author: PER CURIAM:

text:
    Donald Wayne MORRISON v. The UNITED STATES.
    No. 49-71.
    United States Court of Claims.
    Feb. 20, 1974.

      Thomas M. Gittings, Jr., Washington, D. C., attorney of record, for plaintiff; Jack J. Helms, Homerville, Ga. and P. Baxter Davis, Washington, D. C., of counsel.
    Alan L. Ferber, Washington, D. C., with whom was Acting Asst. Atty. Gen., Irving Jaffe, for defendant; Judith Ann Yannello, Washington, D. C., of counsel.
    Before DURFEE, Senior Judge, and KASHIWA and KUNZIG, Judges.
   OPINION

PER CURIAM:

This case comes before the court having been submitted on plaintiff’s exceptions to the recommended decision, filed April 26, 1973, by Trial Judge Kenneth R. Harkins pursuant to Rule 134(h). The court has considered the case on the briefs of the parties with oral argument of counsel. Since the court agrees with the recommended decision of the trial judge, as hereinafter set forth, it hereby affirms and adopts the same as the basis for its judgment in this case. Therefore, it is concluded that plaintiff is not entitled to recover and the petition is dismissed.

OPINION OF TRIAL JUDGE

HARKINS, Trial Judge:

On July 31, 1968, plaintiff was a Sergeant E-5 in command of a squad of the 3d Platoon, B Company, 1st Battalion, 50th Infantry, on a search-and-destroy patrol in the Central Highlands of South Vietnam. During the course of this patrol, plaintiff’s squad searched a cave and discovered, among other items, $150,000 in United States currency and 550,000 South Vietnamese piasters. The $150,000 in United States currency and the South Vietnamese piasters were turned over to plaintiff’s platoon leader and through channels, delivered to the custody of defendant. Plaintiff contends that he is a “finder” of “treasure trove,” and that defendant’s refusal to deliver the money to him constitutes a taking of private property for public use without just compensation in violation of the 5th amendment of the Constitution of the United States.

Plaintiff is not a “finder” of the $150,000. When plaintiff discovered the money and took it into possession, he did so as an agent of the United States; the $150,000 was “captured” public property 'taken from the enemy or “abandoned” property within the meaning of Article 103 of the Uniform Code of Military Justice. Accordingly, plaintiff’s petition must be dismissed.

During the period of United States military commitment in South Vietnam, January 1961 until February 1973, the nature of United States participation in combatant activities underwent substantial change. In July and August 1968, when plaintiff’s claim arose, United States military operations in the Central Highlands of South Vietnam required relatively large geographic areas to be the responsibility of a limited number of troops. Plaintiff’s unit, the 50th Infantry (Mechanized), was attached for operational purposes to the 173d Airborne Brigade, which, with a total of six battalions, was responsible for United States troop operations that extended into three Vietnamese provinces.

The terrain over which the 173d Airborne Brigade operated included coastal flatlands and mountainous jungle. Contact with the North Vietnamese and Vietcong enemy in the Central Highlands in this period was sporadic, and in the main was limited to situations selected by the enemy. Enemy activity consisted of guerrilla operations, hit- and-run raids, placement of mines, ambushes, and sniper action. There were very few contacts that involved fire fights that would be classified as major engagements.

United States and South Vietnamese forces in this period in the Central Highlands primarily were engaged in intelligence surveillance, monitoring operations, search-and-destroy patrols, and maintenance of supply lines. The 1st Battalion of the 50th Infantry in May 1968 had a major contact with the enemy in which a number of its tracked vehicles were destroyed or damaged and, as a result, for a time thereafter it was assigned primarily missions that required dismounted activities. The 1st Battalion in July and August 1968 was employed on patrol missions in the jungle as regular dismounted infantry.

The patrol during which this claim arose commenced on July 29 and extended for 20 to 24 days into the middle of August 1968. It was carried in the 173d Airborne Brigade’s reports as part of Area of Operation Dan Sinh, or alternatively, Operation Cochise, that had been under way in the general area of Landing Zone Uplift since March 1968. Operation Cochise was a continuing activity of the 173d Airborne Brigade that involved numerous combatant contacts with the enemy at many locations throughout the brigade’s assigned areas of responsibility. Reports on activities in Operation Cochise from July 29 through August 3, 1968, make it clear that the various units in the several task forces involved continuously participated in military activities in a hostile area that contained enemy forces.

In the latter part of July 1968, the 173d Airborne Brigade Operations Officer (the S-3) and the 173d Airborne Brigade Intelligence Officer (the S-2) received information that indicated that the 3d North Vietnamese Division and Military Region 5 of the Vietcong had a base camp and a headquarters located in the Vinh Thanh Mountains in the area of Operation Cochise. According to this information, these forces were scheduled to have a high-level conference in this area in late July 1968. The S-3 assigned Task Force 1-50 the mission of searching for, locating, and attempting to disrupt this conference.

On July 28, 1968, troops of A Company of the 1st Battalion, 503d Infantry, part of Task Force 1-50 and of Operation Cochise, on patrol in this area had discovered the site of a field hospital used by the North Vietnamese and Vietcong forces. This hospital was located in a cave and tunnel complex that contained four large rooms that were approximately 60 feet long and 20 to 30 feet high. A more intensive search was ordered to be conducted in that part of the mountains where the hospital complex had been discovered.

B Company of the 1st Battalion, 50th Infantry, at a strength of approximately 75 men, was ordered into the field on July 29, 1968. B Company had three rifle platoons, one of which included plaintiff’s squad of approximately eight men. On this patrol, plaintiff’s platoon leader was a newly arrived officer who was undertaking his first patrol. At this time, plaintiff had participated in approximately 150 patrols from Landing Zone Uplift. None of plaintiff’s prior patrols was into the immediate area designated for the July 29,1968, patrol.

On July 29, 1968, troops of A Company of the 1st Battalion of the 50th Infantry (1-50) and of A Company of the 1st Battalion of the 503d Infantry (1-503) were already in the field, separated from the area assigned to B Company by approximately one-half mile. On July 29, 1968, both of these units had evidence of enemy contacts. A Company (1-50) found fresh blood trails in an area that it had shelled by artillery the previous night and A Company (1-503) had detained, interrogated, and removed by helicopter four individuals that were classified as prisoners of war.

The briefing for B Company’s platoon leaders, in preparation for the mission, indicated that a search-and-destroy patrol was involved and that intelligence reports showed that an enemy force, from battalion to regimental size, was in the area to be patrolled. Neither the briefing of the platoon leaders nor the briefing by plaintiff’s platoon leader to his squad leaders indicated that there was anything exceptional in the patrol to be undertaken. The briefing indicated that the mission was to “look around” the area and that the patrol was just an “ordinary, regular” mission.

B Company was loaded aboard helicopters at Landing Zone Uplift in the late afternoon on July 29, 1968, and, after a 15-minute flight to the southwest, was dropped into a clearing on the side of a high hill in generally rough terrain. B Company immediately went into bivouac and the night of July 29 passed without contact with the enemy.

On July 30, 1968, B Company commenced a search of the hillside, generally working in a southeasterly direction toward the crest of the hill on which it was located. Movement was difficult. Trees and undergrowth restricted vision to a distance of 100 feet or less and rocky outcroppings on the steep hillside made progress slow. Only approximately 1,000 yards were covered. During the day no signs of enemy activity were found and no Vietnamese civilians, Vietcong, or North Vietnamese troops encountered. At approximately 4 p. m., B Company halted, established its perimeter, and spent the night of July 30, 1968, uneventfully.

Other units in Task Force 1-50 had contact with the enemy on July 30, 1968. The S-2 report for Operation Cochise states that C Company (1-50), in an area approximately 5 miles southeast of B Company’s bivouac, encountered an ambush and engaged one individual with 81 mm. mortar fire. A cheek of the site showed several individuals had been there.

The money that is the basis for plaintiff’s claim was discovered on July 31, 1968. On that day, B Company located and searched at least two caves that contained articles that were reported to brigade headquarters. The caves searched by B Company were located within 1,000 meters of the hospital cave and tunnel complex that had been explored on July 28 and where, on July 29, four prisoners of war had been detained. One of B Company’s caves on July 31, 1968, was located and searched by plaintiff’s squad; another squad in plaintiff’s platoon located and searched the other cave. The reports of the S-2 and the S-3 located both of the caves at the same map coordinate.

On July 31, 1968, B Company broke camp at about 7 a. m. and continued to advance toward the crest of the hill. Plaintiff’s platoon was the lead platoon and plaintiff’s squad was the “point.” Plaintiff’s squad was accompanied by a “Kit Carson” scout (a “rehabilitated” former member of the Vietcong), whose only known identification is “Pee Wee.” Two platoons of B Company followed plaintiff’s platoon in the advance and, when the caves were located, were deployed to provide protection while plaintiff’s platoon conducted the search. During the advance, heavy undergrowth caused plaintiff’s platoon to bunch together and plaintiff’s platoon leader was admonished by the company commander to maintain a greater distance between his men. An effort was made to maintain a distance of approximately 10 to 25 meters between men when visual conditions permitted.

