as either asking for (1) full compensation (indemnification) in the event that Catanach is wholly at fault, or (2) partial compensation (contribution) for Catanach’s share of the responsibility. In short, we read paragraph 7 to claim that joint tortfeasor Catanach should respond to Heavy Lift to the extent of his comparative share of the negligence.

The general rule that matters must first be raised at the district court level is a cornerstone of a rational federal judicial system. As significant as the rule is, however, we see no reason to append to it a “magic word” requirement. Inasmuch as the right of comparative negligence is settled in the Virgin Islands, reference to the Gomes v. Brodhurst citation is not essential to the maintenance of a claim for contribution. We hold that this issue is raised sufficiently where, as here, the litigant requests that joint tortfeasors be “responsible” to the extent of their comparative negligence. We therefore reject Catanach’s estoppel argument.

With regard to Heavy Lift’s appeal, we have no difficulty in concluding that Gomes requires an allocation of liability according to the proportionate share of the joint tortfeasors’ responsibility. Our problem lies in analyzing the steps already taken by the district court. In its memorandum opinion, the district court stated:

For the reason that I deem consideration of their comparative negligence inappropriate, and further because I find that they are inter-locked, so to speak, in their negligence, their several cross-claims all fail.

It might be argued from the above that the district court addressed itself to the issue of comparative negligence, finding equal responsibility as between the joint tortfeasors. Were we convinced that such an evaluation was made, there would be no need to remand the case. We cannot, however, disregard the court’s statement that a consideration of comparative negligence is “inappropriate”. We conclude that the court' did not fully evaluate Heavy Lift’s culpability vis-a-vis Catanach. On the basis of Gomes v. Brodhurst, we cannot assume equal responsibility, but instead must remand for findings of fact regarding comparative negligence. 394 F.2d at 470. If, upon review of the record, the court concludes that Catan-ach and Heavy Lift were equally culpable, the judgment should reflect this “50-50” position of Heavy Lift vis-a-vis Catanach. On the other hand, if the court finds disproportionate responsibility, the judgment should reflect the comparative negligence of the joint tort-feasors.

The judgment herein will be reversed and the case remanded for further proceedings consistent with this opinion.

ALDISERT, Circuit Judge

(concurring in part and dissenting in part).

I join in Parts I, II, and III A and B of the majority opinion. Because I would affirm the trial judge’s conclusions as to Catanach, I do not join in Part III C. I agree with Chief Judge Christian’s conclusion that the contracting parties intended to extend coverage of the COGSA limitation to Catanach. In so doing I rely on that portion of his opinion quoted by the majority (majority opinion, 267 — 268). I do not read Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959), to preclude evidence of prior dealings to explain the intent of contracting parties. The law' of contracts is still a stable discipline of the corpus juris. Nothing in the language of Herd has the force to overrule basic concepts relied upon by so many, so often, and for so long. Cf., Restatement of Contracts §§ 235-236; 11A V.I.C. § 1-205 (Uniform Commercial Code).

But this does not mean I would affirm the judgment of the district court. Limiting Catanach’s liability to $500.00 would of necessity limit the damages accruing to plaintiff by reason of West India Industries, Inc.’s failure to require that Catanach be covered by liability insurance. (See, majority opinion, note 16.) Had insurance been in force, the insurance carrier’s liability would have been limited to $500.00. Accordingly, this should have been the extent of damages recoverable for breach of contract to provide insurance.

It is my view that Judge Christian fully addressed himself to the comparative negligence issue. The majority place too much emphasis on the word “inappropriate” and too little emphasis on Judge Christian’s finding that the defendants were “interlocked, so to speak, in their negligence. . . .” This to me is a finding of equal responsibility.

      . Paragraph 8 provides, in part, that: West India, or any subcontractor of West India as the case may be, receiving, consolidating, loading or discharging the cargo, or transporting the cargo from the Christiansted Port Docks Marine Terminal, St. Croix, shall further secure, maintain, and pay for Workmen's Compensation and Employer’s Liability Insurance in accordance with the Laws of the State of Florida, The Virgin Islands, and including the Longshoremen’s and Harbor AVorkers’ Compensation Act, of the Laws of the United States, as may be applicable, and Comprehensive Liability Insurance, including Automobile Liability, in the following limits: Bodily Injury, $100,000 per person; $300,000 per accident; Property Damage, $100,000 per accident: $100,000 annual aggregate.

