author: CHOY, Circuit Judge:

text:
    In the matter of the complaint of the UNITED STATES of America, Appellant, for exoneration from or limitation of liability as owner of the Coast Guard Vessel, CG 40427, v. STANDARD OIL COMPANY OF CALIFORNIA, Appellee. In the matter of the complaint of the UNITED STATES of America (etc.), Appellee, v. STANDARD OIL COMPANY OF CALIFORNIA, Appellant. In the matter of the complaint of STANDARD OIL COMPANY OF CALIFORNIA, Appellant, for exoneration from or limitation of liability as owner of the tugboat “Standard No. 4,” and the barge “S.O.C.O. No. 18.” v. UNITED STATES of America, Appellee.
    Nos. 72-1040, 72-1120 and 72-1121.
    United States Court of Appeals, Ninth Circuit.
    April 18, 1974.

      Allan J. Weiss (argued), Admiralty & Shipping Section, U. S. Dept, of Justice, San Francisco, Cal., for appellant-cross appellee.
    Noble K. Gregory (argued), of Pillsbury, Madison & Sutro, San Francisco, Cal., for appellee-cross appellant.
    Before KOELSCH, BROWNING and CHOY, Circuit Judges.
   OPINION

CHOY, Circuit Judge:

Standard Oil Company of California (Standard) and the United States each filed petitions in the district court seeking exoneration from, or limitation of, liability for the results of a disastrous gasoline fire in San Francisco Bay. Jurisdiction in personam for these petitions was based on 46 U.S.C. §§ 181-195 (1970) providing for the limitation of a vessel owner’s liability, and the Admiralty Act, id. §§ 741-752 and Public Vessels Act, id. §§ 781-790 which afford the same remedies against the United States as against private carriers. Following a court trial on the Government’s petition, the district court, sitting in admiralty, issued a final decree determining both parties to be equally and mutually at fault in causing the fire. The United States appeals from this judgment, while Standard cross-appeals from a later decree denying it contribution from the United States for certain claims filed only against Standard. We affirm the district court’s determination of mutual liability, but reverse its decision denying Standard any right of contribution.

Facts

On the evening of September 26, 1966, Standard’s Barge No. 18 was loaded at the company’s refinery in Richmond, California with some 989,730 gallons of various grades of gasoline. Standard’s Tug No. 4 was then brought into position and secured to the stern saddle of the barge for departure from Richmond to Pier 64 in the Central Basin area of San Francisco Bay where the gasoline was to be off-loaded at the Standard storage area. Between 10:45 and 11:00 p. m. as the vessels arrived at Central Basin, Tug No. 4 had mechanical difficulty in reversing its engines which prevented it from navigating and stopping in the usual manner. This forced the master of the tug, Captain Autiere, to ground the barge on an abandoned launching ramp in the southwest corner of the basin. An angle iron and drift pins attached to pilings at the ramp punctured the No. 1 port tank of the barge, and gasoline began to leak into the waters of the bay. The tug failed in its attempts to extricate the barge.

Sometime beween 11:00 and 11:30 p. m. that evening, the radio operator on duty at the United States Coast Guard’s Captain of the Port office heard a message over the “tug circuit” about a gasoline spill in the bay. The “tug circuit” is a private radio communications circuit utilized by various tug and barge operators i*n San Francisco Bay. The Captain of the Port has equipment to monitor this circuit, as well as to communicate over it in case of emergency to control vessels. This circuit is in addition to the Coast Guard’s own radio circuit which the Captain of the Port uses to communicate with other Coast Guard stations in the bay area. The radio operator reported the information concerning the spill to the Coast Guard duty officer, who took no action at that time.

About ten minutes later, the Captain of the Port’s office received a telephone call reporting a gasoline leak from Standard’s Tug No. 4 in the Central Basin. After the San Francisco Fire Department was notified, Chief Petty Officer Day, the duty officer representing the Captain of the Port, ordered Coast Guard patrol boat CG 40427, which was docked at a nearby pier, to go into the area to investigate. CG 40427, a 40-foot steel-hulled utility vessel equipped with two water cooled diesel engines, was under the operational command of the Captain of the Port. Arriving in the Central Basin about 12:05 a. m., Coxswain Bush, who was in command of the vessel, noticed that the Fire Department was already at the scene on Pier 64 with a fire truck and firemen spraying the surface in order to break up the gasoline. The concentration of gasoline was extremely heavy by then, with pronounced fumes and vapor rising like a fog some three feet from the surface. This situation was reported by radio to Officer Day, who then ordered CG 40427 to proceed to the nearby Bethlehem Shipyards and stop the continuing of any burning operations. When this was accomplished, Day ordered the patrol boat to investigate the cause and magnitude of the spill. CG 40427 proceeded over the gasoline-covered surface alongside the tug and barge. Coxswain Bush went aboard the barge, determined the amount of gasoline lost from the No. 1 port tank — eventually some 25,000 gallons — and that all other tanks appeared intact. After reporting these facts to Day, he requested and was given permission to withdraw from the area.

Shortly, the Captain of the Port’s office began to have difficulty maintaining radio contact with CG 40427, although the tug circuit remained clear. At 12:34 a. m. Officer Day departed by automobile from his office to the Central Basin to make a personal inspection. He arrived about twenty minutes later and ordered CG 40427 to take him to the stricken barge. The patrol boat again traversed the gasoline-covered waters to the two stranded vessels. Day boarded the barge and discussed with the tanker-man the feasibility of transferring gasoline from the ruptured tank to the undamaged tanks. When informed that this could be done in about ten minutes, Officer Day boarded the tug and told Captain Autiere not to attempt to move the barge because of the danger of tearing open the other tanks. Returning to CG 40427, Officer Day ordered it to return to Pier 64.