The first cave found by plaintiff’s platoon in which items were reported as found was located at 10:08 a. m. One radio, some rice, and some clothing were located. This first cave was found by another squad in plaintiff’s platoon. Plaintiff did not participate in the search of this cave, and on July 31, 1968, was not aware that material had been found there.

At approximately 1:45 p. m., approximately 400 feet from the crest of the hill, in an area characterized by outcroppings of large rocks and boulders and by thick vegetation, a member of plaintiff’s squad discovered an opening in the ground. Plaintiff’s squad was ordered to enter and search the cave. At the time the search was made, plaintiff’s platoon was protected for security purposes by deployed troops from the other platoons in B Company.

The entrance to the cave was a small opening between large rocks, which permitted only one man to enter at a time. The interior of the cave appeared to be a natural formation rather than a man-made structure and consisted of a large room approximately 20 feet by 20 feet with a 10-foot ceiling. At the rear was a second, smaller room, large enough for two to three people. Plaintiff’s squad searched the cave and found a few articles of old and rotten civilian Vietnamese clothing, some pots or cooking utensils which did not appear to have been in recent use, and some small sheets of paper that contained oriental characters. At the rear of the cave, a United States Army .50 caliber ammunition can was located. Markings on the can showed that it had been manufactured in So-merville, Georgia. The ammunition can was opened and found to contain a quantity of South Vietnamese piasters. The currency and the papers were turned over by plaintiff’s squad to the platoon leader.

Plaintiff was the last to leave when the squad started to depart. Plaintiff flashed the beam of his flashlight around the cave and detected another object on top of a rock, about 10 feet above the floor, near the opening of the cave. Plaintiff called the members of his squad to return, and the squad members, followed by plaintiff’s platoon leader, came back into the cave. Plaintiff boosted the Kit Carson scout to his shoulders, and the scout passed another ammunition can to plaintiff. This can was covered with dust and had a short length of old rope tied to the handle. The ammunition can was a United States Army .50 caliber container and markings showed that it also had been manufactured in Homerville, Georgia.

In the presence of the squad members and the platoon leader, plaintiff removed the lid of the can and observed that it contained three stacks of $50 bills of United States currency. Each stack contained five smaller packets of bills, tied with vines. When the can was opened, the bills were neatly arranged, and their condition indicated that they had been circulated.

There were no markings or indications in or on the can as to whom the money belonged, when the money had been placed in the can, or when the can had been placed into the cave. There was no indication as to when the cave last had been entered or used.

Sight of the American money generated considerable excitement in plaintiff’s squad and order was restored only with difficulty. Some of the bills were grabbed and passed around, and it was proposed that the money be divided among the squad members for personal use. Plaintiff suggested to his platoon leader that the money should be split up among the squad members. After a warning by the platoon leader that the squad would get into trouble if they tried to divide the money, the excitement was calmed. The money was redeposited in the can, and possession of the can and the money was relinquished to the platoon leader. In due course, the papers and money were turned over to the company commander, reported by radio to brigade headquarters, and extracted by helicopter to brigade headquarters where a count was made. The can contained $150,000 in United States currency, all in $50 bills. Approximately 30 of the 3,000 bills were marked with oriental characters that subsequently were determined to be Chinese. No translation of the Chinese characters is available.

Plaintiff entered only one cave on July 31, 1968, and in that cave plaintiff did not observe any weapons, ammunition, rice, or other foodstuffs. On July 31, 1968, plaintiff did not observe any Vietnamese civilians, any members of the Vietcong, any North Vietnamese soldiers, or signs of any enemy activity in the area.

In summary, on July 31, 1968, in its search of eaves in the area, B Company located, and the S-2 reported as found, parts of a commercial radio, one ton of rice, clothing, $150,000 in United States currency and $950,000 in Vietnamese piasters, one 75 mm. rifle round, and approximately 30 pounds of documents.

The S-2 report for July 31, 1968, includes other activities by Task Force 1-50. The Reconnaissance element (1-50) at 10:30 a. m., approximately 3 miles from plaintiff’s cave, engaged and killed one Vietcong with small arms fire. Four pounds of documents were captured. At 11:05 a. m., A Company (1-50), less that a thousand meters from the cave, engaged with small arms fire one individual who was evading the area. A patrol from the Artillery element (1-50) found the bodies of two North Vietnamese, apparently killed by artillery approximately 4 days previously. The patrol also found a rocket launcher with two rounds.

During the night of July 31, 1968, plaintiff developed a toothache and was evacuated to Landing Zone Uplift early on August 1, 1968. B Company (1-50) continued to patrol on August 1 through 3 in the area where the caves were located, and at 11:15 a. m. on August 1, in another cave, reported at the same location as plaintiff’s cave, found a typewriter, a Russian submachine gun, one 75 mm. rifle round, a diary, and an undetermined amount of documents and clothing. Plaintiff’s platoon, in the afternoon on August 1, in an area 100 meters west and 600 meters south of plaintiff’s cave location, found a grave that, when opened, disclosed a badly decayed body dressed in khaki clothing. The S-2 report lists this as one North Vietnamese body, dressed in khaki uniform, apparently killed by artillery.

In its continued patrol in this area, B Company (1-50) found relatively little on August 2 and 3. At 5:20 p. m., on August 3, B Company, however, approximately 1,000 meters from the cave, located a sleeping area large enough for two companies, which appeared to have been recently used. An undetermined amount of documents were also found at that location.

On August 2, 1968, the Reconnaissance element (1-50) encountered a claymore boobytrap approximately 4 miles from the cave, which appeared to have been placed within the preceding 2 to 4 hours. On August 3, 1968, the Reconnaissance element (1-50) had one man set off a boobytrap suspended over the trail, approximately 5 miles from plaintiff’s cave. There were four United States casualties, who were evacuated by helicopter.

B Company continued in the field for several weeks in other sections of the area of operations and, in- the latter part of August, returned to Landing Zone Uplift by helicopter. During that part of the operation from July 29 through August 3, 1968, when examination of the cave and tunnel complex occurred, the troops of B Company were not fired upon and did not engage any North Vietnamese soldiers or Vietcong members. No evidence was found that enemy forces of regimental size operated in the areas that were searched by B Company. It is clear, however, that during this period, when the cave and tunnel complex was searched, the military forces of the Government of South Vietnam and of the United States did not have effective control of the areas in the Vinh Thanh Mountains in which Task Force 1-50 operated. B Company, when it located and searched the caves on July 31, 1968, was in a combat operation in a high-risk area.

Plaintiff asserts that the $150,000 in United States currency constitutes "treasure trove” and from his capacity as a “finder” claims the right to its possession against all the world other than the true owner. The law of “finders” does not apply to this money. Plaintiff’s rights are determined by statute and duly authorized administrative regulation. It is not necessary to resort to the ancient arcane principles that were developed in the Common Law of England prior to the American Revolution to determine the rights of a squad leader in the United States military forces to 3,000 United States $50 bills that were located in a cave in the Central Highlands of South Vietnam in the course of a search-and-destroy patrol.

On July 31, 1968, plaintiff was subject to Article 103 of the Uniform Code of Military Justice. This article deals with captured or abandoned property, and is derived from the constitutional power of Congress to “make Rules concerning Captures on Land and Water.” Article 103 requires military personnel on duty in a combat zone, on penalty of court-martial, to (a) secure all public property that is taken from the enemy and (b) turn over to the proper authority all captured or abandoned property in their possession, custody, or control. In addition, article 103 prohibits military personnel from buying, selling, trading, or dealing in captured or abandoned property on his own account or from engaging in looting or pillaging. Article 103 reflects the policy that a soldier may not make a profit out of the disorders of war. The article recognizes the difficulties involved in policing an army when abandoned property situations and looting situations are involved.

Field Manual 27-10, The Law of Land Warfare (July 1956), is a compilation and analysis of legal principles that relate to the conduct of land warfare. It is based upon treaties ratified by the United States, statutory law, and applicable custom. The purpose of the manual is to provide authoritative guidance to military personnel.

Chapter 6 of FM 27-10 deals with military relationships in occupied territory. Although the rules set forth in Chapter 6 “apply of their own force only to belligerently occupied areas,” paragraph 352(b) provides that, as a matter of policy, the rules should “be observed as far as possible in areas through which troops are passing and even on the battlefield.” Paragraph 396 declares that public property captured or seized from the enemy, private property captured on the battlefield, and abandoned property are property of the United States. In the event it is unknown whether certain property is public or private, FM 27-10 states the property should be treated as public property until its ownership is ascertained.

A directive of the United States Military Assistance Command implements the provisions of article 103 for captured or seized currencies taken in field operations in Vietnam. This directive applies to all United States forces conducting operations within the Republic of Vietnam and was in force at the time plaintiff’s squad located and searched the cave on July 31, 1968. MACV Dir. 37-20 applies to any currency, either public currency or private currency, including United States dollars, Military Payment Certificates (MPC), and GVN or NVN piasters, that United States forces personnel may capture or seize in the possession of a detainee or as part of a cache.

All public currency so taken is stated to be the “property of the United States Government.” Public currency is defined as all currency which is the “property of the enemy force, state, government, or political subdivision thereof.”

