author: TIMBERS, Circuit Judge; LUMBARD, Circuit Judge

text:
    UNITED STATES of America ex rel. Larry JOHNSON, Petitioner-Appellee, v. Leon J. VINCENT, Superintendent of Green Haven Correctional Facility, Stormville, New York, Respondent-Appellant.
    No. 1053, Docket 74-1401.
    United States Court of Appeals, Second Circuit.
    Argued June 13, 1974.
    Decided Nov. 8, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1435.
    Lillian Z. Cohen, Asst. Atty. Gen., State of New York, New York City (Louis J. Lefkowitz, Atty. Gen., Samuel A. Hirschowitz, First Asst. Atty. Gen., and Constance B. Margolin, Asst. Atty. Gen., New York City, on the brief), for respondent-appellant.
    John J. Tigue, Jr., New York City (Elizabeth B. DuBois, Mark C. Morril, Legal Action Center of the City of New York, New York City, on the brief), for petitioner-appellee.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   TIMBERS, Circuit Judge;

The State of New York appeals from an order entered January 30, 1974, after an evidentiary hearing in the Southern District of New York, Bauman, District Judge , granting a state prisoner’s petition for a writ of habeas corpus, vacating his murder conviction and remanding his case for resentencing nunc pro tunc so that he can prosecute another direct appeal in the state courts. We reverse the order of the district court and dismiss the petition on the ground that petitioner has failed to exhaust state remedies as required by 28 U.S.C. § 2254(b) and (c) (1970). Specifically, we hold that, since Johnson failed properly to raise in the state courts the federal constitutional claim which he now urges upon the federal courts, the state courts have not had a fair opportunity to consider that claim.

I.

A brief summary of the prior proceedings in this case is believed necessary to an understanding of our ruling on the issue raised on appeal.

Petitioner, Larry Johnson, and a co-defendant, Boyce Thompson, were convicted of murder on December 11, 1969 in the Bronx County Supreme Court after a trial before Justice Charles G. Tierney and a jury. On January 24, 1970, Johnson was sentenced to a term of 15 years to life. His conviction was unanimously affirmed on direct appeal by the Appellate Division on December, 9, 1971. 38 App.Div.2d 689, 327 N.Y.S.2d 545 (1st Dept. 1971) (mem.). Leave to appeal to the New York Court of Appeals was denied on January 25,1972.

On July 17, 1972, Johnson filed a second motion in the Bronx County Supreme Court to vacate his judgment of conviction. Johnson claimed for the first time in this motion that the trial court erroneously had failed to grant the request of his trial counsel to instruct the jury with respect to the crime of assault which he asserted was a lesser included offense embraced within the crime of homicide for which he was charged and convicted. He claimed further that the failure of his appellate counsel to raise this alleged error rendered ineffective his representation on appeal. Noting that the inadequate representation claim was not properly before him on a motion to vacate judgment, Justice Arnold L. Fein of the Bronx County Supreme Court denied Johnson’s motion on September 5, 1972. Leave to appeal from this order was denied by Justice Aron Steuer of the Appellate Division on October 31, 1972.

On February 2, 1973, Johnson filed in the district court a petition for a writ of habeas corpus based on substantially the same grounds as those alleged in his second motion in the state trial court to vacate his judgment of conviction.

The crime for which Johnson was convicted occurred on December 14, 1968. Late that day, Johnson, Thompson, Perry Ford and two other individuals met one Nicholas Chambers. The six went together to the Bronx apartment of Linda West Mullins, Ford’s common law wife. At the apartment Mullins identified Chambers as the individual who recently had burglarized her apartment. Chambers denied the accusation. He thereupon was beaten savagely — chiefly by Ford — in an effort to compel Chambers to disclose the whereabouts of the items he was accused of having stolen. The others participated with Ford — but to a lesser degree — in beating Chambers.

Ford, Johnson and Thompson carried the semi-conscious Chambers from Mullins’ apartment up a flight of stairs to the roof of the apartment building. On the roof a fight ensued. It resulted in Chambers being thrown from the roof to his death.

At the state court trial, Thompson, who took the stand in his own defense, testified that as he, Johnson, Ford and Chambers reached the landing between the fourth and fifth floors of the apartment building on their way to the roof, Johnson turned and went downstairs. Thompson also testified that it was Ford alone who had assaulted Chambers on the roof, resulting in the latter being thrown to his death. Mullins testified that Johnson and Ford returned to her apartment approximately 15 to 20 minutes after they had left it, and that Ford told her that it was he who had thrown Chambers from the roof. Johnson did not testify.

On the basis of this and other evidence, the trial judge instructed the jury that it might find Johnson guilty of murder if it found that he had acted in concert with Ford with the intent of assisting in the commission of the homicide. Johnson’s trial counsel took exception to that portion of the charge relating to intent. She claimed that the judge had failed adequately to distinguish between the intent to assault Chambers in Mullins’ apartment and the intent to act in concert on the roof for the purpose of murdering Chambers. She requested the judge to charge in accordance with this distinction. This request, which was construed by the district court as a request to charge the lesser included offense of assault, was denied. This alleged error was not raised on direct appeal in the state courts.

II.

The essential issue on the instant appeal is whether Johnson’s appellate representation in the state courts was constitutionally ineffective by reason of the failure of his counsel to raise on appeal the trial judge’s asserted refusal to charge the lesser included offense of assault.

Despite Johnson’s assertion, and what appears to be the district court’s clearly erroneous assumption, that Johnson had exhausted available state remedies, our threshold inquiry must be directed to that issue. For absent compliance with the exhaustion requirements of 28 U.S.C. 2254(b) and (c) (1970), it ordinarily is inappropriate for a federal court to entertain a state prisoner’s petition for a writ of habeas corpus. Picard v. Connor, 404 U.S. 270, 276 (1971); Nelson v. George, 399 U.S. 224, 229-30 (1970); Ralls v. Manson, 503 F.2d 491, 493 (2 Cir. 1974); United States ex rel. Gibbs v. Zelker, 496 F.2d 991, 993-94 (2 Cir. 1974); United States ex rel. Nelson v. Zelker, 465 F.2d 1121, 1123-25 (2 Cir.), cert. denied, 409 U.S. 1045 (1972).

Johnson argues that the state's failure to raise the issue of exhaustion in the district court constituted a waiver and bars our consideration of it on appeal.

The requirements of § 2254(b) and (c) are not jurisdictional. Darr v. Burford, 339 U.S. 200, 204-11 (1950); United States ex rel. Curtis v. Warden, 463 F.2d 84, 86 (2 Cir. 1972). They reflect a policy of federal-state comity. Fay v. Noia, 372 U.S. 391, 419-20 (1963). While it is within our discretion in a habeas corpus proceeding to decline to consider issues not raised below, United States ex rel. Springle v. Follette, 435 F.2d 1380, 1384 (2 Cir. 1970), cert. denied, 401 U.S. 980 (1971); United States ex rel. Ross v. LaVallee, 341 F.2d 823, 824 n. 1 (2 Cir.), cert. denied, 382 U.S. 867 (1965), here we find it particularly appropriate to consider the exhaustion issue, as we did under similar circumstances in United States ex rel. Wissenfeld v. Wilkins, 281 F.2d 707, 710 (2 Cir. 1960):

“ . . . in view of the important role the exhaustion doctrine has assumed in the maintenance of a proper balance of authority between the national and state governments in our federal system, ... we think it is appropriate that we consider the exhaustion question, although it has not been presented to us by the parties.”

Cf. United States ex rel. Springle v. Fol-lette, supra, 435 F.2d at 1384.

Indeed, the policy referred to in Wis-senfeld is even more compelling here where resolution of Johnson’s constitutional claim requires us at the outset to consider and decide several troublesome questions of New York criminal procedure: First, whether the colloquy between the court and Johnson’s trial counsel constituted an effective request to charge a lesser included offense under stale law; and second, assuming an effective request was made, whether the court erred in refusing to so charge. Such a charge would be appropriate under New York law only if it were impossible for Johnson to have committed the murder on the roof without concomitantly committing “by the same conduct” the assault in Mullins’ apartment. N.Y.Crim.Proe.Law § 1.20(37) (McKinney 1971) (emphasis added). These are questions which in our view properly should be considered in the first instance by the New York courts.

The only point in the state proceedings where Johnson raised the claim of ineffective assistance of counsel was in his second motion to vacate the judgment of conviction, pursuant to N.Y. Crim.Proc.Law § 440.10 (McKinney 1971). This provision, however, permits collateral attack on a conviction only on the basis of errors committed at trial, as reflected in Justice Fein’s decision denying Johnson’s motion:

“If appellate counsel’s alleged oversight is intended as a claim of inadequate representation, such conduct occurred at the appellate level and not during the course of the proceedings in the nisi prius court. It does not appear that the trial court erred.”

While it may be said that Johnson resorted to the wrong state remedy, we held in United States ex rel. Cuomo v. Fay, 257 F.2d 438, 442 (2 Cir. 1958), cert. denied, 358 U.S. 935 (1959), that:

“Invocation of an improper remedy will suffice as an exhaustion only on a clear indication that the federal question was considered on the merits.” (emphasis added).

Here, Justice Fein specifically declined to rule on the merits of Johnson’s claim of ineffective assistance of counsel. Nor can it be said that Johnson’s motion for leave to appeal to the Appellate Division from Justice Fein’s order afforded that court “an initial ‘opportunity to pass upon and correct’ alleged violations of its prisoner [’s] federal rights.” Wilwording v. Swenson, 404 U.S. 249, 250 (1971), quoting from Fay v. Noia, supra, 372 U.S. at 438.

We hold that the constitutional issue which Johnson seeks to raise in his federal habeas corpus petition was not “fairly presented to the state courts” as required by Picard v. Connor, supra, 404 U.S. at 275-76, and other authorities cited above at page 1311.

We reverse the order of the district court and dismiss the petition on the ground that petitioner has not exhausted state remedies.

LUMBARD, Circuit Judge

(concurring, with whom Judge HAYS also concurs) :

I concur.

While I agree completely with the result reached in the main opinion, I think it appropriate to express my views on the merits of this ease.