As Officer Day was leaving the pier by automobile, he noticed that the recently-arrived Standard Tug No. 2 had passed a tow line to the immobilized tug to pull the barge off the ramp. Using his car radio, he ordered CG 40427 to stop Tug No. 2 and to proceed back to Tug No. 4 to obtain the tug captain’s name and license number for an oil pollution form. The patrol boat went alongside Tug No. 2 and ordered it not to pull the barge. The tug complied and moved about 75 to 100 yards out of the area. CG 40427 then returned to Tug No. 4 and tied up port side to its starboard quarter with engines left idling. The coxswain boarded the tug to obtain Au-tiere’s license number, but when the captain said he did not have his license there, Bush returned to CG 40427 to radio Day and ask if this information might be telephoned in the morning. Unable to reach Officer Day, Coxswain Bush was just about to step back from his vessel onto the tug when he heard the port engine of CG 40427 accelerate followed by a loud popping noise behind him which sounded like a firecracker. He turned, saw what appeared to be a flame near the port side of his boat where the engine was located, and saw smoke ■ coming from the engine’s compartment, then almost instantaneously a burst of flames. In the words of one of the onlooking crewmen aboard Tug No. 2, “then the whole works blew up.”

All three crew members of the Standard tug and barge, and two of the three Coast Guard sailors were killed as a result of the fire. Only Coxswain Bush, miraculously, escaped with slight injuries. In addition, there was extensive fire damage to the three vessels and assorted property damage to docks, rafts, floats, piers and other shore property.

Claims were filed against both Standard and the United States in their respective limitation proceedings by the estates of the deceased Standard employees. Claims against only Standard were filed by representatives of the two deceased members of the Coast Guard, Coxswain Bush, and others who sustained property damage. Standard and the United States each filed affirmative claims for losses in the other’s limitation proceeding, with Standard in addition seeking contribution or indemnification from the United States. The two limitation proceedings were originally consolidated for trial, but after Standard proposed a settlement with the individual death claimants, the actions were severed and the issue of the Government’s liability was tried to the court.

Government’s Contentions

The United States raises several assignments of error: (1) the district court erred in finding that Officer Day was negligent and that CG 40427 was a proximate cause of the fire; (2) the court erred in not finding that Captain Autiere’s disobedience of the Coast Guard order not to attempt to move the barge was a supervening proximate cause of the fire; (3) the district court’s conclusion that Officer Day was a “managing officer” whose privity or knowledge could impose unlimited liability on the United States is erroneous; (4) the court erred in its computation of damage awards for the estates of the decedents.

Negligence and Causation

The Government challenges as being clearly erroneous the following findings of fact:

“The court finds that the operation of the patrol boat in the area of gasoline vapors pursuant to the orders of the Captain of the Port was a violation of the standing orders of the Captain of the Port and was negligent. This is true whether the Captain of the Port’s standing orders or the normal duty of ordinary care is used as the standard of conduct.
“The court finds by a preponderance of the evidence that the fire was started by some operation of the patrol boat in the area of gasoline vapors, either as a result of the ingestion of gasoline vapors into the air intake system of the pork engine, causing a back fire, or by sparking of an exposed electrical contact in the electrical system of the patrol boat.”

As appellant recognizes, our standard for reviewing findings of fact made by the trial court sitting without a jury in admiralty, is whether these findings can be said to be clearly erroneous. United States v. Soriano, 366 F.2d 699 (9th Cir. 1966). “A finding is clearly erroneous when ‘although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed’. . . .” Mc-Allister v. United States, 348 U.S. 19, 20, 75 S.Ct. 6, 8, 99 L.Ed. 20 (1954). In making this determination, the prevailing party must be given the benefit of all inferences that may reasonably be drawn from the evidence. United States v. Alaska Steamship Co., 491 F.2d 1147 (9th Cir. 1974); Pacific Queen Fisheries v. Symes, 307 F.2d 700, 706 (9th Cir. 1962).

Appellant contends that Officer Day was not negligent in ordering CG 40427 back to the stranded tug and barge because this decision was made under the extenuating circumstances of an extreme emergency. We disagree. There was no imminent danger once Standard Tug No. 2 ceased its attempts to move the barge. By that time, the vessels had been incapacitated for almost two hours without incident. Short of actually rescuing the Standard crewmen, there was no valid purpose for the patrol boat again going into the area, since any further necessary information could have been obtained by other means, e. g. a relay over the tug circuit. Viewing the evidence in the light most favorable to thq prevailing party, Northern Fishing & Trading Co. v. Grabowski, 477 F.2d 1267, 1270 (9th Cir. 1973), we are not definitely and firmly convinced that the district court was mistaken in finding Officer Day to be negligent.

The Government also contends the finding that the patrol boat was a proximate cause of the fire is clearly erroneous because based upon mere conjecture or guess. While it is true that the actual cause of the disaster is unknown, this is often the case when damage results from a fire, simply because of the difficulties inherent in determining the real source. See Minerals & Chemicals Corp. v. S. S. National Trader, 445 F.2d 831 (2d Cir. 1971). However, it is unnecessary, as appellant urges, that the cause be proven by direct evidence. When direct proof of causation is lacking, “the causal connection can be shown by facts and circumstances which, in the light of ordinary experience, reasonably suggests that the [party’s] negligence in the manner charged operated proximately to produce the injury.” Johnson v. Griffiths S. S. Co., 150 F.2d 224, 226 (9th Cir. 1945); see Meadows & Walker Drilling Co. v. Phillips Petroleum Co., 417 F.2d 378, 382 (5th Cir. 1969). See also Michalic v. Cleveland Tankers Inc., 346 U.S. 325, 330, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960). Our view of the record reveals substantial circumstantial evidence, not only in the testimony of Coxswain Bush, but also from other observers, which supports the district court’s finding that the patrol boat was a proximate cause of the fire.

