author: COFFIN, Chief Judge.

text:
    Alphonse CYR, Jr. and Arlene Cyr, Plaintiffs-Appellees, v. B. OFFEN & CO., INC., Defendant-Appellant and Third-Party Plaintiff-Appellant, v. BLANCHARD PRESS, INC., Third-Party Defendant-Appellee. Cyrenus COUTURE, Adm. Estate of Richard Couture, Plaintiff-Appellee, v. B. OFFEN & CO., INC., Defendant-Appellant and Third-Party Plaintiff-Appellant, v. BLANCHARD PRESS, INC., Third-Party Defendant-Appellee. Alphonse CYR, Jr. and Arlene Cyr, Plaintiffs-Appellees, v. R. HOE & CO., INC., Defendant-Appellant and Third-Party Plaintiff-Appellee, v. RUMFORD PRINTING COMPANY, Third-Party Defendant-Appellee.
    Nos. 74-1007—74-1009.
    United States Court of Appeals, First Circuit.
    Heard May 6, 1974.
    Decided July 18, 1974.

      John Gilbert Upton, Concord, N. H., with whom Upton, Sanders & Smith, Concord, N. H., was on briefs, for Cyrenus Couture.
    William S. Orcutt, Manchester, N. H., with whom Wiggin, Nourie, Sundeen, Pingree & Bigg, Manchester, N. H., was on brief, for R. Hoe & Co., Inc.
    E. Donald Dufresne, Manchester, N. with whom McLane, Graf, Greene & Branch, Manchester, N. H., was on brief, for Rumford Printing Company.
    Stanley M. Brown, Manchester, N. H. with whom McClane, Graf, Greene & Brown, Manchester, N. H., was on brief, for Alphonse Cyr, Jr. and Arlene R. Cyr.
    James C. Wheat, Manchester, N. H., with whom Wadleigh, Starr, Peters, Dunn & Kohls, Manchester, N. H., was on brief, for Blanchard Press.
    Joseph F. Devan, Manchester, N. H., with whom Sheehan, Phinney, Bass & Green, Manchester, N. H., was on briefs, for B. Of fen & Co. Inc.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

A complex series of legal rulings are appealed in this diversity suit arising out of an industrial accident which resulted in serious injury to Alphonse Cyr and in the death of Richard Couture, employed as “fly boys” at Rumford Press.

On October 20, 1969, the 4:00 p. m. to midnight shift at Rumford had the presses shut down for adjustment of the printing plates. Between 5:30 and 5:45 the head pressman, Sullivan, told Couture that the rollers would have to be cleaned of hardened accumulated ink. This was one of the tasks customarily-undertaken by “fly boys” who also would “fly” the magazines off the press. They were the most junior members of the crew, working their way into the trade. At Rumford, roller cleaning was habitually accomplished by entering the ovens into which the rollers directed the printed paper for drying when the press was operating. Once within the drying ovens, the fly boys scraped and cleaned the rollers with rags and cleaning solvent.

On the day in question, there was some misunderstanding. When Sullivan suggested that the rollers needed cleaning, he did not have in mind any immediate need for action. He thought he was indicating that something be undertaken later, during the course of the shift. However, Couture understood that the job was to be done immediately. Couture and Cyr took their equipment and entered the two drying ovens situated one above the other at one end of the ninety foot long double deck printing press. Cyr entered the lower level oven, put the flammable solvent on the floor close to the gas burners, and set to work. Couture entered the upper level oven.

During this time the press was not turned off. It was either on jog speed, which permitted manual operation, or running slowly. This was consistent with cleaning practices as the rollers were only partially exposed within the ovens and had to be rotated to permit thorough removal of ink. But another practice frequently engaged in was not observed on this occasion. Often, a workman stood outside the ovens while the cleaning operation was conducted. This was done on a voluntary basis, but it gave assurance that anyone at the control panel of the press would be notified of the fly boys’ presence inside the ovens.

Such notice to the person in charge of the press controls was needed because the operation of the press was inextricably tied to the working of the ovens. Once the press attained a certain speed, the dryers went on automatically. The only way to avoid this eventuality was to place the press controls on stop or safe or to push safe-run buttons located at various places around the press. Any of these procedures would shut down the presses. The evidence indicated that the fly boys never touched the press control panel. Nor were they given instruction in or in the habit of pushing the safe-run button to accomplish this job. In fact, the movement of the rollers necessary for satisfactory cleaning would be impossible if the safe-run button was on. In any case, the safe-run button was not depressed on this occasion.

Shortly after the fly boys’ entry into the dryers, Sullivan needed to test the adjustments on the press, and started up the press. Within a very few minutes the press speed increased; the gas-fired burners within the dryers automatically ignited. Cyr heard the noise indicating the flow of gas and attempted to get out of the dryer, but the flammable solvent exploded, igniting his clothing. ■ A similar explosion occurred at the same moment on the upper decks. Cyr was seriously injured and hospitalized, but survived. Couture’s injuries resulted in his death several weeks after his hospitalization.

The Couture Estate and the Cyrs instituted suit against B. Offen & Co., Inc. as manufacturer and seller of the drying system of Press No. 79 and R. Hoe & Co., Inc. as the assembler of the entire press and seller of the ovens, alleging negligence and strict liability on the theory that the dryers were defective due to the failure to contain a disconnect device on the drying oven doors, a “fail-safe” device which could have prevented ignition of the burners while the doors were open.

The jury returned verdicts for each plaintiff on both counts, against both R. Hoe Co., Inc. and B. Offen Co., Inc. Damages on the negligence counts were reduced in direct proportion to the comparative negligence of the injured men. The jury rendered the following verdicts: in Alphonse Cyr v. R. Hoe & Co., Inc., $45,000 in negligence and $60,000 in strict liability; in Arlene Cyr v. R. Hoe & Co., Inc., $7,000; in Alphonse Cyr v. B. Offen & Co., Inc., $45,000 in negligence, $60,000 in strict liability; in Arlene Cyr v. B. Offen & Co., Inc., $7,000; in Cyrenus Couture, Administrator of the Estate of Richard Couture v. R. Hoe & Co., Inc., $45,000 in negligence and $50,000 in strict liability, which was limited pursuant to NHRSA, Ch. 556 § 13 to $20,000; in Estate of Richard Couture v. B. Offen & Co., Inc., $45,000 in negligence and $50,000 in strict liability, similarly limited to $20,000. The damages awarded in strict liability represented the total damages the jury believed the plaintiffs suffered; the negligence awards were reduced in proportion to the contributory negligence of the plaintiffs, and were not additional to those in strict liability but alternative awards. In practical effect this would mean recovery of the larger award.

I

We address first the appellants’ challenge to the district court’s failure to direct the jury that contributory negligence and assumption of the risk could be considered as a basis for reducing the damages in strict liability. Similar directions were requested on both the negligence and strict liability counts. The district court directed the jury as requested on the negligence count but removed the issue of contributory negligence or assumption of the risk from the jury on the strict liability count.

The majority of states have adopted a rule in strict liability cases, consistent with comment n to the Restatement of Torts 2d § 402A. This rule limits defenses to situations where a plaintiff voluntarily and unreasonably proceeds to encounter a known danger. There are strong policy reasons supporting this position. Had this been the law applicable to this case, it might have been supportable to rule as a matter of law that Cyr and Couture did not voluntarily and unreasonably proceed to encounter a known danger. But New Hampshire law controls, and that state has explicitly refused to adopt the Restatement rule. Nor is the New Hampshire, court-made law so dated or unclear that certification for a ruling on the question presents a viable alternative for us. We are Erie bound to follow the clear expression of law in Stephan v. Sears, Roebuck and Co., 110 N.H. 248, 266 A.2d 855, 857 (1970):

“[W]e affirm the doctrine that failure to discover or foresee danger which the ordinary person would have discovered or foreseen as well as negligent conduct after discovery of the danger and in the use of the product will constitute a defense to an action based on strict liability.”

See, also, Buttrick v. Lessard, 110 N.H. 36, 260 A.2d 111 (1969). Although there was considerably more evidence of actual knowledge in our recent case, decided after the trial of the instant case, Stevens v. Kanematsu-Gosho Co., Inc., 494 F.2d 367 (1st Cir. 1974), we reached the same conclusion on New Hampshire law. We therefore rule that the district court should have submitted to the jury the defenses of contributory negligence and assumption of the risk on the strict liability count.

This ruling affects Alphonse Cyr’s recovery only, since contributory negligence could not be considered in determining- Arlene Cyr’s damages and the recovery of the Couture Estate was limited by New Hampshire’s wrongful death statute. The New Hampshire legislature has indicated in its comparative negligence statute, that where a plaintiff’s negligence is a relevant inquiry, and is found to exist, recovery should not be barred, but reduced in the ratio that the negligence of the plaintiff contributed to the injury. NHRSA Ch. 507:7-a. Applying this policy, Cyr’s recovery in strict liability should be reduced in accordance with the reduction in negligence to $45,000.

II

We turn now to a problem on which New Hampshire’s law does not provide specific guidance. B. Offen & Co., Inc. challenges the district court’s ruling of law that it could be held liable for the acts or omissions of its predecessor, B. Offen Company. B. Offen & Co., Inc., as such, was not a legal entity in 1959 when the press of which the ovens were a part was sold to Rumford. Press No. 79 was designed, manufactured and sold by B. Offen Company, then a sole proprietorship owned by Bernard Offen.