Private currency is property that can be identified by the individual who can establish ownership. Private currency is any currency seized or captured by United States forces personnel and “identifiable as the personal property of an individual.”

The source of, or the true owner of, the money located in the cave is unknown. The record does not establish the identity of the parties that deposited the money in the ammunition cans or placed the cans in the cave. No individual has identified or established a claim to the money as personal property. In the circumstances of this case, the $150,000 must be treated as public property unless or until the true owner identifies it and establishes a superior personal property right. Until proven otherwise, the currency found in the cave should be considered to be public currency and, as such, the property of the United States Government.

When in the cave, and when he saw and took possession of the money, plaintiff was in a combat situation in an area not under effective control of either the South Vietnam forces or of the United States forces. If the currency was property of the enemy, it was taken in combat and is captured public property. As a general rule, all property located in enemy territory, regardless of its ownership, in time of war is regarded as enemy property subject to the laws of war.

Hypothetically, the currency located in the cave could be considered to be private currency placed in the cave by unknown South Vietnamese or other civilian parties, or even by South Vietnamese or American military personnel. In such event, the $150,000 private currency would be contraband under local law and would be abandoned property as that term is used in article 103. In article 103, the word “abandoned” covers not only property abandoned by the enemy, but also by civilian populations “in flight from the perils of the combat zone.” The term “abandoned” in article 103 is broader than the common law concept of “abandoned” property in that it includes property that was left behind or cast aside in situations where the right to possession was not voluntarily surrendered. In the circumstances of this case, the nature of the war in Vietnam would have caused any private owner of the money to abandon it to escape the “perils of the combat zone.” No South Vietnamese or American, civilian or military, who had cached profits from black market operations would assert title to the money in the cave in the circumstances, particularly when its discovery occurred on a search-and-destroy. patrol by heavily armed combat troops. In such event, the $150,000 would be private property east aside and abandoned with no intent of asserting ownership or possessory rights.

Plaintiff’s claim is disposed of by the nature of plaintiff’s mission at the time the discovery was made. Seizure of the currency was plaintiff’s military responsibility, and possession of the currency was taken as an agent of the United States. Plaintiff can assert no right to possession. This case is not concerned with, and no decision is made as to, what the result would be if plaintiff were not on a combat mission and acting well within the scope of his assigned official duties. Nor is this case concerned with a “finding” made by a member of an army of occupation or by military personnel in pursuit of wholly personal activities that lay outside the scope of assigned official responsibilities.

CONCLUSION OF LAW

Upon the findings of fact and the foregoing opinion, which are adopted by the court and made a part of the judgment herein, the court concludes as a matter of law that plaintiff is not entitled to recover, and the petition is dismissed.

       Whereas the court adopts the trial judge’s separate findings of fact, which are set forth in his report filed April 26, 1973, they are not printed herein since such facts as are necessary to the decision are contained in his opinion,

      . 10 U.S.C. § 903 (1970).

      . This does not mean that the two caves located and searched by plaintiff’s platoon were at the identical physical location. The coordinate established the location of B Company, not the location of the platoon or squad. Additionally, a field reading on a map of the scale involved (1:50,000) would be subject to a margin of error of at least plus or minus 10 meters and could be subject to even a greater error.

      . The S-2 report, in the list of items found by B Company (1-50), states that parts of a “commercial” radio were found. Whether the radio was of a military type or commercial type is not significant.

      . The S-2 report states that $935,000 (YN) were found; the S-3 report states that 550,000 (VN) were found.

      . The doctrine of “treasure trove” is of ancient origin and stems from the situations involved in the discovery of gold and silver coin, bullion, and plate that had been concealed in the ground by Roman conquerors when they were driven from the British Isles. Modern eases in the United States hold that the law of treasure trove has been merged with that of lost goods generally, at least insofar as the rights of the finder are concerned. “Lost” property is defined as that which the owner has involuntarily parted with, through neglect, carelessness, or inadvertence. “Mislaid” property is property which the owner intentionally places where he can again resort to it and then forgets. “Abandoned” property at common law was property voluntarily and unilaterally relinquished with no intent to reclaim. If concealed intentionally and deliberately, there could be no abandonment. The facts in this case show that the money was carefully placed in the cave. These common law concepts, applied to the facts of this case, would find that the $150,000 was “mislaid” and not “lost” or “abandoned.” Schley v. Couch, 155 Tex. 195, 284 S.W.2d 333 (1955); Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376 (1948), rehearing denied, 186 Or. 129, 205 P.2d 562 (1949): see also 1 Am.Jur.2d, Abandoned, Lost, Etc. Property §§ 4-5, 12, 15, 18-19, 21 (1962).

      . Article 103 provides:
      “(a) All persons subject to this chapter shall secure all public property taken from the enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.
      “(b) Any person subject to this chapter who—
      “(1) fails to carry out the duties prescribed in subsection (a) ;
      “(2) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or advantage to himself or another directly or indirectly connected with himself; or
      “(3) engages in looting or pillaging; shall be punished as a court-martial may direct.”

      . U.S.Const., art. I, § 8, cl. 11.

      . Chapter 1, § 1, Purpose and Scope, of FM 27-10, includes the following statement :
      “This Manual is an official publication of the United States Army. However, those provisions of the Manual which are neither statutes nor the text of treaties to which the United States is a party should not be considered binding upon courts and tribunals applying the law of war. However, such provisions are of evidentiary value insofar as they bear upon questions of custom and practice.”

      . Paragraph 396, Title to Captured or Seized Enemy Property, provides:
      “Public property captured or seized from the enemy, as well as private property validly captured on the battlefield and abandoned property, is property of the United States (see U.S.Const., Art. I, sec. 8, cl. 11), and failure to turn over such property to the proper authorities or disposal thereof for personal profit is a violation of Article 103 of the Uniform Code of Military Justice.”

      . Paragraph 394, Determination Whether Property Is Public or Private, provides in part:

        “e. Property of Unknown Ownership. If it is unknown whether certain property is public or private, it should be treated as public property until its ownership is ascertained.”

      . MACV Dir. 37-20 (Aug. 15, 1967), as amended (Mar. 19, 1968).

      . Section 4 of MACV Dir. 37-20 reads as follows:
      “4. DEFINITIONS. For the purpose of this directive, the following definitions pertain :
      “a. Public Currency. Currency and cash monies, including US dollars, MPC, GVN or NVN piasters, and all other cash or currency, which is the property of the enemy force, state, government, or political subdivision thereof, captured or seized by US forces personnel.
      “b. Private Currency. All cash and currency seized or captured by US forces personnel and identifiable as the personal property of an individual.”

      . Aris Gloves, Inc. v. United States, 420 F.2d 1386, 1391, 190 Ct.Cl. 367, 374 (1970), and cases there cited.

      . Decree Law 17 of September 3, 1966, of the Government of South Vietnam requires all legal financial transactions to be conducted in South Vietnamese currency. Any person, in whatever capacity, owning or having possession of foreign currency is required to deposit or register it with a bank recognized by the Commissioner of Finance. Possession of undeposited or unregistered foreign currency is illegal.

      . Foster v. United States, 98 F.Supp. 349, 352, 120 Ct.Cl. 93, 99 (1951), cert. denied, 342 U.S. 919, 72 S.Ct. 365, 96 L.Ed. 687 (1952).


source: Caselaw Access Project

author: RICH, Judge. MILLER, Judge

license: Public Domain

text:
    Application of John P. GLASS.
    Patent Appeal No. 9077.
    United States Court of Customs and Patent Appeals.
    Feb. 28, 1974.
    John F. A. Earley, Jr., Philadelphia, Pa., attorney of record, for appellant.
    Joseph F. Nakamura, Washington, D. C., for the Commissioner of Patents; Jere W. Sears, Washington, D. C., of counsel.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

This appeal is from the decision of the Patent Office Board of Appeals affirming the examiner’s rejection of all claims remaining in application serial No. 664,879 filed August 31, 1967, entitled “Whiskers.” We affirm.

The Invention

The term “whiskers” is the technical name for long, needle-like, linear crystals grown artifically from the vapor phase of such crystal-producing materials as aluminum oxide, silicon nitride,

graphite, boron, sapphire, etc. The appealed claims are directed to both apparatus and method. The whiskers are said to have very high strength and according to one prior art reference have utility for reinforcing refractory materi-ais. The application contains the following drawing:

The description in appellant’s speeification reads: • * * * there is shown a heated chamber 11 having a mixer chamber 12 which is positioned above a heated vertical cylinder 13. A precipitating zone 14 is formed within cylinder 13, and the temperature within precipitating zone 14 is hotter at the top and cooler at the bottom since a temperature gradient is maintained within precipitating zone 14 by heating means 15 which is positioned along cylinder 13.

The whisker-producing vapor is mixed in a turbulent mixer zone 16 in chamber 12, and the material to be mixed is introduced into chamber 12 through jet nozzles 17-20 which are connected to ingredient containers 23-26 by conduits 27-30 to control the flow of ingredients passing there-through.

An electron gun 37, which may be a radioactive cobalt gun, is positioned beneath cylinder 13 and is adapted to discharge electrons into the vapor in precipitating zone 14.