Captain Autiere’s Conduct

The Government maintains that Captain Autiere’s failure immediately to stem the flow of gasoline from the ruptured tank by transferring it to the undamaged tanks, and his subsequent disobedience of the order not to attempt to move the barge, were negligent acts which constitute supervening proximate causes of the fire. This contention is without merit. By definition, in order to constitute a superseding cause, Captain Autiere’s acts must have intervened, or come into active operation, at a time later than some antecedent negligence on the part of the Government, thereby preventing liability for that antecedent negligence. United States v. Marshall, 230 F.2d 183, 190-191 (9th Cir. 1956). See generally W. Prosser, Law of Torts § 44 at 271 (4th ed. 1971); Restatement (Second) of Torts §§ 440-41 (1965). Here the dispatch of CG 40427, a boat ill-suited for operation in gasoline laden waters, into the danger area for the third time followed Au-tiere’s conduct.

Limitation of Liability

The United States seeks to limit its liability for damage claims to the amount of its interest in, or the value of CG 40427, because such damage occurred without its privity or knowledge as owner of the vessel. 46 U.S.C. § 183(a) (1970). Supporting this claim for limitation, the Government contends that any negligence of Chief Petty Officer Day, the non-commissioned officer standing duty watch as Captain of the Port, cannot be imputed to it since Day was “[a]eting merely as a representative of his commanding officer [with] duties no higher than that of an ordinary servant or employee . . . .” The district court determined, however, that “[t]he negligence of the United States . . . was that of the duty officer of the Captain of the Port, who for purposes of limitation of liability was a person whose knowledge of or privity to the negligence precludes the United States from entitlement to limitation.” Although stated as a conclusion of law by the district court, it is clear that this determination must be considered a finding of fact. Port of Pasco v. Pacific Inland Navigation Co., 324 F.2d 593, 599-600 (9th Cir. 1963); see Coryell v. Phipps, 317 U.S. 406, 411, 63 S.Ct. 291, 87 L.Ed. 363 (1943). As such, we find it to be amply supported by the record.

The same standards are applicable to the United States when it seeks limitation of liability because such was occasioned without its privity or knowledge, as would be the case if a private corporation were seeking the same benefit. See The Midland Victory (Petition of United States), 178 F.2d 243 (2d Cir. 1949); USNS POTOMAC (Petition of United States), 303 F.Supp. 1282, 1304 (E.D.N.C.1969). By necessity in both instances, the requisite privity or knowledge can be attributed to the owner only by the acts of its employees. The significant classification, therefore, is between those employees with sufficient managerial authority to bind the corporate, or in this case governmental owner, as distinguished from those employees having no general powers of superintendence over the whole or a particular part of the business. Compare States S. S. Co. v. United States, 259 F.2d 458 (9th Cir. 1958) with Petition of Kinsman Transit Co., 338 F.2d 708 (2d Cir. 1964). See generally Waterman Steamship Corp. v. Gay Cottons, 414 F. 2d 724, 730-731 at n. 14-15 (9th Cir. 1969); 3 Benedict on Admiralty § 490 (6th ed. 1940). In short, the inquiry must focus on whether the negligence is that of “managing officers” or, more properly, “supervisory employees.” The title or rank of these employees is, by itself, of limited value in determining on which side of the line a particular case falls. While this may be one factor, “the real test is not as to their being officers in a strict sense but as to the largeness of their authority.” Waterman Steamship Co., supra at 731, quoting In re P. Sanford Ross, 204 F. 248, 251 (2d Cir. 1913). We conclude that when he was acting as duty officer of the Captain of the Port, Officer Day had sufficient supervisory authority to charge the United States with privity or knowledge of his negligence.

As duty officer standing the watch, Officer Day had been delegated full responsibility and authority to manage the office of the Captain of the Port. In this capacity, the utility patrol boats were directly under his supervision and control. Insofar as the men aboard the CG 40427 were concerned, his orders were to be obeyed just as if they came from the Captain of the Port. Indeed, for all practical purposes, he was the Captain of the Port pro tern despite his rank in the Coast Guard. Under these circumstances we cannot say that the district court erred in its determination that his negligence was within the privity and knowledge of the United States as owner of the vessel. See States S. S. Co. v. United States, supra, 295 F.2d at 474; Great Atlantic & Pacific Tea Co. v. Brasileiro, 159 F.2d 661 (2d Cir. 1947).

The Damage Awards

The district court, after considering the age, life expectancy, number of survivors, earning capacity and personal living expenses of the four Standard employees at the time of their deaths, awarded damages to their representatives. These awards ranged in round figures from $163,000.00 to $211,000.00. The United States now for the first time maintains that the awards are an unwarranted windfall to the families of the deceased because the court failed to make greater allocations for personal living expenses, failed to deduct federal or state taxes, and failed to reduce the awards to their present value. The short answer to these contentions is that we will not reverse the trial court on issues that the record shows were never raised before it. Walker v. Continental Life & Accident Co., 445 F.2d 1072, 1075 (9th Cir. 1971); Union Pacific R. R. v. Johnson, 249 F.2d 674, 677 (9th Cir. 1967).

Standard’s Cross-Appeal

Standard cross-appeals from the district court’s order denying its contribution claim against the United States for any amounts paid or to be paid to the various property damage claimants. No contribution is sought for its payments in settlement with the representatives of the two deceased Coast Guard crewmen, or with Coxswain Bush. The district court’s denial of Standard’s claim, as between joint tortfeasors in this noncollision maritime action, was based upon the Supreme Court’s decision in Halcyon Lines v. Haenn Ship Ceiling and Refitting Co., 342 U.S. 282, 72 S.Ct. 277, 96 L.Ed. 318 (1952), and later interpretations of that decision by this court. This question is an open one in this circuit. Nickert v. Puget Sound Tug & Barge, 480 F.2d 1039, 1041 (9th Cir. 1973) (dictum). We conclude that Halcyon. does not warrant the denial of contribution in this case.