The district judge was clearly erroneous in finding that Johnson’s trial counsel requested a charge on a lesser included offense. As is apparent from the colloquy between the trial court and defense counsel (opinion at p. 1311, n. 6) the deliberate strategy of Johnson’s trial counsel was to separate the events that occurred on the roof from those in the apartment by stressing that Johnson was not present when the murder occurred and that the prior events in the apartment were unrelated. If this could be done, Johnson would be home free on the murder charge. This attempt to have Johnson completely exonerated would have been seriously jeopardized if the jury was given the additional choice of finding Johnson guilty of assault. As such the failure of Johnson’s appellate counsel to raise the refusal to charge a lesser included offense on appeal does not in any way “shock the conscience” of the reviewing court. United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950).

       This district judge has since resigned.

      . On February 26, 1974, the district court stayed its order pending this appeal.

      . While his direct appeal was pending before ' the Appellate Division, Johnson in November 1970 filed in the trial court his first motion to vacate his judgment of conviction on the ground of newly discovered evidence. Justice Tierney denied the motion on November 10, 1971. An appeal from this order was heard along with Johnson’s direct appeal. The order was affirmed without opinion. 38 App.Div.2d 692, 327 N.Y.S.2d 546 (1st Dept. 1971) (mem.). Leave to appeal to the New York Court of Appeals was denied on January 25, 1972.

      . Johnson was represented on appeal by counsel other than his trial counsel.

      . Johnson also alleged that the prosecution intentionally had suppressed exculpatory material in violation of his rights under Brady v. Maryland, 373 U.S. 83 (1963). Justice Fein rejected this claim on its merits.

      . Johnson’s Brady claim was raised in and rejected by the district court. It is not the subject of the instant appeal.

      . The following is a portion of the colloquy between Johnson’s trial counsel and the court:
      “Counsel: Now, I also take exception to the charge of the Court when it referred to the intent and the common enterprise, it did not clearly state to this jury that they could not consider that the intent that resulted in the assault upon the deceased in the apartment or the common enterprise that may have given rise to the assault on the deceased in the apartment is the intent and common enterprise that must be found to convict these defendants of murder . . . and I request the Court to charge the jury clearly that the intent necessary to act in concert to find out where Larry — where Perry Ford’s clothing was and the result of the assault on Chambers inside that apartment should be clearly distinguished from an acting in concert for the purpose of murdering . . . Nicholas Chambers.
      The Court: In summarizing the evidence, the Court summarized the testimony of all the witnesses and that is the testimony that is the evidence which this jury wilj deliberate upon and whatever occurred in the apartment prior to the time they left the apartment and started upstairs surely was an assault but all of that is merged in this circumstantial evidence and intent of the whole proceeding from beginning to end and it’s not like taking separate blocks and putting them all together and charging the separate blocks. You take all the blocks together as the evidence and charge — in charging the one crime. And I’m not going to charge separate counts here of assault because murder in itself is an assault with — and that’s what I have before me.
      Counsel: I’m saying that the act that took place in the apartment an act of assault is not the assault that would merge in the homicide—
      The Court: I decline to charge. First of all, there is no such charge in the indictment. I find anything that occurred prior to what you are talking about is not independent, it’s merged in and part of the evidence to spell out intent, circumstantial evidence and the whole ball of wax leading up to acting in concert to commit a crime.”

      . While we do not reach the merits of Johnson’s constitutional claim in view of our holding that he has failed to exhaust state remedies, we note in passing that we would have difficulty, on the record before us, in upholding the determination of the district court that the failure of Johnson’s appellate counsel to raise a questionable point of New York law rendered his performance so “ ‘horribly inept’ as to amount to a ‘breach of his legal duty faithfully to represent his client’s interests’ . . . . ” United States ex rel. Scott v. Mancusi, 429 F.2d 104, 109 (2 Cir. 1970), cert. denied, 402 U.S. 909 (1971), quoting from United States ex rel. Maselli v. Reincke, 383 F.2d 129, 132 (2 Cir. 1967), or that appellate counsel’s alleged oversight was such “as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.” United States v. Wight, 176 F.2d 376, 379 (2 Cir. 1949), cert. denied, 338 U.S. 950 (1950).
      These are the standards by which we determine whether assistance of counsel has been constitutionally ineffective.


source: Caselaw Access Project

author: DUNIWAY, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Bruce Newton COALE, Defendant-Appellant.
    No. 74-1959.
    United States Court of Appeals, Ninth Circuit.
    Nov. 15, 1974.

      Stephen Bedrick (argued), Oakland, Cal., for defendant-appellant.
    Joseph E. Reeves, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.
    Before DUNIWAY and CHOY, Circuit ' Judges, and SMITH, District Judge.

       The Honorable Iiussell E. Smith, Chief Judge, United State District Court for the District of Montana, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

Coale was convicted of failure to report for induction into the armed forces in violation of 50 U.S.C.App. § 462(a), and he appeals. We affirm.

Shortly after registering with his Selective Service board on June 11, 1970, Coale indicated on Series XI of his Classification Questionnaire that he thought that he had a disqualifying mental condition, a “psychological problem.” The board classified him I-A on July 14, 1971. The board later ordered Coale to report for preinduction physicals on two different dates, but Coale failed to appear. Thereafter, in October 1971, Coale wrote the board a letter indicating that he had psychological problems and submitted two letters from psychologists in support of his claim for disqualification. In brief, the letters describe Coale as psychoneurotie with phobias and learning disabilities and as suffering from a hyperkinetic syndrome with psychological deficiencies which prevented him from performing normally in school.

On November 2, 1971, the clerk of the board forwarded these two letters to the board’s medical advisor. The medical advisor determined that Coale was not disqualified from military service under the standards set out in Local Board Memorandum (“LBM”) 78, and recommended that Coale be sent for a regular pre-induction physical examination. Twice more Coale was ordered to appear for physical examinations but did not appear. On May 15, 1972, the board ordered Coale to report for induction on June 20,1972. This prosecution resulted because Coale failed to report. At no time before issuing the induction order did the board members themselves consider the two letters from psychologists or Coale’s claim for a medical disqualification.

Coale makes two arguments for reversal. First he contends that the two psychologists’ letters established a prima facie claim for medical disqualification from military service under Army Regulation (“AR”) 40-501.

Where a registrant presents to his local board a prima facie claim for reclassification, on medical or other grounds, the board must reopen his classification. United States v. Cantero, 9 Cir., 1972, 471 F.2d 1190 (in banc); United States v. Sigler, 9 Cir., 1972, 471 F.2d 1191 (in banc); United States v. Miller, 9 Cir., 1972, 455 F.2d 358. Reopening provides the registrant with the important rights of personal appearance and administrative appeal. Mulloy v. United States, 1970, 398 U.S. 410, 415, 90 S.Ct. 1766, 26 L.Ed.2d 362. A registrant establishes a prima facie claim by making “non-frivolous allegations of facts that have not been previously considered by his board, and that, if true, would be sufficient under regulation or statute to warrant granting the requested classification.” Id. at 416, 90 S.Ct. at 1771.

Apparently applying the medical disqualification standards set out in AR 40-501, the district court held that the two letters describing Coale’s condition did not establish a prima facie claim. We do not pause to reexamine that determination, for we conclude that AR 40-501 was no longer the applicable standard when the board acted in this case. Rather, LBM 78, as amended on August 10, 1970, provided the relevant list of medical conditions that would justify disqualification by action of the local board. We base our conclusion on the Selective Service System regulations as they stood at times relevant to this case.

From March 19, 1963, until December 9, 1971, 32 C.F.R. § 1628.1 outlined the basic procedure for determining medical disqualification as follows:

The Surgeon General of the Department of the Army shall, from time to time, prescribe or approve a list enumerating various medical conditions or physical defects that disqualify registrants for service in the Armed Forces. A medical interview of certain registrants by the medical ad-visor to the local board shall be accomplished for the purpose of screening and disqualifying at the local board those registrants who have conditions or defects enumerated in the list.

On December 9, 1971, Part 1628 of 32 C.F.R. was revised to establish new procedures for referring registrants to an Armed Forces Examining and Entrance Station (“AFEES”) for medical examinations. That amendment, however, did not disturb the reference in § 1628.1 to the Army Surgeon General’s list pertinent to this case.

From August 30, 1963, until August 10, 1970, LBM 78 linked AR 40-^501 to § 1628.1 as follows:

Section 1628.1 of the Selective Service Regulations provides for a medical interview of certain registrants by the medical advisor to the local board for the purpose of screening at the local board without an armed forces physical examination registrants who have medical conditions or physical defects that disqualify them for service in the Armed Forces which appear in a list thereof approved by The Surgeon General of the Department of the Army. That list is set forth in Chapter 2 of Army Regulations No. 40-501 entitled “Medical Fitness Standards for Appointment, Enlistment, and Induction.”

However, on August 10, 1970, the Director of the Selective Service System amended LBM 78 to delete all reference to AR 40-501 and to provide a revised list of “obviously disqualifying” conditions that would justify medical disqualification by the board without a physical examination at AFEES.

That amendment in effect distinguished the rough medical guidelines that a local board was to apply in classifying registrants on its own initiative from the more detailed and stringent medical standards that, the Army was to apply in examining registrants for acceptability at AFEES. Indeed, this court has previously had occasion to notice another aspect of the distinction in functions between the local board and AFEES. “While medical acceptability may be determined by AFEES [citations omitted], classification [may] not.” United States v. Miller, supra, 455 F.2d at 360. Thus we conclude that, after the amendment to LBM 78, the local boards were charged with making medical disqualification determinations only in cases of certain obviously disqualifying conditions listed in LBM 78 as revised.

We do not view our earlier decisions in United States v. Coleman, 9 Cir., 1973, 478 F.2d 1371, and United States v. Levy, 9 Cir., 1972, 469 F.2d 345, as inconsistent with this conclusion. Those cases involved registrant claims for medical disqualification under AR 40-501 where the challenged local board actions preceded the August 10, 1970, amendment to LBM 78 which supplanted the AR 40-501 list of disqualifying conditions. Hence those cases properly applied the standards of AR 40-501, which were then still in effect. That both prosecutions were based on refusals to submit to induction which occurred after the LBM 78 amendment is immaterial. Neither case mentions nor had occasion to consider the amendment.