A collector 38 is positioned beneath cylinder 13 for collecting the whiskers formed in precipitating zone 14.

In operation, ingredients A, B, C, and D are passed from ingredient containers 23-26 through metering valves 33-36 and conduits 27-30 and are sprayed through jet nozzles 17-20 into turbulent mixer zone 16 of chamber 12 where the ingredients are thoroughly mixed together. The mixture is then passed downwardly into heated vertical cylinder 13 and precipitating zone 14. Gradient heating means 15 provides a temperature gradient within precipitating zone 14 and forms an optimum supersaturation zone 42 somewhere within precipitating zone 14.

It is to be noted that optimum zone 42 is created within precipitating zone 14 without exactly controlling conditions of temperature, pressure and supersaturation in a selected space. The vapor itself finds the optimum zone 42 by passing through a zone which is above optimum conditions, then passing through the optimum zone 42, and then passing through a zone which is below optimum conditions.

Appellant claims the above described apparatus. and the method implicit in said description in claims of varying scope and nothing would be added by setting forth typical claims, particularly in view of the ground of rejection discussed below.

The Rejections

The principal rejection affirmed by the board applies to all claims and is under 35 U.S.C. § 112, first paragraph. It is that the claims are unsupported because the specification contains an inadequate, fatally defective disclosure in that it would not enable any person skilled in the art to practice the invention claimed. In particular, as pointed out'by the examiner, appellant acknowledges that at least proper temperature, pressure, and vapor saturation conditions are necessary to precipitate a whisker from a vapor, yet none of these parameters are given in the general description and no specific example is provided. The examiner and the board both felt that appellant had also failed to comply with the “best mode” requirement of § 112, perhaps because there is no specific example. Numerous terms used are alleged to be unclear in their meaning and unexplained, such as “whisker-producing material,” “optimum supersaturation,” and “above” and “below” optimum supersaturation. Moreover, the examiner felt that the last two terms were used in the opposite senses to what they normally connote and were not only indefinite but confusing. He also found that the terms “A, B, C, and D” describing ingredients are not defined and do not refer to any particular materials. He found the intensity of the electrostatic charge, which he considered to be a matter of importance to whisker growth, if not critical, to be undisclosed. The board reversed as to the term “whisker-producing material,” since it felt it would be understood by those skilled in the art, but otherwise affirmed this rejection on the ground of incomplete disclosure.

Certain claims stand rejected on the ground tli,at they are indefinite under the second paragraph of § 112, and some claims in the same group are also rejected under § 103 on a prior art patent. We find it unnecessary to reach these rejections.

Appellant’s Arguments

Essentially, appellant contends that his specification is sufficient and that those skilled in the art would be enabled thereby to practice his invention, thus disagreeing with the opinion of the examiner that they would not be. In support of his contention, appellant introduced in his reply brief before the board, filed in response to alleged new arguments in the Examiner’s Answer, copies of four patents in the crystal-growing art, to show the knowledge of the art at the time he filed. All four of these patents issued to Lexington Laboratories, Inc., Cambridge, Massachusetts. Three were on the inventions of Campbell, Nos. 3,418,076, 3,449,071, and 3,449,147. The fourth was on the invention of Kingery et al., No. 3,365,316. Each of the four patents issued subsequent to appellant’s filing date, but each had a filing date earlier than appellant’s, so that had it been relied on by the Patent Office as prior art — which none was — it would have been available as a reference under 35 U.S.C. § 102(e). The board, which alone had these patents before it, held that they could not be accepted as showing the state of the art as of appellant’s filing date since they issued thereafter and refused to consider them. Appellant says in his brief before us that they should be considered. He argues:

It would be unfair if the Patent Office were permitted to rely on these four patents as prior art, and the applicant were denied this right.

He then proceeds to quote from and to rely on them.

OPINION

We will first dispose of the last-mentioned argument. The right of the Patent Office to rely on prior United States patents as “prior art” under § 102(e) is pursuant to the rationale of the case of Alexander Milburn Co. v. Davis-Bournonville Co., 270 U.S. 390, 46 S.Ct. 324, 70 L.Ed. 651 (1926), which that section codified. The rationale was that the patentee of the patent in suit could not be the first inventor and have a valid patent if the invention had been described in another’s patent, the application for which had been filed before the patentee’s date of invention. The Court applied the “fundamental rule * * * that the patentee must be the first inventor,” that is to say, the paten-tee of the patent there in suit. (The prior statutes from which the Court concluded one must be the first inventor to obtain a valid patent were RS 4886 and RS 4920.) Under that rationale, and as a matter of common sense, it is clear that the contents of a patent application which may be available as “prior art” under § 102(e) to show that another was the first inventor may not have been known to anyone other than the inventor, his attorney, and the Patent Office examiner, and perhaps the assignee, if there was one, until it issued as a pat--ent. As of its filing date it does not show what is known generally to “any person skilled in the art,” to quote from § 112. On the other hand, § 112 requires an applicant to so describe his invention as to enable any person skilled in the art to practice it, the purpose being to make the invention understandable to all such persons as soon as the patent issues. Sections 112 and 102(e) rest on different foundations, serve different purposes, and are not comparable. There is nothing “unfair” about the situation. The board was right in refusing to consider the patents cited by appellant and we, likewise, refuse to consider them.

Appellant’s attempt to use the disclosures of the four patents which issued after his filing date raises a subsidiary question: If a disclosure is insufficient as of the time it is filed, can it be made sufficient, while the application is still pending, by later publications which add to the knowledge of the art so that the disclosure, supplemented by such publications, would suffice to enable the practice of the invention ? We think it cannot. The sufficiency must be judged as of the filing date. Cf. In re Argoudelis, 434 F.2d 1390, 58 CCPA 769 (1970), particularly Judge Baldwin’s concurring opinion, and In re Hawkins, 486 F.2d 569 (Cust. & Pat. App.1973). 35 U.S.C. § 132 prohibits adding any “new matter” to the disclosure after filing. Moreover, the filing date becomes a date of constructive reduction to practice in determining priority of invention and this should not be the case unless at that time, without waiting for subsequent disclosures, any person skilled in the art could practice the invention from the disclosure of the application. If information to be found only in subsequent publications is needed for such enablement, it cannot be said that the disclosure in the application evidences a completed invention. We left the above-stated subsidiary question open in In re Barrett, 440 F.2d 1391, 58 CCPA 1155 (1971), see footnote 2, because decision on it was there unnecessary. It was also unnecessary to decide it in Argoudelis. Since it is squarely raised here by appellant’s contentions, we now rule that application sufficiency under § 112, first paragraph, must be judged as of its filing date. It is an applicant’s obligation to supply enabling disclosure without reliance on what others may publish after he has filed an application on what is supposed to be a completed invention. If he cannot supply enabling information, he is not yet in a position to file.

We find nothing contrary to this position in our opinion in In re Novak, 306 F.2d 917, 49 CCPA 1267 (1962), relied on by appellant. There the Patent Office and we relied on disclosures about the prior art in a Gaver et al. patent as of its U.S. filing date, which was prior to a date claimed under a parent application by the appellants. We see therein no bearing on the right of an applicant to rely on patent disclosures to show the general knowledge of the art as of any date earlier than the date the patents issued.

Considering the merits of the rejection for insufficiency of disclosure, we agree that it is insufficient to support either the apparatus or the method claims. It does not sufficiently teach how to use the apparatus or how to practice the method. We have quoted above almost all of the substance of the disclosure. While there is more to the specification, it never becomes more specific with respect to process details or apparatus operating conditions. The generality and vagueness of disclosure pervades the summary:

To summarize, instead of trying to hold exact conditions of supersaturation [as required in the prior art], the present invention provides an optimum supersaturation zone 42 which is located somewhere within cylinder 13, it passes the whisker-producing vapor through cylinder 13 so that it must pass through optimum zone 42, and it provides a copious quantity of nuclei to optimum zone 42 and also to the zones immediately before and after optimum zone 42 to insure that whiskers form and grow with no necessity of having accurate controls.

We are told that cylinder 13 is hotter at the top than at the bottom but not how hot. No temperatures at all are disclosed. We are told that a temperature gradient exists in 13 but not what it is, that “ingredients” A, B, C, and D are mixed in chamber 12 and passed into cylinder 13 but are not told what they are except that one is whisker-producing vapor molecules and another may be “nuclei,” comprising particles of barium, calcium, or strontium oxides or carbonates, that free electrons are shot upwardly into cylinder 13 from gun 37 and that all of this makes it unnecessary to exactly control temperature, pressure, and supersaturation because the “vapor itself finds the optimum zone 42” in passing through the cylinder. No pressures or flow rates are mentioned. We are told that an electric discharge point 43 may be placed in wandering zone 42 which “aids in the crystallization of fibers,” but not what it discharges or how or in what way it aids crystallization. No example to illustrate the practical operation of the process or the apparatus is given. The strong feeling one gets from reading the entire specification is that either appellant did not have possession of the details of a single operative process or, if he did, he chose not to divulge them. In fact, the deficiencies of the specification are more readily seen by reading it in toto than they are by considering only the specific criticisms the examiner undertook to make.

