author: PERRY, Senior District Judge. SWYGERT, Chief Judge

text:
    SCHWERMAN TRUCKING CO., Plaintiff-Appellant-Cross Appellee, v. GARTLAND STEAMSHIP COMPANY, Defendant-Appellee-Cross Appellant.
    Nos. 73-1167, 73-1168.
    United States Court of Appeals, Seventh Circuit.
    May 9, 1974.

      Michael B. Laikin, Harney B. Stover, Jr., Milwaukee, Wis., for Schwerman Trucking.
    Paul V. Lucke, Milwaukee, Wis., John A. Sullivan, New York City, for Gartland.
    Before SWYGERT, Chief Judge, STEVENS, Circuit Judge, and PERRY, Senior District Judge.

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

   PERRY, Senior District Judge.

This is an appeal from a judgment of the District Court in favor of the defendant, Gartland Steamship Company (hereinafter called Gartland), in an admiralty action brought by the plaintiff, Schwerman Trucking Company (hereinafter called Schwerman), for damages which occurred to Schwerman’s dock during the night of June 25-26, 1969, while Gartland’s vessel, the Steamship W. E. FITZGERALD, was moored thereat.

FINDINGS OF FACT

The District Court made, inter alia, certain findings of fact which are summarized below (paragraph numbers comport with the numbers of the Findings):

4. Sometime prior to 1902 the Milwaukee Gas Light Company (“gas company”) became the owner of a strip of land along the north side of the Menomonee River at Milwaukee, Wisconsin, extending from North 25th Street easterly about 1900 feet and lying between West St. Paul Avenue and the center of the river. This property was subsequently purchased by Schwerman, as related below.

5. Sometime during the years 1902-, 1904 the gas company built a dock along the river frontage of its property. The portion of the dock east of buildings located near the center of the property was of heavy-weight construction, and the portion west of the buildings was of lighter-weight construction. The easterly section of the dock was built with multiple sets of tie rods for back support. The westerly section was built with a single set of 1%" tie rods for back support and two rows of piles at the face of the dock. The entire dock was constructed of wood piling, 3-lap, wood Wakefield sheeting, wood cap and facing, and wood walers (fender timbers).

6. In 1923 the gas company had the entire dock reconstructed by the Edward E. Gillen Co. of Milwaukee. In general, the reconstruction consisted of removing the wood cap and facing, cutting off the tops of the existing piles and Wakefield sheeting to a lower level, driving some additional piles, and placing a concrete cap along the top of the dock. Cast iron bollards were then affixed along the top of the concrete cap at 120-feet intervals.

9. The Edward E. Gillen Co. performed a survey of the dock for the gas company in 1941. A diver examined that portion of the reconstructed dock which lay abreast of the buildings and found the Wakefield sheeting badly deteriorated. A report by the Gillen Co. noted the existence of seven broken piles and six instances where the Wakefield sheeting either had developed holes or had sprung outward. It is the function of the Wakefield sheeting to form a continuous wall between the dock fill and the river, and to prevent the escape of the fill into the river.

10. No repairs were made following the 1941 survey. The only major repair work done to the dock after its reconstruction in 1923 was some repair work done in 1932 to the easterly section. As far as is known, no repairs were made to any of the dock sections abreast of the buildings or west of them.

14. In 1966 the gas company entered into a contract with Fred Schwerman for the sale of all. of its realty between West St. Paul Avenue and the Menomonee River.

16. In December of 1968 the • gas company delivered a warranty deed to the riverfront property to Fred Schwerman, and in January of 1969 he quit-claimed all of his interest in that property to the Schwerman Trucking Company.

17. In 1967 Schwerman retained a Milwaukee consulting engineering firm to design and supervise the construction of a new means of access to the dock property, the existing access bridge and ramp containing too sharp a curve and insufficient strength for use by Sehwerman’s heavy vehicles.

■ 18. Following the taking of soil boring tests in March, 1967, which demonstrated that the soil was very silty and capable of lateral movement under heavy loads, Mr. Robert Schloemer of the engineering firm prepared plans for a new bridge. The weight of this bridge design was projected at 4,127 tons.

19. Mr. Schloemer was then instructed to look into cheaper, alternative means of access. A combination bridge and earthen access ramp structure was then designed, with projected weight of 30,000 tons. In September, 1967, Mr. Schloemer inspected the dock wall west of the buildings from a small water craft whence he was able to inspect the bottom of the concrete cap and the tops of the piles. His inspection revealed that the bottom of the concrete cap was seriously spalled, and that the tops of the piles underneath the cap were rotted to a considerable degree. Mr. Schloemer then advised against the use of the 30.000- ton earthen ramp design, being fearful that the huge weight would push the badly deteriorated dock wall into the river.

20. Following Mr. Schloemer’s inspection of the dock face, Fred Schwerman conducted an excavation in the area of the anchor piling in order to ascertain its condition. A determination was made by Fred Schwerman that the anchor piling was in good condition and, based on this, Mr. Schloemer was directed to devise some means of alleviating the strain of the earthen ramp on the dilapidated dock wall and to proceed with the earthen ramp design.

21. Fred Schwerman did not inspect the tie rods extending from the anchor piling to the dock face at the time of his excavation. Mr. Schloemer personally made some excavations, but he, too, did not inspect the tie rods.

22. To alleviate the strain on the dock wall, Mr. Schloemer designed a wall of steel sheeting to be installed at the foot of the earthen access ramp; however, the sheeting did not extend all the way to the western boundary of the property in question, ending some 65 feet from that boundary. This resulted in the application of pressure by the 30.000- ton access ramp at the base of the piles which supported the concrete cap extending over the last 65 feet of dock frontage.

23. A combination bridge and earthen access ramp was then built in 1967-1968. The area between the first and second rows of anchor piling was excavated and the old tie rods removed. New rods 1 in diameter extended from the steel sheeting to the second row of anchor piling. Existing tie rods between the dock face and the first set of back anchor piles were not replaced.

24. After completion of the bridge and ramp, gravel trucks and asphalt tankers weighing between 10 and 14 tons began to traverse the ramp and the land surface between the ramp and the dock wall.

25. In July of 1968 Mr. Schloemer conducted a test which showed that the dock wall had moved almost 2 inches toward the river in the preceding six months. Earlier, in October, 1967, Mr. Schloemer had recommended that periodic tests be made to check the movement of the dock wall into the river; however, except for the test made in July of 1968, no other movement tests were made.

26. Also in July of 1968, Gartland desired to lay up the W. E. FITZGERALD in the Milwaukee area due to a business slowdown. Schwerman was contacted regarding a suitable dock for mooring her and was receptive.

27. Accordingly, Mr. Carl Schwerman, a Vice President of Schwerman, requested Schwerman’s resident counsel to draft a mooring contract. Said counsel procured a copy of the form which the gas company had used in the past for winter mooring on its premises, and altered the terms where appropriate. The contract was sent to Gartland’s offices and was signed by Mr. Robert Stack, Gartland’s Secretary-Treasurer.

28. The contract, as signed by Mr. Stack, was then delivered to Schwerman by Mr. Floyd Brown, Gartland’s Marine Superintendent, on the occasion of the latter’s arrival in Milwaukee to meet the vessel and check the mooring. Carl Schwerman then executed the contract on behalf of Schwerman on Aug. 5, 1968.

29. The sixth paragraph of the contract provided:

“You [Gartland] will exercise such caution and care as may be necessary to protect our [Schwerman’s] dock facilities from damage in the course of any movement or mooring of the W. E. FITZGERALD, and you will repair any damage to our dock occasioned by your occupancy thereof.”

30. The Court found that the sixth paragraph of the contract did not set forth a strict liability standard, as argued by Schwerman. Rather, the Court found that the contract imposed upon Gartland an obligation to use “caution and care” during the entire period its vessel was moored to Schwerman’s dock, and further provided for liability by Gartland to repair any damage to the dock proximately caused by a lack of due care on its part.

31. In August, 1968, the ship was moored at the west end of the dock in such position that the forward end of the afterhousing of the ship was in the vicinity of the most westerly of the cluster of buildings on the Schwerman property. The ship was moored to the dock by the ship’s crew under the supervision of her Master. The mooring was also checked and found to be satisfactory by Mr. Floyd Brown. After mooring, the ship became a dead ship and had no power of her own. Gartland employed a shipkeeper who visited the ship about every other day to check the lines and take soundings.

32. Prior to the arrival of the vessel at the dock, Floyd Brown checked the dock and found the bollards and the concrete cap to be in what he considered adequate condition. Mr. Howard Yaffe, Gartland’s Assistant Marine Superintendent, arrived on the scene during the lay-up of the ship and also checked the dock and the mooring configuration, finding them to be satisfactory. Neither Floyd Brown nor Howard Yaffe was able to inspect the dock below the water line.

33. The vessel was moored with twelve mooring lines, each doubled around a bollard and extending back to the vessel, where it was tied off. The port bow line extended by itself to the most westerly bollard on the dock, providing a lead of approximately 130 feet. The angle of incidence formed by the port bow line and the dock face was approximately 20°.

34. The starboard bow line, the starboard windlass room line, and a line leading from the forward mooring winch were all on the bollard east of the most westerly bollard. Another line from the forward mooring winch led aft to the next bollard along with the midship dead line leading forward. A line leading forward from the after mooring winch led to the next bollard, along with the midship dead line leading aft. A line leading aft from the after mooring winch led to the next bollard, along with a fantail wire leading forward. Two more fantail wires, one port and one starboard, led aft to the final bollard.