Under the list provided by the amendment to LBM 78, which is much shorter and narrower than that in AR 40-501, Coale failed to establish a prima facie claim for medical disqualification. The only grounds for psychological disqualifications listed in LBM 78 are idiocy, imbecility, and “[m]ental derangement, with commitment or authentic medical history of medical derangement without commitment.” We therefore hold that Coale’s local board did not err in failing to reopen Coale’s classification because the two psychologists’ letters did not establish a prima facie claim for disqualification under amended LBM 78.

Next, appellant argues that, even if the psychologists’ letters did not establish a prima facie claim, the local board’s failure even to consider the letters dictates reversal under United States v. Kelly, 9 Cir., 1973, 473 F.2d 1225. Kelly reversed a conviction for failure to submit to induction because the local board had failed to consider a letter written to the board in support of the registrant’s claimed high school deferment. The opinion declares broadly that local board clerical personnel must forward all “relevant communications from or concerning registrants” to the members of the board for their consideration. 473 F.2d at 1227.

Although the broad language of Kelly seems to dictate reversal in this case, our disposition here is controlled by the more recent decision of this court in United States v. Davis, 9 Cir., 1973, 484 F.2d 937. There, the registrant had submitted a letter of a doctor which stated that four years earlier the registrant had suffered a fracture of his right femur and the consequent atrophy of his leg muscles. Although severe muscular atrophy was a disqualifying condition under the then applicable AR 40-501 standards, the court held that Davis failed to establish a prima facie case because he failed to submit evidence of a current condition. The court further held that, because the registrant failed to present a prima facie case, there was no prejudice in the board’s failure to consider the letter from the doctor. Accord, United States v. Johnson, 9 Cir., 1972, 473 F.2d 677, 678; United States v. McKinley, 9 Cir., 1971, 447 F.2d 962, 964. Davis distinguished Kelly as a case which involved a prima facie claim for reclassification. Davis, supra, 484 F.2d at 938 n. 2. See also United States v. Bingham, 9 Cir., 1973, 484 F.2d 365, 366 n. 1; United States v. Thrower, 9 Cir., 1973, 483 F.2d 283, 285.

Were we considering this case in the light of Kelly alone, without the intervention of Davis, we would be inclined to reverse. However, we are bound by Davis, which presents a close factual analogy to the ease before us. Coale, like Davis, asserted a medical condition that clearly fell short of establishing a prima facie claim for disqualification. Under the rule of Davis, the failure of the local board to consider Coale’s insufficient claim resulted in no prejudice.

Affirmed.

      . On October 22, 1971, the board received a letter from a clinical psychologist who had treated Coale once a week for ten weeks in 1959, when Coale was seven years old. In pertinent part that letter states :
      At that time, Bruce [Coale] was a disturbed child who could be classified as psychoneurotic with phobias and learning disabilities as his most prominent symptoms.

      . On October 20, 1971. the board received a letter from the director of a “learning institute” which had psychologically tested Coale in July 1969. In pertinent part that letter states:
      At the time of testing, we noted Bruce Coale as a mentally alert young man of superior general intelligence but a hyper-kinetic syndrome with its consequent difficulties in self-control, frustration tolerance, concentration, visuo-motor coordination and visual language symbols prevented any academic success during his school years. This with maternal pressure for academic performance aggravated the problem. It was our feeling that Bruce needed psychological counseling concurrently with prescriptive academic assistance. These recommendations were not followed through.

      . On May 26, 1972, eleven days after the issuance of Coale’s order to report for induction, the board members did review Coale’s file but declined to reopen his classification, apparently on the grounds that Coale had not met the stringent burden imposed by regulation on a registrant who requests a reopening after an order to report for induction has issued. 32 C.F.R. § 1625.2 (1972). See, e. g., United States v. O’Neill, 9 Cir., 1973, 476 F.2d 295, 296. However, because we do not rely on this review as curing any alleged procedural irregularities, the post-induction-order actions of the board are not pertinent to our disposition of this case.

      . Appellant relies upon four separate categories of disqualification listed in Chapter 2 of AR 40-501, entitled Medical Fitness Standards for Appointment, Enlistment, and Induction:
      2-33.
      a. History of psychonewotic reaction which caused—
      (2) Prolonged care by a physician. . . . , or
      (4) Symptoms or behavior of a repeated nature which impaired school or work efficiency.
      2-34.
      b. Character and behavior disorders where it is evident by history and objective examination that the degree of immaturity, instability, personality inadequacy, and dependency will seriously interfere with adjustment in the military service as demonstrated by repeated inability to maintain reasonable adjustment in school, with employers and fellow-workers, and other society groups.
      2-34.
      d. Specific learning defects secondary to organic or functional mental disorders.

      . 28 Fed.Reg. 2616 (1963).

      . 36 Fed.Reg. 23380 (1971).

      . As revised, 32 C.F.R. § 1628.1(c) (1972) provided:
      Based on lists of various medical conditions or physical defects that disqualify registrants for service in the armed forces, as may be issued from time to time by the Surgeon General of the Department of the Army, the local board, under such rules and regulations as the Director of Selective Service may prescribe shall determine whether a registrant who has or who may have such disqualifying medical condition or defect shall be delivered for an armed forces examination.

      . As amended, LBM 78 provides :
      1. Selective Service Law specifies that the Secretary of Defense determines standards of acceptability of each registrant for military service. Authority has been delegated to the Selective Service System to find a registrant not qualified, where the disqualifying defect is manifest, without examination, at an Armed Forces Examining and Entrance Station. When the registrant’s condition is not sufficiently manifest for the local board to act on its own initiative, it may seek advice from the Medical Advisor or, if appropriate, process the registrant for a medical interview in accordance with Part 1628 of the Selective Service Regulations. If no Medical Advisor is available, the registrant must be sent to the Armed Forces Examining and Entrance Station.
      2. Conditions considered by the Surgeon General of the Army to be obviously disqualifying for enlistment or induction follow: [listing various conditions].
      3. There are other conditions which would not be obvious but which upon receipt of valid documentary evidence, can be evaluated by the Medical Advisor, without referral to the Armed Forces Examining and Entrance Stations. Examples of these conditions are: [listing various conditions].
      4. The Medical Advisor to the local board shall not perform complete examinations or do diagnostic adjuncts such as X-ray and laboratory service.
      5. When in accordance with provisions of the Memorandum, the registrant’s condition is found to be sufficiently disqualifying, the local board should place him in class IV-F.

      . LBM 78, as amended August 10, 1970, §§ 2(r), (s), and (v), respectively.

      . Although both the appellant and the Kelly opinion frame this issue in terms of a violation of procedural due process, we think it improper to invoke constitutional principles here. Bather, we view the question to be whether Coale’s local board violated the Selective Service System regulations which stated: “The local board will receive and consider all information, pertinent to the classification of a registrant, presented to it.” 32 C.F.R. § 1622.1(c) (1971). See Kelly, supra, 473 F.2d at 1227. The board was legally obligated to follow the regulations. If it did not, its action was invalid. We should decide cases of non-constitutional grounds if such grounds exist. Not every error committed, either by a court or by a Selective Service board, is of constitutional dimension.


author: ALDRICH, Senior Circuit Judge. ALDRICH, Senior Circuit Judge.

text:
    Hans PEYMANN, Plaintiff-Appellant, v. PERINI CORPORATION, Defendant-Appellee.
    No. 74-1143.
    United States Court of Appeals, First Circuit.
    Argued Oct. 8, 1974.
    Decided Nov. 22, 1974.
    Rehearing Denied Dec. 24, 1974.
    Certiorari Denied April 14, 1975.
    See 95 S.Ct. 1572.

      David B. Kaplan, Boston, Mass., with whom Kaplan, Latti & Flannery, Boston, Mass., was on brief, for plaintiff-appellant.
    James C. Gahan, Jr., Boston, Mass., for defendant-appellee.
    Before ALDRICH, McENTEE and CAMPBELL, Circuit Judges.
   ALDRICH, Senior Circuit Judge.

Plaintiff, a seaman, brought suit against his employer, a shipowner, in the usual counts: Count One for negligence under the Jones Act, 46 U.S.C. § 688; Count Two for unseaworthiness, and a maintenance count not presently involved. The court directed a verdict for the defendant on Count One, and the jury found for the defendant on Count Two. Plaintiff alleges error in the direction of the verdict and, with respect to the second count, in the charge. For reasons we will come to, there was no error in directing the verdict. We will deal first with Count Two.

Before doing so, however, we express strong criticism of plaintiff’s counsel for an inadequate appendix. No experienced appellate practitioner could think that the skimpy excerpts of testimony set forth were all that were relevant to the questions at issue. This selective presentment is a violation of F.R.A.P. 10(b). Cf. Moran Towing Corp. v. M. A. Gammino Constr. Co., 1 Cir., 1966, 363 F.2d 108, 109. We have long complained of a practice obliging the appellee to fill in substantial interstices, in turn requiring us to sashay from one appendix to the other. Chernack v. Radio, 1 Cir., 1964, 331 F.2d 170, 171-172. We notify the bar that serious breaches by an appellant in this respect hereafter may result in the imposition of costs chargeable against counsel personally. Plaintiff in this ease offended not only with respect to the testimony, but in over-reducing the charge.

Plaintiff’s claim of unseaworthiness is based upon the following facts. On the day in question defendant’s tug Gorham Whitney was docked undergoing a substantial engine overhaul. This was being done by plaintiff, who was the chief engineer, and one assistant. It was necessary to raise the cylinder heads, one at a time, from the engine. This was effected by a chain fall (a chain and pulley device) temporarily attached to a shackle in the deck immediately overhead. The fall weighed some forty pounds, and while plaintiff was attaching it in this instance he slipped and fell, injuring his back.