      . See 48 U.S.C. § 1612.

      . Although some minor discrepancies appear between the judgment and opinion, they are irrelevant to the claims raised on appeal.

      . Our disposition in this regard makes it unnecessary for us to resolve Industries “insurer” claim. See n. 16, infra.

      . 394 F.2d 465 (3d Cir. 1967).

      . Any claim of prejudice (surprise) is belied by the fact that Heavy Lift’s counsel did not request a continuance when Manhoo was called as a witness. Cf. United States v. Somers, 496 F.2d 723 (3d Cir. 1974).

      . Section 4(5) would normally operate to limit the liability of Industries, inasmuch as it is a “carrier”. In the special circum- ■ stances of this case, however, the limitation is not available to Industries. See n. 16, infra.

      . Industries’ liability for its breach of contract was also held to extend to the full amount of plaintiff's damages. See n. 16, infra.

      . Clause 2 of the Cabot bill of lading defined “carrier” as: “the ship, her owner, operator, demise charterer, time charterer, master and any substituted carrier, whether acting as carrier or bailee, and all persons rendering services in connection toith performance of this contract.” 441 F.2d at 478. (emphasis added).

      . In Bernard Screen Printing Corp. v. Meyer Line, 464 F.2d 934 (2d Cir. 1972) (per curiam), tile Second Circuit held that a stevedore came within a definition of “carriers” that included protection for “independent contractors.” In Rupp, the Court explained that Bernard Screen was consistent with Cabot because stevedores could be
        reasonably characterized as independent contractors. 479 F.2d at 677. In the instant case, we find it difficult to reasonably characterize Heavy Lift within any of- the categories listed in the bill’s definition of a “carrier”.

      . We note that the definitional provision herein is even more limited than the Cabot and Rupp provisions, there being no general inclusion of “persons rendering services in connection with performance of this contract.”

      . Heavy Lift points to:
      (a) the language in paragraph 1 of the bill of lading which provides that:
      This bill of lading shall have effect subject to the provisions of the Carriage of Goods by Sea Act . . . which shall be deemed to be incorporated herein .... The provisions stated in said Act . . .
      shall govern before the goods are loaded on and after they are discharged from the ship ánd throughout the entire time the goods are in the custody of the carrier.
      (b) the statement in paragraph 2 of the contract of affreightment that Industries would “transport the cargo above dock from [Palm Beach] to port of discharge Chris-tiansted, St. Croix, Virgin Islands, and thence by trailer bed to alongside jobsite foundation . . . ”;
      (c) the reference in paragraph 4(c) of the contract of affreightment to the fact that “cargo will be discharged from trailer bed at jobsite by De Laval at its risk and expense as expeditiously as possible . . . ” ;
      (d) a statement in paragraph 5(d) of the contract which obligates De Laval to compensate Shipping for charges imposed by Heavy Lift for the discharge of additional cargo;
      (e) the language in paragraph 8 of the contract of affreightment extending the insurance requirements of the agreement to “any subcontractor of West India as the case may be, receiving, consolidating, loading or discharging the cargo, or transporting the cargo from the Ohristiansted Port Docks, Marine Terminal . . . ”; and
      (f) the definition of “ship” in paragraph 2 of the bill of lading as “any craft, lighter or other means of conveyance owned, chartered or operated by the carrier used in the performance of their contract.”

      . Cf. Uniform Commercial Code, § 1-205.

      . In Virgin Islands Corp. v. Merwin Light-erage Co., 177 F.Supp. 810 (D.V.I.1959), Judge Maris held that the identical provision did not extend COGSA protection to a company providing barge service between a point one mile from shore and the port. Unlike the instant case, the bill of lading in Merwin Lighterage was expressly limited to the period in which the transported goods were on board ship. Given this factual distinction, we do not rely upon Merwin Lighterage in reaching our conclusion.