In 1962, Bernard Offen died after a long period of illness. Key employees continued to run the business, while the estate was controlled by the executor, through January of 1963. At that time the employee group, joined by a single outside financier who was not to participate in the business operation, contracted to purchase the company from the executor. Seventy per cent of the stock was divided among the employees and the outside financier obtained thirty per cent. The contract of sale called for payment of the purchase price over nine years, subject to anticipatory payment, and obligated the purchaser during that period to:

“(i) cause the Offen Business to be operated continuously . . . (ii) cause the Offen Business to be operated substantially in accordance with the same business practices and policies as are being employed by Offen at the date of the agreement.”

The purchase of good will and contract obligations was central to the agreement. Old service obligations were assumed by the purchaser and B. Offen & Co., Inc. continued to service and renovate old dryers including those at Rum-ford Press (although not under contract). No notice was given to known customers of B. Offen Company that a new or different business was beginning. B. Offen & Co., Inc. advertised itself as an ongoing enterprise, and even claimed in its advertising that it was a forty year old business. It continued to produce the same kind of product in essentially the same way that Bernard Of-fen had.

At trial, B. Offen & Co., Inc. (hereinafter Offen) moved for dismissal because it did not come into legal existence until after the date of the press sale. Offen stressed the explicit language of the contract of sale between the executor of Bernard Offen’s estate and B. Offen & Co., Inc., i. e., that the purchaser assumes “the liability for all costs of any kind or nature incurred on or after January 16, 1963 on Old Dryer and Service Contracts, . . . but excluding specifically liability for costs incurred in tort.”

The plaintiffs argued that while the contract provision may be binding between the parties, the contract cannot preclude recovery by a third party where liability to the third party is impliedly assumed because all other liability is explicitly assumed, all benefits are assumed, and the business is in essence a continuation of the prior' business. Plaintiffs argue that the right created by the contract is one of the purchaser against the seller and has no effect on third parties. The district court, accepting plaintiffs’ arguments, denied the motion to dismiss and Offen’s subsequent motions for summary judgment and directed verdict, ruling that the jury could find B. Offen & Co., Inc. liable for whatever torts its predecessor may have committed.

This issue is one which has received little judicial attention. While plaintiffs cite a number of cases where the successor’s corporate liability was premised on identity of ownership with its predecessor, there is no question but that ownership here has changed hands. Nor was this a case where there were efforts to manipulate corporate structure so as to escape liability. Here we face a good faith sale at arm’s length, but also one where facial and substantive continuity were the essence of the bargain. On the one hand we face the problem of the buyer, who thinks it is purchasing a known set of assets and liabilities. On the other, we face users of a product who are not conscious of any change in responsibility on the part of the manufacturer.

We start from the premise that a transferee of assets is not under ordinary circumstances liable for the debts of its predecessor. But factual inquiry is mandated, as exceptions to this rule traditionally exist where: (1) there is an express or implied assumption of liability; (2) the transaction amounts to consolidation or merger; (3) the transaction was fraudulent; (4) some of the elements of a purchaser in good faith were absent; and (5) the transferee corporation was a mere continuation or reincarnation of the old corporation. West Texas Refining & Development Co. v. Commissioner of Internal Revenue, 68 F.2d 77, 81 (10th Cir. 1933); 15 Fletcher Cyclopedia Corporations §§'7122, 7123 (1973).

These exceptions were developed in the context of tax assessment and (1)-(4) have been applied to various types of cases without difficulty or reexamina- ' tion. The parties have cited only a small number of cases which have dealt with the last mentioned exception of continuity, and those were in contexts other than that before us. The few tort cases pointed to by the parties failed to face the problem of continuity and had no need to identify the means for determining continuity where negligence or strict liability was claimed.

Our first question, then, is what factors to look to in order to determine whether there is sufficient continuity to warrant continued obligation. We gain some insight from the method of analysis used in the field of labor law when successor corporations have been held bound by the undertakings of their predecessors. In John Wiley & Sons v. Livingston, 376 U.S. 543, 84 S.Ct. 909, 11 L.Ed.2d 898 (1964), the Court held that:

“the disappearance by merger of a corporate employer . . . does not automatically terminate all rights of the employees . . . . [I]n the appropriate circumstances the successor employer may be required to arbitrate with the union.” Id. at 548, 84 S.Ct. at 914.

Building on this theme in N. L. R. B. v. Burns International Security Services, 406 U.S. 272, 92 S.Ct. 1571, 32 L.Ed.2d 61 (1972), a contractor, Burns, with no contractual relation to the prior contractor on the job, Wackenhut, was obligated to arbitrate with the Wackenhut employees’ union because it took over a majority of the employees in order to perform essentially the same job. Although finding no continued responsibility, the recent decision in Howard Johnson Co., Inc. v. Hotel & Restaurant Employees, 417 U.S. 249, 94 S.Ct. 2236, 41 L.Ed.2d 46 (1974), stressed that the facts of each case are central to the problem of employer obligations to employees in a successorship context.

We look also to the familiar law that a corporation cannot disable itself from responding to liability for its acts by distributing its assets. Pierce v. United States, 255 U.S. 398, 41 S.Ct. 365, 65 L.Ed. 697 (1921). New Hampshire has implemented this policy and endorsed it to the extent that even a legally dissolved corporation retains some existence for the purpose of being sued for three years after dissolution. NHRSA Ch. 294 § 98; see Henn & Alexander, Effect of Corporate Dissolution on Product Liability Claims, 81 Corn.L. Rev. 865 (1971). Such a policy is one of accommodation between the goals of fairness to creditors and freedom of business decision to terminate an enterprise. But the dictates of freedom of business decision are less compelling when an ongoing business assumes all other benefits and liabilities of its predecessor, holds itself out to the world as the same enterprise, without notifying known customers, continues to function in the same manner —indeed is under contractual obligation so to do — with the same key employees, producing the same product.

Thus, where tort liability is concerned, we should look to factors relevant to the specific claim and not be bound by the factors that control where other debts and liabilities are concerned. But first we face two threshold arguments Offen first contends that it could not be held liable to plaintiffs for the simple reason that it was not in existence when the equipment was sold and installed and thus had no relationship with buyers or users of the equipment on which a duty of care could be predicated. This argument begs the question at issue; should B. Offen & Co., Inc. be treated as the continuation of B. Offen Company ? The corporate veil has never been treated as an iron curtain barring examination of the facts peculiar to the individual case.

A second defense is the protective language in the purchase agreement, specifically excluding the assumption ' of any tort liability. This provision, of course, bound the parties and would give B. Offen & Co., Inc. the right to recover over from its seller, but cannot determine the rights of third parties, when no effort to give notice of the change was made. See Abeken v. United States, 26 F.Supp. 170 (E.D.Mo. 1939); see also Blumenthal v. Schneider, 186 Wis. 588, 203 N.W. 393 (1925).

This brings us to the basic issue of the justification, on this record, of allowing the jury to treat B. Offen & Co., Inc. as a continuation of B. Offen Company for purposes of imposing liability.

We take as a starting point the considerations which undergird the doctrine of liability of a manufacturer in the first instance to see whether, or to what extent, they are pertinent to the liability of a successor. Appellant Offen has outlined four of the reasons for imposition of strict liability. They are that (1) the manufacturer is better able to protect itself and bear the costs while the consumer is helpless; (2) it is the manufacturer which has launched the product into the channels of trade; *(3) it is the manufacturer which has violated the representation of safety implicit in putting the product into the stream of commerce; and (4) the manufacturer is the instrumentality to look to for improvement of the product’s quality. To this we add the more traditional reason for imposing liability on a corporation for tortious injuries, the negligence of its employees. United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 42 S.Ct. 570, 66 L.Ed. 975 (1922). The first and fourth reasons clearly apply to a successor in ownership, carrying on with the manufacture and servicing of the same line of equipment. While the first such successor to be faced with such a liability may claim surprise, the claim lacks legal force. For this kind of surprise is endemic in a system where legal principles are applied case by case and is no more an injustice than was the retroactive application of the strict liability doctrine in Stephan v. Sears, Roebuck & Co., 110 N.H. 248, 266 A.2d 855 (1970). The very existence of strict liability for manufacturers implies a basic judgment that the hazards of predicting and insuring for risk from defective products are better borne by the manufacturer than by the consumer. The manufacturer’s successor, carrying over the experience and expertise of the manfuacturer, is likewise in a better position than the consumer to gauge the risks and the costs of meeting them. The successor knows the product, is as able to calculate the risk of defects as the predecessor, is in position to insure therefor and reflect such cost in sale negotiations, and is the only entity capable of improving the quality of the product.

As for the second and third policy reasons, enumerated above, it is true that the successor, by definition, was not the legal entity which launched the product on the stream of commerce or made an implied representation as to its safety. But in the most real sense it is profiting from an exploiting all of the accumulated good will which the products have earned, both in its outward representations of continuity and in its internal adherence to the same line of equipment.

We cannot believe that the issue of liability would turn on whether the founder’s shares in the company decreased below a majority ownership, or whether he entered into an arrangement by which he sold all of his shares to his employees, with payment to be made over a period of years. The present case does not present quite such an en famille relationship, but the presence of a minority outside stockholder financier would not seem to call for a different conclusion. Finally, a corporation itself cannot act. It can conduct its business only through its officers and employees. The negligence of employees in carrying out that business is the responsibility of the corporate body. If as a group the same employees continue, without pause to produce the same products in the same plant, with the same supervision, the ownership of the entity which maintains essentially the same name cannot be the sole controlling determinant of liability.

