author: FEINBERG, Circuit Judge: DANAHER, Senior Circuit Judge

text:
    Jean CARAMICO et al., Plaintiffs-Appellants-Appellees, v. The SECRETARY OF THE DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT et al., Defendants-Appellees-Appellants.
    Nos. 181, 182, Dockets 73-2538, 73-2539.
    United States Court of Appeals, Second Circuit.
    Argued Oct. 16, 1974.
    Decided Dec. 16, 1974.

      Susan B. Seel, Brooklyn, N. Y. (John C. Gray, Jr., Douglas J. Kramer, Brooklyn Legal Services Corp. B, Brooklyn, N. Y., on the brief), for plaintiffs-appellants-appellees.
    Edward J. Shawaker, Atty., Dept, of Justice, Washington, D. C. (Wallace H. Johnson, Asst. Atty. Gen., George R. Hyde, Atty., Dept, of Justice, Washington, D. C., Edward J. Boyd, U. S. Atty. for the Eastern District of New York, Harold J. Friedman, Asst. U. S. Atty., on the brief), for Federal appellees-appellants.
    John J. Walsh, New York City (Cadwalader, Wickersham & Taft, W. Mowry Connelly, New York City, on the brief), for defendant-appellee Federal National Mortgage Association.
    Before DANAHER, FEINBERG and MULLIGAN, Circuit Judges.

       Of the United States Court of Appeals for the District of Columbia Circuit, sitting by designation.

   FEINBERG, Circuit Judge:

Plaintiffs are or were non-owner occupants of two-to-four family dwellings located in low income areas of Brooklyn, the mortgages of which were insured by the Federal Housing Administration (FHA). Under FHA regulations, for a mortgagee to recover on his mortgage insurance after default he must tender possession of the property, unoccupied, to the FHA. Thus, after plaintiffs’ landlords defaulted and the properties were foreclosed, the mortgagees sought to evict plaintiffs from their homes to comply with the vacant delivery requirement. Plaintiffs filed this suit in the United States District Court for the Eastern District of New York against the Secretary of the Department of Housing and Urban Development (HUD) and other federal defendants to enjoin the evictions and to secure assistance under the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, 42 U.S.C. §§ 4601 et seq. (the Relocation Act). An amended complaint named as additional defendants the Sheriff of the City of New York, the Under-Sheriff of the City of New York for the County of Kings and the Federal National Mortgage Association.

In November 1972, Judge John F. Dooling, Jr., denied plaintiffs’ motion for a preliminary injunction against the evictions by the Sheriff and Under-Sheriff. The judge ruled that the Relocation Act did not apply to persons like plaintiffs and that the anti-injunction statute, 28 U.S.C. § 2283, prohibited enjoining state officers from carrying out state court orders of eviction. Thereafter, plaintiffs again sought preliminary relief, this time against the Secretary of HUD and the other federal defendants, to enjoin them from requiring the eviction of plaintiffs as a condition of payment of FHA insurance claims on the foreclosed properties. In June 1973, the judge ruled in favor of plaintiffs and granted preliminary relief. His' order enjoined the federal defendants from requiring the removal of tenants as a condition of payment of insurance claims until procedures were adopted which would allow the occupants of the premises to furnish the Secretary information as to why the properties might be conveyed to HUD occupied instead of vacant.

Plaintiffs appeal from the first ruling, the federal defendants from the second. For reasons indicated below, we affirm Judge Dooling’s orders on both appeals. The judge not only wrote thorough opinions on the issues involved in this case but also incorporated by reference his opinions in a related case in the Eastern District. Because we agree with the judge’s disposition of the legal issues, we might ordinarily have affirmed on the opinions below. Since the opinions are as yet unpublished, however, and in view of the importance of the questions raised, we believe that a further discussion of the legal issues is appropriate.