35. The starboard anchor was down approximately 50 feet ahead of the vessel, the chain lying slack on the bottom.

36. The U.S. Army Corps of Engineers performed maintenance dredging in the Menomonee River in the fall of 1968. At their request, the ship was, in late October, moved astern about a ship’s length to accommodate the dredging. The movement astern was supervised by Gartland’s Marine Superintendent and was accomplished by “winching” the ship (using the ship’s lines and winches and bollards on the dock), with portable air compressors furnishing power to the winches. After the ship was winched back to her original position, she was moored to the dock in the same manner as she had been moored in August. Both Floyd Brown and Howard Yaffe checked and approved the mooring.

37. After the movements of the ship to facilitate dredging were completed, the ship, her moorings, the dock, and the bollards on the dock were inspected by Mr. Alan Garland, a marine engineer surveyor, for the purpose of insurance for winter lay-up. Mr. Garland submitted a report approving the mooring.

38. The Corps of Engineers performed further dredging in the spring of 1969. Again at their request, the ship was winched astern about a ship’s length. She was moved forward to approximately her original position about a week later. The shifting was accomplished under the supervision of Howard Yaffe, who re-moored the ship in approximately the same manner as that in which she had been moored in August and October of 1968.

39. Soundings taken after the dredging was completed showed that some of the depths in the navigable channel in the vicinity of the westerly end of the dock exceeded the authorized project depth of 21 feet, and even reached a depth of 23.2 feet between the navigable channel and the dock wall itself.

40. On June 25, 1969, a rainstorm with accompanying winds began to pass through the Milwaukee area. The vessel was checked at 5:30 P.M. on that date by its shipkeeper, who found the lines to be in order. The dock was still intact at 9:00 P.M. when certain employees of Schwerman left the premises.

41. Sometime between 9:00 P.M. on June 25, 1969 and 5:30 A.M. on June 26, 1969, a portion of the dock collapsed into the water. All of the damage occurred forward of the vessel. A portion of the 49' 10%" most westerly section of the dock with the lighter-weight concrete cap, and the next two sections of dock with the heavier cap at the westerly end of the Schwerman property went into the river, the sections of concrete cap falling to the bottom of the river and sinking into the silt. The most westerly section of the heavier section which went into the river had affixed to the top of it the most westerly bollard, to which the port bow line of the ship had been tied. This bollard was located 4' 8" from the most westerly edge of this section.

42. Data available from the United States Weather Bureau indicated that the winds during the period from 9:00 P.M. on June 25 to 5:30 A.M. on June 26 were generally from the southeast, at speeds not in excess of 13 knots, or 15 miles per hour. None of the other vessels that were tied up in Milwaukee Harbor during the evening in question reported any damage to hulls, docks, or mooring lines to the City’s Harbormaster. Additional data from the United States Weather Bureau demonstrated that during the period from August, 1968, when the vessel was first tied up, until June 25, 1969, the Milwaukee area experienced recorded winds on numerous occasions that were more severe than those that prevailed on the evening in question.

43. On June 26, 1969 Schwerman sent a telegram to Mr. Floyd Brown of Gartland advising him of the dock damage and requesting that Gartland make repairs as quickly as possible. On July 28, 1969, counsel for Gartland rejected any claim of Schwerman against Gartland.

44. Early in July of 1969, two additional 30-foot sections of concrete cap and dock went into the river. Those two sections were adjacent to and easterly of the sections which had previously gone into the river.

45. In December of 1969, Schwerman again requested the Edward E. Gillen Co. to conduct another dive to recover the tie rods which had been associated with the collapsed sections of dock. Four tie rods were recovered, all of which had extended from the piles underneath the concrete caps at the dock face back to the first row of anchor piling. Two of them were corroded all the way through, and a third had been corroded down to a minimum diameter of .630 inches. One of the functions of the tie rods is to withstand the forces which would tend to move the dock face into the river.

46. Schwerman alleged that Gartland was negligent in that the FITZGERALD was improperly moored and the shipkeeper did not live aboard the vessel, and further alleged that such negligence proximately caused the collapse of the dock. The Court disagreed and found that Gartland was not negligent in any respect related to the damage that oecurred on the evening of June 25-26, 1969.

47. Schwerman argued that Gartland was negligent in not having dropped the vessel’s port anchor and in allowing the anchor chain leading to the starboard anchor to lie slack on the bottom. Gartland maintained that the anchoring technique recommended by Schwerman would not have alleviated the strain on the lines, and that the major purpose of the anchor is to act as a fail-safe device to prevent the vessel from floating downriver in the event the mooring lines part. The Court agreed with Gartland’s position and found no negligence with regard to its anchoring technique.

48. Schwerman claimed that there was too much slack in the mooring lines and that this caused the vessel to work in and out at the dock during the rainstorm. Having in mind that it is necessary to have some slack in the lines in order to compensate for fluctuations in the water level of the river, the Court found that the amount of slack in the FITZGERALD’S lines was reasonable and that there was no negligence on Gartland’s part with respect to the manner in which the lines were placed.

49. With respect to the issue of the shipkeeper, Schwerman maintained that his not living aboard was negligent and in violation of § 8-21(1) of the Ordinances of the City of Milwaukee Relating to Harbor, Rivers, and Bridges. The Court, however, agreed with Gartland’s contention that its arrangement of having the shipkeeper visit the vessel approximately every other day was in accord with- customary practice on the Great Lakes and was in conformity with § 8-21(1) of the Milwaukee Ordinances, which requires that a shipkeeper live on board or be “in charge” of the vessel. Further, the Court found that, had a shipkeeper been on board, he could not have done anything except call for help.

50. The Court found that the dock was badly deteriorated and defective in many respects. The Court further found that Schwerman was negligent in not having repaired these defects prior to the events of June 25-26, 1969, the existence of which defects it either knew or should have known.

51. The Court found additional negligence on the part of Schwerman in having constructed the 30,000-ton access ramp without an extension of the steel sheeting to the western boundary of the property, and in failing to conduct further tests for movement of the dock wall after the test completed in July of 1968 showed a movement of almost 2 inches during the preceding six months.

52. Schwerman contended that the damage to the dock was caused by the FITZGERALD in that the effect of the wind and current on the vessel produced sufficient force on the port bow line to pull the dock into the river. Gartland offered expert testimony to the effect that the wind and current could not have produced sufficient force to pull in the dock, and argued that the damage was caused by an earth slide that occurred behind the dock face and toppled the structure. Gartland theorized that the earth slide was precipitated by a combination of pressure from the earthen access ramp and a sudden, large loss of fill through the deteriorated Wakefield sheeting, the loss of fill occurring as a result of the scouring action of the river handling a heavy volume of water and the effluent from the adjacent storm sewer. The scouring, said Gartland, occurred at a time when the recent dredging had produced greater-than-usual depths at the face of the dock, thereby exposing portions of the deteriorated Wakefield sheeting previously protected by a slope of silt. There were no witnesses to the actual happening of the damage. “Although it is very arguable”, said the court, “that the pressure which came from the 30,000-ton access ramp may have played an important role in precipitating the collapse, on a consideration of all the evidence, the Court is not able to tell with sufficient certainty what caused the damage.”

53. The Court, however, did find that the events of June 25-26, 1969 were not the sort which Gartland should have foreseen as a result of the moderate weather conditions that prevailed that evening. Even assuming that the FITZGERALD did play some role in bringing about the damage, the weather conditions were not so severe as to have reasonably alerted Gartland to some corrective course of action.

CONCLUSIONS OF LAW

The District Court made the following Conclusions of Law:

“1. Schwerman’s complaint sets forth two claims, one sounding in tort and the other in contract. The standards of care with respect to these claims are identical; i. e., Gartland had a duty to refrain from causing damage to Schwerman’s dock through a lack of due care. The Court has found no negligence on the part of Gartland regarding the events of June 25-26,1969.

“2. Additionally, Schwerman may not hold Gartland liable if the damage which occurred was caused by Schwerman’s own negligence. As previously noted, Schwerman was negligent in a number of respects which may have played a role in bringing about the collapse of its dock:

“3. In any event, under both its tort and contract claims, Schwerman had the burden of proving by a preponderance of the evidence that the damage which occurred was actually caused by Gartland. This Court cannot tell with sufficient certainty what caused the damage of June 25-26, 1969 and, therefore, concludes that Schwerman has not met its burden of proof in this regard.

“4. Furthermore, Schwerman had the additional burden of demonstrating by a preponderance of the evidence that Gartland proximately caused the damage. In this regard, it was incumbent upon Schwerman to demonstrate that the damage in question was of the general sort that was expectable by Gartland. Inasmuch as this Court has found that the damage was not the sort which Gartland should have expected or foreseen as a result of the moderate weather which prevailed during the evening in question, the Court concludes that Schwerman has failed in its burden on this issue.”

APPELLANT’S ARGUMENTS I.

Schwerman asks this Court to set aside certain findings of fact made by the District Court on the grounds that they were clearly erroneous. Schwerman correctly states a part of Rule 52 (a), Federal Rules of Civil Procedure: “Findings of fact shall not be set aside unless clearly erroneous * * *.” There is, however, a second clause which reads: “and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Schwerman correctly quotes the determinant set out in McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954):

A finding is clearly erroneous when “although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” 348 U.S. at 20.