If it be argued that liability is thus made open-ended, as in the case of accidents following a long lapse of time from the date of sale, we note that even the original manufacturer may be subject to such liability or, if not, the successor could mount the same defenses of age and obsolescence. Whatever may be the outer limit of liability on a successor, the district court did not err in refusing to rule as a matter of law that B. Offen & Co., Inc. was immune from liability.

Ill

Hoe also challenges the failure of the district court to direct the jury to apportion liability between the defendants under the New Hampshire comparative negligence statute:

“where recovery is allowed against more than one defendant, each such defendant shall be liable for that proportion of the total dollar amount awarded as damages in the ratio of the amount of his causal negligence to the amount of causal negligence attributed to all defendants against whom recovery is allowed.” RSA Ch. 507, § 7-a.

Hoe’s requested instructions sought such apportionment on both the count of negligence and strict liability. It is clear that the relative negligence of the defendants is not a relevant inquiry where strict liability is concerned. Strict liability is imposed irrespective of a defendants’ negligence. The court properly denied the instruction as requested. Hoe failed to argue here or before the district court that the instruction should be separated or that the grounds supporting it were different in the negligence and strict liability claims. Even assuming arguendo that the direction as to negligence was incorrect, “[I]n fairness to the trial court and to the parties, objections . . . must be sufficiently specific to bring into focus the precise nature of the alleged error. Where a party might have obtained the correct charge by specifically calling the attention of the trial court to the error . he may not through a general exception obtain a new trial”, Palmer v. Hoffman, 318 U.S. 109, 119, 63 S.Ct. 477, 483, 87 L.Ed. 645 (1942). Furthermore, no miscarriage of justice occurs, since apportionment of the $45,000 damage award on the negligence count would not bar plaintiffs’ recovery of the full $45,000 award in strict liability.

In order to obtain a similar result, Hoe argues that it is entitled to indemnity from Offen on both the strict liability and negligence counts. But the district court directed the jury that it could find Hoe liable in negligence only if it rejected the claim that Hoe had no responsibility for the ovens, if it found that Hoe had a duty to inspect and improve the completed press including the ovens and to discover and do something about the defect and if it further found that Hoe failed to exercise ordinary care due. In light of the jury finding of negligence it cannot be said that Hoe’s liability was only passive or vicarious. United Air Lines, Inc. v. Wiener, 335 F. 2d 379 (9th Cir. 1964); Fidelity & Cas. Co. of New York v. J. A. Jones Const. Co., 325 F.2d 605 (8th Cir. 1963); Derry Electric Co. v. New England Telephone & Telegraph, 31 F.2d 51, 52 (1st Cir. 1929). The argument that Hoe was entitled to recover against Offen in strict liability is frivolous as the plain language of § 402A Restatement of Torts 2d, creates liability only to the ultimate user or consumer. The court properly dismissed the cross-claim of Hoe against Offen after trial.

IV

Hoe finally appeals from dismissal of its third-party action, separately tried before the court subsequent to the trial of the issues discussed above. Hoe sued Rumford on the basis of the contract of sale for Press No. 79, contending that the contract provided that Rumford would indemnify Hoe and that such indemnification extended to negligence on Hoe’s part. The clause in question provided:

“Buyer [Rumford] agrees to indemnify Hoe and save it harmless from any and all liability for injury to persons (other than Hoe’s own employees) or property, which may result from any cause whatsoever after the machinery herein is delivered to Buyer. F.O.B. Hoe’s plant, New York City.”

The contract was to be governed by New York law.

The contract has substantial ambiguities. It was made up of two documents. The first, including the indemnity clause, recited that Hoe sold to Rumford “the machinery herein” and then set forth the items that were so described. The Offen ovens were not included. In a separate document where the Offen ventilating and drying system was listed as “auxiliary equipment”, no indemnification clause was included. New York law indicates that indemnification contracts are to be narrowly construed and all ambiguity is to be resolved against indemnity. See, e. g., Phillip Wick Co., Inc. v. Lee Dyeing of Johnstown, Inc., 71 Misc.2d 82, 335 N.Y. S.2d 619 (1972); Willard Van Dyke Production, Inc. v. Eastman Kodak Co., 12 N.Y.2d 301, 239 N.Y.S.2d 337, 189 N.E.2d 693 (1963). The district court ruling that the clause did not cover the Offen ovens was not clearly erroneous.

The judgment in favor of Alphonse Cyr, Jr. against R. Hoe & Co., Inc. is modified to limit recovery to $45,000. The judgment in favor of Alphonse Cyr, Jr. against B. Offen & Co., Inc. is modified to limit recovery to $45,000. The decision below is in all other respects affirmed.

      . The defendants asserted that the press rollers were supposed to be cleaned by using poles with rags attached from outside the ovens. There was substantial evidence, however, that oaked-on ink could not be removed in that manner, that the manufacturer and seller knew that men entered the oven to clean the rollers, and that the doors to the oven were intentionally made large enough for men to enter.

      . The Couture Estate raises an equal protection challenge to the limitation on damages that can be recovered in a suit based on wrongful death under New Hampshire law, RSA Ch. 556, § 14. It views the distinction as one of time only, i. e., the date that suit is brought, before or after death. But it is clear that the legislature has, in granting a right to recover which did not exist at common law, made a rational distinction between damages that go to the injured party himself and damages that go to his estate. Not only is the plaintiff a different party but there is another ground for legitimate distinction, the element of damages. As the New Hampshire Supreme Court has stated, “damages for injuries . . . are restricted within definite limits established by the common law . . . Recovery for injuries causing death, for the benefit of survivors, however, suggests more speculative elements of damage as to which there has been a ‘policy of restriction’ by arbitrary limit.” Burke v. Burnham, 97 N.H. 203, 84 A.2d 918 (1951).

      . Hoe argues that it cannot be held liable in strict liability, as it was not a “seller” of ovens as defined by the Restatement, Torts 2d § 402A(1) (a), adopted in Buttrick v. Lessard, 110 N.H. 36, 260 A.2d 111 (1969). Alternatively it argues that this issue should have been submitted to the jury. Hoe was one of three major suppliers of the type of press used at Rumford. All such presses require ovens and Hoe would customarily choose and include ovens to go with its presses. It frequently chose Offen ovens to make up the total package of equipment to be supplied to a purchaser. Furthermore, the contract of sale between Hoe and Rum-ford specifically listed the Offen drying equipment. It is clear as a matter of law that Hoe was a “seller engaged in the business of selling such a product” as defined by § 402A.

      . Offen challenges the jury finding that the defect was the proximate cause of the accident. This challenge is without substance, the record revealing ample evidence to support the jury finding. Maxfield v. Maxfield, 102 N.H. 101, 51 A.2d 226 (1959).

      . The jury was instructed to record the percentage that Cyr and Couture’s negligence, if any, contributed to their own injuries. This was to apply only to the count of negligence ; there was to be no deduction as to strict liability.

      . See, e. g., Bachner v. Pearson, 479 P.2d 319 (Alaska 1970) ; O. S. Stapley Co. v. Miller, 6 Ariz.App. 122, 430 P.2d 701 (1967) ; Barth v. B. F. Goodrich Tire Co., 265 Cal.App.2d 228, 71 Cal.Rptr. 306 (1968) ; Williams v. Brown Mfg. Co., 45 111. 2d 418, 261 N.E.2d 305 (1970) ; Downey v. Moore’s Time-Saving Equipment, Inc., 432 F.2d 1088 (7th Cir. [Ind.] 1970) ; Williams v. Ford Motor Co., 454 S.W.2d 611 (Mo. App.1970) ; Bexiga v, Havir Mfg. Co., 60 N.J. 402, 290 A.2d 281 (1972) ; Moomey v. Massey Ferguson, Inc., 429 F.2d 1184 (10th Cir. [N.M.] 1970).

      . “It would be anomalous to hold that the defendant has a duty to install safety devices but a breach of that duty results in no liability for the very injury the duty was meant to protect against.” Bexiga v. Havir, 60 NX 402, 290 A.2d 281, 286 (1972) ; see, e. g., Marsel)all, An Obvious Wrong Does Not Make a Right: Manufacturers’ Liability for Patently Dangerous Products, 48 NYU L.Rev. 1065 (1973) ; Fletcher, Fairness and Utility in Tort Theory, 85 Harv.L.Rev. 537 (1972).

      . See Keener v. Dayton Elec. Mfg. Co., 445 S.W.2d 362 (Mo.1969).

      . Counsel have urged, pointing to recent New Hampshire Supreme Court decisions in the field of torts, that that court would not today subscribe to a more restrictive interpretation than the Restatement or the majority of jurisdictions. That may be so, but, given a recent state precedent, we cannot participate in the evolution of state law; we are restricted to applying the present law as we interpret it.

      . In re Johnson-Hart Co., 34 F.2d 183 (D. Minn.1929) ; Abeken v. United States, 26 F. Supp. 170 (E.D.Mo.1939) ; Plaza Express Co. v. Middle States Motor Freight, Inc., 40 Ill.App.2d 117,189 N.E.2d 382 (1963).

      . E. g., Malone v. Red Top Cab Co., 16 Cal.App.2d 268, 60 P.2d 543 (1936); Swing v. Am. Glucose Co., 123 Ill.App. 156 (1905).