I

Plaintiffs claim that the evictions ordered by the state court were improper because plaintiffs had not been granted assistance under the Relocation Act. This Act provides, in essence, that a person will not be displaced from his home to make way for a federal or federally assisted project unless replacement housing and other benefits are made available. Judge Dooling found, however, that plaintiffs were not eligible for Relocation Act assistance. We agree. 42 U.S.C. § 4601(6) defines a displaced person as

any person who, on or after January 2, 1971, moves from real property, or moves his personal property from real property, as a result of the acquisition of such real property, in whole or in part, or as a result of the written order of the acquiring agency to vacate real property, for a program or project undertaken by a Federal agency, or with Federal financial assistance. . [Emphasis added.]

Plaintiffs assert that the policy of the Secretary of HUD, requiring a vacant dwelling before he will accept possession of the defaulted property and pay off the FHA insurance claim, results in an eviction due to “the acquisition of such real property.” While there may well have been such an “acquisition” here, this is not enough. To fall within the definition of displaced persons, plaintiffs must also show that the acquisitions were “for a program or project undertaken by a Federal'agency, or with Federal financial assistance.” This they have failed to do.

Plaintiffs argue that since the reason the Secretary demands vacant conveyance is to enable him to better deal with the property by rehabilitation or other disposition, the federal mortgage insurance program with its vacant delivery requirement is akin to a federal urban renewal scheme. And since persons displaced by federal urban renewal projects are admittedly eligible for assistance under the Relocation Act, a fortiori plaintiffs displaced by the mortgage insuranee program must also be. However, this argument overlooks the crucial difference between mortgage insurance acquisitions and acquisitions under programs covered by the Relocation Act.

While it is true that the increasing default rate in the mortgage insurance program has made the federal government one of the largest owners of inner city properties, House Comm, on Government Operations, Defaults on FHA-Insured Home Mortgages — Detroit, Mich., H.R.Rep. No. 92 — 1152, 92d Cong., 2d Sess. 1 — 7 (1972), these acquisitions must be characterized as random and involuntary while normal urban renewal contemplates a conscious government decision to dislocate some so that an entire area may benefit. Thus, the Relocation Act provides, 42 U.S.C. § 4621:

The purpose of this subchapter is to establish a uniform policy for the fair and equitable treatment of persons displaced as a result of Federal and federally assisted programs in order that such persons shall not suffer disproportionate injuries as a result of programs designed for the benefit of the public as a whole.

Similarly, in discussing the purposes of the Relocation Act, the Committee on Public Works of the House of Representatives stated:

The need for such legislation arises from the increasing impact of Federal and federally assisted programs as such programs have evolved to meet the needs of a growing and increasingly urban population. In a less complex time, Federal and federally assisted public works projects seldom involved major displacements of people. There was relatively little taking of residential or commercial property for farm-to-market routes or for reservoirs or public buildings. Indeed, local suppori for such projects often resulted in little, if any, cost for land acquisition or rights-of-way. However, with the growth and development of an economy which is increasingly urban and metropolitan, the demand for public facilities and services has increasingly centered on such urban areas, and the acquisition of land for such projects has become the most difficult facet of many undertakings by public agencies. Also, a major public project — be it a highway, urban renewal project, or hospital — inevitably involves the acquisition and clearance of sites which now provide residential, commercial, or other services. As the thrust of Federal and federally assisted programs have shifted from rural to urban situations, it became increasingly apparent that the application of traditional concepts of valuation and eminent domain resulted in inequitable treatment for large numbers of people displaced by public action. When applied to densely populated urban areas, with already limited housing, the result can be catastrophic for those whose homes or businesses must give way to public needs. The result far too often has been that a few citizens have been called upon to bear the burden of meeting public needs.

H.R.Rep. No. 91 — 1656, 91st Cong., 2d Sess., 1, 2 (1970); 1970 U.S.Code Cong. & Admin.News, pp. 5850-5851. Various sections' of the Relocation Act also indicate that construction programs are the type Congress had in mind in providing displaced person assistance. Section 4626 refers to “actual construction” of the project, section 4625(a) mentions economic injury to neighboring property due to the property acquisition, and section 4651 describes acquisition methods that are inconsistent with the takeover of defaulted property by the FHA.