Basing our decision on the careful consideration of the entire specification and having considered all of appellant’s arguments, we are of the opinion that the examiner and the board were fully justified in concluding that the specification leaves too much to conjecture, speculation, and experimentation and is, therefore, insufficient in law to support any of the appealed claims.

With respect to the failure to comply with the “best mode” requirement of § 112, put forward by the examiner, the board, and the solicitor, we do not regard the situation here as presenting a “best mode” problem. Failure to set forth any mode — which is the situation here — is equivalent to non-enablement. The “best mode” provision is directed to a different type of situation. See In re Gay, 309 F.2d 769, 772, 50 CCPA 725, 731 (1962), where we discussed the first paragraph of § 112, dividing it into parts [A] and [B] (see note 2, supra), and said:

The essence of portion [A] is that a specification shall disclose an invention in such a manner as will enable one skilled in the art to make and utilize it. Separate and distinct from portion [A] is portion [B], the essence of which requires an inventor to disclose the best mode contemplated by him, as of the time he executes the application, of carrying out his invention. Manifestly, the sole purpose of this latter requirement is to restrain inventors from applying for patents while at the same time concealing from the public preferred embodiments of their inventions which they have in fact conceived.
As we view portion [B], we think that an inventor is in compliance therewith if he does not conceal what he feels is a preferred embodiment of his invention. The question of whether an inventor has or has not disclosed what he feels is his best mode is, however, a question separate and distinct from the question of the sufficiency of his disclosure to satisfy the requirements of portion [A] of section 112, supra.

The decision of the board is affirmed.

Affirmed.

MILLER, Judge

(concurring).

Although I generally agree with the reasoning of the majority and concur in the result reached, I believe the majority’s broadly-stated rule regarding sufficiency of the disclosure should be clarified, particularly with respect to its citation of the Argoudelis and Hawkins cases.

The Argoudelis application involved a microorganism starting material which was unknown to the art, but the court found that any person skilled in the art with access to the pending application under Rule 14 and 35 U.S.C. § 122 could obtain the microorganism from a federal government depository and practice the invention from the written disclosure as originally filed; also, that when the patent issued the microorganism would be available to the general public from the depository. The court held that the requirements of section 112 were met, namely: the requirement that the invention be capable of reduction to practice, because, as of the filing date, appellants “had solved all technological problems involved in producing the invention” and the disclosure was sufficient to permit a thorough examination by the Patent Office; and the requirement of complete public disclosure so that those skilled in the art could practice the invention— this in view of the court’s ruling that it was not necessary to have public access to the cultures prior to issuance of the patent.

The Hawkins application, which disclosed how to make the invention, involved cross-references to preexisting British applications, which disclosed utility (how to use) for the invention. These, being secret, likewise were unknown to the art. During prosecution, the actual textual material from the British application was substituted by amendment for the cross-references. It was accompanied by an affidavit in accordance with MPEP § 608.01 (p). The board affirmed the examiner’s rejection under section 112 on the basis of no disclosure of utility (how to use) and also under section 132 for the introduction of “new matter.” This court reversed, holding that the amendment did not constitute “new matter” because the material contained therein had been identified and specifically referred to in the application as filed. It determined that the reduction to practice requirement of section 112 was satisfied since, at the time the application was filed, the specification disclosed how to make the invention, and methods of use were disclosed in the cross-referenced, preexisting British applications. To use the court’s words: “ . . . no technological problems, the resolution of which would require more than ordinary skill and reasonable time, remain in order to obtain an operative, useful embodiment.” Finally, it determined that, with the amendatory material “now fully a part of the specification,” the public disclosure requirement of section 112 would be met by the specification as of the issue date.

Accordingly, it can be seen that the phrase “sufficiency of the disclosure” incorporates two separate requirements of section 112: the reduction to practice requirement, which must be satisfied as of the filing date of the application; and the public disclosure requirement (so that those skilled in the art can practice the invention), which need not be satisfied prior to issue date, as this court made clear in Argoudelis and Hawkins. Insofar as the majority’s broad rule relates to the first requirement, those cases are in full support; however, if related to the second requirement, there would be conflict. The second requirement is not involved in the case at bar, so it would be erroneous to conclude that the Argoudelis and Hawkins rule with respect to the second requirement has now been overruled. However, I believe this clarification of the majority’s opinion is needed.

      . See In re Glass, 474 F.2d 1015 (Cust. & Pat.App.1973) for a related invention.

      . Evans British patent 998,167.

      . § 112. Specification
      [A] The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable wny person shilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall [B] set forth the best mode contemplated by the inventor of carrying out his invention. [Emphasis and bracketed letters ours.]

      . At oral argument appellant’s attorney said Mr. Glass had had some connection with Lexington Laboratories.

      . See Janieke, “Patent Disclosure: Some Problems and Current Developments,” 53 JPOS 3, 6-8 (1971).

      . Of course, while later issuing patents or publications may not be relied upon to establish that the specification is enabling under § 112, paragraph one, reference may be made to such publications to construe claim language and in particular to prove the definiteness of claim terminology. As we observed in In re Fisher, 427 F.2d 833, 838, 57 CCPA 1099, 1106 (1970), “were we to require that the claims speak in the language of the prior art, we would be prohibiting the use of the newer and frequently more precise language of the present art.”


author: PER CURIAM.

text:
    SENECA GRAPE JUICE CORP., Petitioner, v. The UNITED STATES, Respondent.
    United States Court of Customs and Patent Appeals.
    Feb. 28, 1974.
    Murray Sklaroff, Serko & Sklaroff, New York City, for petitioner.
    Irving Jaffe, Acting Asst. Atty. Gen., Andrew P. Vance, Chief Customs Section, New York City, for United States.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, JJ.
   PER CURIAM.

This matter comes before us on petitioner’s motion to accept its appeal for filing, with a request for an order “permitting filing of the Notice of Appeal and related materials received by your court on January 29, 1974, nunc pro tunc as of January 28, 1974.”

The envelope in which the notice of appeal was received by certified mail is stamped “RECEIVED JAN 29 1974 UNITED STATES COURT OF CUSTOMS AND PATENT APPEALS” and is postmarked “NEW YORK, N. Y. CHURCH STREET STA. 78 JAN 25 P M.” There is no showing that the date of actual receipt was earlier than the stamped date, and petitioner does not contend otherwise. Inasmuch as the final order of the Customs Court from which the appeal is taken was entered November 29, 1973, the filing of the notice of appeal appears to be one day later than the sixty-day period provided by 28 U.S.C. § 2601(a).

The motion is accompanied by an affidavit setting forth that the notice of appeal was placed in the U. S. mail depository at 401 Broadway, New York, New York 10013 at approximately 1:30 P.M. on Friday, January 25, 1974, and that in the affiant’s experience normal mail delivery from said depository to points in the Washington, D. C., area is almost al-. ways overnight.

In its memorandum in support of the motion, petitioner cites 28 U.S.C. § 2601(a) and Rule 3.1(a) of this court to support its proposition that “Filing within sixty days ... is not a requirement of the applicable statute or rule.” However, petitioner apparently has overlooked section 2601(b), which provides: “An appeal is made by filing in the office of the clerk of the Court of Customs and Patent Appeals a notice of appeal . . . .” Rule 3.1(a) of this court, which provides that any party dissatisfied with any appealable decision of the Customs Court may have a review thereof “by filing a notice of appeal, in duplicate, in the office of the clerk of this court,” could hardly enlarge the statutory sixty-day period. Rule 26(b) of the Federal Rules of Appellate Procedure specifies that “the court may not enlarge the time for filing a notice of appeal . ...”

The above-referred-to affidavit, citing signed certified mail receipts, shows that the Assistant Attorney General, Civil Division, Customs Section, the Assistant Chief Counsel for Customs Court Litigation, and the Customs Court received copies of the notice of appeal on January 28, 1974. Therefore, petitioner argues that “the government” has not been prejudiced and (in substance) that it should not object to using the date of mailing rather than the date of filing, which was delayed “because of the inordinately long period of time taken by the U. S. Postal Service to deliver the appeal.” However, “the government” to which petitioner refers is the Department of Justice, which is part of the executive branch of our federal government. Being charged with execution of the laws, it must object if it perceives that the law enacted by the legislative branch would be violated by using anything other than the filing date of the notice of appeal.

Finally, if there should be any doubt over the meaning of “filing,” Rule 25(a) of the Federal Rules of Appellate Procedure provides that “filing shall not be timely unless the papers are received by the clerk within the time fixed for filing . . . .” (Emphasis supplied.) Pursuant to 28 U.S.C. § 2072, these rules, after promulgation by the Supreme Court, were reported to the Congress at or after the beginning of a regular session thereof and became effective more than ninety days after they had been thus reported. No action having been taken by the Congress with respect to Rule 25(a), Congressional approval thereof and of its interpretation of what constitutes “filing” is to be presumed. Accordingly, any relief from the interpretation of “filing” provided by this rule must be sought by way of general or special legislation of the Congress.

It is, therefore,

Ordered that petitioner’s motion be, and hereby is, denied.