Schwerman first contends that because the District Court adopted proposed findings of fact as submitted by Gartland’s counsel, the District Court’s findings of fact should not be given the same weight as findings of fact actually prepared by the court, and that the court’s findings “can be ignored by this Court in favor of complete review of the evidence in the case.”

As to the first part of Schwerman’s contention, we note that this Court held, in Mississippi Valley Barge Line Co. v. Cooper Terminal Co., 217 F.2d 321, 322 (7th Cir., 1955):

We do not think the fact that a busy trial judge having requested counsel for the winning party to prepare findings and conclusions, adopts them, makes the judgment based on them suspect in the appellate court.

To the same effect is Penn-Texas Corp. v. Morse, 242 F.2d 243, 247 (7th Cir., 1957), where this Court was asked to disregard the findings of fact made by the district judge because they were prepared by attorneys for the defense. This Court said:

.... The challenged findings are not clearly erroneous. We think the factual basis for the ultimate conclusions arrived at by the. district judge is clearly manifested by the record, regardless of who composed the words and phrasing entered below.

To like effect is In Re Woodmar Realty Co., 307 F.2d 591, 593-594 (7th Cir., 1962), where we said:

Judge Tehan did not delegate his responsibility when he directed plaintiffs’ attorneys to submit proposed findings and conclusions in accordance with the three opinions ... By having the prevailing party submit proposed findings of fact and conclusions of law, the judge followed a practical and wise custom in which the prevailing party has “an obligation to a busy court to assist it in performance of its duty” under Rule 52(a). Dearborn Nat. Cas. Co. v. Consumers Petroleum Co., 7 Cir., 164 F.2d 332, 333 (1942).

Other Circuits have held likewise. Schilling v. Schwitzer-Cummins Co., 79 U.S.App.D.C. 20, 142 F.2d 82 (1944); Simons v. Davidson Brick Co., 106 F. 2d 518 (9th Cir., 1939); O/Y Finlayson-Forssa A/B v. Pan Atlantic Steamship Corp., 259 F.2d 11 (5th Cir., 1958), cert. denied, 361 U.S. 882, 80 S.Ct. 153, 4 L.Ed.2d 119 (1959); O’Leary v. Liggett Drug Co., 150 F.2d 656 (6th Cir., 1945), cert. denied, 326 U.S. 773, 66 S. Ct. 232, 90 L.Ed. 467 (1945). And the Supreme Court has approved findings even though taken verbatim from the brief of the prevailing party. United States v. Crescent Amusement Co. et al., 323 U.S. 173, 65 S.Ct. 254, 89 L.Ed. 160 (1944).

As for the second part of Schwerman’s first contention, we are not disposed to ignore the District Court’s findings unless, upon review of the evidence in the case, we are of the opinion that they are clearly erroneous. We have reviewed the evidence in the case and are of the firm opinion that said findings are not clearly erroneous.

II.

Sehwerman next contends that the District Court’s Finding of Fact No. 30, — where the District Court found that the mooring contract did not impose strict liability upon Gartland, — is actually a conclusion of law and as such can be disregarded by this Court. In answer, it need be said only that this Court agrees with the District Court’s interpretation of the contract. It is noted that Carl Sehwerman, Schwerman’s Vice President in charge of real estate and research, executed the mooring contract on behalf of Sehwerman and testified, both before and at trial, that in his view the contract did not impose strict liability upon Gartland. Moreover, the contract specified that Gartland was to use “caution and care”. If strict liability had been intended, there would have been no reason to refer to “caution and care”. It is elementary that all language in a written instrument must be considered. Also, where different interpretations are possible, the preferred interpretation is that which is against the party who prepared the instrument. In the latter connection, it is observed that the contract was drafted by Schwerman’s resident counsel. Schwerman’s reliance upon Viaux v. John T. Scully Foundation Co., 247 Mass. 296, 142 N.E. 81 (1924) is misplaced, for the case is inapposite.

III.

Sehwerman strongly argues that the District Court erred in its Finding of Fact No. 42 regarding wind speeds during the night of June 25-26, 1969. Sehwerman contends that the court found that data from the U.S. Weather Bureau indicated that the winds during that night were generally from the southeast, at speeds not in excess of 13 knots, or 15 miles per hour; whereas an official weather report of the City of Milwaukee indicated that at 7:35 P.M. on June 25, 1969, the wind was from the west at 35 miles per hour. In the first place, it should be pointed out that the report of the City of Milwaukee reads: “. . . [T]he velocity readings are taken at Mitchell Field . . . ”, and that the climatological data of the U.S. Weather Bureau, including wind speeds, also were taken at the same Mitchell Field. Second, the District Court expressly limited its finding to wind conditions occurring subsequent to 9:00 P.M. on the evening in question, — after witnesses Bugnacki and Robbers had left the dock, which was still intact at that hour,- — whereas the 35 m. p. h. wind speed reflected in the city’s report was a reading as of 7:30 P.M. on that evening. Thus there is no inconsistency, as is urged.

For the foregoing reasons, we cannot find that the District Court’s Finding of Fact No. 42 is clearly erroneous.

IV.

Schwerman next asserts that the District Court was clearly in error in finding that it was not able to tell with sufficient certainty what caused the dock damage. Here Schwerman is in effect asking this Court to reject in toto the credibility of the testimony of Gartland’s expert witnesses. We find no reason to do this, there being no foundation for this attack on these witnesses, whose credentials this Court finds ample to support the credibility of their testimony.

V.

We shall dispose of Schwerman’s next contention, — that there is a presumption of negligence on the part of the ship, whose movement at the dock caused dock damage, — by pointing out that there is insufficient evidence in the record to compel a court to conclude that it was the working of the ship on her mooring lines which caused the damage to the dock. In short, such evidence does not predominate.

VI.

Schwerman urges that Gartland was negligent in not streaming the port anchor, in addition to the starboard anchor, in order to stabilize the bow of the ship and to minimize movement of the ship at the dock. We are of the opinion that the District Court rightfully elected to accept the testimony of Professor Yagle, — an expert on the subject of the effect of wind and currents upon ships’ movements, — to the effect that the anchoring technique urged by Schwerman would have had negligible effect on restricting the motion of the ship at the dock. Further, it was uncontroverted that anchors are used in a Great Lakes “winter mooring” primarily to guard against the drifting of the ship downriver in the event that the mooring lines should part. Moreover, even it it were conceded that the streaming of both anchors in the manner urged would have alleviated the strain on the mooring lines, it appears that the location in which Schwerman had required the ship to be placed was such that there was insufficient room for streaming the anchors in the manner recommended by Schwerman.

VII.

Schwerman contends that it was negligence, causally connected with the dock damage, for Gartland (1) not to have instructed the shipkeeper as to the operation of the ship’s winches in an emergency situation, (2) not to have required the shipkeeper either to live aboard the ship or to inspect it at least every six hours, and (3) not to have been prepared to call, and not to have called, for help during the night of June 25-26, 1969. At the outset, we must point out that there is not sufficient evidence in the record to compel a conclusion that the dock damage was caused by the working of the-ship on her lines at the dock. Next, we observe that Schwerman’s own witness, Mr. Harlow Meno, conceded that a study of a photograph taken of the ship and her mooring lines on the morning that the damage was discovered, indicated that all of the mooring lines had the proper amount of slack necessary to compensate for the rise and fall of the level of the water in the river, and that Mr. Meno further conceded that there would have been even less slack in the lines during the night, when the water level was higher. It is not insignificant that none of the lines parted. Finally, evidence in the record, and the wording of Section 8-21(1) of the ordinances of the City of Milwaukee Relating to Harbor, Rivers and Bridges, furnish ample support for the District Court’s finding that Gartland’s arrangement of having the ship-keeper visit the ship approximately every other day was in accord with customary practice on the Great Lakes and was in conformity with said Section 8-21(1).

VIII.

Schwerman argues that the District Court’s findings and conclusion that Schwerman was negligent are clearly erroneous because Schwerman owed Gartland no duty except to refrain from wanton and willful misconduct and to warn of any hidden trap or dangerous defect or condition known to Schwerman, and because Gartland had the same duty to inspect the dock as did Schwerman. We reject this argument for several reasons. First, Schwerman’s Complaint sets out two causes of action, the first sounding in contract, the other in tort. In the tort claim Schwerman alleged that the dock damage was caused by the occupancy of the ship “without any fault or negligence on the part of the plaintiff but wholly and solely by reason of the fault and negligence of the defendants . . . ” (Emphasis added). Thus in its second cause of action Schwerman put its own negligence into issue.

Second, we agree with Gartland that a dock owner is under a duty to maintain its dock in a safe condition, Ford Motor Co. v. Bradley Transportation Co., 74 F.Supp. 460, 466 (E.D.Mich. 1947), aff’d 174 F.2d 192 (6th Cir. 1949), and that the failure of a mooring facility creates a presumption of negligence in the manner of its construction and maintenance. Petition of Kinsman Transit Co., 1964 A.M.C. 2716, 2728-2729 (W.D.N.Y.1963), modified and aff’d, 338 F.2d 708 (2d Cir. 1964), cert. denied, Continental Grain Co. v. City of Buffalo, 380 U.S. 944, 85 S.Ct. 1026, 13 L.Ed.2d 963 (1965); City Compress & Warehouse Co. v. United States, 190 F. 2d 699, 702 (4th Cir. 1951).