      . See The Monrosa v. Carbon Black Export, Inc., 359 U.S. 180, 183, 79 S.Ct. 710, 3 L.Ed.2d 723 (1959).

      . In discussing Industries’ liability, the district court found that Industries’ failure to procure insurance for De Laval “constitutes an unreasonable deviation from, and a fundamental breach of, the contract of carriage” (see n. 1) and precludes reliance upon the COOSA limitation of liability. See Encyclopedia Britanica v. S.S. Hong Kong Producer, 422 F.2d 7, 18 (2d Cir. 1969), cert. denied, 397 U.S. 964, 90 S.Ct. 998, 25 L.Ed.2d 255 (1970); Jones v. The Flying Clipper, 116 F.Supp. 386 (S.D.N.Y.1953). The court therefore adjudged Industries liable for the full amount of De Laval’s damages. On appeal, Industries does not challenge the district court’s theory of “unreasonable deviation” nor does it question the district court’s reliance upon the Hong Kong Producer case. (We therefore find it unnecessary to address ourselves either to the theory or to the applicability of the Hong Kong Producer case in this Circuit). Instead, Industries offers an alternate route by which its liability may be limited to $500. Bather than claim the limitation directly, Industries contends that as Catanach’s insurer, it should be entitled to Catanach’s limitation of liability. Our conclusion that De Laval did not limit Catanach’s liability disposes of Industries’ contention.

      . Indemnification and contribution differ in the extent to which a tortfeasor is able to rid himself of liability. Where the entire liability shifts, indemnification is invoked; on the other hand, where liability is shifted only proportionately, contribution exists instead. See Prosser, Law of Torts, § 48 (3d ed. 1964). Heavy Lift’s cross-claim contemplates a partial, as well as a full-scale, shift in liability.

      . See, e. g., Andrews v. Chemical Carriers, Inc., 457 F.2d 636, 640 (3d Cir. 1972), cert. denied, 409 U.S. 874, 93 S.Ct. 120, 34 L.Ed.2d 126 (1972).

      . To conform with our conclusions in Part III, it will be necessary in any event for the district court to enter a new judgment.

      . Paragraph 2 of the contract of affreightment (majority opinion, p. 265) clearly supports Judge Christian’s conclusion that parties’ contract contemplated the overland portion of the voyage.

      . There is, thus, nothing in those provisions to indicate that the contracting parties intended to limit the liability of stevedores or other agents of the carrier for damages caused by their negligence. If such liad been a purpose of the contracting parties it must be presumed that they would in some way have expressed it in the contract. Since they did not do so, it follows that the provisions of the bill of lading did “not cut off [respondent’s] remedy against the agent that did the wrongful act.” Sloan Shipyards Corp. v. Emergency Fleet Corp., 258 U.S. 549, 568 [42 S.Ct. 386, 388, 66 L.Ed. 762].
      359 U.S. at 302, 79 S.Ct. at 769. The Court was not called upon to consider the impact of prior dealings between the contracting parties.


author: CRAVEN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Albert Junior HOLLEY, Appellant.
    No. 73-2299.
    United States Court of Appeals, Fourth Circuit.
    Argued Feb. 5, 1974.
    Decided May 20, 1974.

      Charles W. Hawks, Jr., Portsmouth, Va. [Court-appointed counsel], Hawks & Hawks, Portsmouth, Va., on brief), for appellant.
    Roger T. Williams, Asst. U. S. Atty. (Brian P. Gettings, U. S. Atty., * on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and CRAVEN and FIELD, Circuit Judges.
   CRAVEN, Circuit Judge:

In this bank robbery appeal we are concerned once again with the possibility of mistake and conviction of an innocent person inherent in the one-on-one positive identification rule. It is now settled beyond argument that the identification of a criminal actor by one person is itself evidence sufficient to go to the jury and support a guilty verdict and that application of this rule is not so fundamentally unfair as to be per se a denial of due process. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972); Stanley v. Cox, 486 F.2d 48 (4th Cir. 1973); United States v. Levi, 405 F.2d 380 (4th Cir. 1968); see 18 U. S.C. § 3502. Even so, for reasons that will subsequently appear, we reverse and remand for a new trial, with instructions that prospectively adopt the rule of United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552 (1972).