      . Seneca Grape Juice Corp. v. United States, 71 Cust.Ct. _, 367 F.Supp. 1396, C.D. 4486.

      . Section 2601(a) provides: “A party may appeal to the Court of Customs and Patent Appeals from a final judgment or order of the Customs Court within sixty days after entry of the judgment or order.”

      . Rule 1.4(a) of this court provides that “The Federal Rules of Appellate Procedure shall govern any practice or procedure not specifically covered by these rules.”

      . Even before promulgation of the Federal Rules, this court had held that a motion was not “made” for purposes of 28 U.S.C. § 2640 until “delivered” — i. e., “filed” with the clerk. Minkap of California, Inc. v. United States, 55 CCPA 1, C.A.D. 926 (1967).


author: McENTEE, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. GULF PUERTO RICO LINES, INC., Defendant, Appellant.
    No. 73-1368.
    United States Court of Appeals, First Circuit.
    Argued Feb. 5, 1974.
    Decided March 19, 1974.

      Jose Antonio Fuste, San Juan, P. R., with whom Jimenez & Fuste, San Juan, P. R., was on brief, for defendant, appellant.
    Morton Hollander, Atty. Dept. of Justice, with whom Irving Jaffe, Acting Asst. Atty. Gen., Julio Morales-Sanchez, U. S. Atty., and Robert S. Greenspan, Atty. Dept. of Justice, were on brief, for appellee.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   McENTEE, Circuit Judge.

In October 1969 the United States Government contracted with defendant, Gulf Puerto Rico Lines, Inc. (Gulf) for the shipment of several thousand bags of flour from New Orleans, Louisiana, to Puerto Rico. The flour was transported aboai’d Gulf’s vessel SS MAIDEN CREEK, and arrived at its destination in December 1969 in partially damaged condition. The contract of carriage between the parties was set forth in a bill of lading issued by Gulf, which provided, in relevant part, that the agreement “shall have effect subject to the provisions of the Carriage of Goods by Sea Act [COGSA. 46 U.S.C. § 1300, et seq. (1970) ].” Pursuant to COGSA, no action for damages incurred during shipment may be maintained “unless suit is brought within one year after delivery of the goods . . .”46 U.S.C. § 1303(6). Prior to shipment of the flour, however, the Gulf bill of lading was overstamped by government officials to provide that

“This shipment is made under all terms and conditions of the Standard Form Government Bill of Lading and subject to the terms and procedures set forth in the Comptroller General of the United States Circular Letter B-150556, dated June 16, 1967.”

Among the provisions of the Standard Form is an explicit waiver by the carrier of all periods of limitation which would be otherwise applicable to commercial shipments. . '

In July 1971, some eighteen months after delivery of the damaged goods, the United States brought suit against Gulf, which promptly moved for summary judgment on the ground that, under § 1303(6), the action was time-barred. In response to this motion, the government contended that (1) Gulf had effectively waived § 1303(6) by accepting the over-stamped bill of lading, and (2) that even without such a waiver, § 1303(6) could not bar actions brought by the United States, since in order for statutes of limitation to apply to the federal government, there must be a clear manifestation of Congressional intent, not present in the legislative history of COGSA. The district court, finding a waiver of § 1303(6), denied Gulf’s motion. This matter is here on interlocutory appeal, 28 U.S.C. § 1292(b).

We agree with the district court that Gulf’s willingness to comply with the contract, despite the government’s overstamp, operated to deprive it of any statutory defense of time limitation which might have been available under § 1303(6). We note that pursuant to 46 U.S.C. § 1305, a carrier “shall be at liberty to surrender in whole or in part all or any of his rights and immunities” under COGSA. Relying either explicitly or implicitly on this section, courts have consistently recognized the legality of a waiver of the § 1303(6) limitations period. See e. g., United Fruit Co. v. J. A. Folger & Co., 270 F.2d 666 (5th Cir. 1959), cert. denied, 362 U.S. 911, 80 S.Ct. 682, 4 L.Ed.2d 619 (1960); Monarch Industries Corp. v. American Motorists Ins. Co., 276 F.Supp. 972 (S.D.N.Y.1967); The Argentino, 28 F.Supp. 440 (S.D.N.Y.1939); cf. United States v. Gydnia American Shipping Lines, 57 F.Supp. 369 (S.D.N.Y.1944). Although the above cited cases all involved post-contractual waivers, we reject defendant’s contention that an effective waiver may not be similarly executed at the commencement of the parties’ relationship. It is only where such a waiver is the “result of an undesirable exertion of superior bargaining power” that a waiver in the original contract will be held invalid. United Fruit Co. v. J. A. Folger & Co., supra, 270 F.2d at 668 n. 1 (dictum). The record in the instant case with respect to Gulf’s acceptance of the overstamp is totally devoid of any evidence of an improper use of “superior bargaining power” by the government.

We also reject, for the reasons adequately stated by the district court, defendant’s further assertion that to find a waiver under the circumstances of this case, would result in an impermissible discrimination in favor of the government in violation of 46 U.S.C. § 1309. See also The Argentino, supra, 28 F.Supp. at 442-443.

Additionally, we must recognize that under traditional rules the United States has not been subject to statutes of limitations under any circumstances. Guaranty Trust Co. v. United States, 304 U.S. 126, 58 S.Ct. 785, 82 L.Ed. 1224 (1938). When Congress in 1966 prescribed such a limitations period for actions involving the United States, 28 U.S.C. § 2415, it chose a period of six years (rather than the one year provided by COGSA) subject only to express contrary provision in other statutes. COGSA, which was enacted thirty years prior to § 2415, and which makes no mention of any limitations period for the United States, is an unlikely candidate for such a contraction of the rights of the United States. Cf. United States v. Herron, 87 U.S. (20 Wall.) 251, 22 L.Ed. 275 (1873); United States Nav. Co. v. Cunard S.S. Co., 284 U.S. 474, 52 S.Ct. 247, 76 L.Ed. 408 (1932).

Even though the provisions of COGSA do not place a one-year limitations period on the United States, it is not without significance that the bill of lading was overstamped with a notice to refer to separate provisions applicable to the government. Certain officers of the government, invested by Congress with the power to make contracts for the government on the most advantageous terms and conditions available, might logically make concessions concerning the period of limitations in order to obtain desirable terms on other elements of the transaction. The over-stamp clearly indicates that no such concession was made by the contracting officers in this case, and thus precludes the carrier from arguing that the government has waived its rights. Cf. United States v. The South Star, 210 F.2d 44 (2d Cir. 1954).

If the result of the totality of the transaction is that the government, by alert dealing, has obtained for itself a position superior to that of private shippers, the result is consistent with the preferential treatment the United States often allows itself in commercial dealings. See, e. g., Alcoa S. S. Co. v. United States, 338 U.S. 421, 422, 70 S.Ct. 190, 94 L.Ed. 225 (1949); Emergency Fleet Corp. v. Western Union Tel. Co., 275 U.S. 415, 48 S.Ct. 198, 72 L.Ed. 345 (1928); 49 U.S.C. § 22 (preferences under the Interstate Commerce Act). Accordingly, the United States should receive the benefit of the six year limitations period provided in its statute and carefully preserved by its employees.

Affirmed.

      . We recognize that the potential for such an improper exercise of bargaining power is particularly great where one of the parties is the federal government. However, we deem it unwise to conclude per se that every contractual waiver in favor of the government was obtained as the result of sucli undesirable governmental action. If such a waiver is sought to be deemed invalid, the shipper must produce actual evidence of inappropriate government bargaining conduct.


author: EDWARDS, Circuit Judge.

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. CENTRAL PLUMBING COMPANY, Respondent.
    No. 73-1437.
    United States Court of Appeals, Sixth Circuit.
    March 21, 1974.

      Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Asst. Gen. Counsel, William F. Wachter, Jane P. Schlaifer, Attys., National Labor Relations Board, Washington, D. C., on brief, for petitioner.
    Robert J. Brown, and Dean E. Denlinger, Smith & Schnacke, Dayton, Ohio, on brief, for respondent.
    Before PHILLIPS, Chief Judge, and EDWARDS and MILLER, Circuit Judges.
   EDWARDS, Circuit Judge.

The National Labor Relations Board petitions this court for enforcement of its order (reported at 198 N.L.R.B. #135) requiring respondent to accept and be bound by a collective bargaining agreement between a union and a mul-tiemployer group from which it had withdrawn in the midst of negotiations.

Respondent, Central Plumbing Company, had been for some years a part of the Dayton Association of Plumbing Contractors, a multiemployer unit which bargained collectively with the Dayton plumbers’ union, and it had signed three successive two-year agreements negotiated between the union and the association since 1964. In March of 1970 the employers and the union met again to negotiate wages and working conditions. These negotiations ultimately resulted in material amendments to the 1966 agreement between the Dayton Association of Plumbing Contractors and the union.

It is undisputed that, initially, Central Plumbing Company was a party to the 1970 negotiations. In fact, Elking, a vice president of Central Plumbing, headed the negotiations for the Dayton Association of Plumbing Contractors concerning residential construction at the beginning. In the course of those negotiations, however, Elking’s proposals were rejected by the union. At one point the union negotiating representative told Elking if the offer that Elking had just made was the best offer he could make, that it would be best for his company to go nonunion. Subsequently, Central Plumbing did withdraw from the negotiations and did go nonunion. This took place, however, without formal notice to the union, although with asserted oral notice to a union representative.