In order to affix the fall to the ceiling, plaintiff was obliged to stand upon something. He testified that defendant should have furnished him a stepladder; that he looked for such but could not find one, and that, accordingly, he was' obliged to stand “like a bird” on an iron pipe rail which, unnoticed by him until afterwards, was covered with oil. He further testified that it was customary to have three men on the job, but that defendant had constantly refused his requests for this additional help.

On this basis plaintiff claimed that defendant had supplied a place to work that was unsafe in three particulars: no ladder; oil on the rail, and insufficient assistance. Defendant’s response was that a ladder was available; that plaintiff should not have stood on the rail, at least without wiping it, and that it was not customary, or necessary to have three men when the work was proceeding at a leisurely pace at the dock instead of by emergency repair at sea. Defendant, in addition, obtained an admission from plaintiff that as chief engineer in charge of the engineroom it was his duty to obtain the stepladder if one was available and needed, and to maintain proper working conditions and “keep this engine rail clean and free from various substances like oil. . ” Plaintiff countered that the oil “is drippings from the cylinder heads when we take them off and the liners out. There’s always some oil coming down to the railing and the floor”-— a somewhat self-stultifying position for plaintiff to take in view of his admittedly mounting the railing without looking for, and removing, the oil he knew, on that basis, was necessarily there.

The portion of the charge to which plaintiff objects is the following.

“If you find that the duty of maintaining this engine room in a seaworthy condition was solely a duty which the plaintiff owed to his employer to perform, and if you find that the condition of unseaworthiness which was the cause of the plaintiff’s accident was due solely to the failure of the plaintiff to carry out his duty to his employer to keep that engine room in a seaworthy condition, then you must find for the defendant in this case.
“In short, the plaintiff cannot recover on the basis of an unseaworthy condition which is due wholly and solely -to a failure on his part to perform the responsibilities that were assigned to him. That is one of the aspects of the case that it is the burden of the defendant to establish. [that it was solely the plaintiff’s duty to keep this engine room in a seaworthy condition.]”

The bracketed material was not included in plaintiff’s appendix. Nor was the court’s full explanation of the pro rata rule if plaintiff’s negligence was only contributory — that if plaintiff’s injury was due only in part to his failure and in part to improper conduct by defendant, plaintiff might recover ratably. See Socony-Vacuum Oil Co. v. Smith, 1939, 305 U.S. 424, 431, 59 S.Ct. 262, 83 L.Ed. 265; Donovan v. Esso Shipping Co., 3 Cir., 1958, 259 F.2d 65, 67, cert. denied, 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572. Finally, at plaintiff’s request the court illustrated and charged in explicit terms that defendant could not rely upon any principle of assumption of the risk.

We cannot read the charge as a whole without concluding that it fairly informed the jury that, irrespective of plaintiff’s duty, defendant would be liable if there should have been three men present and the absence of the third man contributed to the accident; or if a stepladder was needed but was not available; or if, in the jury’s view, plaintiff was only contributorily negligent. Consequently the complained-of instruction was, both because of other instructions, and in direct terms, applicable only if the jury found that the accident was due solely to the failure of plaintiff, as the one in charge, to have the engineroom seaworthy by obtaining an available ladder or, if it was proper to use the rail, to see that it was free of oil before he stepped on it.

The question of the ladder need not detain us. If a vessel makes available two means for performing an act, one of which is unsafe, e. g., two tools, one of which is defective, or two ladders, one of which is slippery, it would be an indirect application of the proscribed doctrine of assumption of the risk to foreclose recovery completely if the seaman chose the less desirable alternative. Cf. Socony-Vacuum, ante, 305 U.S. at 431-432, 59 S.Ct. 262. But this does not mean that a seaman may not be wholly barred if he selects a method he could not reasonably think open to him. Thus if the cook were given a proper bottle opener but chose to knock the head off the bottle, he could not complain. Or if there were two gangways and one was marked “Do not use,” it could not be thought that a seaman insisting upon using it despite the proferred alternative could complain of the ship’s unseaworthiness. So, in the case at bar, if there was a ladder available which was the single means the engineer was supposed to use, as, indeed, his own testimony suggested, it would not be proper to hold the vessel responsible to any degree if his decision not to use it was a free choice. Berke v. Lehigh Marine Disposal Corp., 2 Cir., 1970, 435 F.2d 1073, cert. denied, 404 U.S. 825, 92 S.Ct. 55, 30 L.Ed.2d 53 (seaman injured when not using safety line; no evidence line was not available). The court made its charge particularly clear by conditioning nonliability upon a finding that plaintiff, as the person having full freedom of decision, was the sole cause of his accident. This is not a case where a lower echelon employee was offered defective means, so that both he and the ship may have been at fault. Cf. Noack v. American Steamship Co., 6 Cir., 1974, 491 F.2d 937.

Similar reasoning applies if plaintiff, having the primary duty to dean up oil, unnecessarily proceeded without doing so. If a seaman had spilled oil and then, rejecting an opportunity to wipe it up, had walked in it, it would shock the conscience to allow him to recover. The rule is settled that such negligent use of an otherwise seaworthy vessel precludes relief. See Sotell v. Maritime Overseas, Inc., 2 Cir., 1973, 474 F.2d 794, 796; June T., Inc. v. King 5 Cir., 1961, 290 F.2d 404, 407; Williams v. The S.S. De Larrinaga, 4 Cir., 1961, 287 F.2d 732, 735; Donovan v. Esso Shipping Co., ante, 259 F.2d at 67; Seitz v. M.Y. The Captantonis, D.Or., 1962, 203 F.Supp. 723. We see little difference in the present case. Plaintiff, in charge of the operation, knew that the cylinder heads dripped oil. He knew, too, that it was his duty to keep the engineroom in a safe condition. Instead of passing a rag over the rail, he proceeded, indifferently, to step on it, and then, unless the court’s instruction was correct, would seek to hold the ship even though the jury were to find the fault solely his.

In similar circumstances, recovery was barred in Walker v. Lykes Bros. S.S. Co., 2 Cir., 1952, 193 F.2d 772, where a ship’s master was injured in his own quarters by broken equipment he was charged to repair, but neglected to attend to. Walker has been read to bar recovery whenever a seaman’s injury has been caused in part by the breach of his contractual duty to his employer, thus permitting an employer’s action for pon-performance, and creating a set-off. See Reinhart v. United States, 9 Cir., 1972, 457 F.2d 151, 154. On that broad a reading, Walker’s guidance was properly declined by this court in Boat Dag-ny, Inc. v. Todd, 1 Cir., 1955, 224 F.2d 208, where the plaintiff breached his duty to supervise someone else, but the ship was independently at fault. In Boat Dagny the ship- was made unsea-worthy by reason of a defective generator. When the ship’s lighting failed as a consequence, the master was injured. The defendant showed that the engineer could have repaired the generator if he had exercised due care, and charged that because the master’s duty was to supervise the engineer, the master could not recover. Observing that the fellow servant rule no longer applies in admiralty, we held that the master’s failure sufficiently to supervise the engineer was but a contributory fault.

We regard this as quite different from Walker, where the master failed to supervise himself, and the fault was his alone. While we criticized some of'the court’s language, Boat Dagny does not contradict a strict reading of Walker that a seaman may not recover where his breach of duty constitutes the sole cause of injury. Our decision merely followed the self-evident proposition that not every breach of duty will assign a seaman full responsibility for his injury. See also Noack, ante, 491 F.2d at 941; Mason v. Lynch Bros. Co., 4 Cir., 1956, 228 F.2d 709, 712; Becker v. Waterman S.S. Corp., 2 Cir., 1950, 179 F.2d 713, 715-716. In the case at bar, as in Walker, the jury might have found it was plaintiff’s primary duty to maintain the engineroom in a seaworthy condition, and that his conduct in stepping on the rail without first wiping off the oil, placed there by his own conduct, was his sole responsibility.

Turning to Count One, it was proper to direct a verdict under the Jones Act count in view of the fact that a necessary element of that claim was proof of unseaworthiness. As plaintiff pointed out in his request for instructions, the only negligence asserted under Count One was the failure to furnish a seaworthy vessel. This failure was the sole issue under the second count. Since manifestly plaintiff could not have cumulative recoveries, Myers v. Isthmian Lines, Inc., 1 Cir., 1960, 282 F.2d 28, 29-30 & n. 1, cert. denied, 365 U.S. 804, 81 S.Ct. 469, 5 L.Ed.2d 461, and could not recover under the Jones Act count at all unless he established unseaworthiness, it was appropriate to submit that issue to the jury, under the second count, as the single question. Blankenship v. Ellerman’s Wilson Line, New York, Inc., 4 Cir., 1959, 265 F.2d 455, cited with approval in Myers. No purpose would be served in asking the jury to travel a second, and longer, road, to the same destination.

Affirmed.

ON PETITION FOR REHEARING

ALDRICH, Senior Circuit Judge.

Plaintiff has filed a petition for rehearing addressed to the propriety of our ruling that the jury verdict for the defendant on the unseaworthiness count rendered moot, or disposed of, plaintiff’s claim that he should have been permitted to go to the jury on the negligence count. While we find the petition without merit, the brief in support is based upon a misconception it might be well to answer.

The district court in its charge defined as unseaworthiness all of the deficiencies asserted as resulting from defendant’s alleged negligence. Except for flirting with some manifestly-mistaken definitions of unseaworthiness plaintiff “concedes that, as noted . by this Court, the theories of liability relied upon in the case at bar to establish both Jones Act negligence and' unseaworthiness under the general maritime law were the same.” His contention is not that we misidentified the bases of liability, but that we misunderstood “the distinction between causation in Jones Act negligence and causation in the general maritime remedy of unseaworthiness.” Plaintiff says that while “under Rogers, [Rogers v. Missouri Pacific R. R. Co., 1957, 352 U.S. 500, 77 S.Ct. 443, 1. L.Ed.2d 493] causation would be established if the defendant’s negligence contributed, in whole or in part (even the slightest), to the Petitioner’s injuries,” it “seems clear that causation in an allegation of unseaworthiness requires causation in the common law sense or something very close thereto,” [Emphasis supplied] and consequently placed a higher burden upon him. We emphasize the waffling because plaintiff neither explains its meaning nor supports it; the heavy. burden of “causation in the common law sense” is supported by (and only by) Devitt & Blackrhar, Federal Jury Practice and Instructions, 2d ed. 1970, j[ 93.09. This is a misunderstanding of the law applicable to seamen.