Halcyon involved an action by an injured employee of Haenn, a ship refitting company hired to make repairs on a vessel, against the owners of that vessel for negligence and unseaworthiness. Halcyon Lines, the ship’s owner, im-pleaded Haenn charging that it was con-tributorily negligent in causing the accident. Reversing the lower court’s decision which permitted a claim of contribution by Halcyon against Haenn, the Court expressly created an exception to the established admiralty doctrine of apportioning damages equally among mutual wrongdoers. Although the exception is stated broadly to include all non-collision maritime cases, the Court’s reasons for denying contribution in that case were narrow. That is, where Congress had expressly immunized Haenn, as an employer of harbor workers, from suits by its employees for tort liability, the Court found it inappropriate, in effect, to evade this congressional policy by permitting a right of contribution against Haenn. Since no prior Supreme Court decision required that contribution be granted in noncollision cases, the Court refused to grant such relief in that case. Halcyon, supra at 285-287. But see White Oak Transportation Co. v. Boston, Cape Cod & New York Canal Co., 258 U.S. 341, 42 S.Ct. 338, 66 L.Ed. 649 (1922).

We agree with the Fifth Circuit Court of Appeals that regardless of whether Halcyon is strictly limited to its facts denying contribution from a joint tortfeasor who is statutorily immune from suit, or whether its broad language concerning all noncollision maritime actions is considered dictum, the Halcyon doctrine is inapplicable here. Horton & Horton, Inc. v. T/S J. E. Dyer, 428 F.2d 1131, 1134 (5th Cir. 1970), cert. denied, 400 U.S. 993, 91 S.Ct. 461, 27 L.Ed.2d 441 (1971). In this case, those individuals who suffered property damage filed claims first only against Standard, probably because of the great likelihood that it would be held responsible for such losses. But, had any of these claimants foreseen that the United States similarly would be held liable, undoubtedly they would have made these claims against the Government, just as the representatives of the Standard crewmen did.

This situation is unlike that in Halcyon where the injured employee was precluded by statute from suing his employer. Here, the tort liability of the United States was not limited by statute; on the contrary, the Government’s immunity has been expressly waived for its negligence in this type of case. Under these circumstances, we see no reason for not requiring the United States to contribute toward the damages resulting from its negligent conduct. Therefore, in this noncollision admiralty case where damages are the result of mutual wrongdoing, we hold that contribution will lie where no statute precludes recovery from the joint tortfeasor against whom contribution is sought. In re Seaboard Shipping Corp., 449 F.2d 132, 138-139 (2d Cir. 1971), cert. denied sub nom. Seaboard Shipping Corp. v. Moran Inland Waterways Corp., 406 U.S. 949, 92 S.Ct. 2038, 32 L.Ed.2d 337 (1972); Horton & Horton, Inc., supra, Watz v. Zapata Off-Shore Co., 431 F.2d 100 (5th Cir. 1970).

No. 72-1040 is affirmed.

Nos. 72-1120 and 72-1121 are reversed and remanded.

      . The Captain of the Port has promulgated an “Organization Book” containing orders for the operation and handling of boats by the Coast Guard, including the CG 40427. One such general order prescribed procedures for investigating oil and gasoline spills on the water and read:
      “If dangerous cargo is involved, inform the OOD [officer on duty] of the danger and request him to warn the patrol craft and fireboat to stay well outside the perimeter of the spill area until it is dissipated and made safe.
      “If dangerous cargo is involved, do not institute your investigation while fire preventive measures are underway. As soon as all preventive action is completed, start getting information and samples.”

      . The prior decisions of this court did not require our determination of the question presented here, as to whether contribution is available in a situation in which no statute prevents recovery from a joint tortfeasor. In Amerocean Steamship Co. v. Copp, 245 F.2d 291, 294 (9th Cir. 1957) and Union Sulphur & Oil Corp. v. W. J. Jones & Son, 195 F.2d 93, 94-95 (9th Cir. 1952), we faced the same question presented by Halcyon (see text infra) of whether an indirect recovery should be permitted where a statute precluded a direct recovery. We there followed Halcyon and held that it could not. In Simpson Timber Co. v. Parks, 390 F.2d 353, 356 (9th Cir. 1957) and States S.S. Co. v. Rothschild International Stevedoring Co., 205 F.2d 253, 254-255 (9th Cir. 1953), the issues were not ones of contribution but of indemnification. Halcyon therefore was not involved, as was noted both in Rothschild, 205 F.2d at 255 and in Simpson Timber, 390 F.2d at 356, and any reference to this decision merely served the purpose of comparing the related doctrines of contribution and indemnification.


source: Caselaw Access Project

author: JAMESON, Senior District Judge.

license: Public Domain

text:
    Donald NEWGENT, Plaintiff-Appellant, v. MODINE MANUFACTURING COMPANY and United Auto Workers Local Union Number 530, Defendants-Appel-lees.
    No. 73-1363.
    United States Court of Appeals, Seventh Circuit.
    Argued Feb. 21, 1974.
    Decided April 11, 1974.

      Vincent P. Campiti, South Bend, Ind., for plaintiff-appellant.
    Walter P. Loomis, Jr., Chicago, 111., John A. Fillion, Leonard R. Page, Asst. Gen. Counsel, Detroit, Mich., for defendant-appellee.
    Before CASTLE, Senior Circuit Judge, CAMPBELL, Senior District Judge, and JAMESON, Senior District Judge.

       Senior District Judge William J. Campbell of the Northern District of Illinois is sitting by designation.

       Senior District Judge William J. Jameson of the District of Montana is sitting by designation.

   JAMESON, Senior District Judge.

Plaintiff-appellant, Donald Newgent, brought this action against his employer, Modine Manufacturing Company (Modine), and his local union, United Auto Workers Local Union Number 530 (Union), alleging that he was dismissed from his employment improperly and without cause, and “not as provided” in the collective bargaining agreement between the defendants, and that the Union did not properly and adequately defend and protect his rights under the agreement. Following answers and discovery, both defendants filed motions for summary judgment.