The union filed an unfair labor practice charge which, after hearing by a Trial Examiner, resulted in the Board’s finding that the company had violated Section 8(a)(5) and (1) of the National Labor Relations Act, as amended, (61 Stat. 136, 73 Stat. 519, 29 U.S.C. § 151 et seq.) by unilaterally withdrawing from a multiemployer unit found to be appropriate, and by refusing to accept and be bound by the collective bargaining agreement negotiated by the union and the association. The Board’s order required the company to cease and desist from the unlawful conduct found and affirmatively required it to honor the collective bargaining agreement entered into between the union and the association dated May 1,1970.

At least two important questions are presented in this case. First, was Central Plumbing’s withdrawal justified, as claimed by respondent, because negotiations were at an impasse ?

Second, if not, did respondent otherwise accomplish a legal and effective withdrawal from the multiemployer unit?

As to the first question, the Board found that in this case no impasse had occurred. It is undisputed that in March of 1970 negotiations began for another amendment of the 1966 agreement between the Plumbers Union and the Dayton Association of Plumbing Contractors. Although the association was composed of both union and nonunion contractors, it negotiated for its union contractors as a group, of which respondent (and its predecessor company) had long been a part. Respondent was a residential contractor and, historically, separate negotiations were conducted concerning residential work. Elking headed the residential negotiations with the Plumbers Union when negotiations began. Negotiations concerning commercial work resulted in an agreement which was ratified May 5, 1970, but which left a welder safety problem and the residential work agreement to be worked out.

In December of- 1970 Elking made a wage proposal concerning residential work and the union representative emphatically rejected it. As indicated above, the union representative said to Elking in the meeting that if he (Elk-ing) couldn’t do any better, he should go nonunion.

Subsequently, at a social gathering, Elking told another union representative, that he was going nonunion, but received no reply. And when the respondent did go nonunion, the union filed an official protest in writing.

The record clearly indicates that after respondent’s withdrawal, negotiations continued. These resulted on December 30, 1970, in a solution to the welder safety problem and on March 16, 1971, in the execution of a new residential addendum to the contract.

It is clear to us, as it was to the Board, that mere rejection of a bargaining proposal does not create an impasse. Here at all times the negotiating parties were operating under the terms of the previous agreement. Negotiations were never broken off and they ultimately resulted in a collective bargaining agreement in the residential (as well as the commercial) field. The fact that respondent was not happy with the results of the group bargaining is not indicative of an impasse, nor does it justify respondent’s failure to adhere to the group bargaining result. NLRB v. Tulsa Sheet Metal Works, Inc., 367 F.2d 55 (10th Cir. 1966).

As to whether respondent’s withdrawal from the bargaining unit was justified pn other grounds, we again find ourselves in agreement with the Board. As this court has said, “Multiemployer [bargaining] units are voluntary and consensual.” Detroit Newspaper Publishers Ass’n v. NLRB, 372 F.2d 569, 570 (6th Cir. 1967). But where there has been prior participation in such bargaining, we. believe that, absent unusual circumstances or voluntary agreement, withdrawal must be accomplished prior to the beginning of negotiations. NLRB v. Johnson Sheet Metal, Inc., 442 F.2d 1056 (10th Cir. 1971); Sheridan Creations Inc., 148 N.L.R.B. 1503, enf’d, 357 F.2d 245 (2d Cir. 1966), cert. denied, 385 U.S. 1005, 87 S.Ct. 711, 17 L.Ed.2d 544 (1967). Further, such withdrawal to be effective should, be made known to both the union and the employer group in definitive terms— preferably in writing.

The findings of fact of the Board are supported by substantial evidence on this whole record, and enforcement of the Board’s order is granted.

      . United Association of Journeymen and Apprentices of the Plumbing and Pipe Pitting Industry of the United States and Canada, Local Union No. 162, APL-CIO.

      . Actually both the welders’ safety agreement and the residential agreement were negotiated after the May 3, 1970, date. The residential agreement, which is applicable to respondent, remained a separate document as an addendum to the May 1, 1970, agreement, when all of the agreements between the parties were integrated and signed on July 1, 1971.

      . Respondent also contends that it cannot be found in violation of § 8(a)(5) because the agreement ultimately negotiated contained an illegal union security clause. Respondent concedes that, as the Board found, this fact played no role in its withdrawal and the illegal provision has been removed by a settlement agreement approved by the Board. Under these circumstances, although respondent has preserved the issue, we hold that it does not serve to insulate respondent from the Board’s 8(a) (5) violation finding.


author: COFFIN, Chief Judge.

text:
    ELECTRONICS CORPORATION OF AMERICA, Plaintiff-Appellee, v. INTERNATIONAL UNION OF ELECTRICAL, RADIO AND MACHINE WORKERS, AFL-CIO LOCAL 272, Defendant-Appellant.
    Nos. 73-1322, 73-1347.
    United States Court of Appeals, First Circuit.
    Heard Jan. 9, 1974.
    Decided Feb. 21, 1974.
    Will J. Bangs, Boston, Mass., with whom Choate, Hall & Stewart, Boston, Mass., was on brief, for Electronics Corp. of America.
    John McMahon, Boston, Mass., with whom Angoff, Goldman, Manning, Pyle & Wanger, Boston, Mass., was on brief, for International Union of Electrical, Radio and Machine Workers, Local 272.

      Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This appeal is from a summary judgment granted defendant union in a suit brought by management to vacate an arbitrator’s award culminating an employee discharge grievance proceeding. The asserted cause for discharge was a long period, spanning several years, of falsifying time tickets. Although a three day suspension accompanied a third warning given the employee, three months before his discharge, the arbitrator based his award on an alleged lack of industrial due process, since he assumed that the employee was not suspended prior to discharge and the employee had therefore been deprived of a significant step in a graduated, progressive warning system. He ordered the reinstatement of the employee. The district court deemed the factual error underlying the arbitrator’s award to be less one of decision than of explanation, construing the arbitrator, if he had indeed been aware of the suspension, as finding that the last three months of employment, following the third warning, began a “new round” of violations which required a suspension in that period. Thus, the question before us is: where the central fact underlying an arbitrator’s decision is con-cededly erroneous, can the award stand ?

The record before us shows that the documentary evidence before the arbitrator was a long and detailed letter of discharge, summarizing four years of company unhappiness with the employee’s cavalier attitude toward time tickets, meetings, oral warnings, and the three written warnings (but omitting mention of the suspension), together with tables and charts showing the extent of the employee’s delinquencies. One of the charts visually displayed to but not left with the arbitrator, for March, 1972, showed three days marked with a big “A” — which a legend identified as meaning an absence — and a faded (S) — for which there was no legend. This notation, we are informed, meant “suspension”. The warnings themselves were not introduced into evidence; the third would have indicated the imposition of a suspension. The testimony was not recorded. All we have in addition are affidavits from a company official attesting that in his opening remarks to the arbitrator, in testimony explaining the company’s warning system, and in an ex parte discussion requested by the arbitrator, he referred to the fact of suspension. Opposing affidavits claimed that at no time during the hearing did the official refer to suspension.

Three weeks after the arbitration hearing the arbitrator’s decision and award were issued. The arbitrator, conceding that the employee had been “incredibly lax”, saw a failure of industrial due process. Not having seen the warnings, he queried whether the warnings had given clear and unequivocal notice. He recognized that after the written warnings (given on December 6, 1971, December 21, 1971, and February 8, 1972) a discussion of the warnings at a meeting on April 6, 1972 was “a further step'”, but that the company had failed to take “the intermediate step” of a suspension, for which the April 6 verbal counselling was no substitute. He wrote:

“ . . . Progressive, corrective discipline has been spelled out as a guide to management over the last thirty years, to include oral warnings, written warnings, and at least one suspension before the discharge of a chronic offender will be sustained. A management which short cuts this procedure, or omits one of the steps, does so at its peril and must have a most compelling reason to justify a departure from the traditional procedural route.
In our case the Company neglected to suspend Gerasimetz before resort to discharge. There is no evidence in the record that Gerasimetz was ever given a disciplinary suspension in a final effort to persuade him to have his job tickets reflect only time spent on the job.”

He concluded by saying that this long time employee “was never given the ultimate notice of suspension before the discharge action of June 16, 1972.”

The district court, deeming the difficulty one of explanation rather than of decision, interpreted the arbitrator as saying that the missing essential step (“the intermediate step”) was a second suspension in the period between April 6 and June 16, when “a new round” commenced, the first suspension, if the arbitrator had been aware of it, now being “stale and irrelevant”. The court refrained from passing on this reasoning except to say that it was not “so irrational or faulty as to invalidate his award”.