Thus, it is clear that the Act contemplates normal government acquisitions, which are the result of conscious decisions to build a highway here or a housing project or hospital there. In such cases, the acquisition of property and the relocation of certain individuals is a necessary first step in the project. Default acquisitions by the FHA, however, embody no conscious governmental decisions at all. The choice of applying for an FHA insured mortgage is made by the individual mortgagor and the default, which triggers the FHA acquisition, is his choice as well (if it can ever be said to result from a conscious choice). The only voluntary action taken by the Government is the decision to require unoccupied delivery before making the insurance payment. The acquisition itself, however, is clearly involuntary and in response to the default. In fact, the default acquisition may be said to represent a failure of the FHA program rather than its desired result. In sum, we believe that Judge Dooling was correct in holding that random acquisitions by the FHA of defaulted property are not acquisitions “for a program or project undertaken by a Federal agency” within the contemplation of the drafters of the Relocation Act.

Plaintiffs make the further argument that in holding them ineligible for benefits, the district court created constitutional difficulties by enforcing an arbitrary distinction between them and others admittedly eligible for relocation assistance. But this is simply to say that since the Government has chosen to aid some it must aid all, and it is clear that the “legislature may select one phase of one field and apply a remedy there, neglecting the others.” Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563 (1955).

On the theory that they were entitled to Relocation Act assistance, plaintiffs sought to enjoin the Sheriff of New York City and the Under-Sheriff for Kings County from carrying out the evictions ordered by the state courts. This injunction was properly denied below on the basis of 28 U.S.C. § 2283, which provides:

A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress

Plaintiff claims that the prohibition of eviction contained in the Relocation Act, 42 U.S.C. § 4626(b), is such an express exception to section 2283. But, this could only benefit plaintiffs if the Relocation Act applied to them. We have just held that it does not. Similarly, plaintiffs’ claim that their eviction by the Sheriff deprives them of a federal statutory right under color of state law and thereby violates 42 U.S.C. § 1983 fails on our holding of ,no federal statutory right under the Relocation Act, regardless of the issue of state action.

II

The appeal of the federal defendants raises the issue whether the occupants of the houses, even though not entitled to Relocation Act assistance, nevertheless have a due process right to participate in some way in the decision of the FHA not to waive its general requirement that the buildings be delivered unoccupied.

As already noted, property conveyed by a mortgagee to recover on his FHA mortgage insurance must be vacant unless the Secretary of HUD approves otherwise. 24 C.F.R. § 203.381 (1974). Although the Secretary has apparently provided no formal standards for deciding whether property, may be conveyed occupied, HUD’s Property Disposition Handbook, One to Four Family Properties (4310.5), does mention some factors for consideration.

Paragraph 91 of Chapter 4 provides:

Approval of Occupancy — Individual Acquisitions. The mortgagee must vacate a property or obtain the prior consent of the local office to convey a property subject to agreed occupancy. It is normally preferable to have the mortgagee vacate a property so that it may be programmed for repair and exposed to the sales market in the shortest practical time. Continued tenant occupancy may be considered for a property requiring occupancy to prevent vandalism or for an investment property presenting no advantage insofar as immediate occupancy by a purchaser is concerned or a two to four family dwelling with tenants.

a. The local office director may agree to take an assignment of a mortgage or accept a property occupied where eviction by a mortgagee might engender public unrest and tension. The mortgagee must make a specific request for such action and must present proper evidence to the local office director that the conditions in the area warrant such action. The decision to accept such a property is left to the discretion of the local office director. All due consideration is to be given to mortgagees making such a request. However, mortgagees are not to be permitted to abuse this procedure since it was not designed to allow mortgagees to ignore their obligations or to give them a simplified method of conveying occupied property to the Department on a routine basis. [Emphasis added.]

In this, and in a related case, see note 7 supra, Judge Dooling found that the manner in which these guidelines were applied was inadequate. The judge held that inspection procedures were slipshod or nonexistent, that HUD would not respond to plaintiffs’ attempts as occupants to participate in the decision whether to waive the vacancy requirement, and that the Secretary’s behavior was “so completely unstructured and unmeasurable as to be automatically both covert and arbitrary.”