      . Copease Mfg. Co. v. Cormae Photocopy Corp., 242 F.Supp. 993 (S.D.N.X.1965) (patent infringement claim) ; Bergman v. Lef-kow Ins. Ag’y & Co. v. Flash Cab Co., 110 Ill.App.2d 415, 249 N.E.2d 729 (1969) (contract liability at issue, court held it was assumed where the assets of the predecessor were owned and controlled by the same people) ; American Hospital and Life Ins. Co. v. Kunkel, 71 N.M. 164, 376 P.2d 956 (1962) (liability on notes of assumed corporation) ; Pierce v. Riverside Mortgage Securities Co., 25 Cal.App.2d 248, 77 P.2d 226 (1938) (no contract liability where there was an assumption of assets but the old company continued and the new company did not continue to conduct its affairs, but was liquidating).

      . Shane v. Hobam, Inc., 332 F.Supp. 526 (E.D.Pa.1971) (the continuity of the company was claimed and discussed only in the context of the duty to warn and not with regard to restrict liability or negligence for creation of the defective product) ; Kloberdanz v. Joy Mfg. Co., 288 F.Supp. 817 (D.Colo.1968) (the claim of continuity was easily negativedthe seller corporation continued after the sale and the buyer did not adopt the name; the court rested its analysis on lack of contractual assumption of liability) ; McAlister v. American Ry. Express Co., 179 N.C. 556, 103 S.E. 129 (1920) (continuity was negatived by the continuing existence of the seller corporation).

      . Offen also argues that it cannot be held liable on the theory that it had a duty to warn Rumford about defects in the equipment. Plaintiffs argue on the contrary that, since Offen maintained field representatives who visited Rumford, it was under a continuing duty to give warning and that this fact constitutes a separate and distinct ground for affirmance. We do not deal with either contention, since this was not the issue given to the jury.

      . See, e. g, Consolidated Rock Products Co. v. DuBois, 312 U.S. 510, 61 S.Ct. 675, 85 L.Ed. 982 (1941) ; Costello v. Fazio, 256 F.2d 903 (9th Cir. 1958) ; Weisser v. Mursam Shoe Corp., 127 F.2d 344 (2d Cir. 1952).

      . Offen challenges the district court’s failure to restrict plaintiffs’ attorneys argument to the jury in commenting on the contract of sale that Offen was trying to “hide behind a corporate deal”. While the argument was pejorative, unnecessarily attributing an improper motive to Offen’s business arrangements, the district court’s failure to curtail it did not amount to prejudicial error.

      . The plaintiffs argue that Hoe did not make such a request below as the request for a reading of RSA Ch. 507, § 7-a was made in a context of other requests regarding contributory negligence of the plaintiffs, or that other requests were for special verdicts forbidden under New Hampshire law. Hoe counters that New Hampshire law has changed permitting special verdicts. We need not reach this issue as each category of requests failed to distinguish between directions desired on the strict liability and negligence counts.

      . Hoe and Offen also brought third-party actions against Rumford Press on the theory that it had a common law duty to indemnify them. Offen brought an additional action against Blanchard Press, Inc., Rumford Press Division, for indemnification. 1-Ioe ' does not appeal from this ruling. Offen does. Rumford had no common law or statutory duty to discover the defect nor did any implied warranty run from Rumford to Of-fen. The district court properly dismissed these third-party actions.


source: Caselaw Access Project

author: HOLLOWAY, Circuit Judge.

license: Public Domain

text:
    HARDY SALT COMPANY, Plaintiff-Appellant, Sanders Brine Shrimp Company, Plaintiff-Appellant, Morton-Norwich Products, Inc., Plaintiff-Appellant, v. SOUTHERN PACIFIC TRANSPORTATION COMPANY, Defendant-Appellee, Great Salt Lake Minerals & Chemicals Corporation, Intervenor-Defendant-Appellee.
    Nos. 73-1714 to 73-1716.
    United States Court of Appeals, Tenth Circuit.
    Argued March 19, 1974.
    Decided July 26, 1974.
    As Amended on Denial of Rehearing Sept. 27, 1974.

      J. Thomas Greene, Salt Lake City, Utah (Gifford W. Price of Greene & Nebeker, Salt Lake City, Utah, and F. William McCalpin, St. Louis, Mo., of counsel, were on the brief), for plaintiff-appellant Hardy Salt Co.
    Frank J. Allen of Clyde, Mecham & Pratt, Salt Lake City, Utah, for plaintiff-appellant Sanders Brine Shrimp Co.
    Frank A. Wollaeger, Chicago, 111. (Hardin A. Whitney and John W. Hor-sley of Moyle & Draper, Salt Lake City, Utah, and Paul D. Frenz of McBride, Baker, Wienke & Schlosser, Chicago, 111., were on the brief), for plaintiff-appellant Morton-Norwich Products, Inc.
    Clifford L. Ashton, Salt Lake City, Utah (Haldor T. Benson, Salt Lake City, Utah, was on the brief), for defendant-appellee Southern Pacific Transportation Co.
    Ciaron C. Spencer, Salt Lake City, Utah (Richard G. Allen of Senior & Senior, Salt Lake City, Utah, was on the brief), for intervenor-defendant-appellee Great Salt Lake Minerals & Chemicals Corp.
    Amici curiae, The United States of America and The State of Utah submitted briefs.
    Before DURFEE, Senior Judge, and HOLLOWAY and BARRETT, Circuit Judges.

       Of the United States Court of Claims, sitting by designation.

   HOLLOWAY, Circuit Judge.

These consolidated appeals seek reversal of a judgment of the District Court dismissing the appellants’ actions for damages and injunctive relief for injuries claimed to result from the construction and operation of a causeway across the Great Salt Lake of Utah by appellee Southern Pacific Transportation Company.

In 1956 the State of Utah granted Southern Pacific an easement across the Lake for railroad purposes. In 1959 Southern Pacific completed construction of the rock and earth fill causeway which separated the northern one-third of the Lake from the southern two-thirds.

The causeway is approximately 12.8 miles in length and contains only two 15-foot culvert openings to allow for circulation between the two arms of the Lake. The total fill causeway has created a static head water surface differential between the south and north arms of the Lake, causing the water to be about 17 inches to 22 inches higher on the south than the north. The differential has caused the migration* of thousands of tons of salt from the south to the north, resulting in an increasing concentration of salt in the north lake and the dilution of brines in the south lake. Approximately 95 per cent of the total water flowing into the Lake enters the south lake, further contributing to the build up of the static head differential and moving the salt northward.

Appellants Hardy Salt Company (Hardy) and Morton-Norwich Products, Inc. (Morton) are engaged in the business of extracting sodium chloride (salt) from the waters of the Lake. The proof of Hardy and Morton showed the following facts.

Morton and Hardy operate under royalty agreements with the State of Utah for the extraction of salt from the Lake. The processing plants and related facilities of both companies are located along what is now the south arm of the Lake. Since the brine in the south arm is becoming more dilute each year, more water must be evaporated to recover the same quantity of salt. This has required the acquisition of land for additional concentrating ponds and increased the costs of production. Essentially it is these difficulties and increased costs resulting from them that Hardy and Morton complain of.

Appellant Sanders Shrimp Company (Sanders) is in the business of harvesting brine shrimp and shrimp eggs from the Lake and selling them as tropical fish food. Sanders’ proof showed the following facts.

Sanders has a 1970 ten-year contract with the Utah State Division of Fish and Game giving Sanders the full and exclusive right to seine for and harvest brine shrimp and brine shrimp eggs in two designated areas south of the causeway, it being stipulated that another company is permitted to collect up to 10,000 pounds of brine shrimp annually from one of the two areas. Also Sanders has an annual seining permit from the State.

The described changes in salinity of the two arms of the Lake have affected the brine shrimp and their eggs. With the increased salinity in the north arm, the shrimp can no longer survive there. Although the south arm provides a suitable environment, the decreased salinity has caused them to adjust the density of their eggs to the lower density of the water. More worthless egg shells are produced and there is a lessening supply of shrimp eggs available for collection by normal methods. And a lower percentage of the eggs which can be harvested by normal methods are viable.

Hardy and Sanders brought their suits for injunctive relief and damages in the State Court, based on claims of public and private nuisance, waste, interference with business interests and like theories. Morton brought its action in the Federal District Court, asserting only a claim under the Rivers and Harbors Act of 1899, 33 U.S.C.A. § 401 et seq. The Hardy and Sanders suits were removed to the Federal District Court on diversity grounds, and the suits were all consolidated for trial later. Hardy then also asserted a claim for relief under the Rivers and Harbors Act. Before trial appellee Great Salt Lake Minerals & Chemicals Corporation, which is engaged in recovering salt from the north arm of the Lake, was permitted to intervene as' a party defendant, asserting that any significant dilution of the concentrated brine in the north arm would adversely affect its operations.

After completion of the plaintiffs’ proof, Southern Pacific moved to dismiss. The District Court sustained the motion, made findings and conclusions adverse to the plaintiffs and dismissed the action.

The Court found that neither the royalty agreements between the State of Utah and Hardy and Morton, nor the seining permits granted to Sanders, purported to grant exclusive rights to remove salt or brine shrimp or shrimp eggs from the Great Salt Lake, and that the agreements did not purport to guarantee any given salinity of the waters in the entire lake or any part of it. The Court held that under Morton International, Inc. v. Southern Pacific Transportation Co., 27 Utah 2d 256, 495 P.2d 31, cert. denied, 409 U.S. 934, 93 S.Ct. 238, 34 L.Ed.2d 189, the royalty agreements held by Hardy and Morton were nonexclusive in nature, and that because of this fact neither Hardy nor Morton could recover for any damages resulting from diminution of the salt content in the south arm.