On December 29, 1972, four armed men entered the First Virginia Bank of Nansemond and robbed it. All wore caps pulled down and turtleneck sweaters pulled up to partially conceal their faces. One of the robbers shot at a security guard, George Cipra, and threatened to “blow [his] . . . head off.”

After Cipra was disarmed, he and all other employees were locked into the vault where their hands were tied and they were made to lie on the floor face down.

After the robbery, numerous photographs were exhibited to Cipra, including one of appellant Holley, but Cipra was unable to make an identification. Four months later, but prior to indictment, an FBI agent took Cipra to the Portsmouth city jail and had him walk through a day room in which ten prisoners were incarcerated. Cipra identified Holley as one of the robbers and at trial made an in-court identification. Two other bank employees, at least one of whom had the same opportunity to see Holley as did Cipra, were unable to identify him. No other evidence, either circumstantial or direct, connected Holley to the robbery of the bank.

In United States v. Levi, 405 F.2d 380 (4th Cir. 1968), another bank robbery case, we approved a rule of the Court of Appeals for the District of Columbia that when identification is an issue the trial judge must instruct the jury:

(1) “[T]hat the evidence raises the question of whether the defendant was in fact the criminal actor and necessitates the juror’s resolving any conflict in testimony upon this issue,” and (2) “that the- burden of proof is upon the prosecution with reference to every element of the crime charged and this burden includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime charged.” Jones v. United States, 124 U.S.App.D.C. 83, 361 F.2d 537, 542 (1966). 405 F.2d at 382-383.

We further instructed the district judges in this circuit that:

In deciding whether to permit a criminal case to go to the jury, where identification rests upon the testimony of one witness, the district judge ought to consider with respect to identification testimony the lapse of time between the occurrence of the crime and the first confrontation, the opportunity during the crime to identify as compared with the opportunity of other witnesses who may be unable to do so, the reasons, if any, for failure to conduct a line-up or use similar techniques short of line-up, and the district judge’s own appraisal of the capacity of the identifying witness to observe and remember facial and other features. In short, the district judge should concern himself as to whether the totality of circumstances “gives [s] rise to a very substantial likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). See Biggers v. Tennessee, 390 U.S. 404, 88 S.Ct. 979, 19 L.Ed.2d 1267 (1968). Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed. 2d 1199 (1967). 405 F.2d at 383.

After our decision in Levi, the Court of Appeals of the District of Columbia viewed our decision as “the correct approach,” United States v. Telfaire, 152 U.S.App.D.C. 146, 469 F.2d 552, 555 n. 5 (1972) and took it a step further. In Telfaire the District of Columbia Circuit in effect required mat our Levi instruction to the district judges be given by the trial judge to the jury. We agree that to guard against misidentification and the conviction of the innocent it is not enough that the trial judge himself be specifically alerted to the detailed factors that enter into the totality of the circumstances, but that the jury should also be so charged. In Telfaire the District of Columbia Circuit adopted generally for judges within the district a model instruction, using material from Judge Aldisert’s opinion in United States v. Barber, 442 F.2d 517 (3rd Cir. 1971), but permitting variation and adaptation to suit the proof and contentions of a particular case. We now do likewise as to the district judges in this circuit. As an Appendix to this opinion, we reprint the Telfaire model instruction. Prospectively, we shall view with grave concern the failure to give the substantial equivalent of such an instruction, but it is not our purpose to require that it be given verbatim.

In adopting the Telfaire rule, we do so, of course, in the context of a case that contains no evidence of identification except eyewitness testimony. Where there are corroborating circumstances the district judge will, of course, modify the model instruction so as to refer to them. He will then charge the jury that it must be convinced beyond a reasonable doubt of the accuracy of the identification either by the identification testimony or the other circumstances, if sufficient, or both.