Third, we deem Schwerman’s position in respect to Gartland more akin to that of a wharfinger than to that of a licensor or a lessor, and such as to bring Schwerman within the ambit of a wharfinger for the purpose of determining whether or not Schwerman had any duty to maintain a safe mooring facility for Gartland. See Berwind-White Coal Mining Co. v. City of new York, 135 F.2d 443, 445 (2d Cir 1943); The Santa Barbara, 299 F. 147, 151 (4th Cir. 1924). We invite attention to the following passages from a letter dated Nov. 8, 1967 and written by the Milwaukee Port Director to Mr. Carl Schwerman (Trial Exhibit 29):

Confirming our telephone chat of this afternoon, and a previous discussion with Aid. Robert Jendusa:
We are pleased to learn that your company has acquired the so-called “Gas Company Dock” in the Menomonee River at 25th Street. We are also pleased to learn that you are interested in having this dock used for winter mooring and possibly for other dock usages later on. As promised, we send you herewith a copy of Municipal Port Tariff No. 13. The municpal port charges for mooring are shown under Items 301 and 302 * * *

It is well settled that a wharfinger must exercise reasonable care to provide safe facilities for vessels using its docks. Medomsley Steam Shipping Co. v. Elizabeth River Terminals, Inc., 354 F.2d 476, 480 (4th Cir. 1966); City Compress & Warehouse Co. v. United States, 190 F.2d 699, 701 (4th Cir. 1951); Berwind-White Coal Mining Co. v. City of New York, supra; Smith v. Burnett, 173 U.S. 430, 19 S.Ct. 442, 43 L.Ed. 756 (1899). Therefore, we are of the opinion that Sehwerman did have a duty to exercise reasonable care to provide a safe dock to Gartland, and we cannot, upon a review of all the evidence, say that the District Court’s findings as to Schwerman’s negligence were clearly erroneous.

IX.

Sehwerman ends with a dual contention: (1) that the District Court erred in concluding that Sehwerman may not hold Gartland liable if the dock damage was caused by Schwerman’s own negligence, and (2) that Sehwerman has a right to recover from Gartland if both parties are held to be negligent. Sehwerman is thus asking this Court to apply in this case the admiralty rule of divided damages proper in collision cases. This we cannot do, for two reasons. First, the District Court found that Gartland was free from negligence, and we are not constrained to upset that finding. Second, there is not enough evidence in the record for us to hold that the District Court was clearly in error in finding that it was unable to find with sufficient certainty what caused the damage. Thus we cannot say that this was a collision case. °

For all of the foregoing reasons, we cannot hold on the record before us that any one of the challenged findings of the District Court is clearly erroneous. We are satisfied that no adequate ground exists for disturbing the result reached by the District Judge. We have in fact reviewed the evidence in detail and find his findings of fact and conclusions of law were appropriate. Accordingly, the District Court’s decision is Affirmed.

SWYGERT, Chief Judge

(concurring) .

I fully concur in Senior Judge PERRY’S thorough and careful opinion. However, I do wish to express a caveat in respect to the adoption by the district judge of the findings proposed by the prevailing party, here the defendant.

In this case the district judge apparently had both parties submit proposed findings of fact before he rendered his decision. This is an acceptable procedure provided that the judge uses these proposed findings only as an aid in the preparation of his own findings of fact. Here, the judge announced his decision and then requested the prevailing party to select those portions of his proposed findings which were consistent with the oral determination. It appears that this second set of proposed findings, after examination by plaintiff’s counsel, was signed by the judge without change.

This court, as have others, has expressly condemned the “mechanical adoption” of the prevailing party’s proposed findings. F S Services Inc. v. Custom Farm Services, Inc., 471 F.2d 671, 676 (7th Cir. 1972); Holbrook v. Institutional Insurance Co. of America, 369 F.2d 236, 242 (7th Cir. 1966); Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336, 1339-1340 (9th Cir. 1970); Roberts v. Ross, 344 F.2d 747, 751-752 (3d Cir. 1965); United States v. Forness, 125 F.2d 928, 942-943 (2d Cir. 1942). See also United States v. El Paso Natural Gas Co., 376 U.S. 651, 656-657, 84 S.Ct. 1044, 12 L.Ed.2d 12 (1964).

Since we are bound to accept the findings of fact of the district court unless they are “clearly erroneous,” it is important that these findings truly represent the objective determination of the trial judge without the partisan slant of the victorious litigant. I believe that a reviewing court can confidently apply the “clearly erroneous” standard only when the written findings of fact are substantially the work product of the district judge himself.


source: Caselaw Access Project

author: SPRECHER, Circuit Judge.

license: Public Domain

text:
    GARCY CORPORATION, Plaintiff-Appellant, v. HOME INSURANCE COMPANY et al., Defendants-Appellees.
    No. 73-1298.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 12, 1974.
    Decided May 7, 1974.
    Eli E. Fink, Morris J. Coff, Chicago, Ill., for plaintiff-appellant.
    John P. Gorman, James T. Ferrini, Chicago, Ill., for appellee.
    Before CASTLE, Senior Circuit Judge, and PELL and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

This appeal presents the troublesome question of the worth of a building that burned down shortly before it was to have been demolished.

Plaintiff owned five buildings in the same block: a seven-story building, a four-story building, a two-story building, a one-story building and a quonset hut. In April, 1970, each of the six defendant insurance companies issued identical policies totaling $300,000 against fire damage to any or all of the five buildings.

In May or June of 1970, plaintiff entered into a contract with a wrecking company for the demolition of all the buildings. All salvage would become property of the demolition company. The wreckers began work during the last week of June; it was estimated the demolition would take 90 days. On July 6, 1970, the company had demolished the quonset hut, the one-story building, part of the two-story building and a small part of the four-story building.

No wrecking or stripping of salvageable material had begun on the seven-story building. It contained $26,000 of inventory and various machinery and equipment. An affidavit of the assistant to the president of plaintiff corporation stated that plaintiff was trying to sell the seven-story building, even while the smaller buildings were being wrecked. The building was listed with real estate brokers. If plaintiff had found a buyer, it would have halted the demolition.

On the evening of July 6, 1970, all the remaining buildings were destroyed by fire. An appraisal submitted by plaintiff placed the actual cash value of the seven-story building before the fire at $633,532. Defendants refused to pay plaintiff’s claim for the total amount of coverage, $300,000.

The case was submitted to thq district court on motions for summary judgment from both sides. Although the complaint alleges a claim based on loss of all the buildings, plaintiff’s motion for summary judgment relies on loss of the seven-story building alone. Defendants’ motion seeks judgment on the damages issue on the theory that the seven-story building had no value to plaintiff at the time of the fire because of the contract for demolition.

The district judge’s opinion (reported at 353 F.Supp. 329), granting defendants’ motion for summary judgment on the damage issue, follows Judge Marovitz’ opinion in a related case, Aetna State Bank v. Maryland Casualty Co., 345 F.Supp. 903 (N.D.Ill.1972). Aetna State Bank, as plaintiff’s mortgagee on the buildings, sued the same defendants on the same policies. Judge Marovitz found defendants were liable on the policies, but granted summary judgment to defendants on the damages issue.

The case went to Judge Marovitz on stipulations of fact that apparently treated the five buildings as an indivisible unit. His opinion shows no awareness that the demolition crew had riot begun on the largest and most valuable building, nor that plaintiff had not yet removed inventory and equipment from the building, nor that plaintiff was trying to sell the building. On the facts presented to him, Judge Marovitz held;

We therefore find that actual cash value is not the proper criterion for determining the amount of loss for property which is in the process of being demolished and whose demolition at the time of loss is no longer a matter of conjecture or speculation . there is nevertheless no compensable loss in view of the fact that there is no value to buildings in the process of demolition.

345 F.Supp. 903, 909 (emphasis in original).

Defendants did not plead collateral estoppel of the Aetna case against plaintiff. Such a pleading would have been inappropriate for two . reasons. First, there is no privity between mortgagor and mortgagee; defendants cannot raise collateral estoppel against a party which did not participate in the previous case. IB Moore’s Federal Practice ¶ 0.-411 [12], at 1673 (2d ed., 1974). Second, the difference between the factual contexts eliminates identity of issue on the damages question.

But defendants do rely heavily on Aetna as precedent for the present case. We agree with the analysis in Aetna that equity will not allow recovery of actual cash value (defined as replacement cost minus depreciation for age) of a building irrevocably abandoned to a wrecking crew. If the case had been presented to us as it was to Judge Marovitz, with no separate information on individual buildings, we probably would have reached the same result.

When the Aetna reasoning is applied to the facts as presented here, however, we reach the opposite conclusion. The seven-story building was in use as a warehouse for inventory and equipment. Plaintiff hoped to sell it in the weeks before the wrecking crew would reach it. It had not been stripped of salvageable material or prepared for demolition. Plaintiff could have halted demolition, although it might have been liable in money damages to the wrecker. In short, the seven-story building was not in the process of demolition.

A review of similar cases produces an amazing array of analyses, but the critical factual question almost always is whether the insured had abandoned the building pursuant to an irrevocable commitment to demolish it. The following are examples of less than irrevocable commitment. In Knuppel v. American Ins. Co., 269 F.2d 163 (7th Cir. 1959), the court excluded evidence of the owner’s intention to demolish a building still in use by his lessee as a tavern and restaurant. A vacant fraternity house, declared a nuisance by the city and ordered demolished, was valued without consideration of the city’s resolution in Bailey v. Gulf Ins. Co., 406 F.2d 47 (10th Cir. 1969). Exclusion of evidence of a school board’s intent to demolish a school was ruled proper in American Ins. Co. v. Treasurer, School District No. 37, 273 F.2d 757 (10th Cir. 1959), because the school was in full use at the time of the tornado. In American Home Fire Assur. Co. v. Mid-West Enterprise Co., 189 F.2d 528 (10th Cir. 1951), a contract by the owner to tear down part of the building for the benefit of the lessee had no effect on the insurable interest, because no physical changes had been made pursuant to the contract.