The Court concluded also that Sanders has nothing more than a nonexclusive license to fish and, therefore, under the Morton opinion, Sanders has no cause of action against Southern Pacific for any damages resulting from diminution of the brines of the south arm, or the strengthening of the brines of the north arm that may be due to construction of the causeway.

Hardy, Morton and Sanders all appeal. We treat first the State law claims of nuisance, waste, interference with business interests and like theories, and will later consider the Federal claims under the Rivers and Harbors Act.

1. The State law claims of nuisance, waste, interference with business interests and like theories.

Applying State law to the diversity claims as required by Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, the District Court relied primarily on Morton International, Inc. v. Southern Pacific Transportation Co., 27 Utah 2d 256, 495 P.2d 31, cert. denied, 409 U.S. 934, 93 S.Ct. 238, 34 L.Ed.2d 189, in denying relief sought on State law claims. The case must be carefully considered.

The Morton case involved State law claims similar to those of Hardy and Sanders and concerned injury from the same causeway. Morton’s claims were premised on “diligence rights” which are not clearly defined in the opinion. Before Utah law provided for applications for certificates for water appropriation, such as obtained by Hardy, such diligence rights described the right to take water obtained by a continued beneficial use. See Hanson v. Salt Lake City, 115 Utah 404, 205 P.2d 255; Hague v. Nephi Irrigation Co., 16 Utah 421, 52 P. 765, 768. However, the source of the right does not appear dis-positive in the case. The Utah Supreme Court in fact referred to Morton’s failure to have made application for appropriation of water under Titles 73 and 65-1-15, Utah Code Annotated (1953), but said that this was not dispositive. The reasons for denial of relief to Morton were spelled out by the Court as follows :

What we do think is important and dispositive here, is the question of who owns the salt in solution in the waters of the lake. Although there was some question about this important matter before 1946, there was none thereafter, since we held in a somewhat similar case that “the salt is contained within Great Salt Lake, which is a navigable body of water. Because it is a navigable body of water its bed belongs to the state subject to the control of Congress for navigation in commerce. It is our opinion that the state as the owner of the beds of navigable bodies of waters is entitled to all valuable minerals in or on them,” —such conclusion being affirmed and established by the U. S. Supreme Court in the most recent decision of June 6, 1971. . . .
... . It is obvious that plaintiff’s right to divert and precipitate the salt is a nonexclusive right, and that no matter what you call it, — a diligence right, a license, a profit a prendre, a lease, or a contract to sell, —the right is circumscribed by the provisions of Title 65-1-15, U.C.A. 1953, reserving to the State the salt in the water, to “be sold by the state land board only upon a royalty basis.” The plaintiff’s agreement with the State of September 1954, among other things, provides for and requires the payment of so much per ton for salt processed.
The State owning the salt and plaintiff having but a nonexclusive right to extract and process it, the basic question remains as to whether construction of the railroad’s causeway, which concededly diluted the water of its salt content in the so-called South Lake, created a compensable claim against the railroad in favor of plaintiff, concededly damaged in the sense that dilution of the water it diverts will cost more in the salt reduction process. We think there is no compensable claim here because plaintiff has no exclusive right against the State or others to the salt or the water from which it is converted, has no right given by the State to divert the water at any specific point. It can do so at any available point along the lake, either south or north of the causeway, has no vested claim to a beneficial use of the water, has filed no claim for mineral rights, and could, but for the expense involved, divert water as well from any point on the lake where the salt in solution may exceed that in the South Lake. 495 P.2d at 32-33.

It is thus apparent that regardless of the label of the right involved, the basic statute reserved to the State the salt and the water to “be sold by the state land board only upon a royalty basis.” And since Morton could only have a nonexclusive right to take salt, it had no interest entitling it to injunctive relief or damages for injury from salinity changes resulting from the causeway.

On this appeal both Hardy and Sanders argue that for several reasons the Morton case does not apply. First Hardy says that the rights granted to it by the State differ sufficiently from Morton’s rights to distinguish the case. Hardy’s rights include: (1) certificates of water appropriation which provide that as appropriator Hardy is entitled to the use of water for diversion and use, including the certificate stating that “the water is, during the above-mentioned periods,' intermittently diverted and used through evaporation of said water to yield 80,500 tons of salt each year . . . ” (Hardy Exs. 87, 88); (2) a pre-causeway royalty agreement (Hardy Ex. 83); (3) a specific easement granted by the State to extract brine from the Great Salt Lake through a channel at a specific point of diversion (Hardy Ex. 82) onto ponds on its fee lands (Hardy Ex. 80) and lands leased to the company by the State (Hardy Ex. 81).

On the other hand Morton, although possessing a royalty agreement, had only diligence rights rather than a certificate like Hardy’s for appropriation of water. And Morton had no point of diversion specified by the State and no indication of the quantity of salt Morton could extract from the Lake.

In the Morton opinion the Utah Supreme Court referred, Id. at 32, to Utah Code Annotated § 65-1-15 (1953), which provides:

Salts and other minerals in the waters of navigable lakes and streams are likewise reserved to the state and shall be sold by the state land board only upon royalty basis. The amount of such royalties and the terms of such contracts shall be determined by the board; provided, that all such contracts shall be subject to the use of the waters for public purposes, and provided further that before executing a contract which contemplates the recovery of salts and minerals from said waters, the state land board shall require evidence that an application for the appropriation of water for such purpose has been filed with the state engineer and is pending in his office.

We feel the statute makes clear that the basic source of both Morton’s and Hardy’s right to take salt is the royalty agreement, provided for by the statute. Thus the efforts to distinguish Morton on the basis of other agreements and circumstances are not persuasive. We feel that Morton simply held that because the State owned the salt and Morton had only a nonexclusive right to extract and process it under the royalty agreement recognized by the statute, Morton had no interest entitling it to in-junctive relief and damages.

Unlike Morton, Hardy does have a specific point of diversion for its water, but any person entitled to the use of water in Utah may change the place of diversion on application to the State Engineer, absent substantial impairment of vested rights. See Utah Code Annotated § 73-3-3.

Hardy points out also that the grant of easement issued by the Utah state land board to Southern Pacific provided that the “ . . . grantee agrees to compensate surface owners or lessees for all damages done during construction of the railroad and during its subsequent operations.” Hardy argues that it is within the class protected and benefited by the contractual obligation as an owner as well as a lessee of real property at the southern end of the Lake where its extraction facilities are located.

While Morton did not urge that proposition on its appeal to the Utah Supreme Court, this provision in the easement was considered by the Court. 495 P.2d at '34:

[N]o point on appeal was urged for the contention that plaintiff was a “surface owner,” although a point was made in essence that it was a “lessee,” — which latter we have said has no merit. We are not called upon to determine whether Morton is a “surface owner” or not, but we are constrained to observe that we think such appellation does not apply to those incidentally damaged by water dilution, but at best to damage of some tangible existing physical property or facility owned by anyone, whether he has rights to remove salt water or not.

It is clear that the statement was dictum. Nevertheless, “[t]he responsibility of the federal courts, in matters of local law, is not to formulate the legal mind of the state, but merely to ascertain and apply it.” Yoder v. Nu-Enamel Corp., 117 F.2d 488, 489 (8th Cir.). Both the holdings and considered. dicta of the State Courts should be applied. See Hawks v. Hamill, 288 U.S. 52, 59, 53 S.Ct. 240, 77 L.Ed. 610; Yoder v. Nu-Enamel Corp., supra, 117 F.2d at 489; Hartzler v. Chesapeake and Ohio Railway Co., 433 F.2d 104, 107 (7th Cir.). Moreover, on the unsettled peripheral questions of State law, the views of the resident District Judge are persuasive and ordinarily accepted. Sade v. Northern Natural Gas Co., 483 F.2d 230, 234 (10th Cir.); Vaughn v. Chrysler Corp., 442 F.2d 619 (10th Cir.), cert. denied, 404 U.S. 857, 92 S.Ct. 106, 30 L. Ed.2d 98; Jorgensen v. Meade Johnson Laboratories, Inc., 483 F.2d 237 (10th Cir.). Thus we are persuaded that the statement of the Utah Supreme Court calls for rejection of Hardy’s contention based on the provision in the Southern Pacific easement.

Hardy next argues that a denial of its right to recover would be violative of the Utah Constitution and that application of the Morton decision to the Hardy case would be State action in violation of the United States Constitution. We find no merit to these constitutional claims. Hardy has had full access to the Federal Courts, asserting fully its State and Federal claims. The rejection of its theories was based upon a State Court decision, and we cannot say the determination denied its substantive or procedural constitutional rights.

Hardy argues that undue interference with its economic and business interests is actionable and that even if its rights are denominated as merely a nonexclusive privilege or license, the Morton decision did not reach the issue of such interference. We again must disagree. The interference with business interests was the precise injury that Morton complained of in its State Court suit. And the rejection of such claims of interference with Morton’s business was based upon the principle that only a nonexclusive right to extract salt existed under the royalty agreement and § 65-1-15 of the Utah statutes providing for royalty agreements and the taking of salt. We must agree that Hardy's rights can rise no higher since they come from the same basic source as those of Morton.

In addition, both Hardy and Sanders argue that Southern Pacific has created a public nuisance and that they may recover because of special injuries sustained as a result thereof. They say this issue was not before the Utah Supreme Court in Morton, and that the chemical alterations produced by the causeway violate the Utah antipollution statutes.