After a hearing the district court Concluded that there was no genuine issue of any material fact and granted both motions. The court held that Modine had properly terminated Newgent and that thereafter he “failed to avail himself of the procedures that were open to him”. With respect to the Union, the court held that since Newgent had been properly terminated there could be no liability on the ground that the Union did not fairly represent him, and in the alternative that there was “no genuine issue in dispute” that would indicate that the Union’s conduct in representing Newgent, “even in the discussions of settlement, was arbitrary, discriminatory or in bad faith”. We affirm.

Statement of Facts

From the pleadings, depositions, exhibits and affidavits presented to the district court on the motions for summary judgment, the facts may be summarized as follows:

Newgent failed to report for work at the end of his vacation on June 12, 1967. On June 14 he reported at Mo-dine’s plant and secured from his foreman a personal leave of absence until June 19 because he was having difficulties with a tavern business he operated in addition to his duties at Modine. In his deposition Newgent testified that he reported to his foreman on June 14 because he was aware of a requirement in the collective bargaining agreement “that you had to report to somebody at the Company within three days after you had been absent or you would lose your job”.

On June 19 Newgent reported for work but on June 20 again failed to appear. He telephoned Modine, informing the nurse on duty that he was having back trouble and was going to see a doctor and did not know when he would be able to return to work. He consulted his physician and was referred to another physician and advised not to return to work until X-rays had been taken and evaluated. X-rays were taken on June 29. Although not hospitalized or confined to bed, Newgent did not contact Modine or inform it of the reason for his extended absence.

Modine placed Newgent on sick leave status from June 20 through June 23. On June 26 his status was changed to absent without leave and on June 29 he was terminated for being absent for three consecutive working days without notifying Modine. A “Termination of Service” form was sent to Newgent by registered mail, and he received it on July 5.

On July 10 Newgent contacted Mo-dine’s plant superintendent, John Over-myer, to protest the termination. Over-myer informed Newgent that he could not change the termination and that Newgent should discuss the matter with the personnel supervisor, Mr. Haney, when he returned from vacation on July 17. Newgent met with Haney on July 18 and was advised that the termination would stand. Following the meeting with Haney, Newgent contacted the Union president, Robert Hluchan, and, with the assistance of James Graham, a vice president of the Union, a grievance protesting Newgent’s termination was prepared and filed with Modine on August 1.

In his deposition, taken on December 2, 1969, Newgent stated that he first discussed the filing of this grievance with Union officials on July 18, the day he talked to Mr. Haney. However, in an affidavit dated July 28, 1972 and filed in opposition to the motions for summary judgment Newgent states that he first contacted Graham on July 10 and that on this date he and Graham prepared a handwritten grievance “on a yellow sheet of paper”. Graham allegedly stated that the form would have to be redone to correct spelling and that he would file “right away” both the corrected and hand-written copies of the grievance. The affidavit also alleges that during the July 18 meeting Hlu-chan and Graham “stated that they were unable to find the union’s copy of the original Grievance and they also stated that the company denied any knowledge about the original Grievance which had been previously prepared”. There is no evidence that this alleged grievance was ever presented to Modine.

Union officials met with Modine a number of times in August and September to discuss Newgent’s grievance. Modine insisted that the grievance was untimely since it was not filed within five working days after Newgent learned of his termination. At one point during the negotiations Modine offered to reinstate Newgent without back pay, but Hluchan rejected this offer. A later offer of reinstatement with back pay was also rejected by Hluchan and Newgent, since it was conditioned on having the Union drop an unrelated grievance.

On September 29 Newgent received a release from his physician stating that he was “able to return to work”. Newgent contacted Hluchan, who arranged another meeting with Haney to discuss reinstatement. Haney informed them that “the termination still stands”.

The Union requested that Newgent’s grievance be submitted to arbitration by the American Arbitration Association, but Modine resisted this action on the ground that the grievance was not timely filed. On March 6, 1968 the Association “determined that an issue as to ar-bitrability exists which must be determined by an arbitrator”. However, after receiving a memorandum from Mo-dine the Association on March 15 “revoked” the letter of March 6 and refused to compel arbitration on the ground that it lacked jurisdiction under the collective bargaining agreement, which required that arbitration by the Association must be requested jointly by both the Union and Modine.

Hluchan advised Newgent that any further pursuit of the grievance would require a lawsuit to compel arbitration and that such action would have to be authorized by the Union membership. Newgent did not seek membership approval, nor did he attempt to exhaust in-tra-union appeals procedures available to contest the Union’s handling of this grievance.

In his affidavit Newgent explained that union remedies were not pursued because he was “not aware of the details regarding intra-union appeals or appeals from union decisions regarding grievances”. He also alleged that Hluchan advised him that “to bring the matter all the way to Detroit would require the posting of a bond in the amount of $50,000.00 and * * * that * * * the taking of any further intra-union steps would be senseless and fruitless”.

Hluchan gave Newgent copies of the Union’s file on his grievance and New-gent alleges that Hluchan advised him to retain an attorney and file suit against the Union and Modine. Newgent then commenced this action.

Contentions on Appeal

Newgent contends that (1) he was improperly terminated by Modine; (2) his grievance was timely filed, and in any event Modine is estopped to assert the defense of an untimely grievance; (3) the Union failed to fairly represent him in his dispute with Modine; and (4) the Union may not avail itself of the defense of failure to exhaust intra-union remedies.

Propriety of the Termination

Newgent argues that his termination was improper under the collective bargaining agreement then in force between Modine and the Union. Alternatively, he contends that even if properly terminated there exist genuine issues of material fact with respect to whether Mo-dine was estopped from strictly enforcing the agreement against him.