In the case at bar, the district judge correctly referred to the question of identification as one of the primary issues in the case and cautioned the jury that they must test Cipra’s testimony “with all other testimony, or evidence that you find credible in this ease.” There was, as previously noted, no other evidence of identification of Holley except that of Cipra. In United States v. Salliey, 360 F.2d 699, 702 (4th Cir. 1966), we said that the law “must be applied within the context of the facts as developed in a given case, and a trial judge’s instructions to the jury must reasonably relate to the factual situation of the case.” Here there was insufficient application of the law to the facts. The instruction had an abstract quality divorced from the concrete facts of the case.

The circumstances of the out-of-court identifications were, for example, of crucial importance in this ease. The trial judge could well have pointed out to the jury with greater particularity the need to evaluate the reliability of these identifications.

Gregory v. United States, 133 U.S.App. D.C. 317, 410 F.2d 1016, 1025, cert. denied, 396 U.S. 865, 90 S.Ct. 143, 24 L. Ed.2d 119 (1969); see Jones v. United States, 124 U.S.App.D.C. 83, 361 F.2d 537 (1966).

Although we could not reasonably expect of the district judge that he anticipate today’s adoption of the Telfaire rule, we think the identification testimony here was so lacking in positiveness as to strongly suggest the “likelihood of irreparable misidentification,” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), and that the jury should have been specifically instructed to consider the possibility of misidentification under the specific circumstances revealed by the evidence.

In holding it error to fail to sufficiently relate the law to the particular facts of the case — whatever the jury may find them to be — we distinguish that requirement from (1) commenting on the weight of the evidence and (2) marshalling or summing up the evidence. While a United States district judge has the power to comment on the weight of the evidence even to the point of expressing his opinion as to credibility, Quercia v. United States, 289 U.S. 466, 469-470, 53 S.Ct. 698, 77 L.Ed. 1321 (1933), he is not required to do so, and his failure to do so is not error. United States v. Cohen, 145 F.2d 82, 92 (2d Cir. 1944), cert. denied, 323 U.S. 799, 65 S.Ct. 553, 89 L.Ed. 637 (1945). Likewise, a district judge may also properly marshal or sum up the evidence — in great detail if he wishes to do so — but it is the better practice that he not do it in detail, and it is certainly not error that he fails to marshal the evidence in the sense, commonly meant, of summarizing all of it. United States v. Gillilan, 288 F.2d 796, 798 (2d Cir.), cert. denied sub nom., Apex Distributing Co. v. United States, 368 U.S. 821, 82 S.Ct. 38, 7 L.Ed.2d 26 (1961); Cohen, supra,, at 92-93. To make the distinction clearer it should be noted that it is possible to marshal the evidence in great detail and yet fail to apply the law to the facts as may be found by the jury. It is the latter that is error. Cf. C. Wright and A. Miller, Federal Practice and Procedure: Criminal § 485 (1969) (“Content of Instructions — In General”) with § 488 (“Content of Instructions — Comment on the Weight of the Evidence”).

Jury instructions “should be drawn with reference to the particular facts of the case on trial,” Collazo v. United States, 90 U.S.App.D.C. 241, 196 F.2d 573, 578, cert. denied, 343 U.S. 968, 72 S.Ct. 1065, 96 L.Ed. 1364 (1952), and “ought not be conveyed merely in boilerplate abstractions,” United States v. Lozaw, 427 F.2d 911, 916 (2d Cir. 1970). Because abstract instructions that are not “adjusted to the facts of a particular case,” Adjmi v. United States, 346 F.2d 654, 658 (5th Cir.), cert. denied, 382 U. S. 823, 86 S.Ct. 54, 15 L.Ed.2d 69 (1965), may “confuse the jury,” Peterson v. Mountain States Tel. and Tel. Co., 349 F.2d 934, 937 (9th Cir. 1965), it has been held plain error for a district judge to fail to “relate the evidence to the law.” McNello v. John B. Kelly, Inc., 283 F.2d 96, 102 (3d Cir. 1960); Atkinson v. Roth, 297 F.2d 570, 574 (3d Cir. 1961); Choy v. Bouchelle, 436 F.2d 319, 325 (3d Cir. 1970).