Evidence of a lessee’s plans to demolish buildings he had erected was irrelevant to his insurable interest in Federowicz v. Potomac Ins. Co., 7 App.Div.2d 330, 183 N.Y.S.2d 115 (1959). A landlord-tenant contract for demolition and replacement of a building was not final in Leggio v. Millers National Ins. Co., 398 S.W.2d 607 (Tex.Civ.App.1965), so the landlord still had an insurable interest. A contract for demolition, performance of which had not begun, did not affect the insured’s interest in Godwin v. Iowa State Ins. Co., 27 S.W.2d 464 (Mo.Ct.App.1930) .

Examples of abandonment pursuant to an irrevocable commitment to demolish are Royal Ins. Co. v. Sisters of the Presentation, 430 F.2d 759 (9th Cir. 1970); Lieberman v. Hartford Fire Ins. Co., 6 Ill.App.3d 948, 287 N.E.2d 38 (1972); and Board of Education v. Hartford Fire Ins. Co., 124 W.Va. 163, 19 S.E.2d 448 (1942). Royal Ins. Co. was decided under California law, which, contrary to Illinois law, defines insurable interest as pecuniary interest. But the same result could be reached following the Aetna analysis because the nuns’ obligation to allow demolition of the abandoned convent was specifically enforceable. Lieberman is also an instance of a contract for demolition which could have been specifically enforced by the contractor for the new building. In addition, the demolition work had actually begun. Board of Education v. Hartford Fire Ins. Co. turned on the factual determination that plaintiff had permanently stopped using the old school building.

In analogous cases involving not demolition but some other change in circumstances before the damage occurred, courts have considered crucial the finality of the change. Since condemnation proceedings in Illinois may be abandoned by the condemnor, the owner of a condemned building may recover actual cash value even if he has already received a condemnation award. Edlin v. Security Ins. Co., 269 F.2d 159 (7th Cir. 1959), cert. denied, 361 U.S. 932, 80 S. Ct. 370, 4 L.Ed.2d 354 (1960); American National Bank & Trust Co. v. Reserve Ins. Co., 38 Ill.App.2d 315, 187 N. E. 2d 343 (1962). A contract to sell does not affect the seller’s insurable interest despite full or partial payment of the contract price. First National Bank v. Boston Ins. Co., 17 Ill.App.2d 159, 149 N.E.2d 420 (1958), aff’d, 17 Ill.2d 147, 160 N.E.2d 802 (1959); Dubin Paper Co. v. Insurance Co. of North America, 361 Pa. 68, 63 A.2d 85 (1949).

In Chicago Title & Trust Co. v. United States Fidelity & Guaranty Co., 376 F. Supp. 767 (N.D.Ill., 1973), the city had ordered the owner to board up an empty building and not to repair the heating system. It had been gutted by a previous fire. Judge Will, applying the Aetna doctrine, held that the definition of actual cash value as reproduction cost minus depreciation “is limited in application to those buildings which are being economically utilized at the time of their damage or destruction.” Since plaintiff was using the intact seven-story building as a warehouse and was trying to sell it, it had economic utility.

The district court erred in granting defendants’ motion for summary judgment on the damages issue. Since the facts material to this issue are undisputed, the court should have granted plaintiff’s motion for summary judgment on the damages question.

Both plaintiff and defendants also moved for summary judgment on the issue of cancellation of the policies; Plaintiff sent a letter dated June 25 with the following address and salutation:

Mr. E. K. Eichengreen

Rollins Burdick Hunter Co.

231 South La Salle Street

Chicago, Illinois 60604

Dear Ed:

Eichengreen was plaintiff’s agent; Rollins Burdick Hunter was defendants’ agent. Eichengreen occupied one of a group of offices leased by Rollins Bur-dick Hunter. The district judge found that the only evidence relied on by defendants to show notice of cancellation to their agent was the June 25 letter. We agree with the district court's analysis of the form and content of the letter and with his finding that it did not effect cancellation of the policies (see 353 F.Supp. 329, 331-332). The judge denied defendants’ motion for summary judgment on this ground but failed to rule on plaintiff's motion. Implicit in his discussion of the cancellation issue, however, is a ruling of summary judgment for plaintiff. He should have granted plaintiff’s motion on the cancellation issue.

The third issue on which both parties sought summary judgment is whether the increased hazard of the demolition work voided the coverage. The district judge adopted the Aetna holding (see 345 F.Supp. 903, 905-906) in denying defendants’ motion and again impliedly ruled in plaintiff’s favor.

In Aetna, Judge Marovitz found that Garcy Corp., the mortgagor, had given defendants notice of its plans for demolition. The finding was necessary to the court’s holding that the mortgagee had not violated its duty under the notice provision in the mortgage clause quoted below. Plaintiff asserts collateral estoppel against defendants’ present attack on the factual finding of notice of demolition. We believe plaintiff is entitled to invoke collateral estoppel despite the lack of mutuality of privity. Federal Savings & Loan Ins. Corp. v. Hogan, 476 F.2d 1182 (7th Cir. 1973); Factor v. Pennington Press, Inc., 230 F. Supp. 906 (N.D.Ill.1963). While plaintiff was not a party to Aetna, defendants were; they had a full opportunity to litigate the issue of their knowledge of the proposed demolition. Defendants are now bound by the finding that they had knowledge.

The question becomes the effect of defendants’ knowledge of the increased hazard under two provisions of the insurance policies. The first states:

Conditions suspending or restricting insurance. Unless otherwise provided in writing added hereto this Company shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured. . ...

The second provision is part of the standard mortgage clause:

Provided also, that the mortgagee shall notify this Company of any increase of hazard which shall come to the knowledge of said mortgagee . . . and the mortgagee shall, on demand, pay the premium for such increased hazard for the term of the use thereof; otherwise this policy shall be null and void.

Aetna holds that notification by the mortgagor satisfied the mortgagee’s obligation under the latter provision. Since the defendants knew of the increased hazard and failed to demand payment of higher premiums, the policy was not voided as to the mortgagee.

We can find no cases construing the two provisions together where the insurer has knowledge of the increased hazard. Is the notice provision a “writing added hereto’’ under the first provision? A persuasive argument could be made that the insurer gives up its rights under the first provision when it substitutes as a remedy for increased hazard the notification by a mortgagee and the right to demand higher premiums.

Even if the remedy in the notice provision affects only the contract with the mortgagee and leaves the first provision intact as to the mortgagor, the insurer’s knowledge of the increased hazard has another effect: waiver. Illinois cases do not allow an insurance company which learns of an increased hazard or other breach of contract to remain silent and retain unearned premiums, and then to assert the breach to escape liability following a loss. Orient Ins. Co. v. McKnight, 197 Ill. 190, 64 N.E. 339 (1902); Mechanics’ Ins. Co. v. Hodge, 149 Ill. 298, 37 N.E. 51 (1894); Reinhardt v. Security Ins. Co., 312 Ill.App. 1, 38 N.E.2d 310 (1940); Norwich Union Indemnity Co. v. Haas, 179 F.2d 827 (7th Cir. 1950); see also, Militzer v. State Farm Fire & Casualty Co., 412 S.W.2d 540 (Mo.Ct.App.1967); Briney v. Tri-State Mutual Grain Dealers Fire Ins. Co., 254 Iowa 673, 117 N.W.2d 889 (1962); Wyatt v. State Farm Fire & Casualty Co., 78 Wyo. 228, 322 P.2d 137 (1958).

The district judge should have granted plaintiff’s motion for summary judgment on the issue of increased hazard.

.Defendants are Hable to plaintiff for the actual cash value of the seven-story building. An affidavit by the assistant to the president of Garcy Corp. states that a prospective buyer had asked for an appraisal of the building. The appraiser inspected the building on September 6, 1969. After the fire the following July, the appraiser submitted to plaintiff an appraisal valuing the building at $633,532.

Defendants did not object to the form or content of the affidavit and failed to file any affidavits contesting the amount of the appraisal. Thus the record contains no factual controversy on the actual cash value of the building. DeBardeleben v. Cummings, 453 F.2d 320 (5th Cir. 1972). Since the value exceeds the total coverage, plaintiff is entitled to recover the full $300,000 on the policies. The case is remanded for entry of summary judgment for plaintiff in the amount of $300,000.

Reversed and remanded.

      . Plaintiff had cancelled its insurance policies on these contents.

      . Aetna’s motivation to treat the buildings as a unit may have been the fact that the amount due on the mortgage on all five buildings was $249,843, which was less than the total coverage of $300,000. Here plaintiff claims the value of the seven-story building alone exceeded $300,000.

      . The court stated in dictum that an executed contract would have eliminated the landlord’s interest, presumably because the tenant would have been entitled to specific performance.

      . Occasional cases find insurable interest or apply actual cash value even when demolition liad already begun at the time of the fire. Eagle Square Mfg. Co. v. Vermont Mutual Fire Ins. Co., 125 Vt. 221, 212 A.2d 636, 213 A.2d 201 (1965); Irwin v. Westchester Fire Ins. Co., 58 Misc. 441, 109 N. Y.S. 612 (1908).