The reason why under the Jones Act the plaintiff is entitled to a charge that he need show only that defendant's negligence contributed to his injury was fully explained in Rogers. Basically it is because, as distinguished from the common law, where defendant’s negligence must be the “sole, efficient, producing cause” and plaintiff would be barred if his own negligence was a contributing cause, the Jones Act “expressly imposes liability upon the employer to pay damages for injury or death due ‘in whole or in part’ to its negligence.” See 352 U.S. at 505-507, 77 S.Ct. at 449. But so does the law of unseaworthiness. Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. This does not mean, in either instance, that defendant’s fault must not be shown to be a cause — there must, of course, be a connection — it merely need not be the cause. The distinction was well brought out in Farnarjian v. American Export Isbrandtsen Lines, Inc., 2 Cir., 1973, 474 F.2d 361, at 364.

We note, in conclusion, that the district court properly charged the jury in exactly this sense.

Petition denied.

      . The extreme nature of jdaintiff’s contention may be illustrated by the following quotation from his reply brief.
      “[A]s indicated in . . . appellant’s Brief the film of oil on the engine rail that Mr. Peymann observed after his fall was continuously present during an overhaul operation. Simple logic dictates that if Mr. Peymann was required to continuously wipe the oil from the rail every time oil dripped from the engine’s cylinder heads, the overhaul task would never be completed.”
      To us simple logic dictates that plaintiff had to wipe the oil off the rail only when he was about to stand on it to fasten or unfasten the chain fall.

      . This holding is not to disagree with a recent state case, Caddy v. Texaco, Inc., 1973 Mass. A.S. 177, 292 N.E.2d 348. There a seaman was instructed to clean up oil and do some other work, but was not told in what order to proceed. The court held that his doing the other work first could only make him contributorily negligent. Here plaintiff was the one to tell himself. Whatever may be the limits of this doctrine, there must be a point where one in charge cannot give himself the wrong instruction and then recover from the ship. Without deciding, we may suggest that if in Gaddy the seaman had been instructed to clean up the oil first, but had gone ahead, instead, with his other work, he could not recover for slipping in the oil because by hypothesis he had been offered a safe place to work but had taken the unsafe place, against orders. If he followed orders he would have had a safe place to work.

      . B. g., Lunsford v. Halcyon S.S. Co., E.D. Pa., 1973, 354 F.Supp. 573, 577.

      . We have frequently expressed, our apprehensions with respect to general compilations of jury instructions. See, e. g., McMillen v. United States, 1 Cir., 1967, 386 F.2d 29, at 32. They are dangerous because no authors, however erudite, can have a comprehensive substantive background in all fields. In jf 93.-05 of Devitt & Blackmar there is a suggested special interrogatory, supposedly, (but, on investigation not), supported by authority, that would be jettisoned by any admiralty lawyer. Our objection to these compilations is that they may lull unsuspecting judges into not doing their homework.

      . In speaking of “a proximate causal connection between the unseaworthiness and the injury,” [emphasis ours] the court gave a single, and very clear, example — an unsea-worthy “slippery top deck, but the plaintiff fell in the engine room.” We might suggest that the legalese “proximate” is a word not too helpful to a lay jury, and might well be avoided altogether, but it can do no harm so long as the meaning appropriate to the case is articulated. [Where, as in the case at bar, the charge includes an instruction to reduce the verdict by the proportion,] if any, that plaintiff’s negligence contributed, the articulation is apparent.


author: PER CURIAM:

text:
    Annette GLOVER, on behalf of herself and her minor child, Chalyce, Shirley Hook, on behalf of herself and her minor child, Paul, and all others similarly situated, et al., Plaintiffs-Appellees, v. Georgia L. McMURRAY, individually and as Commissioner of the Agency for Child Development of the City of New York, et al., Defendants-Appellants.
    Nos. 305 to 307, Dockets 73-1876, 73-1904 and 73-1906.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 10, 1974.
    Decided Nov. 1, 1974.
    Shirley Adelson Siegel, Asst. Atty. Gen., State of New York, New York City (Louis J. Lefkowitz, Atty. Gen., and Samuel A. Hirshowitz, First Asst. Atty. Gen., New York City, on the brief), for defendant-appellant Lavine.
    Louis B. York, Manhattan Legal Services, New York City (Marttie L. Thompson, Antone G. Singsen, III, and Marcia Cleveland, Community Action for Legal Services, Inc., New York City, on the brief), for plaintiffs-appellees.
    Before LUMBARD, HAYS and TIMBERS, Circuit Judges.
   PER CURIAM:

The Supreme Court, in a per curiam order entered June 17, 1974, 417 U.S. 963, remanded the above case to us for further consideration in light of the Supreme Court’s decision of March, 25, 1974 in Hagans v. Lavine, 415 U.S. 528 (1974).

The issue to which our earlier opinion of November 7, 1973 was addressed was the correctness of a judgment which had been entered in the Southern District of New York, Kevin T. Duffy, District Judge, on May 24, 1973, 361 F.Supp. 235, ordering defendants to restore day care services to plaintiffs (including reimbursement for any day care services rendered during the pendency of this action) and enjoining defendants from denying day care services to any applicant because of failure to submit a certain form until that form was revised in accordance with the district court’s opinion.

On appeal, one judge dissenting, we reversed and remanded the case to the district court with instructions to dismiss for want of jurisdiction. 487 F.2d 403, Our essential holding was that plaintiffs’ due process claim did not present a substantial constitutional question and that accordingly there was no pendent jurisdiction over the statutory claims.

Pursuant to the Supreme Court’s remand order of June 17, 1974, we entered an order on July 17, 1974 vacating our judgment of November 7, 1973. Thereafter we restored the case to the calendar, directed the parties to serve and file supplemental briefs and heard further oral argument on October 10, 1974.

The asserted jurisdictional underpinning for the instant action is the Civil Rights Act, 42 U.S.C. § 1983 (1970), and its jurisdictional implementation, 28 U.S.C. § 1343(3) (1970). Pendent jurisdiction over the statutory claims turns, upon the existence of such jurisdictional, underpinning.

The test for determining whether a substantial constitutional claim has been presented for § 1343(3) jurisdictional purposes was restated by the Supreme Co.urt in Hagans v. Lavine, supra. The Court’s refusal to reexamine the substantiality doctrine in Hagans, and particularly its emphasis upon the concept of “constitutional insubstantiality” as reviewed in Goosby v. Osser, 409 U.S. 512, 518 (1973), leads us to the inescapable conclusion that the district court in the instant case did have jurisdiction over the due process claim asserted by plaintiffs and pendent jurisdiction to consider the statutory claims urged by them.

We therefore remand the case to the district court for all purposes. We order that the mandate issue forthwith.

Remanded.

      . The Supreme Court’s per curiam order of June 17, 1974 reads as follows:
      “The petition for a writ of certiorari is granted, the judgment is vacated and the case is remanded to the United States Court of Appeals for the Second Circuit for further consideration in light of Hagans v. Lavine, 415 U.S. 528.’r

      . The Court in Hagans, supra, 415 U.S. at 537-38, quoted as follows from Goosby, stopra, 409 U.S. at 518, where it had reviewed the question of “constitutional insubstantiality” in the context of convening a three-judge court under 28 U.S.C. § 2281 (1970) :
      “ ‘Constitutional insubstantiality’ for this purpose has been equated with such concepts as ‘essentially fictitious,’ Bailey v. Patterson, 369 U.S., at 33; ‘wholly insubstantial,’ ibid.; ‘obviously frivolous,’ Hannis Distilling Co. v. Baltimore, 216 U.S. 285, 288 (1910) ; and ‘obviously without merit,’ Ex parte Poresky, 290 U.S. 30, 32 (1933). The limiting words ‘wholly’ and ‘obviously’ have cogent legal significance. In the context of the effect of prior decisions upon the substantiality of constitutional claims, those words import that claims are constitutionally insubstantial only if the prior decisions inescapably render the claims frivolous; previous decisions that merely render claims of doubtful or questionable merit do not render them insubstantial for the purposes of 28 U.S.C. § 2281. A claim is insubstantial only if ‘ “its unsoundness so clearly results from the previous decisions of this court as to foreclose the subject and leave no room for the inference that the questions sought to be raised can be the subject of controversy.” ’ Ex parte Poresky, supra, at 32, quoting from Hannis Distilling Co. v. Baltimore, supra, at 288; see also Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106 (1933); McGilvra v. Ross, 215 U.S. 70, 80 (1909).”

      . In view of this disposition, plaintiffs’ pending motion to vacate our stay of June 29, 1973 is rendered moot.


author: CLARY, Senior District Judge.

text:
    John M. PINTO, Plaintiff-Appellant, v. The M/S FERNWOOD, etc., Defendant-Appellee. John M. PINTO, Plaintiff-Appellee, v. The M/S FERNWOOD, etc., Defendant-Appellant.
    Nos. 74-1155 and 74-1156.
    United States Court of Appeals, First Circuit.
    Heard Sept. 6, 1974.
    Decided Nov. 21, 1974.

      Laurence J. Hoeh, Boston, Mass., with whom Kisloff, Hoch, Shuman & Flanagan, Boston, Mass., were on brief, for John M. Pinto.
    Richard A. Dempsey, Boston, Mass., with whom Leo F. Glynn and Glynn & Dempsey, Boston, Mass., were on brief for The M/S Fernwood, etc.
    Before COFFIN, Chief Judge, MeENTEE, Circuit Judge, CLARY,  District Judge.

       Senior District Judge of Eastern District of Pennsylvania sitting by designation.

   CLARY, Senior District Judge.

This appeal has been taken from a decision of the United States District Court for the District of Massachusetts sitting in admiralty. The complaint was based on a collision which occurred between the Liberty II, a trawler owned by John Pinto, and the M/S Fernwood, an ocean-going freighter of Norwegian registry. The case was tried before the Honorable Frank H. Freedman who filed an opinion setting forth findings of fact and conclusions of law. We affirm.