In support of such theories, the plaintiffs’ evidence showed that the ecological effects of the causeway are considerable. Prior to its construction the color of the entire lake was the same. Subsequently the north arm became reddish and the south arm green. This occurred because the increased salinity in the north lake affects aquatic life other than the brine shrimp. Blue-green algae that form algal reefs in the north lake have apparently been completely killed. Red algae have replaced the green algae in the more saline waters of the north lake as the water has approached the saturation point.

Before the causeway’s construction the overall current of the Lake was counterclockwise and its specific gravity ranged from 1.17 to 1.19. After the construction the circulation in both segments of the Lake remained counterclockwise, but without exchange due to currents which previously occurred between the north and south areas. The specific gravity in the north arm now ranges from 1.21 to 1.23, which causes the salt to drop to the bottom. The specific gravity of the south arm varies from 1.09 to 1.19. Thus, while the District Court made no finding on the issue, the plaintiffs’ proof was substantial that Southern Pacific has caused pollution creating a public nuisance.

Under Utah law the plaintiff must suffer some substantial injury or damage not inflicted on the community at large in order to recover on a public nuisance theory. Lewis v. Pingree National Bank, 47 Utah 35, 151 P. 558, 561; see also Riggins v. District Court of Salt Lake County, 89 Utah 183, 51 P. 2d 645, 662. Both Hardy and Sanders made a substantial showing of special and peculiar injuries of business interference, not common to the rest of the community. However, again the reasoning in Morton applies. The Utah Supreme Court referred to the change in salinity, which is the basic premise of the injury claim. “It is this dilution about which this litigation revolves.” 495 P.2d at 32. While nuisance claims were not asserted or discussed, the Court held there was an absence of a protectable business interest premised on a certain salinity level in the Lake. Again we must agree with the District Court that the plaintiffs must be denied relief.

The claims of Sanders are likewise untenable. As stated above, it is true that under its contract with the State, Sanders does have an exclusive right to seine and harvest in two designated areas, one other company having a right to collect a limited amount of shrimp in one of the two areas. However, Sanders’ rights to seine and harvest are only a right to reduce to possession and therefore are analogous to a profit a prendre and other like rights mentioned in the Morton opinion. 495 P.2d at 33. Again, like Morton and Hardy, Sanders’ rights do not create a protectable business interest premised on a certain salinity level in the Lake under the reasoning of the Morton case. Id. It would seem that there should be relief against violation of the antipollution statute which prohibits damage to aquatic life, Utah Code Annotated § 73-14-2, which damage was shown by Sanders clearly as to its operations in the north arm of the Lake where the shrimp can no longer survive. We feel, however, that the rights of Sanders still come within the rationale of the Morton opinion and that the District Court did not err in deciding that Sanders lacked an enforceable right.

Hardy and Sanders also invoke Utah’s private nuisance statute, Utah Code Annotated § 78-38-1, and the Utah waste statute, Utah Code Annotated § 78-38-2. On the reasoning discussed above, we must again hold that Hardy and Sanders do not demonstrate the type of a business or economic interest entitling them to relief.

In sum, we must hold that the District Court did not err in denying relief on the State law claims in light of Morton International, Inc. v. Southern Pacific Transportation Co. and the parallel circumstances involved here.

2. The Federal claims under the Rivers and Harbors Act.

In addition to the State law claims asserted by Hardy and Sanders, Hardy and Morton assert a federal claim against Southern Pacific based on alleged violation of the Rivers and Harbors Act of 1899, 33 U.S.C.A. § 401 et seq., by Southern Pacific. Specifically, they allege that Southern Pacific violated §§ 9, 10, and 13 of that Act, 33 U.S. C.A. §§ 401, 403, and 407, in that the Railroad never received the consent of Congress or, alternatively, of the legislature of the State of Utah, nor any authorization or approval from the Secretary of the Army or the Chief of Engineers, for construction or maintenance of its causeway as those provisions variously require. The record establishes that such approvals and authorizations were not obtained (R. 443-46, 597, 1288-92). Although the Rivers and Harbors Act does not expressly create private causes for those injured by its violations, Hardy and Morton argue that such a cause of action should be implied in their favor, entitling them to injunc-tive relief and damages.

Southern Pacific and the Intervenor, Great Salt Lake Minerals & Chemicals Corporation, contend that the Rivers and Harbors Act does not apply because the Great Salt Lake is not a “navigable water of the United States” within the terms of that Act. They further argue that, even if the Rivers and Harbors Act applies, Hardy and Morton have no standing to complain of the violations alleged and that no private right of action may be implied under the Act in favor of Hardy and Morton since their claims are unrelated to interference with rights of navigation and are thus beyond the special federal interest and protection afforded by the Act. Finally, Southern Pacific says that, in any event, the judgment in Morton International, Inc. v. Southern Pacific Transportation Co., supra, bars the federal claim of Morton under the Act, arguing that Morton has attempted to split its cause of action related to injury from the causeway.

At trial Morton offered in evidence newspaper articles as ancient documents in support of its claim that the Great Salt Lake is a “navigable water of the United States.” (Ex. M-28 through M-34). These articles, published in the late 1800’s, described a flow of commercial navigation across the Lake up the Bear River to Corinne, Utah, an important rail center at the time. Although the Bear River flows interstate, no offer of proof was made to the effect that it was navigable interstate. Instead, Hardy and Morton say that they proved that the Great Salt Lake is a navigable water of the United States by demonstrating that it served as a link in the conduct of interstate commerce, namely as a conduit for the transport of goods which were subsequently shipped interstate via rail from Corinne. The District Court refused to admit the proffered newspaper articles (Tr. 585) and indicated that it would not consider proof that the Bear River was navigable (Tr. 575).

The District Court took judicial notice that the Bear River is not navigable by its findings of fact. The Court’s conclusions of law stated that the Great Salt Lake is a navigable body of water of the State of Utah; that as such, the Rivers and Harbors Act is not applicable to the Great Salt Lake; and that the bed of the Lake and the waters over the said bed and the minerals contained in said waters belong to the State of Utah. Accordingly, the Court dismissed Hardy’s and Morton’s claims under the Act with prejudice.

On this appeal Hardy and Morton both contend that the District Court erred in excluding the exhibits showing the navigation to Corinne; that the Court should have admitted the proof and found that the Great Salt Lake is a navigable water of the United States under the Act; and they ask that the judgment be reversed and the case remanded for further trial.

We must consider the exclusion of the offer of proof of navigation across the Lake and up the Bear River to the railhead at Corinne. More specifically, our question is whether there was a showing attempted that could properly establish the Great Salt Lake is a navigable water of the United States within the meaning of the Rivers and Harbors Act. We feel that the proof should have been admitted and considered on this issue. Nevertheless, we conclude that there was no reversible error, since the proof offered showed only a connection with the railhead and not with navigable interstate waters and, therefore, as a matter of law, could not establish that the Lake is a “navigable water of the United States” within the meaning of the Act.

The phrase “navigable water of the United States” has been used by Congress in several statutes prior to the 1899 Act, e. g., Act of July 7, 1838, ch. 191, 5 Stat. 304; Act of September 19, 1890, ch. 907, §§ 6-8, 26 Stat. 453-454. The term, as used in the Act of 1838, cited above, was defined in The Daniel Ball, 77 U.S. (10 Wall.) 557, 563, 19 L. Ed. 999 (1870). The Supreme Court there stated that:

. Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. And they constitute navigable waters of the United States within the meaning of the acts of Congress, in contradistinction from the navigable waters of the States, when they form in their ordinary condition by themselves, or by uniting with other waters, a continued highway over which commerce is or may be carried on with other States or foreign countries in the customary modes in which such commerce is conducted by water. (Emphasis added)

See also The Montello, 78 U.S. (11 Wall.) 411, 415, 20 L.Ed. 191 (1870); and Es-canaba Co. v. Chicago, 107 U.S. 678, 682, 2 S.Ct. 185, 27 L.Ed. 442 (1882).

Although the definition of “navigability” laid down in The Daniel Ball has subsequently been modified and clarified, see, e. g., The Montello, 87 U.S. (20 Wall.) 430, 22 L.Ed. 391 (1874); Leovy v. United States, 177 U.S. 621, 20 S.Ct. 797, 44 L.Ed. 914 (1900) ; Economy Light & Power Co. v. United States, 256 U.S. 113, 41 S.Ct. 409, 65 L.Ed. 847 (1921); United States v. Appalachian Electric Power Co., 311 U.S. 377, 61 S.Ct. 291, 85 L.Ed. 243 (1940), its definition of “navigable water of the United States,” insofar as it requires a navigable interstate linkage by water, appears to remain unchanged. See Economy Light & Power Co. v. United States, supra, 256 U.S. at 121-124, 41 S.Ct. 409; United States v. Utah, 283 U.S. 64, 75, 51 S.Ct. 438, 75 L.Ed. 844 (1931); United States v. Crow, Pope & Land Enterprises, Inc., 340 F.Supp. 25, 31-36 (N.D.Ga.1972), appeal dismissed, 474 F. 2d 200 (5th Cir. 1973). Cf. the recent cases which have uniformly refused to find landlocked intrastate lakes navigable waters of the United States within the admiralty jurisdiction. Doran v. Lee, 287 F.Supp. 807 (W.D.Pa.1968); In re Builders Supply Company, 278 F. Supp. 254 (N.D.Iowa 1968) (and cases therein cited). Cf. also Johnson v. Wurthman, 227 F.Supp. 135 (D.Or.1964) (reaching similar result, but purportedly under the commerce clause).