      . Defendants rely on Greyhound Building Corp. v. Fidelity-Phenix Fire Ins. Co., 7 Fire & Casualty Cas. 597 (N.D.Ill.1951), for dictum that, if there had been a binding contract for demolition, plaintiff would be deemed to have abandoned the building. The only authority cited in Greyhound is Board of Education v. Hartford Fire Ins. Co., which certainly does not equate a contract for demolition with abandonment. The two facts were separately determined. We decline to give any weight to the dictum expressed in Greyhound.

      . Again, defendants do not plead collateral estoppel of the statement in the Aetna opinion that “it does seem that the mortgagor, Garcy, did request the cancellation of the policies. ...” 345 F.Supp. 903, 905. The same factors of lack of privity and submission on stipulated facts apply as on the question of damages. In addition, a finding of cancellation by the mortgagor was not necessary to Judge Marovitz’ conclusion that such a cancellation would not be effective as to the mortgagee’s coverage.

      . We give no weight to the district judge’s third reason, an admission in the pleadings that the policies were in effect at the time of the fire.


author: EDWARDS, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. DAYLIN, INC., DISCOUNT DIVISION, d/b/a Miller’s Discount Dept. Stores, Respondent.
    No. 72-2189.
    United States Court of Appeals, Sixth Circuit.
    Argued Oct. 16, 1973.
    Decided March 29, 1974.

      Lawrence Levien, Atty., N. L. R. B., Washington, D. C., for petitioner; Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, Charles N. Steele, John M. Flynn, Attys., N. L. R. B., Washington, D. C., on brief.
    Milton M. Konowe, New York City, for respondent; Katz & Wolchok, New York City, on briefs.
    Gerard C. Smetana, Lawrence M. Cohen, Lederer, Fox & Grove, Chicago, 111., on brief for the American Retail Federation amicus curiae.
    Before EDWARDS, McCREE and MILLER, Circuit Judges.
   EDWARDS, Circuit Judge.

The National Labor Relations Board seeks enforcement of its order (reported at 198 N.L.R.B. No. 40). The Board found that respondent Daylin, Inc., had violated Sections 8(a)(1) and 8(a)(3) of the National Labor Relations Act, as amended, 61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq. (1970), by enforcing an illegal no-solicitation rule, by coercive interrogation of one employee, Fugate, and by discriminatorily discharging Fugate and another employee, Bogan, for union activity protected by Section 7 of the Act. Its order required respondent to cease and desist from the first two practices referred to above, and to reemploy Fugate and Bogan with back pay.

Respondent is a retail store chain which operates a discount department store at Kettering, Ohio, where the events with which this case is concerned took place.

In November of 1970 respondent employed 40 employees. Two of them (Fugate and Bogan) were employed in the receiving department in the rear of the store, separate from the selling floor. At their lunch hour on November 25, 1970, Bogan and Fugate met a union organizer at a restaurant and received 15 to 20 union authorization cards which they divided between themselves. As to what happened thereafter, the Trial Examiner found:

[U]pon returning to the store and still on their lunch break, [they] obtained some signatures on cards from other employees. During the afternoon, other employees came to the receiving room where Bogan and Fugate worked and signed cards. There is disputed testimony that the two men approached employees during working time which, for the purposes of decision, I assume to be true; however, I note that the men were caught up with their work and there is no showing that there was any interference with their duties or the duties of other employees. Having learned from a number of sources that Bogan and Fugate had solicited union cards on company premises and on working time, Store Manager Garrett called them in about 6 p. m. and discharged them.

The respondent’s version of the discharge and the reasons therefor, as set forth in its brief, is as follows:

Store Manager Garrett had Fugate summoned to his office about 6:00 P. M. Present were Garrett, Fugate, Emmons, and the Regional Security-Officer, Tom Weigand.- Garrett gave Fugate the “No Solicitation Rules” and asked him to read them.

Fugate read the Company’s “No Solicitation Rule”:

“The Company has a No Solicitation Rule. This means that no employee or other persons are to solicit other employees, or to be solicited, for any purpose. This applies to religious, fraternal, labor, political, charitable, social or any other such organization. All such activities are prohibited on these premises during paid working hours. Any employee violating this rule is subject to disciplinary action including discharge.
“If you have any question regarding this, please contact the Personnel Dept.”

Garrett asked if he understood it. Fugate replied that he did. Garrett told Fugate, “I have information that you are soliciting on Company time. It’s complete grounds for dismissal,” and Garrett asked Fugate to check out and leave.

Bogan then was called to Garrett’s office and was also given the Company’s “No Solicitation Rule” to read. Garrett told Bogan he had information that he was soliciting on Company time, and it was grounds for dismissal, and requested him to punch out and leave. Bogan denied soliciting other than on his break and lunch period.

Garrett denied that he asked Fugate at this discharge meeting if he had any union cards signed or asked to see the cards. Garrett denied questioning Fugate about union activities at the Miller’s Airway Store operated by the Company at another location.

The Trial Examiner and the majority of the National Labor Relations Board found that the respondent’s no-solicitation rule was overbroad and (in the absence of any special justification therefor) invalid, and that it had been applied in a discriminatory manner.

They also found that both Bogan and Fugate had been discriminatorily discharged and that Fugate had been subjected to coercive interrogation.

The rationale for these holdings is set forth in the Trial Examiner’s decision:

It seems clear that the rule here involved, without question, applies to all areas of the Respondent’s establishment without distinction as between selling or nonselling area. In consequence, employees would violate the rule if they were to solicit in nonselling areas such as the stockroom area, restroom, lunchroom or various storage areas. Moreover, the rule prohibits solicitation activity during “paid working hours” and, thus, would prohibit employees from soliciting in non-selling areas during their paid break time. Finally, it abundantly appears that the rule was discriminatorily applied to Bogan and Fugate. Witnesses for the Respondent, including Store Manager Garrett and Second Assistant Manager Haines, testified that the Respondent permitted charitable bake sales, solicitátion for employee Christmas and Halloween parties and solicitation of dues for the employees Club, during working hours. Indeed, the Respondent allowed a notice of dues owed by employees to the Club to be posted. Admittedly, Garrett stated that he had a different reaction to solicitation in behalf of the Union than in behalf of other activities. When he became aware of the activities of Bogan and Fugate, Garrett contacted Store Manager Connors at another store of the Respondent and asked his advice with respect to handling the situation. Connors came over to the store and, according to Garrett’s undenied testimony, stated in substance that the Respondent was against the Union.

The problems posed by this case are hardly new ones. In 1945 in the Republic Aviation case, the Supreme Court approved the following in the Peyton Packing Co. holding of the NLRB:

“ ‘The Act, of course, does not prevent an employer from making and enforcing reasonable rules covering the conduct of employees on company time. Working time is for work. It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours. Such a rule must be presumed to be valid in the absence of evidence that it was adopted for a discriminatory purpose. It is no less true that time outside working hours, whether before or after work, or during luncheon or rest periods, is an employee’s time to use as he wishes without unreasonable restraint, although the employee is on company property. It is therefore not within the province of an employer to promulgate and enforce a rule prohibiting union solicitation by an employee outside of working hours, although on company property. Such a rule must be presumed to be an unreasonable impediment to self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline.’ [49 N.L.R.B. 828, 843-44].” Republic Aviation Corp. v. NLRB, 324 U.S. 793, 803-804 n. 10, 65 S.Ct. 982, 988, 89 L.Ed. 1372 (1945).
Justice Reed concluded:
In the Republic Aviation case, petitioner urges that irrespective of the validity of the rule against solicitation, its application in this instance did not violate section 8(3), note 1, supra, because the rule was not discriminatorily applied against union solicitation but was impartially enforced against all solicitors. It seems clear, however, that if a rule against solicitation is invalid as to union solicitation on the employer’s premises during the employee’s own time, a discharge because of violation of that rule discriminates within the meaning of § 8(3) in that it discourages membership in a labor organization. Id. at 805, 65 S.Ct. at 989.

There seems to us to be no doubt that respondent’s no-solicitation rule was overbroad and invalid for NLRA purposes for exactly the same reasons that the Supreme Court dealt with in Republic Aviation, supra. Respondent’s rule would, of course, properly and lawfully forbid such solicitation on the selling floor, see Montgomery Ward & Co. v. NLRB, 339 F.2d 889 (6th Cir. 1965), or in situations where such activity interfered with job performance. See Peyton Packing Co., 49 N.L.R.B. 828. But it would also purport to forbid employees from “soliciting” union membership on break time, in rest rooms and in waiting time.

“Soliciting” union membership inevitably involves speech. Such speech is not only a right protected by the NLRA, it is also a right protected by the First Amendment, as the Supreme Court held in its first encounter with the soliciting problem. See Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L. Ed. 430, rehearing denied, 323 U.S. 819, 65 S.Ct. 557, 89 L.Ed. 630 (1945). Anything favorable said about a union or the labor movement can be construed as “solicitation.” Id. at 534-535, 65 S.Ct. 315.