The Liberty II is a sixty-foot wooden vessel built in 1948. On the morning of February 16, 1969, she was involved in a collision with the M/S Fernwood in Massachusetts Bay. At the time of the incident the weather was clear, the sea calm and visibility excellent. The Liberty II had begun fishing at approximately 7:00 A.M., two hours before the collision. She was proceeding on a northerly course at four knots with the day signal displayed to indicate that she was fishing. Because the type of fishing required that the net be dragged along the bottom, the vessel was steering by means of slight course changes to avoid underwater obstacles. There were four other fishing vessels in the vicinity, three in line with the Liberty II but to the south and west, and one to the east of this group but on a southerly heading.

The Fernwood was enroute to Boston from Fall River via the Cape Code Canal at a speed of thirteen knots. The second mate and a helmsman were on the bridge, but no lookout was posted. Although Captain Pinto first sighted the Fernwood about two or three miles south of his position, he determined that she would pass safely to the east and so he continued fishing. He did not look for or see the Fernwood again until moments before the collision. The second mate of Fernwood testified that he saw three vessels while he was still two miles south of their position. He maintained course and speed, apparently unaware that they were fishing.

After Fernwood narrowly averted a collision with one of the fishing boats, she attempted to avoid the Liberty II by stopping engines and steering to starboard. At the same time, Captain Pinto turned to port and increased speed. Unfortunately, a collision resulted in spite of these maneuvers. Fernwood struck Liberty II in the starboard side at the forward gallows at an angle of 20-30 degrees. The momentum of the vessels kept them together until Fernwood’s greater speed carried her past Liberty II which was heeled approximately 40 degrees to port by the impact. The trial court found that Fernwood had sounded none of the signals required by the Inland Rules, 33 U.S.C. §§ 151-232 (1970). Damage to Fernwood was minimal, and Liberty II returned to Plymouth under her own power after retrieving her nets.

Visible damage to Liberty II included the wrenching of both gallows, a cracked mast and scraped paint. After temporary repairs, she resumed fishing on February 19, 1969. The vessel underwent annual maintenance in August of 1969, six months after the accident, and further repairs were made. She fished from August 1969 until August 1970 when she received a major overhaul. This work was not completed until February 1971. During this period, the vessel was “opened up” and all the starboard frames and some port frames were replaced. The removed framing was discarded, and there were no pictures or other evidence to indicate what the vessel looked like after it was “opened up” and before the old framing was removed. The defendant’s surveyor did not see the vessel until rebuilding was in progress, and none of the old framing was kept for his inspection. Captain Pinto testified that 50% of the overhaul repairs were necessitated by the collision, while a boatyard employee testified that the figure was 70%.

Based on these findings, the trial judge came to several conclusions. He found that as a fishing vessel encumbered with heavy trawl, the Liberty II had the right-of-way against the Fern-wood. He further found that Fernwood was negligent in not posting a lookout, in failing to keep clear of a fishing vessel, in failing to sound proper signals, and in failing to slacken speed and change course when necessary. The trial judge concluded that these acts of Fernwood were the proximate cause of the collision, and that Captain Pinto’s conduct did not constitute negligence. Finally, the court found that plaintiff had failed to sustain his burden of proof in showing which repairs were necessitated by the collision and which were normal repairs for an “aging wooden vessel.” None of the evidence introduced at trial indicated what the condition of the vessel was prior to the collision, what damage was caused by the collision, or what damage was attributable to the eighteen months of service after the collision. One-half of the 1969 repairs were found to be attributable to the collision, and judgment was entered for plaintiff in the amount of $448.77 plus interest and costs. Both parties have appealed, plaintiff from the award of damages and defendant from the finding of non-liability of Liberty II.

We shall deal with the defendant’s appeal first. Defendant does not appeal from the finding that Fernwood was at fault, but from the finding that Liberty II was not at fault. We would first point out that as the appellant, defendant has a heavy burden to convince us that the trial judge erred in his findings. CIA. Maritima San Basillio S.A. v. Shell Canada Ltd., 490 F.2d 173 (1st Cir. 1974). In reviewing the judgment of the trial court sitting in admiralty without a jury, we may not set aside the judgment unless it is clearly erroneous; that is, although there is evidence to support the judgment, from a review of all the evidence we are left with the definite and firm conviction that a mistake has been made. McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); United States v. Alaska S.S. Co., 491 F.2d 1147 (9th Cir. 1974). The evidence must be viewed in the light most favorable to the prevailing party below and that party must be given the benefit of all inferences that may reasonably be drawn from the evidence. United States v. Alaska S.S. Co., 491 F. 2d 1147 (9th Cir. 1974).

The defendant contends that both the failure of plaintiff to keep a proper lookout and plaintiff’s sudden course change constituted negligence. We are unpersuaded that the trial judge erred in regard to either aspect. Article 29 of the Inland Rules requires that a “proper lookout” be kept as “ . may be required by the ordinary practice of seamen. . . . ” 33 U.S.C. § 221 (1970). The adequacy of a lookout is a question of fact to be resolved by considering the totality of the circumstances. Cenac Towing Co. v. Keystone Shipping Co., 404 F.2d 698 (5th Cir. 1968).

The trial judge found that the maneuver in the present case was not an ordinary “overtaking.” The Liberty II was a vessel engaged in fishing, and the Inland Rules require that a sailing vessel keep out of the way of such a fishing vessel. 33 U.S.C. § 211 (1970). Further, the Inland Rules require steam vessels to keep out of the way of sailing vessels. 33 U.S.C. § 205 (1970). Therefore, the trial judge reasoned, a steam vessel must keep out of the way of a fishing vessel. See Hertz v. Consolidated Fisheries, 213 F.2d 801 (9th Cir. 1954). We find no fault with this conclusion. Even absent this finding of the trial judge regarding the status of steam and fishing vessels, expert testimony at trial indicated that it was the custom of steam vessels to keep out of the way of fishing vessels. Furthermore, as a general rule, an overtaken vessel is under no duty to keep a lookout aft, but has the right to act on the presumption that the overtaking vessel will keep clear. See The Delaware, 161 U.S. 459, 16 S.Ct. 516, 40 L.Ed. 771 (1896) ; Ellis Towing & Transp. Co. v. Socony Mobil Oil Co., 292 F.2d 91 (5th Cir. 1961); In re Landi’s Petition, 194 F. Supp. 353 (S.D.N.Y.1960). Under all the circumstances revealed in the record, we cannot say that the trial court was clearly erroneous in determining that the failure to keep a more frequent lookout was not negligence.

Defendant also argues that plaintiff was negligent in not holding her course and speed as required by 33 U.S.C. § 206 (1970), and in turning into the path of Femwood immediately before the collision. The requirement that the privileged vessel keep her course and speed does not impose an absolute burden regardless of circumstances, or require that the vessel maintain the same compass direction at all times. Skibs Aktieselskapet Orenor v. The Audrey, 181 F.Supp. 697 (E.D.Va. 1960) , aff’d sub nom., Gratsos v. The Moisie Bay, 287 F.2d 706 (4th Cir. 1961) . The privileged vessel also maintains course and speed as required by section 206 notwithstanding changes in both course and speed so long as the changes are predictable. United States v. S.S. Soya Atlantic, 330 F.2d 732 (4th Cir. 1964).

There is sufficient evidence to support a finding that Liberty II was proceeding on a northerly course at a speed of four knots, and that while she made gradual alterations in compass direction to avoid underwater obstacles, these would be easily perceivable and expected of fishing vessels. Moreover, the evidence is not sufficient to compel us to reverse the implicit finding of the lower court that the Liberty II did not make a drastic course change into Fernwood’s path and thereby caused the collision.

Based on its findings of the gross negligence of Fernwood, the trial judge correctly applied the “major and minor fault” rule. Alexandre v. Machan (The City of New York), 147 U.S. 72, 13 S.Ct. 211, 37 L.Ed. 84 (1893); General Seafoods Corp. v. J. S. Packard Dredging Co., 120 F.2d 117 (1st Cir. 1941).

Where fault on the part of one vessel is established by uncontradicted testimony, and such fault is, of itself, sufficient to account for the disaster, it is not enough for such vessel to raise a doubt with regard to the management of the other vessel. There is some presumption at least adverse to its claim, and any reasonable doubt with regard to the propriety of the conduct of such other vessel should be resolved in its favor. Alexandre v. Machan (The City of New York), 147 U.S. 72, 85, 13 S.Ct. 211, 37 L.Ed. 84 (1893).

This rule places the burden on Fernwood to show that Liberty II committed plain fault. General Seafoods Corp. v. J. S. Packard Dredging Co., 120 F.2d 117 (1st Cir. 1941). Since Fern-wood has failed to meet this burden, we find no error in the decision of the trial court.

We now come to the question of the trial court’s findings concerning plaintiff’s damages. Here the roles are reversed, and plaintiff must take up the burden previously borne by the defendant. CIA. Maritima San Basillio S.A. v. Shell Canada Ltd., 490 F.2d 173 (1st Cir. 1974). Having carefully reviewed the record and the findings of the trial judge, we are not presuaded that they are clearly erroneous, and therefore affirm the decision below.

Plaintiff must establish that the loss he has suffered and the expenses he has incurred were the result of the tortious conduct of the defendant. See Dreijer v. Girod Motor Co., 294 F.2d 549 (5th Cir. 1961). The measure of damage in maritime collision cases is expressed by the maxim restitutio in integrum. The Baltimore, 75 U.S. (8 Wall.) 377, 19 L.Ed. 463 (1869). While under this rule the measure of damage is the difference in value of the vessel before and after the collision, the cost of necessary repairs and the loss of earnings during repair have been regarded as the equivalent. Delta Marine Drilling Co. v. M/V Baroid Ranger, 454 F.2d 128 (5th Cir. 1972); The Pocahontas, 109 F.2d 929 (2d Cir.), cert. denied sub nom., Eagle Transp. Co. v. United States, 310 U. S. 641, 60 S.Ct. 1088, 84 L.Ed. 1409 (1940). The owner of the damaged vessel is entitled to sufficient damages to put his vessel into a condition as seaworthy and serviceable as before the collision. Zeller Marine Corp. v. Nessa Corp., 166 F.2d 32 (2d Cir. 1948). However, the owner must show that the injury was caused by the fault of the other vessel, and that it had not been aggravated by his own fault. The Baltimore, 75 U.S. (8 Wall.) 377, 19 L.Ed. 463 (1869).