Modine terminated Newgent under Article VII, Section 9(d) of the collective bargaining agreement, which provides :

“SECTION 9. Breaks in Continuous Service.
Continuous service and the employ-’ ment relationship shall be broken and seniority rights thereby lost in the event that an employee:
(d) Is absent for three (3) consecutive working days without notifying the Company, except where it is established that it was impossible for the employee to notify the Company within such period. The parties hereto recognize that to operate the plant efficiently, it is necessary for the employees to notify the Company as soon as possible of their inability to report for employment in accordance with their work schedule;”

It is undisputed that following New-gent’s telephone call on June 20 Modine placed him on sick leave for the period June 20 through June 23; that on June 26 his status was changed to absent without leave; and that after he was absent three more days (June 26 to 28), he was terminated on June 29 for being absent three consecutive working days without notifying the company. It is also undisputed that between June 20 and July 10 Newgent did not telephone or otherwise contact anyone at Modine concerning his absence from work. It is apparent accordingly that Newgent was properly terminated if the provisions of Article VII, Section 9(d) are applicable, and that summary judgment in favor of Modine was proper unless, as Newgent argues, there are issues of material fact with respect to estoppel.

Newgent first contends that Section 9(d) is not applicable and that the controlling provisions are the sick leave provision of Section 2(d) of Article X and the notice requirement of Section 9(f) of Article VII. Modine relies upon Section 1 of Article X, as well as the notice provision of Section 9(d) of Article VII.

Article X relates to “Leaves of Absence” and provides in pertinent part:

“SECTION 1. Application for Leave. Any employee desiring a leave of absence of longer than one week (five work days) shall make application on the form provided and submit two (2) copies to the Personnel Office. One (1) copy will be sent to the Recording Secretary of the Union if the leave is granted. Leaves of absence for less than five (5) days shall be arranged with the Industrial Relations Manager.
“SECTION 2. Classification of Leaves of Absence.
Leaves of absence for (5) days or less or general leaves shall be granted for proper reasons consistent with the efficient operation of the plant.”

Following a description of three classes of leaves — “General”, “Special” and “Veterans of the Armed Forces” there appears as subsection (d):

“An employee who is unable to work because of injury or illness and who furnishes satisfactory evidence thereof shall be granted an automatic sick leave of absence covering the period of such disability if known at the time of request. At the expiration of such period, he will be returned to work, provided he has a doctor’s statement permitting reemployment. In the event the length of such disability is not known at the time of leave, but extends to one week or more, the employee shall give the Company a three (3) day notice of his intention to return to work, unless it is established it was impossible to notify the Company in advance. * * * ”

As noted supra, Section 9 of Article VII relates to “Breaks in Continuous Service” and sets forth seven situations under which continuous service and the employment relationship shall be broken, including subsection (d), supra, and subsection (f) which reads in pertinent part:

“(f) Fails to notify the Personnel Department in person or by certified mail each March and September during any layoff or absence due to sickness or disability (extending for more than three (3) months) of his desire to return to work if recalled or of his desire to return to work as soon as he is physically able to do so.”

It is undisputed that Newgent did not make written application for a leave of absence “longer than one week (five work days) ”, as required by Section 1 of Article X. Newgent argues, however, that on the basis of his June 20 telephone call he should have been granted an indefinite sick leave.

Construing the contract in its entirety, we cannot escape the conclusion that both Section 9(d) of Article VII and Section 1 of Article X are applicable to any leave of absence, including those for sickness or other disability. Certainly there is no express exception with respect to leaves of absence caused, by sickness or injury; and all of the other provisions relating specifically to absence by reason of sickness or disability are consistent with this construction.

Under the contract an employee could obtain a leave of absence for more than five working days by complying with Section 1 of Article X. In the absence of a leave granted pursuant to this provision, it was necessary to comply with the notice provisions of Section 9(d) of Article VII. There is no contention that “it was impossible” for Newgent to notify the company after consulting with his physician on June 20 or at any time during his continued absence.

In essence appellant contends that his telephone call of June 20 entitled him to an indefinite leave of absence (notwithstanding the provisions of Article VII, Section 9(d) and Article X, Section 1), bringing into play the reporting provision of Article VII, Section 9(f) for a sickness or disability extending for more than three months. The parties to the contract expressly recognize in Article VII, Section 9(d) the need for reporting to permit the company to arrange the work schedule to operate the plant efficiently Obviously many, if not most, absences result from sickness or injury. To permit an employee to obtain an indefinite leave by phoning that he was going to see a doctor and did not know when he would return would render meaningless the provision of Article VII, Section 9(d) with respect to leaves of absence resulting from sickness or injury. We cannot accept this construction of the contract. Newgent’s telephone call entitled him to a leave of absence for no more than five work days. Following the sick leave granted by the company, he was subject to termination for absence for three consecutive working days without notifying Modine.

Relying upon the arbitration decision in H. D. Hudson Mfg. Co., 53 L.A. 613 (John P. McGury, 1969), Newgent nevertheless argues that this three-day rule should not be applied where the absence is due to illness and the employee has initially advised his employer of the reason for the absence. Hudson is factually distinguishable in many respects.

In Hudson an employee had telephoned her foreman on a Friday and informed him that “she had been to the doctor and was ordered to stay home; that she wasn’t able to go to work and would have to go to the hospital to have x-rays taken; [and] that she would let him know after she saw about the x-rays.” 53 L.A. at 614. Although the evidence was conflicting, the employer’s position was that the employee did not again contact the company until the following Thursday. The employee was terminated for violating a company-imposed rule which provided:

“If you are absent for three consecutive working days without notifying the Company of the reason for your absence, you will be considered a voluntary quit. If you are absent for an extended period of time, you must continue to inform the Company of the reason for your absence at least every third working day until you return to work or are granted a formal leave of absence.”

The arbitrator held that the first sentence of the rule was “not applicable because the Company was notified of a reason for absence”. Id. at 615. He refused to apply the penalty of termination primarily on the grounds that “no penalty is set out in the second sentence” and application of the termination penalty would be too “harsh”, since “It would treat an employee who made an initial call in explanation just as summarily as an employee who ignored the Company and simply stopped showing up for work.” Id.