We realize that the construction of “navigable water of the United States” made in The Daniel Ball and The Montello may be viewed as involving a statute depending on the admiralty power, while the Rivers and Harbors Act is an exercise of power under the commerce clause. See United States v. Crow, Pope & Land Enterprises, Inc., supra. Nevertheless, The Daniel Ball was a landmark decision and its interpretation of “navigable water of the United States,” adhered to in The Montello and Escanaba Co. v. Chicago, supra, was well settled at the time of the enactment of the 1899 statute. It was the interpretation given to “navigable water of the United States” as used in the 1890 Rivers & Harbors Act, a predecessor of the 1899 Act, see 21 Op.Att’y Gen. 430, 432-33 (1896). When Congress uses words in a statute without defining them, and those words have a judicially settled meaning, it is presumed that Congress intended them to have that meaning in the statute. E. g., Case v. Los Angeles Lumber Co., 308 U. S. 106, 115, 60 S.Ct. 1, 84 L.Ed. 110 (1939); The “Abbotsford,” 98 U.S. 440, 444, 25 L.Ed. 198 (1878). We may assume that the Congress was aware of these decisions and of the interpretation which they had placed upon the phrase “navigable water of the United States” so that if it had intended the Act of 1899 to employ a broader definition, it would have manifested such an intention by clear and explicit language. See Cummings v. Chicago, 188 U.S. 410, 430, 23 S.Ct. 472, 47 L.Ed. 525 (1903); compare Federal Power Act § 3(8), 16 U.S.C.A. § 796(8); Act of February 4, 1887, ch. 104, 24 Stat. 379. In the absence of any such language it should not be assumed that any such departure was intended.

We are aware, however, of the dictum in The Katie, 40 F. 480 (S.D.Ga.1889), affirmed sub nom In re Garnett, 141 U. S. 1, 11 S.Ct. 840, 35 L.Ed. 631 (1891), which appears to adopt a broader interpretation of navigable waters, lending support to the position of Hardy and Morton. The trial court there stated that if navigable waters lying wholly within a State are utilized under common control in connection with railroads for continuous carriage in interstate commerce, they would become public waters of the United States, subject to congressional control under the commerce clause. 40 F. at 489.

The dictum was not discussed by the Supreme Court opinion affirming the decision and no subsequent case has been found which refers to it. In these circumstances, we feel that the predominant interpretation was that settled in the Supreme Court’s decisions in The Daniel Ball and cases following it.

Hardy and Morton contend that the first proviso in Section 9 of the Act, 33 U.S.C.A. § 401, which speaks in terms of “waterways the navigable portions of which lie wholly within the limits of a single State,” indicates a congressional intent to give a broad definition to navigable water of the United States, one which would clearly encompass the Great Salt Lake. We believe that the more reasonable construction of this provision is that it refers to waters which fall within the definition laid down in The Daniel Ball, but which lie wholly within a single State. In light of the history behind the Act, it seems more likely that this proviso was intended to make clear the limits of the concurrent authority of the States over navigable waters of the United States, as defined by The Daniel Ball, than to expand the scope of the definition of “navigable water of the United States” as used in the Act. See Lake Shore & Michigan Southern Railway Co. v. Ohio, 165 U.S. 365, 17 S.Ct. 357, 41 L.Ed. 747 (1897); Cummings v. Chicago, 188 U.S. 410, 23 S.Ct. 472, 47 L.Ed. 525 (1903).

Hardy arid Morton also contend that the decree entered in the case of Utah v. United States, 406 U.S. 484, 92 S.Ct. 1691, 32 L.Ed.2d 246 (1972) supports their contention that the Great Salt Lake is a navigable water of the United States. We do not agree. On its face the decree does nothing more than acknowledge the potential possibility of regulation of commerce on the Great Salt Lake. It contains no implication whatsoever that the Congress has already chosen to regulate the Lake under the Rivers and Harbors Act.

We conclude that a navigable water of the United States within the meaning of Sections 9, 10 and 13 of the Rivers and Harbors Act must be construed in line with the interpretation in The Daniel Ball, as contemplating such a body of water forming a continued highway over which commerce is or may be carried on with other states or foreign countries, by water. Thus we must hold that the District Court did not err in dismissing the federal claims of Hardy and Morton founded on the Act. Their offer of proof was insufficient to demonstrate that the Great Salt Lake is a navigable water of the United States within the meaning of the statute, showing only navigability within Utah to the railhead.

We feel we should not rest our decision on the broader views on the Rivers and Harbors issue expressed in the District Court’s conclusions of law, and limit our decision as stated herein. We need not and do not decide whether the Lake could be shown to be such a navigable water under the Act by other proof in another case. And we need not and do no decide whether the Congress could constitutionally regulate commerce on the Lake. Finally, deciding this case' as we do on the issue of whether the Lake is a navigable water of the United States, we do not reach the other points raised by the parties on this claim and we express no opinion on them,

Concluding that the District Court committed no reversible error in the dismissal of the federal claims under the Act, or in dismissal of the State law claims discussed earlier, the judgment is affirmed,

      . Morton did have a written agreement with the State, executed in 1954, giving it the continuing right to appropriate, remove and divert water of and from the Great Salt Lake for the purpose of extracting salt therefrom. See 495 P.2d at 32.

      . Reliance is placed on §§ 73-14-2(a), 73-14-5 (a) and 76-43-3(3). Section 73-14-2(a) provides:
      “Pollution” means such contamination, or other alteration of the physical, chemical or biological properties, of any waters of the state, or such discharge of any liquid gaseous or solid substance into any waters of the state as will create a nuisance or render such waters harmful or detrimental or injurious to public health, safety or welfare, or to domestic, commercial, industrial, agricultural, recreational, or other legitimate beneficial uses, or to livestock, wild animals, birds, fish or other aquatic life.

      . It is true that the Utah Supreme Court did uphold the right of a private party to obtain relief against water contamination on a nuisance theory in North Point Consolidated Irrigation Co. v. Utah & Salt Lake Canal Co., 16 Utah 246, 52 P. 168. See also Reeder v. Brigham City, 17 Utah 2d 398, 413 P.2d 300. The plaintiff irrigation company complained that defendant canal and irrigation companies had no right to contaminate canal waters, thus rendering them unfit for domestic and irrigation purposes served by the plaintiff. The Court held that on the record the plaintiff was entitled to injunctive relief. However, in the opinion there is no discussion of exclusivity vel non of the plaintiff’s rights. And, in any event, the recent Morton decision, involving the same injuries produced by the causeway, must be followed as the more compelling authority.

      . 33 U.S.C.A. § 401 provides :
      It shall not be lawful to construct or commence the construction of any bridge, dam, dike, or causeway over or in any port, roadstead, haven, harbor, canal, navigable river, or other navigable water of the United States until the consent of Congress to the building of such structures shall have been obtained and until the plans for the same shall have been submitted to and approved by the Chief of Engineers and by the Secretary of the Army: Provided, That such structures may be built under authority of the legislature of a State across rivers and other waterways the navigable portions of which lie wholly within the limits of a single State, provided the location and plans thereof are submitted to and approved by the Chief of Engineers and by the Secretary of the Army before construction is commenced ....
      33 U.S.C.A. § 403 provides:
      The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; and it shall not be lawful to build or commence the building of any wharf, pier, dolphin, boom, weir, breakwater, bulkhead, jetty, or other structures in any port, roadstead, haven, harbor, canal, navigable river, or other water of the United States, outside established harbor lines, or where no harbor lines have been established, except on plans recommended by the Chief of Engineers and authorized by the Secretary of the Army; and it shall not be lawful to excavate or fill, or in any manner to alter or modify the course, location, condition, or capacity of, any port, roadstead, haven, harbor, canal, lake harbor of refuge, or inclosure within the limits of any breakwater, or of the channel of any navigable water of the United States, unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army prior to beginning the same.
      33 U.S.C.A. § 407 provides:
      It shall not be lawful to throw, discharge, or deposit, or cause, suffer, or procure to be thrown, discharged, or deposited either from or out of any ship, barge, or other floating craft of any kind, or from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water of the United States, or into any tributary of any navigable water from which the same shall float or be washed into such navigable water; . . . And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material ; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful.

      . See also the proposed decree appended to the decision in Utah v. United States, 403 U.S. 9, 13, 91 S.Ct. 1775, 29 L.Ed.2d 279 (1971).

      . That decree provides in pertinent part:
      The United States of America, its departments and agencies are enjoined, subject to any regulation which the Congress may impose, such as in the interest of navigation or pollution control, from asserting against the State of Utah any claim of right, title, and interest:
      (a) to the bed of the Great Salt Lake . . . . (Emphasis added)

      . We believe it was error for the District Court to find, by judicial notice, that the Bear River is not navigable, in view of the offer of proof on navigability up to Corinne. However, in view of the insufficiency of the proof offered, as discussed above, no question of fact or law on the navigability of the Bear River requires consideration.


author: BRIGHT, Circuit Judge.

text:
    Joseph David THOMAS, Jr., Appellant, v. UNITED STATES of America, Appellee.
    No. 73-1883.
    United States Court of Appeals, Eighth Circuit.
    Submitted June 11, 1974.
    Decided Aug. 28, 1974.

      George J. Parnham, Houston, Tex., for appellant.
    Daniel E. Wherry, Asst. U. S. Atty., Omaha, Neb., for appellee.
    Before BRIGHT, STEPHENSON, and WEBSTER, Circuit Judges.
   BRIGHT, Circuit Judge.