The trial judge found that when the Liberty II was “opened up” during the 1970-1971 overhaul all the starboard frames were replaced as well as some on the port side. As previously noted, these frames were discarded and no evidence existed of the condition of the vessel until the defendant’s surveyor observed the actual rebuilding. There was no evidence of the use, or abuse, of the Liberty II during the eighteen month period after the accident and before the overhaul. Based on these findings, the trial judge concluded, in regard to the August 1970-February 1971 overhaul, that the plaintiff had not shown sufficient evidence to support an award of damages against the defendant. There was ample evidence to show what work was done, but insufficient evidence to show which repairs were proximately caused by the collision and which represented the normal maintenance for a wooden vessel built in 1948.

We have carefully considered the findings of the trial judge and the evidence contained in the record. We do not doubt that substantial repairs were made. However, the record indicates that there were other causes which may have necessitated the extensive repairs, and plaintiff cannot meet his burden of proof by merely showing several possible causes for the damage exist, one of which is the negligent conduct of the defendant. See Dreijer v. Girod Motor Co., 294 F.2d 549 (5th Cir. 1961).

There is uncontradicted testimony in the record that a substantial amount of the repair work was performed by Captain Pinto and his son-in-law, Donald Clark. This included the temporary repairs as well as work done on the vessel during the 1970-1971 overhaul. Unfortunately, the same defects which we noted earlier plague the plaintiff in this aspect of his claim. Neither the district court nor this court is insensitive to the problem posed but we are not permitted to speculate as to the cause of the damage or the value of the repair work done by the plaintiff and his crew. Damages may only be awarded, once liability has been established, on the basis of evidence in the record and not sympathy for the prevailing party. Since we are unconvinced that the decision of the trial court on the matter of damages is clearly erroneous, it will not be disturbed.

Affirmed.

      . Section 221 of the Inland Rules provides:

        Usual additional precautions required generally (article 29).
      Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case. 33 U.S.C. § 221 (1970).

      . The definition of “overtaking vessel” and the requirement that she keep clear of the overtaken vessel are contained in 33 U.S.C. § 209 (1970).

      . The International Rules in effect at the time of the Hertz incident presented the same problem with regard to right of way between fishing and other vessels as the Inland Rules do in this case. Act of Aug. 19, 1890, ch. 802 § 1, 26 Stat. 326-328 (repealed 1951). The decision arrived at the same result as would have been explicitly required by the International Rules after 1954, the effective date of changes enacted in 1951 requiring that all vessels under way keep clear of vessels engaged in fishing. Regulations for Preventing Collision at Sea, Oct. 11, 1951, ch. 495 § 6, 65 Stat. 419, effective Jan. 1, 1954 (now 33 U.S.C. § 1088). The Femwood argues that failure of Congress similarly to revise the Inland Rules should be read to imply an intent to leave deep draught ocean vessels free from the burden of exclusive responsibility to dodge vessels engaged in fishing. The argument is unpersuasive in light of the fact that the International Rule was revised not as a part of a comprehensive effort by Congress to modernize the International and Inland Rules, but in response to action taken at the International Conference on Safety of Life at Sea, which drafted an International Convention ratified by the United States Senate April 20, 1949. See H.R,Rep.No.5013, 82d Cong., 1st Sess. (1951), Ü.S.Code Cong. & Admin.Serv.1951, p. 548.

      . Defendant invites our consideration of the decision of this court in Stevens v. United States Lines Co., 187 F.2d 670 (1st Cir. 1951). We consider the Stevens case to be distinguishable on its facts from the present situation. In Stevens, the district court found +ne captain of a pleasure boat at fault for failing to be aware of the proximity of a freighter until too late to avoid collision. We agreed that the captain was not required to keep a lookout astern in the strict sense, but that the special circumstances of the case, a passenger-carrying pleasure boat on a Sunday afternoon in Boston Harbor, required some observation of traffic astern. On these facts, we upheld the decision of the trial court.

      . Section 206 provides:

        Vessel having right-of-way to Tceep course (article 21).
      Where, by any of these rules, one of the two vessels is to keep out of the way, the other shall keep her course and speed. 33 U.S.C. § 206 (1970).

      . Since we affirm the decision of the trial court that Liberty II was not guilty of statutory violations with respect to course and speed, we need not reach the issue of plaintiff’s potential burden of proof as to his lack of responsibility for the collision. See The Pennsylvania, 86 U.S. (19 Wall.) 125, 22 L. Ed. 148 (1874).

      . No issue is presented in regard to the $448.77 damages resulting from repairs in 1969. We therefore affirm the entry of judgment for this amount, plus interest and costs.


author: ADAMS, Circuit Judge.

text:
    STOWE TOWNSHIP, Appellee, v. STANDARD LIFE INSURANCE COMPANY OF INDIANA, Appellant.
    No. 74-1409.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 12, 1974.
    Decided Jan. 24, 1975.

      See also, D.C., 363 F.Supp. 341.
    William L. Standish, William H. Pow-derly, III, Alan G. Keith, Reed, Smith, Shaw & McClay, Pittsburgh, Pa., for appellant.
    Melvin Schwartz, William A. Johnson, Cooper, Schwartz, Diamond & Reich, Pittsburgh, Pa., for appellee.
    Before ALDISERT, ADAMS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

ADAMS, Circuit Judge.

The issue presented on this appeal is whether the plaintiff made out a prima facie case to reform a group annuity contract. We conclude that insufficient evidence was produced to sustain the finding of reformation, and consequently vacate the judgment of the district court, 372 F.Supp. 433.

a.

To secure retirement benefits for its municipal employees and commissioners, plaintiff Stowe Township, prior to 1970, entered into a series of individual deferred annuity policies with the defendant Standard Life Insurance Company of Indiana. Each individual annuity policy contained, inter alia, a provision for cash surrender value on termination.

In 1970, an agent of Standard Life, Mr. Markotan, recommended a new group contract of the deposit administration type to replace the individual policies as a means of funding and implementing Stowe’s retirement plan. Stowe thereupon entered into the group annuity contract which is the basis of the present action. Under the group contract, Stowe deposited funds with Standard Life and, subject to certain adjustments to the pool of money thus created, Standard Life was to provide individual annuities to Stowe’s employees and commissioners as their retirements occurred. The new group contract did not in explicit terms grant cash value on termination. When the new group plan became effective, the individual policies were can-celled and reserve monies under the individual contracts were applied to the new group fund.

In 1972 Stowe terminated its group contract with Standard Life, and demanded that, pursuant to the termination clause, Standard Life issue individual paid-up deferred annuity policies for named municipal personnel. Also, as part of its demand, Stowe insisted that the new individual policies “have cash values the same as previously issued policies of the same type.” In response to Stowe’s demand, and in conformity with the terms of the group contract, Standard Life agreed to issue paid-up deferred annuities, but refused to include a provision for cash surrender value.

Maintaining that the group contract should be either construed or reformed to provide for policies with cash surrender value clauses, Stowe filed suit in the Common Pleas Court of Allegheny County. Based on diversity of citizenship, the suit was removed to the United States District Court for the Western District of Pennsylvania. 28 U.S.C. §§ 1332, 1441(b), 1446. Both parties concede that the law of Pennsylvania governs the dispute.

The district court held before trial that the group contract as written did not include a right to cash surrender values upon termination, nor did Pennsylvania law superimpose such a provision onto a contract of this sort. Neither party has questioned this holding. Accordingly, to create a cash surrender value provision in the group contract would require a reformation of the group contract. The principal thrust of Stowe’s position was that the insurance agent had proposed the group contract to Stowe as a change in its manner of funding retirement benefits. In its pretrial narrative, Stowe alleged that Standard Life had made assurances that the value and costs of the new group plan would be at least as attractive to Stowe as the individual policies it replaced. Also, Stowe asserted that under these circumstances Standard Life had a duty — which it had breached — to advise Stowe that the group contract would not carry cash surrender values upon termination. In effect, Stowe contended that the group contract should be reformed to incorporate the cash surrender provisions from the previous individual contracts.

In response, Standard Life insisted that no such duty to explain existed where, as here, a group contract embodying a wholly new concept of administering and funding a retirement program was substituted for a series of individual annuity contracts. The situation presented here, claimed Standard, was not a renewal.

At the non-jury trial that ensued, Stowe presented as its sole witness Mr. Bash, President of Standard Life, and interrogated him as on cross-examination. On the issue of advice by Standard Life to Stowe regarding the absence of cash surrender value for the group policy, the following colloquy occurred:

MR. SCHWARTZ:

Q. Well isn’t it true, Mr. Bash, that the prior policies had cash value?
We have gone through this once before, is that correct?

MR. BASH:

A. Yes.
Q. Isn’t it also true that you never advised, you, being the company, and to your knowledge never advised the Stowe Township Commissioners that once they switched these policies, there would never be any way for them to get the money back?
A. And I am saying that I would imagine in the discussions that the agent would have, that question very logically could have come up.
* * * * * *
Q. You never advised them either collectively or individually, did you, Mr. Bash?
A. I cannot say to you what the agent may or may not have said to them.
Q. I am not interested in what the agent may or may not have said. I am interested in what you know personally and what you did personally.
A. I don’t know that, and I have answered that question, I believe, that so far as myself personally, so far as the home office is concerned, I don’t believe that they were ever — that there was ever any contact between the company and the borough or the township, excuse me.

Trial transcript 58-59.

Two exhibits were introduced by Stowe: an application on behalf of the Township for a group annuity contract solicited by the agent, Mr. Markotan, and a letter of October 25, 1972 from Stowe to Standard Life demanding termination arrangements satisfactory to the Township, and reflecting the Township’s expectation that the policies carried cash surrender values.