In Lachman v. Pennsylvania Greyhound Lines, 160 F.2d 496 (4 Cir. 1947), Judge Dobie found reversible error in a facially correct statement of the law by the district judge because “he did not discuss this abstract statement in connection with the facts of the case and the charge as given was misleading and prejudicial to the plaintiff.” 160 F.2d at 501. See United States v. Rosenfield, 469 F.2d 598, 601 (3d Cir. 1972), cert. denied, 411 U.S. 932, 93 S.Ct. 1899, 36 L.Ed.2d 391 (1973); United States v. Salliey, 360 F.2d 699, 702 (4th Cir. 1966).

Different factual situations obviously call for different degrees of particularity. In the factual context of this ease —identification by a single witness with no other corroborating circumstantial evidence — we have been warned of the “likelihood of irreparable misidentification.” Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). A high degree of particularization of the legal standard is required because of such a likelihood, and, it is for this reason that we adopt the T elf aire rule.

Because we hold the charge to the jury on the question of identification insufficient, we reverse and remand for a new trial at which the defendant shall be accorded the benefit of the Telfaire instruction.

Vacated and remanded.

APPENDIX: MODEL SPECIAL INSTRUCTIONS ON IDENTIFICATION

One of the most important issues in this case is the identification of the defendant as the perpetrator of the crime. The Government has the burden of providing [proving] identity beyond a reasonable doubt. It is not essential that the witness himself be free from doubt as to the correctness of his statement. However, you, the jury, must be satisfied beyond a reasonable doubt of the accuracy of the identification of the defendant before you may convict him. If you are not convinced beyond a reasonable doubt that the defendant was the person who committed the crime, you must find the defendant not guilty.

Identification testimony is an expression of belief or impression by the witness. Its value depends on the opportunity the witness had to observe the offender at the time of the offense and to make a reliable identification later.

In appraising the identification testimony of a witness, you should consider the following:

(1) Are you convinced that the witness had the capacity and an adequate opportunity to observe the offender?

Whether the witness had an adequate opportunity to observe the offender at the time of the offense will be affected by such matters as how long or short a time was available, how far or close the witness was, how good were lighting conditions, whether the witness had had occasion to see or know the person in the past.

[In general, a witness bases any identification he makes on his perception through the use of his senses. Usually the witness identifies an offender by the sense of sight — but this is not necessarily so, and he may use other senses.]

(2) Are you satisfied that the identification made by the witness subsequent to the offense was the product of his own recollection? You may take into account both the strength of the identification, and the circumstances under which the identification was made.

If the identification by the witness may have been influenced by the circumstances under which the defendant was presented to him for identification, you should scrutinize the identification with great care. You may also consider the length of time that lapsed between the occurrence of the crime and the next opportunity of the witness to see defendant, as a factor bearing on the reliability of the identification.

[You may also take into account that an identification made by picking the defendant out of a group of similar individuals is generally more reliable than one which results from the presentation of the defendant alone to the witness.]

[(3) You may take into account any occasions in which the witness failed to make an identification of defendant, or made an identification that was inconsistent with his identification at trial.]

(4) Finally, you must consider the credibility of each identification witness in the same way as any other witness, consider whether he is truthful, and consider whether he had the capacity and opportunity to make a reliable observation on the matter covered in his testimony.

I again emphasize that the burden of proof on the prosecutor extends to every element of the crime charged, and this specifically includes the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime with which he stands charged. If after examining the testimony, you have a reasonable doubt as to the accuracy of the identification, you must find the defendant not guilty.

      . Holley was in jail on another offense. In a pro se brief on appeal, Holley contends for the first time that Cipra first identified another of the ten men in the day room and did not select him until assisted by a Mr. Revell, an assistant jailor who accompanied Cipra.

       Sentence in brackets ([]) to be used only if appropriate. Instructions to be inserted or modified as appropriate to the proof and contentions.