In Hudson the three-day rule was in two parts, and as interpreted by the arbitrator the first part related to the initial duty of notification and the second part concerned the continuing nature of the duty to notify the company every three days when the absence is for an extended period of time. The penalty of termination was expressly made applicable only to a violation of the first part of the rule. In contrast, the contractual provision involved here consists only of the single phrase that an employee shall not be “absent for three (3) consecutive working days without notifying the Company”. The initial duty of notification and its continuing nature in cases of an extended absence are embodied in the single phrase, and the penalty of termination is expressly made applicable to a violation of either duty of notification. Hudson is not controlling where, as here, the penalty of termination is expressly applicable to a contractual provision violated by the employee.

More nearly in point is Midland-Ross Corp., 49 L.A. 283 (John Day Larkin, 1967) where the employee was terminated for violating a provision of the collective bargaining agreement proscribing absence “from work for three (3) days without notifying the Employment Department in writing”. The employee had sent a telegram to the company on Tuesday indicating that he was sick. Thereafter he failed to notify the company of the reason for his absence on Wednesday, Thursday, and Friday, although he had appeared at the plant on Friday afternoon after his scheduled shift had ended. On Friday he was terminated for failing to comply with the continuing nature of his duty to give notice every third day in the case of an extended absence. The termination was sustained, the arbitrator stating that “The record is clear that grievant was absent for three days of scheduled work

assignment, without giving written notice.” Id. at 287.

We conclude that under the terms of the collective bargaining agreement Newgent was properly terminated for being “absent for three (3) consecutive working days without notifying the Company”.

Newgent alternatively contends that summary judgment was improper because there are issues of material fact with respect to whether Modine was es-topped from enforcing the terms of the collective bargaining agreement against him.

In his affidavit Newgent states that on two occasions in 1964 and 1965 he was absent from work, on account of back injuries received in an automobile accident, for periods of approximately three and four and one-half months, respectively. With respect to the first period of absence, Newgent stated that “I never reported to the company that I had been in the accident and I never submitted any evidence of injury other than a verbal communication with a foreman from the company who came to see me while I was still in the' hospital.” Newgent claims that the only communication with Modine concerning the second absence was a telephone call by Newgent advising that he was “going to see a doctor because [he] had back problems” and that he “did not know how long [he] would be off work”. Newgent states that in both instances he was not advised of any duty “to call in to the company every three days” and on both occasions was allowed to return to work upon recovery from his back ailments.

Newgent argues that under the facts recited in his affidavit Modine was required to grant him an indefinite sick leave of absence on the basis of his telephone call and is estopped from applying the three-day rule against him. It is clear from Newgent’s deposition, however, that with respect to the 1965 absence he did far more than rely upon his telephone calls to the company. Moreover, the collective bargaining agreement under which Newgent was terminated did not become effective until December 12, 1966. Newgent has not alleged or shown that similar leave of absence provisions were in force at the time of the 1964 and 1965 absences. Newgent admitted that he knew that the 1966-1969 collective bargaining agreement provides for termination after absence for three consecutive working days without notifying the company Under these facts Newgent’s estoppel contention is legally insufficient and summary judgment was proper.

Exhaustion of Intra-Union Remedies

Article 32 of the United Auto Workers 1966 Constitution sets forth a series of union appeals procedures for members aggrieved by any action of the Union. Where, as here, a Local Union is involved the first step in the appeal process is to the membership of the Local Union itself. If this decision is unfavorable the member may perfect an: appeal to the International Executive Board. A further appeal may be taken to the Constitutional Convention of the International Union, or, in certain cases, to the Public Review Board, which, under Article 31, Section 1, consists of' “impartial persons of good public repute, not working under the jurisdiction of the UAW or employed by the International Union or' any of its subordinate bodies”. If an appeal to the Public Review Board is dismissed for lack of jurisdiction, the appellant is still entitled to appeal the matter to the Constitutional Convention.

Section 13 of Article 32 provides that “It shall be the duty of any member * * * who feels aggrieved by any action, decision, or penalty imposed upon him * * *, to exhaust his * * * remedy and all appeals therefrom under the laws of this International Union prior to appealing to a civil court or governmental agency for redress.” It is undisputed that Newgent failed to pursue his intra-union remedies. Moreover, there is no challenge to the adequacy of the intra-union remedies, and it has been judicially recognized that the above-described remedies provided “an adequate, fair, and reasonable procedure”. Reid v. Auto Workers, Local 1093, 80 L.R.R.M. 2886, 2892 (D.Okla. 1972) , aff’d, 479 F.2d 517 (10 Cir. 1973) .

Where, as here, there is no question as to the adequacy and mandatory nature of the intra-union remedies it is well settled that an exhaustion of the remedies is an indispensable prerequisite to the institution of a civil action against a union. The exhaustion requirement has been recognized by this court, most recently in Orphan v. Furnco Construction Corporation, 466 F.2d 795, 801 (1972).

Newgent contends that there are material issues of fact with respect to whether the Union is estopped from asserting the defense of failure to exhaust intra-union remedies. This contention is based upon allegations in his deposition and affidavit that (1) he was “not aware of the details regarding intra-un-ion appeals or appeals from union decisions regarding grievances”; and (2) Hluchan advised him that a further processing of his grievance “would require the posting of a bond in the amount of $50,000.00”, that “the taking of any further intra-union steps would be senseless and fruitless”, and that he should “obtain a private attorney and should file suit against both Modine * * * and the union”.