On the other hand, no employer has any constitutional or legal obligation to pay for his employees’ endeavors on behalf of a union unless by the terms of a labor/management agreement. This is particularly true when soliciting on a selling floor might serve to drive away customers. See May Department Stores, Co., 59 N.L.R.B. 976, 981, enforced as modified, 154 F.2d 533 (8th Cir.), cert. denied, 329 U.S. 725, 67 S.Ct. 72, 91 L. Ed. 627 (1946); Montgomery Ward & Co. v. NLRB, 339 F.2d 889 (6th Cir. 1965); May Department Stores Co. v. NLRB, 316 F.2d 797 (6th Cir. 1963). The courts have also recognized that soliciting for a union presumptively interferes with the assigned work of either solicitor or the solicited when one or both have assigned duties. See TRW, Inc. v. NLRB, 393 F.2d 771 (6th Cir. 1968); NLRB v. Essex Wire Corp., 245 F.2d 589 (9th Cir. 1957).

As we see this record, it seems clear to us 1) Respondent’s no-solicitation rule was invalid because of overbreadth and that it had been discriminatorily enforced. The plain language of the rule shows that it could be enforced to bar solicitation enroute to and from the time clock, on break time, in the rest rooms. Such prohibitions are, as we view the matter, barred by Republic Aviation, supra, and by much subsequent case law. Cooper Tire and Rubber Co. v. NLRB, 443 F.2d 338 (6th Cir. 1971); NLRB v. Southern Electronics Co., 430 F.2d 1391 (6th Cir. 1970); NLRB v. Challenge-Cook Bros, of Ohio, Inc., 374 F.2d 147 (6th Cir. 1967).

As to discriminatory enforcement, it is clear that there was no prior enforcement at all — although there had been numerous activities which represented as specific violations of the rule, as did the activities of Bogan and Fugate if respondent’s version of their activities on November 25, 1970, be accepted.

In the cross-examination of respondent’s store manager, the distinction made between solicitation for charitable organizations and for the employee club, and solicitation for this union was frankly acknowledged. There was no enforcement of the company rule at all as to the former solicitations, and as to the latter, there was not only enforcement, but the ultimate penalty available to the employer of discharge without prior warning was invoked. (See Appendix A.)

.2) As we read the same cross-examination of the store manager, it appears to us to constitute substantial evidence that, as the Board implies, the company no-solicitation rule was employed pretextually and that the actual reason for Bogan’s and Fugate’s discharge was that they were “organizing a union.” The store manager made it crystal clear that both were fired after phone calls to national officials of respondent company and after “the message [was relayed] to me to let the two men go.”

There is no indication in the record of any prior complaints about either of the discharged employees. Yet the manager gave no warning about violation of the company rule and there was no consideration of any lesser penalty. We find it difficult to believe that if management had ever seen fit to enforce its no-solicitation rule prior to November 25, 1970, it would have employed automatic discharge for an otherwise satisfactory employee who committed the first offense of soliciting for a charitable bake sale. See NLRB v. Southern Electronics, 430 F.2d 1391, 1393 (6th Cir. 1970).

All these facts constitute substantial evidence on the whole record to support the Board’s finding that “The rule was invoked only when the respondent became aware that Bogan and Fugate were engaged in organizational efforts,” and that “the rule was discriminatorily enforced against Bogan and Fugate,” in violation of 8(a)(1) and 8(a)(3). See Central Hardware Co. v. N.L.R.B., 439 F.2d 1321 (8th Cir. 1971), rev’d on other grounds, 407 U.S. 539, 92 S.Ct. 2238, 33 L.Ed.2d 122 (1972); NLRB v. Southern Electronics Co., 430 F.2d 1391 (6th Cir. 1970); NLRB v. Lou DeYoung’s Market Basket, Inc., 406 F.2d 17 (6th Cir.), rev’d on other grounds, 395 U.S. 828, 89 S.Ct. 2125, 23 L.Ed.2d 737 (1969).

3) There was likewise substantial evidence in the record as a whole that the interrogation of Fugate was coercive and violative of Section 8(a)(1). NLRB v. Gissel Packing Co., 395 U.S. 575, 616, 617, 89 S.Ct. 1918, 23 L.Ed.2d 547 (1969); NLRB v. McCann Steel Co., 448 F.2d 277 (6th Cir. 1971); NLRB v. Southern Electronics Co., 430 F.2d 1391 (6th Cir. 1970); NLRB v. Mock Road Super Duper, Inc., 393 F.2d 432 (6th Cir. 1968).

We believe, however, that the majority of the Board has sought to decide more than we need to decide in this case. The foregoing analysis, cast in terms of orthodox labor law, appears to us to support the Board’s findings and remedial orders without passing upon the rationale adopted by the majority of the Board and bitterly disputed by respondent and amicus curiae, American Retail Federation.

Enforcement of the order of the Board is granted.

APPENDIX A

Q. What time did you decide to discharge Mr. Bogan and Mr. Fugate ?
A. What time ?
Q. Yes.
At the time I called them to the A. office.
Q. At the time you called them to the office?
A. Yes.
Q. Now, did you make the decision to discharge them on your own ?
A. I was told to discharge them, yes. Q. By whom were you told ?
A. By my home office.
Q. By your home office?
A. Yeah.
Q. Who in your home office told you to discharge them ?
A. Well, Mr. Bader.
A. Mr. who?
A. Bader.
Q. How do you spell that ?
A. B-a-d-e-r.
Q. B-a-d-e-r?
A. Yes, sir.
Q. What is his position ?
A. He’s the general manager.
Q. Where is his home office ?
A. San Antonio, Texas.
Q. San Antonio, Texas. And you called San Antonio, Texas and told them what?
A. No. Mr. Conners.
Q. All right. Who is Mr. Conners?
A. He is store manager of the Airway store, or was at that time.
Q. How did Mr. Conners find out about it?
A. Because I called him.
Q. You called Mr. Conners. What time did you call Mr. Conners ?
A. Around lunch time. One-thirty, two o’clock. I don’t know.
Q. One-thirty, two o’clock ?
A. I don’t know exactly.
Q. You called Conners and said what? That Fugate and Bogan were organizing a union ?
A. Yes.
Q. And what did he say ?
A. He said, “I’ll be over there in a few minutes.” He said, “I’ll contact San Antonio.”
Q. He’ll contact San Antonio. So he did, didn’t he?
A. Yes.
Q. And did Mr. Bader call you or you called him ?
A. Neither one. Mr. Conners.
Q. Well, how did you—
A. Mr. Conners was doing the talking.
Q. I see. Mr. Conners came over and said that Bader had told you to discharge the two of them, right?
A. Yes.
* * * * * X-
Q. So at one or one-thirty you testified you called Mr. Conners and told him that Mr. Bogan and Mr. Fugate were trying to organize a union, is that right ?
A. Uh-huh.
Q. Why did you tell Mr. Conners that?
A. Well, I knew Mr. Konstanden had just left. He was the regional manager. And Mr. Conners- — •
Q. Well, why did you bother calling anybody ?
A. Huh?
Q. Why did you bother calling anybody?
A. Well, Mr. Conners had been around a long time. So he was the best at hand and I wanted advice.
Q. Advice regarding what ?
A. On what to do.
Q. What to do about these two fellows organizing for the union.
A. Yes. Yes.
Q. Okay.
A. Because I’d never been though it before.
Q. You’d never been through it before?
A. No.
Q. I see. This was the first time?
A. Right.
Q. Now, isn’t it true that while you were the store manager at Miller’s Kettering store that certain activities went on in the store for charitable organizations; for example cake sales? Isn’t that right?
A. Yes.
Q. When was the last cake sale? Do you recall ?
A. No, I don’t.
Q. Did you call Mr. Conners and ask his advice with regard to the cake sales ?
A. No, I didn’t.
Q. You didn’t. You should have. Well, it says no solicitation for any purpose, doesn’t it. Read that rule.
A. It says—
Q. It says religious. There is no soliciting for that, is there ?
A. Right.
Q. You didn’t call Mr. Conners about that, did you ?
A. No. I didn’t.
Q. You didn’t. Okay. Is there an employee organization at the store ? There was at the time you were manager, wasn’t there?
A. They had an employee club, yes.
Q. An Employee’s Club. Don’t they collect dues for that Employee’s Club?
A. Yes.
Q. As a matter of fact didn’t the company allow notice to be put on the bulletin board as to dues owed by certain employees in the store ?
A. No. No notices posted.
Q. No notices were posted?
A. (Shook head).
Q. When did the employees collect dues for this ?
A. The first of each month I think.
Q. The first of each month. Isn’t it a fact that they would collect them whenever they came a cross an employee whether they were working or not?
A. Yeah.
Q. It is. It is a fact. You didn’t call Mr. Conners about that though, did you?
A. No. It’s — That’s the company policy to have an employee club.
******
By Mr. Roketenetz:
Q. You didn’t call Mr. Conners about that though, did you, sir ?
A. No.
Q. Employees also had parties at the store, didn’t they ?
A. Yes.
Q. Isn’t that right ?
A. Yes.
Q. Isn’t it a fact that employees would go around and collect money for beer and refreshments for these parties?
A. I guess. They all got together.
Q. You never went to any of these parties ?
A. I went to one, yes.
Q. You went to one. Sure you did. Did you give any money for beer ?
A. No, I didn’t.
Q. You never gave any money?
A. Huh-uh.
Q. Isn’t it a fact that they would collect money for dues on company premises?
A. I would imagine so. I had nothing to do with it. I was an advisor.
Q. I see.
A. No capacity at all in the employee’s club.
Q. Well, I understand that. But you just testified that such activities went on isn’t that right ? M
A. Yes.
Q. Okay. You didn’t call Mr. Conners about that though, did you ?
A. No, I didn’t.
Q. So your reaction to a union soliciting was somewhat different from other activities being solicited around the company premises, wasn’t it?
A. Yes.
Trial Examiner: Well, when you called Conners after being informed of the activities of these' two young men what did Conners tell you ?
The Witness: He told me he would be over to the store in a few minutes. And he came over there. And we talked in the office. And he tried to call Mr. Del-salt. He was unable to get a hold of him.
Trial Examiner: Who is he ?
By Mr. Roketenetz:
Q. Who is Mr. Delsak ?
A. Sitting right there.
Trial Examiner: What position is he?
The Witness: He is regional general manager.
Trial Examiner: I see.
The Witness: And he was unable to be contacted. So he called Mr. Bader in San Antonio and told him what was going on. And he relayed the message to me to let the two go.
Trial Examiner: To let the two go?
The Witness: Yes.