Following Mr. Bash’s testimony, Stowe rested. Standard Life elected to present no defense. Mr. Markotan was in the courtroom but was not called by either party. No person who had actually participated in the agreement, or in any preparatory negotiations, was requested to give evidence with respect to any assurances or explanations from any agent of Standard Life regarding the operation of the group contract.

By opinion and order dated February 28, 1974, the district court concluded that:

[Wjhile this could in no sense be called a renewal or extension of an existing policy, there was a very definite continuation of the relationship between the Plaintiff and the Defendant which required the differences and distinctions between these contracts to be explained to the Plaintiff. It is clear from the testimony that no such explanation was made. (District court opinion at 440 of 872 F.Supp.)

The district court found for Stowe, predicated on two conclusions. First, the court determined that, as a matter of law, where one insurance plan evolves from another, an insurer is under a duty to explain any differences in benefits on pain of being held to the more generous benefits of an earlier contract; and, second, that a sufficient showing had been made in this case that the insurer had not explained any differences in the benefits.

b.

Under Pennsylvania law, reformation of an insurance contract is possible where written conditions are changed without any explanation by the insurance company or its agents. In particular, when an insurance renewal contract curtails benefits from those provided by the original insurance policy, insurers have been held to the terms of the original policy.

In the insurance renewal cases relied on by the district court, it was established beyond doubt that the new policies were held out as otherwise unaltered versions of original policies. Thus, in Overholt v. Reliance Insurance Co., a leading case, the Pennsylvania Supreme Court declared:

When the defendant company inquired through its agent whether the policy was to be renewed, this was an offer to make a new contract. In the absence of circumstances to indicate that a different meaning was intended, this meant a contract chronologically “new,” but in form and substance, identical with the original; no other interpretation is reasonable and can be maintained.

In the situation here, however, presuming that the facts were established as alleged, application of the renewal rule would constitute an extension of that rule beyond its traditional ambit. Although admittedly to effectuate the same goal as the earlier agreements, here a totally new plan was adopted; there was no mere renewal.

While it is thus open to question whether under the facts alleged a Pennsylvania court would conclude that reformation was permissible, we do not reach the issue of the correctness of the district court conclusion in that regard. For, even assuming the legal principle enunciated in the district court opinion to be compatible with Pennsyvania law, inadequate evidence was presented to sustain the judgment in any event.

In the insurance renewal cases, the crucial elements were the existence of the first policy and the terms of its coverage; the renewal; the lessened coverage of the second policy; and finally, evidence regarding the lack of warning by the insurance company about the diminished protection. In the present case, the existence and scope of coverage of the two contracts are admitted. However, even under its own view of the law, in order to prevail in its reformation attempt, Stowe was obliged to submit, as part of its prima facie case, evidence to prove that the company failed to disclose the absence of cash value in the group contract. No evidence was forthcoming about representations alleged to have been made by Standard Life’s agent to the effect that the new plan would be as attractive as the program for which the group plan was substituted. Also, there was no proof that no disclosure had been made to the Township regarding the absence in the group plan of cash surrender value on termination.

In Pennsylvania a party seeking to reform a contract must generally present “clear, precise and convincing” evidence demonstrating the basis for reformation. rIn the Pennsylvania insurance renewal cases referred to above, the courts have had before them evidence which satisfied this standard. Whether the evidence offered in this respect discharged Stowe’s burden of proof is a question of law subject to review.

As noted, no direct proof was offered to show the truth of the material allegations made by the Township. To compensate for this vacuum the district court placed weight on the failure of Standard Life to offer the testimony of the agent Mr. Markotan. But, while a permissible inference is ofttimes drawn where a party declines to offer testimony from a witness within its control who would reasonably be expected to corroborate its position, imputing significance here to the absence of testimony from the agent misapprehends applicable Pennsylvania law.

The inference permissible from a failure of a witness to testify will not do service for establishment by the plaintiff of facts sufficient to make out its prima facie case. Indeed, there is support in Pennsylvania for the view that where the plaintiff has not presented adequate evidence, the unexplained absence of testimony by witnesses on plaintiff’s behalf gives rise to an inference more damaging to plaintiff than whatever benefit it might derive from the failure by defendant’s agent to take the stand. No reason was suggested to account for the Township’s failure to produce its Commissioners, its Solicitor, or its Secretary, all of whom might have testified. And finally, whatever inference might otherwise be available from the failure to call a witness is not permissible when a defendant chooses to put on no evidence at all, in apparent reliance on its determination that plaintiff has not met its burden.

In Raffaele v. Andrews, the Court expressed the view that it was only where a party, having the burden of proof, declined to bring forward an appropriate witness to discharge its burden that an inference could be supported against it. Where, by contrast, a party has no burden to meet, an adverse inference may not properly be drawn against it for failure to produce evidence.

c.

Since we conclude that the Township has not marshalled adequate evidence to satisfy the burden of proof required to reform its contract with Standard Life, the judgment of the district court will be vacated and the proceedings remanded for entry of a judgment for the defendant.

Any inference drawn from such failure is not equivalent to direct evidence; it does not take the place of evidence of material facts, or shift or satisfy the burden of proof so as to relieve the party on whom rests the necessity of establishing a prima facie case . . .. (footnotes omitted) This would apply more forcefully where, as here, the requisite standard of proof is high. See e. g., Bayout, supra note 9.

      . The operation of the deposit administration plan included creation of a purchase payment fund, a protected interest-bearing investment account, to which Stowe's periodic payments were credited (less a 5% service charge). The amounts Stowe paid were those that Standard Life deemed actuarially necessary to meet the Township’s ultimate retirement benefit costs. As an employee under the plan retired, an amount was withdrawn from the payment fund and used to purchase a monthly annuity from Standard Life.

      . The relevant contract provision reads:
      Section 12. Termination of Contract

        ' If this contract is terminated in accordance with Section II, the company [Standard Life] shall discharge its liabilities under this contract by providing paid-up annuities to the participants in such amounts as they may be entitled to under the Plan as directed by the employer [the Township]. Such paid-up annuities shall be purchased with no less than 90% of the total amount held in the Purchase Payment Fund on the date of such termination.
      Under the termination clause as Stowe would have it reformed, the Township would immediately receive the cash value of its deposits. Under Standard Life’s interpretation, Standard Life would retain the funds, continuing to invest them and granting Stowe no less than 5% interest, until such time as the Fund was exhausted by the withdrawal of annuities.

      . Letter of Oct. 25, 1972, from Secretary and Solicitor of the Township to Standard Life. Trial Exhibit 3 (erroneously listed in the table of exhibits as a letter dated Oct. 5, 1972), 144a, 185a, 199-201a.

      . It is contended by Stowe Township that two earlier letters from Stowe to Standard Life, appended to the complaint and referred to in the October 25, 1972 letter, were incorporated into evidence by reference. Standard Life vigorously asserts otherwise. See Bracey v. Grenoble, 494 F.2d 566, 570 n. 7 (3d Cir. 1974). Even were we to assume, arguendo, that the earlier letters may be considered, they provide only cumulative corroboration of the Township’s belief, expressed in the October 25 letter, that it was entitled to cash values. They contain no references to the failure of Standard Life, or its agents, to warn of the difference in terms. Consequently, consideration of the additional letters would not change the result.
      A copy of a brochure entitled “Stowe Township Pension Fund,” dated March, 1970, and ostensibly prepared by Markotan & Co., was not admitted into evidence pending its proper identification; such identification was not forthcoming.

      . General Electric Credit Corp. v. Aetna Casualty & Surety Co., 437 Pa. 463, 263 A.2d 448 (1970) (reformation ordered to insert an omitted lender’s loss clause where an affirmative request by the lender had been agreed to by insurer).

      . Overholt v. Reliance Ins. Co., 319 Pa. 340, 179 A. 554 (1935); Burson v. Fire Insurance Co., 136 Pa. 267, 20 A. 401 (1890); Schock v. Penn Twp. Mut’l Fire Ins. Ass’n, 148 Pa.Super. 77, 24 A.2d 741 (1942).

      . 319 Pa. at 344, 179 A. at 556 — 557 (emphasis in original).

      . In Burson, supra note 6, the uncontradicted evidence was that the insurance agent, in reviewing a policy, had said, “I will make you another policy like the first one,” and the court held, under these circumstances, that the agent had a duty to disclose any changes in conditions. In General Electric Credit Corp., supra note 5, an attorney who had affirmatively requested a lender’s loss clause in an insurance contract testified that he was given assurances of its inclusion, and that other GECC contracts entered into at the same time contained such clauses. Based on these two items of evidence, the court held that the quality of proof sufficed to grant reformation.

      . General Electric Credit Corp., supra note 5, (reformation ordered); Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A.2d 332 (1958); Bayout v. Bayout, 373 Pa. 549, 96 A.2d 876 (1953) (deed, not reformed); Bran-dolini v. Grand Lodge of Penna., Order Sons of Italy in America, 358 Pa. 303, 56 A.2d 662 (1948) (construction contract, not reformed).

      . Notes 6 and 7 supra.

      . Easton, supra note 9; Bayout, supra note 9. In both cited cases judgments for plaintiffs were reversed for insufficiency of evidence as a matter of law.

      . Alexander v. Wilkes-Barre Anthracite Coal Co., 254 Pa. 1, 98 A. 794 (1916); Brandolini, supra note 9; Bayout, supra note 9; United States v. Cherkasky Meat Co., 259 F.2d 89 (3d Cir. 1958). 29 Am.Jur.2d Evidence § 180; McCormick, Handbook of the Law of Evidence § 272 (2d ed. 1972); 31A C.J.S. Evidence § 156(3).

      . Eckenrode v. Pennsylvania R. Co., 164 F.2d 996 (3d Cir. 1947); Transcontinental Gas Pipe Line Corp. v. Mobile Drilling Barge, 424 F.2d 684 (5th Cir. 1970). McCormick, supra note 12; 31A C.J.S. Evidence § 156(3) states:

      . Bayout, supra note 9.

      . Cherkasky, supra note 12; Raffaele v. Andrews, 197 Pa.Super. 368, 178 A.2d 847 (1962). Am.Jur. supra note 12; C.J.S., supra note 12.

      . Supra note 15.