As noted swpra, the exhaustion of union remedies is mandatory under the Union’s Constitution, and there is no question that the Union remedies are in fact fair and adequate and were freely available to Newgent. By becoming a member of the Union Newgent was contractually obligated to exhaust union remedies before resorting to a court action. Neal, supra, 348 F.2d at 726. Necessarily implied in this obligation is the duty to become aware of the nature and availability of union remedies. Newgent was not “justified in remaining in ignorance of the provisions governing his own union or, in fact, of relying on a statement by an officer that there was nothing he could do”. Donahue v. Acme Markets, Inc., 54 L.C. para. 11, 413 (E.D.Pa.1966). We hold that Newgent’s allegations of ignorance and reliance upon Hluehan’s directives to in- ' stitute court action are not sufficient to avoid the defense of failure to exhaust union remedies, and that the district court’s summary judgment in favor of the Union may be affirmed on this ground.

Affirmed.

      . Unless otherwise indicated all dates are for the year 1967.

      . The “Been discharged” box on the termination form was checked, and the form stated that “Mr. Newgent is being terminated for being absent for three (3) consecutive working days without notifying the Company. Violation of Article VII, Section 9, Paragraph (D) of the Company-Union Agreement.”

      . The grievance is dated August 1, 1967 and signed by Newgent.

      . There was no reference in Newgent’s deposition to the handwritten grievance allegedly prepared on July 10, although Newgent was examined by his own counsel with respect to the discussion with Union officials on July 18 regarding the filing of a grievance. Newgent did state in his deposition that he told Haney on July 18 that he “had filed a grievance”.

      . This agreement was in effect from December 12, 1966 to November 30,1969.

      . The nurse who took the call told Newgent she would notify his supervisor. She did not authorize him to be absent from work for any definite or indefinite period of time.

      . Newgent argues that under this provision he was not required until September, 1967 to notify Modine of his desire to return to work.

      . Modine apparently considered the telephone call of June 20 sufficient to justify placing Newgent on short-term sick leave, since it is undisputed that Newgent was granted sick leave status for the four-day period of June 20 through June 23.

      . If the leave of absence extended for more than three months the reporting provisions of Section 9(f) of Article VII would be applicable.

      . Modine printed and distributed to its employees a “Guide to General Company Policies * * * ”, dated December 12, 1966, the same date as the Union contract, which refers, inter alia, to the contract and contains the following:
      “9. It is expected that you will ALWAYS notify the Company through the First Aid Office if you are to be absent, stating the reason for your absence, and the approximate length of time that you will be off work. Failure to do so will result in disciplinary action, and absence for three consecutive days without notifying the Company WILL result in discharge. Art. VII, Sec. 9.”

      . As noted supra,, in Newgent’s call on June 20 he stated he was going to see a doctor and did in fact consult his physician the same day. He did not, however, advise the company what the doctor told him or when he would return to work. After X-rays were taken on June 29 Newgent made no further report. Even after receiving the termination notice on July 5, he did not contact the company until July 10.

      . In addition it should be noted that here the employee violated a provision of the collective bargaining agreement, whereas the employee in Hudson violated a company-imposed rule which had simply been posted and of which the employee denied having actual knowledge. In distinguishing Bassick Co., 38 L.A. 278 (Peter Seitz, 1962), where an employee’s seniority was terminated for being absent three days without notifying the employer, the arbitrator in Hudson pointed out, inter alia, that in Bassiolc “The action was taken on the basis of a provision of the collective bargaining contract rather than on a factory rule which was posted.” 53 L.A. at 616.

      . Newgent testified in part:
      “Q Do you recall an incident back in 1965, when you had been absent without leave and Mr. Bush took you back?
      “A No, I don’t recall. Also, that pertained back to the accident again when I had the accident.
      “Q Did you have an accident that caused you to be absent from work in June of 1965?
      “A Yes. I was off, well, let’s see. I was off three months and went back to work for about three months and couldn’t hardly get around and then I was off about three or four months.
      “Q Do you recall being terminated back in 1965 and then reinstated by Mr. Bush after you had come in and explained to him why you had been absent?
      “A This could be possible.
      “Q You do recall that?
      “A Offhand, I don’t, sir, but like I say, it’s possible because I know I used to go in every week and talk to Mr. Bush about trying to get a job; any kind of job, a sweeper’s job or anything, when I was off for so long.”

      . In his deposition Newgent stated that he had reported to his foreman on June 14 because he “wanted to preserve [his] job”. He testified further:
      “Q * * * Did you know when you went to see Mr. Kiff on the fourteenth of June, that you had to report to somebody at the Company within three days after you had been absent or you would lose your job?
      “A I was aware of that fact without no written excuse or any excusable absence.
      “Q How did you become aware of that fact?
      “A How did I become aware of it?
      “Q How did you know you had to report to someone at the Company within three days?
      “A I read the contract.”

      . Review by the Public Review Board may specifically be obtained in cases “which concern action or inaction relative to the processing of a grievance, in which the appellant has alleged * * * that the grievance was improperly handled because of fraud, discrimination, or collusion with management”. Article 32, Section 9 (b).

      . This is clear from an affidavit of the Administrative Assistant to the UAW president and Newgent’s own testimony in his deposition.

      . See also Neal v. System Board of Adjustment, 348 F.2d 722, 726 (8 Cir. 1965); Imel v. Zohn Manufacturing Company, 481 F.2d 181, 183-184 (10 Cir. 1973); Brady v. Trans World Airlines, Inc., 401 F.2d 87, 104-105 (3 Cir. 1968), cert. denied, 393 U.S. 1048, 89 S.Ct. 680, 21 L.Ed.2d 691 (1969); and cases cited in Note 12 in Orphan at 801 of 466 F.2d.

      . Newgent does not contend that the Union refused to provide him a copy of the Constitution. Indeed, as the Union points out, the UAW Constitution is a document of public record, freely available from the U.S. Secretary of Labor upon reguest.

      . In view of our conclusions we need not discuss the other issues raised by Newgent, that is, whether his grievance was timely filed and whether the Union failed to fairly represent him in his dispute with Modine. We agree with the district court that there was no evidence that the Union’s conduct in representing Newgent in presenting his grievance to Modine was arbitrary, discriminatory or in bad faith.