While we share the district court’s respect for the arbitral process, I. U. E. v. Peerless Pressed Metal Corp., 489 F.2d 768 (1st Cir., 1973), cert. denied, 414 U.S. 1022, 94 S.Ct. 445, 38 L.Ed.2d 313 (1973), and also its dissatisfaction with the effectiveness of the presentation of the company’s case to the arbitrator, we cannot avoid feeling strongly that the arbitrator not only erred in his view of the facts, but that the sole articulated basis for his award was concededly in error. That is, we are convinced that there was a “gross mistake made out by evidence”, but for which, according to the arbitrator’s rationale, a different result would have been reached. Burchell v. Marsh, 17 How. (58 U.S.) 344, 350, 15 L.Ed. 96 (1854) (quoting Lord Thurlow). And, while the plaintiff can be criticized for its presentation, we cannot say there was withholding of the essential fact.

Were the arbitrator’s language truly ambiguous, we would subscribe to the district court’s interpretation of its meaning. But, on examination, we see no ambiguity. The passages we have quoted from the arbitrator’s decision seem to us clearly to reflect his impression that there had never been a suspension. We find it too difficult to believe that the arbitrator would make such a sound and even eloquent statement of the need for industrial due process without explaining why a prior suspension was inadequate. More particularly, we cannot imagine him saying, without explanation, that a verbal chastisement on April 6 was no substitute for a suspension if he had known a suspension had terminated only fourteen days earlier.

We recognize the possibility that we may be interpreted as encouraging efforts to subvert the arbitral process. We therefore reemphasize that our holding today is only that where the “fact” underlying an arbitrator’s decision is concededly a non-fact and where the parties cannot fairly be charged with the misapprehension, the award cannot stand. While we assume that the error was due to lack of emphasis in presentation and to the lapse of time before decision, and therefore in no way reflects upon the fairness of the arbitrator, we think it best if on remand the parties be free to proceed with a different arbitrator if they choose to do so. We say this having in mind the colloquy at argument concerning this procedure. In directing the parties to resubmit the issues to arbitration, we act within the scope of the Federal Arbitration Act, 9 U.S.C. § 10(e), which, we have held, applies to collective bargaining agreements. Local 205, United Electrical, Radio, and Machine Workers of America (UE) v. General Electric Co., 233 F.2d 85, 98-101 (1st Cir. 1956); see also Pietro Scalzitti Co. v. International Union of Eng., Local No. 150, 351 F.2d 576, 579-580 (7th Cir. 1965).

Reversed and remanded for an appropriate order directing the parties to resubmit the issues to arbitration. No costs.

      . We do not reach the issue posed by the union’s appeal from the district court order refusing to order back pay from the date of discharge.

      . Were the issue of the company’s misleading the arbitrator a critical one, summary judgment could not have issued in the face of such a conflict. We, like the district court, consider that the facts were before — if not effectively before — the arbitrator.

      . We do not mean to imply that, on resubmission to arbitration, there might not be a rationale, consistent with the facts, which could support a similar award. All we say is that an award of reinstatement based on the lack of any suspension cannot stand if in fact there had been a suspension.


text:
    Joseph PADGETT et al., Plaintiffs-Appellants, v. LOUISVILLE AND JEFFERSON COUNTY AIR BOARD, Defendant-Appellee.
    No. 73-1671.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 26, 1973.
    Decided Feb. 15, 1974.
    Stuart L. Lyon, Louisville, Ky., for plaintiffs-appellants; David Kaplan, Louisville, Ky., on brief.
    T. Kennedy Helm, Jr., Stites, McElwain & Fowler, Louisville, Ky., for defendant-appellee; Bert T. Combs, Paul Humphrey, Louisville, Ky., of counsel.
    Before PHILLIPS, Chief Judge, PECK, Circuit Judge, and JOINER, District Judge.

       Honorable Charles W. Joiner, United States District Judge for the Eastern District of Michigan, sitting by designation.

   PER CURIAM.

This antitrust action for damages under the Sherman and Clayton Acts was brought by certain independent taxicab operators against the Louisville and Jefferson County (Kentucky) Air Board, and four other defendants who are not parties to this appeal. In a memorandum and order of October 20, 1972, the District Court sustained the defendant Air Board’s motion to dismiss. The plaintiffs-appellants thereupon filed a notice of appeal but this Court found that it lacked jurisdiction to consider the appeal inasmuch as the District Court had not directed the entry of a final judgment as required by Rule 54(b), Fed.R.Civ.P. Joseph Padgett v. Louisville and Jefferson County Air Board, No. 72-2221 (6th Cir. May 7, 1973) (order). Subsequent thereto on May 30, 1973, the District Court filed an order amending its judgment so as to comply with Rule 54(b). This appeal was perfected therefrom.

The Air Board operates Louisville’s major airport and after a public invitation for bids, awarded a contract to the Yellow Cab Company to station cabs at the airport. Appellants were aware of the invitation but did not submit bids. The District Court found that the Air Board “ . .' . is a governmental agency and the antitrust laws do not apply to the activities of a governmental agency.” Thus it did not reach the question of the contract’s effect on the rights of the independent cab drivers to service the airport.

As to whether a quasi-governmental agency such as the Air Board is exempt from the antitrust laws, the District Court relied on the leading case of Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), wherein the Supreme Court stated in part:

“We find nothing in the language of the Sherman Act or in its history which suggests that its purpose was to restrain a state or its officers or agents from activities directed by its legislature. In a dual system of government in which, under the Constitution, the states are sovereign, save only as Congress may constitutionally subtract from their authority, an unexpressed purpose to nullify a state’s control over its officers and agents is not lightly to be attributed to Congress.” 317 U.S. at 350-351, 63 S.Ct. at 313.

In recent years courts have given considerable attention to Parker v. Brown and have generally rejected “ . the facile conclusion that action by any public official automatically confers exemption.” George R. Whitten, Jr., Inc. v. Paddock Pool Builders, Inc., 424 F.2d 25, 30 (1st Cir. 1970). See also, Hecht v. Pro-Football Inc., 144 U.S.App.D.C. 56, 444 F.2d 931 (1971); Woods Exploration & Producing Co. v. Aluminum Company of America, 438 F.2d 1286 (5th Cir. 1971); Washington Gas Light Co. v. Virginia Electric and Power Co., 438 F.2d 248 (4th Cir. 1971). While we similarly reject the proposition of a general governmental immunity, we find it unnecessary to submit Parker to an extensive analysis for purposes of the instant case.

We first agree with the District Court when it concluded that the following Kentucky statutes make it clear that the appellee Air Board is properly considered a quasi-governmental agency:

KRS 183.012(2):
“As used in this chapter, ‘governmental unit’ means any city, or the combination of any two (2) or more thereof, or any county, or combination of two (2) or more such counties, city or cities, acting jointly with any county or counties or an airboard or board established as provided in this chapter.”
KRS 183.132:
“(1) Any city or county, or city and county acting jointly, or any combination of two or more cities and/or counties may establish a nonpartisan air board composed of six members.
“(2) The board shall be a body politic and corporate with the usual corporate attributes, and in its corporate name may sue and be sued, contract and be contracted with and do all things reasonable or necessary to effectively carry out the duties prescribed by statute. The board shall constitute a legislative body for the purposes of KRS 183.630 to 183.740.” KRS 183.476:
“ . . . the acquisition, establishment, construction, enlargement, improvement, maintenance, equipping and operation of. airports and other navigation facilities, and the exercise of any other powers granted to air boards or municipalities in this chapter, are hereby declared to be public, governmental and municipal functions, exercised for a public purpose, and matters of public necessity. . . . ”

See, American Airlines, Inc. v. Louisville and Jefferson County Air Board, 269 F.2d 811, 817 (6th Cir. 1959).

Parker involved regulatory action by a state in its capacity as a sovereign and laid the foundation for establishing governmental action as an antitrust shelter. At least one Circuit has made the Parker doctrine applicable to airport authorities. E. W. Wiggins Airways, Inc. v. Massachusetts Port Authority, 362 F.2d 52, 55 (1st Cir. 1966), cert. denied, 385 U.S. 947, 87 S.Ct. 320, 17 L.Ed.2d 226. There the Port Authority entered into an exclusive lease with a private corporation for the fixed base operations at Logan Airport in Boston, thereby precluding other private corporations from participating in those activities. The First Circuit concluded, “It is clear that in [executing the lease, the Port Authority] was acting as an instrumentality or agency of the state, pursuant to the legislative mandate imposed upon it to operate and manage the airport and establish rules and regulations for its use.” 362 F.2d at 55.

In the instant case, the state has legislatively created an instrumentality, the Air Board, whose charge is, inter alia, to operate the airport. There is no question in our own minds but that the regulation of ground transportation services is necessarily incident to the management and operation of the airport facilities. Air travelers require ground transportation and it would follow that the Board, as the agent of the state in performing this function, would have a duty to provide adequate and reliable services. In responding to this duty the Board has taken what we view as the not unreasonable position that noncon-tracting taxi operators may not provide services at the airport unless they first obtain the Board’s permission. Given the circumstances of the public invitation for bids and the broad statutory grant of power to manage and operate a virtual monopoly in the public interest, we conclude that the Board in contracting for cab service at the airport was exercising a valid governmental function to which the antitrust laws do not apply.

The judgment of the District Court is affirmed.

      . In our view the phrase “quasi-governmental” more appropriately describes the agency.