      . Retail Clerks Union, Local No. 1552, Retail Clerks International Association, AFL-CIO.

      . We emi>liasize that this case deals only with a no-solicitation rule as it apjdies to respondent’s employees. Nonemployee solicitors pose quite different solicitation problems. See NLRB v. Stowe Spinning Co., 336 U.S. 226, 69 S.Ct. 541, 93 L.Ed. 638 (1949); NLRB v. Lake Superior Lumber Corp., 167 F.2d 147 (6th Cir. 1948); Marshall Field & Co. v. NLRB, 200 F.2d 375 (7th Cir. 1953).

      . The Board’s majority opinion takes the point of view that “[W]here a no-solicitation rule goes beyond [permissible] limits, as the present one does, it is an unlawful infringement upon the employees’ freedom to solicit their fellow employees for (or against) union representation. The rule in such case can provide no justification for the discharge of an employee who violated it. Therefore, if an employee is discharged for soliciting in violation of an unlawful rule, the discharge also is unlawful unless the employer can establish that the solicitation interfered with the employee’s own work or that of other employees, and that this rather than violation of the rule was the reason for the discharge.” This, of course, would have the effect of shifting the burden of proof as to the challenged discharges from the general counsel to the respondent. To assess the validity of the Board’s theory it would be necessary to decide the question whether a no-solicitation rule that is overbroad on its face may, nevertheless be validly enforced against persons engaging in unprotected activity. Because we hold that the no-solicitation rule here was enforced in a discriminatory fashion, and that decision suffices to sustain the Board’s remedial order, we need not decide, and we expressly reserve judgment on, this question.


author: EUGENE A. WRIGHT, Circuit Judge: KOELSCH, Circuit Judge

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Paul OSCAR, Defendant-Appellant.
    No. 73-3606.
    United States Court of Appeals, Ninth Circuit.
    May 6, 1974.
    Michael J. McCabe (argued), Federal Defenders of San Diego, San Diego, Cal., for defendant-appellant.
    Jeffrey F. Arbetman, Asst. U. S. Atty., (argued), Stephen G. Nelson, Asst. U. S. Atty., Harry D. Steward, U. S. Atty., San Diego, Cal., for plaintiffappellee.
    Before KOELSCH and WRIGHT, Circuit Judges, and BELLONI, District Judge.

       Of the District of Oregon.

   OPINION

EUGENE A. WRIGHT, Circuit Judge:

Paul Oscar appeals from a conviction for aiding, abetting, and assisting two aliens “attempting to enter the United States by eluding inspection by making a false verbal claim of United States citizenship” in violation of 8 U.S.C. § 1325 and 18 U.S.C. § 2. Appellant was convicted after trial to a United States Magistrate, and the conviction was affirmed in district court. We reverse.

The facts are not in dispute. Appellant and a co-defendant, Earnest Holmes, contrived a scheme to smuggle Philip Cain and Manuel Tejeda, both British Hondurans, into the United States. Appellant and Holmes told Cain and Tejeda to hide their passports and claim to have been born in New Orleans when questioned by' customs officials. Holmes then drove the two aliens from a point in Mexico to the United States Port of Entry at San Ysidro, California. In response to questioning by the Customs Inspector, Holmes replied that he, Cain, and Tejeda were United States citizens. Due to Holmes’ apparent nervousness, he was directed to drive to a secondary inspection area where further investigation revealed that Cain and Tejeda were aliens. Holmes, Cain and Tejeda were arrested immediately, and appellant was arrested later that day.

Appellant’s sole contention on appeal is that this conduct does not constitute a violation of 8 U.S.C. § 1325 and 18 U.S. C. § 2. Section 2 provides that a person who aids and abets another to commit a crime against the United States is punishable as a principal. To prove guilt under this statute, the government must prove that the person aided and abetted actually committed the underlying offense. Shuttlesworth v. City of Birmingham, 373 U.S. 262, 83 S.Ct. 1130, 10 L.Ed.2d 335 (1963); United States v. Jones, 425 F.2d 1048 (9th Cir. 1970). Therefore, Cain and Tejeda must have violated Section 1325 if appellant’s conviction is to be affirmed.

Section 1325 provides:

Any alien who (1) enters the United States at any time or place other than as designated by immigration officers, or (2) eludes examination or inspection by immigration officers, or (3) obtains entry to the United States by a willfully false or misleading representation or the willful concealment of a material fact, shall ... be guilty of a misdemeanor .

By its terms, Section 1325 is violated only if the alien “enters” or “obtains entry to” the United States [(1), (3)] or if the alien “eludes examination or inspection by immigration officers” [(2)].

I. WAS THERE AN “ENTRY”?

First, we consider whether Cain and Tejeda “entered” the United States. Section 1325 falls within Chapter 12 of Title 8. The term “entry” is defined in 8 U.S.C. § 1101(a) (13) for use in Chapter 12 as “any coming of an alien into the United States . . . ” This definition does not clarify the issue. Nor is the legislative history helpful. The only consideration given to the meaning of “entry” as defined in § 1101(a) (13) concerned the distinction between original entries and reentries into the country. See 2 U.S.Code Cong. & Admin. News, 82nd Cong., 2nd Sess. p. 1683 (1952).

In a physical sense, Cain and Tejeda entered the United States when they physically crossed the international border upon arrival at the Port of Entry. But some courts have held that an “entry,” as defined by § 1101(a)(13), has not been accomplished until physical presence is accompanied by freedom from official restraint. United States v. Vasilatos, 209 F.2d 195 (3d Cir. 1954); In re Dubbiosi, 191 F.Supp. 65 (E.D. Va.1961). Under this standard the aliens had not “entered” the United States because they were never free from the official restraint of the customs officials at the San Ysidro Port of Entry. Naturally, appellant urges us to accept this construction.

The government argues that Vasilatos and Dubbiosi are distinguishable since they dealt with the question whether certain aliens had “entered” the country and were therefore entitled to deportation hearings prior to expulsion from the country. The courts held that although the aliens were physically present, they had not “entered” the United States, and thus were not entitled to hearings, because they were never free from official restraint. To be sure, this is a different context than the one which faces this court. But like this court, the Vasilatos and Dubbiosi courts were required to interpret “entry” as defined in § 1101(a) (IS). It is unlikely that Congress would define a term in § 1101 for use throughout Chapter 12 if it intended the term to have different meanings in different sections of the chapter. More importantly, Vasilatos and Dubbiosi at the very least show that appellant’s proposed construction is reasonable within the context of § 1101(a) (13) and Chapter 12. This, coupled with our duty to construe criminal statutes strictly, requires us to adopt appellant’s proposed construction within the context of this case. See United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 488 (1971). We conclude that Cain and Tejeda did not “enter” the United States as that term is used in § 1325(1), (3).

II. WAS THERE AN “ELUDING”?

Second, we consider whether Cain and Tejeda “elude[d] examination or inspection by immigration officers.” We have found no legislative history or judicial construction to aid us in discerning the meaning of this phrase. Nevertheless, it seems clear that Cain and Tejeda did not violate it. Webster’s New World Dictionary (College Edition) defines “elude”:

1. to avoid or escape from by quickness, cunning, etc. 2. to escape detection by; evade; baffle . . . .

Cain and Tejeda did not avoid, escape detection by, or evade examination or inspection. Indeed, they were examined and inspected thoroughly enough to reveal that they were aliens. Thus, while Cain and Tejeda were deceitful, they did not “exclude examination.”

Since Cain and Tejeda neither “entered” the United States nor “eluded examination,” they did not violate § 1325. Consequently, appellant did not aid and abet them to violate § 1325, and his conviction must be reversed. It is clear that Cain and Tejeda attempted to violate § 1325, but § 1325 does not include attempts within its purview. Nor was this apparently a congressional oversight, for at least concerning appellant’s conduct, § 1324 regulates attempts.

Reversed.

KOELSCH, Circuit Judge

(concurring specially):

I reach the same result as my brothers, but by a shorter route. Had the charge been conspiracy (18 U.S.C. § 371) to violate 8 U.S.C. § 1325, this conviction would have been invulnerable. But Congress has not made penal the acts which Oscar aided and abetted. 8 U.S.C. § 1325 does not in terms include attempts to enter, nor is there a general federal statute which fills this gap. (See, for example, Cal.Penal Code § 663; Oregon Rev.St. § 161.405(1); Rev.Code Wash.Anno. § 9.01.070; Idaho Code Anno. § 18-306.) Thus here there was no “underlying offense.”

Accordingly, I perceive no need to pass upon the meaning of “entry” and “eluding”.

      . See 8 U.S.C. § 1251 et seq.