Joseph David Thomas, Jr. appeals from his conviction for possessing heroin with intent to distribute in violation of 21 U.S.C. § 841(a)(1). He presents the following arguments: (1) the trial judge erred in refusing to grant a motion to dismiss on the grounds that Thomas was denied his due process rights to a speedy trial under the fifth and sixth amendments; (2) the trial court erroneously denied a motion to suppress the heroin seized from Thomas; and (3) the trial court committed error in admitting evidence related to Thomas’ general character and reputation. We reject these contentions and affirm the judgment of conviction.

The facts disclose that at about 9:00 P.M. on November 15, 1972, federal law enforcement officers supported by local police raided a drinking and gambling establishment in Omaha, Nebraska, known as the “Crap House.” The purpose of the raid was to search the premises for narcotics under the authority of a “no-knock” search warrant issued by the late United States District Judge Richard Dier. Further, the officers intended to arrest any persons found on the premises against whom arrest warrants had been issued. Thomas was one of these individuals, having been previously indicted on a narcotics charge separate from this present prosecution. Law enforcement officers discovered Thomas playing cards in a room on the premises. He was arrested and searched. Arresting Officer Gary Boan of the Omaha Police Department found and seized three tinfoil packages from Thomas containing heroin. The next day a formal complaint was filed against Thomas charging him with possession of heroin with intent to distribute. Although Thomas requested a preliminary hearing, no such hearing was held since the complaint was dismissed on November 28, 1972. The same charge was later reinstated by a Grand Jury indictment returned on February 25,1973.

On November 21, 1972, six days after Thomas’ arrest, a woman named Sue Ronhovde gave a statement to Thomas’ attorney claiming that the arresting officer, Boan, had stated to her prior to Thomas’ arrest that he was planning to plant heroin on Thomas, and that he further stated, after the arrest, that he had in fact planted heroin on Thomas. Ms. Ronhovde recanted the next day and signed a second statement admitting that the previous statement was false. Ms. Ronhovde made this second statement to a federal agent in the presence of her own attorney.

Thomas’ trial did not commence until September 6, 1973. Pending trial he had been released on bail until later convicted and incarcerated on a state charge on or about June 15,1973.

We now turn to his contentions of error asserted on appeal.

Right to a Speedy Trial. I.

Thomas’ first assertion that he had been denied his due process right to a speedy trial focuses upon the nature and effect of the delay rather than its length. He claims that the Government’s initial dismissal served to deprive him of a preliminary hearing and thus denied him the opportunity to obtain the testimony of Ms. Ronhovde under oath. After the Government indicted him three months later, he claims that he could not adequately defend himself since Ms. Ronhovde’s testimony was unavailable because she had disappeared. We disagree.

In Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), the Supreme Court observed that a defendant’s constitutional right to a speedy trial can only be determined on an ad hoc balancing basis. Such factors as the length of the delay, the reason for the delay, the defendant’s prompt assertion of his right to a speedy trial, and prejudice to the defendant are to be weighed by the court. In Barker, the Court ruled that even though the defendant was not brought to trial for murder until more than five years after he had been arrested, during which time the prosecution obtained numerous continuances, he was not denied his right to a speedy trial. The Court determined that this lengthy delay was counterbalanced by a lack of prejudice to the defendant, the fact that the defendant was free on bail for most of the time, and by the absence of any demand for a speedy trial. Here, the time between arrest and trial amounted to ten months. The Grand Jury which next convened following the arrest returned the indictment. The Government asked for no continuances and the defendant did not seek a speedier resolution of the prosecution. Additionally, the defendant posted bond on this charge although he was subsequently incarcerated on an unrelated state charge.

The appellant, however, stresses the alleged prejudice flowing from the dismissal of the criminal 'complaint and the consequent loss of the opportunity to obtain Ms. Ronhovde’s testimony at a preliminary hearing which he had demanded. This contention rests on unstable grounds for we have held that the defendant has no absolute right to the benefits of a preliminary hearing for the underlying purpose of such a hearing may be supplanted by a dismissal of the complaint, McDonnell v. United States, 457 F.2d 1049, 1051 (8th Cir. 1972), or a later Grand Jury indictment, Spinelli v. United States, 382 F.2d 871, 887 (8th Cir. 1967), rev’d on other grounds, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969).

Moreover, appellant’s claim that he was prejudiced by the absence of Ms. Ronhovde seems highly speculative. We have examined Ms. Ronhavde’s conflicting written statements. We think it unlikely that her testimony could have helped Thomas’ defense. In her second (recanting) statement, she accused the defendant of “coaching” her to give a false statement to Thomas’ attorney. If she were available at the trial and testified favorably for Thomas, the prosecution could cross-examine her on the recanting statements with devastating adverse effects to the defense. A missing witness whose testimony cannot help a defendant constitutes a flimsy basis on which to claim prejudice. See McDonnell, supra, 457 F.2d at 1051.

Accordingly, we hold this record demonstrates no error by the trial court in its rejection of the dismissal motions for alleged delay in the trial.

II. Search and Seizure.

The record shows that Omaha police possessed an arrest warrant for Thomas at the time of the raid but that police did not enter the premises of the “Crap House” under authority of that warrant. Appellant, therefore, argues that since Thomas was arrested and searched within the “Crap House,” any evidence seized from him must be suppressed unless the raiding policemen possessed lawful authority to enter the premises in question. Assuming, but not deciding, the validity of this contention, we have examined and find valid the authority granted to the police to make a no-knoek entry on the premises under the authority of a valid warrant issued by the late Judge Dier.

Appellant also attacks the hearsay statements underlying the affidavit for the search warrant executed by Patrick G. Ryan, a government special agent attached to the Drug Abuse Law Enforcement section of the Department of Justice. The relevant portions of the affidavit are reproduced in the margin. The affidavit contains hearsay gained by the agent from a proven reliable informant and from personal knowledge. In essence, the affidavit shows (from the reliable informant) the existance of ongoing drug traffic at the “Crap House” and knowledge gained personally by the agent that prior raids at this establishment with minimal notice have proved fruitless. We believe that in reading the affidavit in a “commonsense and realistic fashion,” United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965), it affords probable cause for the issuance of the warrant under standards announced in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), as amplified and explained in the succeeding cases of Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), and United States v. Harris, 403 U.S. 573, 91 S.Ct. 2075, 29 L.Ed.2d 723 (1971).

Thus, we hold that law enforcement officers lawfully gained entrance to the premises. Thomas was seen, arrested, and searched. That search, of course, was valid as an incident of his arrest.

III. Evidence

Appellant complains that testimony given by two prosecution witnesses was, in effect, testimony on defendant’s bad character and inadmissible under United States v. Crawford, 438 F.2d 441 (8th Cir. 1971). A Gloria Brewer testified that on frequent occasions between March 1972 and February 1973, she performed dope testing services for Thomas by “shoot[ing] or injecting dope into her body to test its strength by feeling of its effects.” Police Officer Boan related that Thomas had stated to him in earlier casual conversation that he did not use heroin because of a diabetic condition.

This testimony became relevant on the precise issue of whether Thomas possessed the packets of heroin with the intent to distribute rather than for his own personal use. United States v. Crawford, supra, does not support appellant’s claim. There we said that the receipt of the questioned evidence, testimony by witnesses of purchases of drugs from defendant at times other than as specified in the indictment was admissible “for the purpose of showing intent * * *438 F.2d at 447. Moreover, here, the record shows that witness-Brewer furnished adequate background information about the incidents to which she testified to overcome appellant’s objection that the testimony should have been excluded as “vague and uncertain [in] character.” United States v. Spica, 413 F.2d 129, 131 (8th Cir. 1969).

Accordingly, we affirm the conviction.

      . The Honorable Albert C. Schatz, United States District Judge for the District of Nebraska.

      . The warrant authorized a search “in the daytime or nighttime” and authorized the executing officers “to break and enter * * * without announcing your authority until after you have gained entrance.”
      Such a “no-knock” entry is authorized in a search warrant only under limited circumstances as enumerated under 21 U.S.C. § 879(b):
      * * * if the judge or United States magistrate issuing the warrant (1) is satisfied that there is probable cause to believe that (A) the property sought may and, if such notice is given, will be easily and quickly destroyed or disposed of, or (B) the giving of such notice will immediately endanger the life or safety of the executing officer or another person, and (2) has included in the warrant a direction that the officer executing it shall not be required to give such notice. Any officer acting under such warrant, shall, as soon as practicable after entering the premises, identify himself and give the reasons and authority for his entrance upon the premises.

      . That on or about 2:00 p. m. on November 12, 1972, a confidential informant related to the affiant that he observed numerous quantities of heroin and sales of heroin at a location known as the “Crap House”, a two-story wood and brick frame building located at 2407 Lake, Omaha, Nebraska. The informant, who has proven to be reliable on at least a dozen occasions in the past, also indicated that he had purchased heroin from the proprietor of the “Crap House” on November 9, 1972, and on at least a dozen other occasions has either made purchases or has seen other parties distribute heroin at the aforementioned premises. The “Crap House” is notorious for the trafficking in heroin and gambling throughout the drug community.
      Affiant further states that the informant is positive from what he has observed and from the typical transactions that there are stashes of heroin at the aforementioned premises. Affiant also states that it will be necessary to break and enter the premises without announcing his authority until after he has gained admittance since previous raids by the Omaha Police Department have sometimes proven to be fruitless when minimal notice has been given.
      That the foregoing constitutes affiant’s probable cause to believe that there is a concealed quantity of heroin at the premises of 2407 Lake, Omaha, Nebraska, and that he is positive that the heroin is at that location, in violation of the laws of the United States, to wit: Title 21, United States Code, Section 841(a) (1).