It is true that plaintiffs here do not have a conventional property interest. They have no privity of contract because their leases are no longer in effect and their status as occupiers has been foreclosed by the state court proceedings. Nevertheless, it is now abundantly clear that there are other protect-able interests besides the traditional ones. Cf., e. g., Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970) (right to public assistance payments); Perry v. Sindermann, 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d 570 (1972) (continued employment); Escalera v. New York City Housing Authority, 425 F.2d 853 (2d Cir.), cert. denied, 400 U.S. 853, 91 S.Ct. 54, 27 L.Ed.2d 91 (1970) (occupancy in public housing); Lopez v. Henry Phipps Plaza South, Inc., 498 F.2d 937 (2d Cir. 1974) (occupancy in quasi-public housing); Joy v. Daniels, 479 F.2d 1236 (4th Cir. 1973) (same); Burr v. New Rochelle Municipal Housing Authority, 479 F.2d 1165 (2d Cir. 1973) (rent increase in public housing). When, as in this case, plaintiffs have resided in their apartments for a substantial period of time, they have some interest in continued occupancy, at least when that occupancy is not flatly prohibited by regulation. In addition, plaintiffs may not be the prime beneficiaries of the National Housing Act, 12 U.S.C. §§ 1701 et seq., but they certainly should be regarded as intended beneficiaries of this and other Acts designed to further the goal of decent housing for all citizens. Cf. Peopies v. United States Dep’t of Agriculture, 138 U.S.App.D.C. 291, 427 F.2d 561 (1970). Since plaintiffs have a protectable interest in continued occupancy, and are beneficiaries of the very Act under which their eviction is demanded, we agree with Judge Dooling that they have a right not to be subjected to treatmem both “covert and arbitrary,” and must be allowed to have an input into the decision to require eviction.

This input can be of value to the federal defendants as well as to the plaintiffs. For example, plaintiffs may be able to show that the housing they occupy is fit for continued habitation and that the repairs required in order to make it salable do not require the property to be vacated. Or they may be able to show to the satisfaction of the federal defendants that the threat of vandalism if the apartments are vacated is high and that continued occupancy is necessary for preservation of the property.

It is essential to the protection of plaintiffs’ rights that they be allowed to participate because neither the FHA nor the mortgagees seem to be able to represent the interests of occupants. The mortgagees are often far removed from the actual property and therefore have no information that could aid the FHA in determining whether vacant delivery is necessary. The FHA has already proved itself incapable of adequately investigating each request. Only plaintiffs, and others in their position, have both the motive and information to insure that a reasoned decision, taking their interest into account, will be made. The federal defendants cite to us Langevin v. Chenango Court, Inc., 447 F.2d 296 (2d Cir. 1971), where we refused to hold that tenants in an FHA-sponsored project had a constitutional right to furnish input into the decision to raise rents. In Langevin, the interests of the tenants were somewhat aligned with those of the FHA, which had “been instructed” to see to it that “tenants should not be imposed upon” by “rent increase applications” by landlords. 447 F.2d at 301. In addition, as Judge Le~ venthal pointed out in Thompson v. Washington, 162 U.S.App.D.C. 39, 50, 497 F.2d 626, 637 (1973), the panel in Langevin “regarded the Government involvement as insufficient to call forth due process protection.” In both respects, the situation here is different. Finally, of far greater moment than an increase in rent is the loss of an abode, particularly — as Judge Dooling said — “in deteriorated, low-income neighborhoods where replacement quarters are not readily available at rents the occupiers can afford.”

The remedy ordered by the district judge is consistent with the rights we have found plaintiffs to possess. He ordered the Secretary to adopt

after compliance with rulemaking procedures as set forth in 5 U.S.C. § 553, rules respecting waiver of and insistence upon the general vacant delivery requirement, 24 C.F.R. § 203.381, which at minimum provide for notification to occupants of premises that have been or are being foreclosed and are to be or have been conveyed to the Secretary that the Secretary desires to terminate their occupation of the premises, advises them in succinct form of the grounds on which the determination to terminate occupation has been made, and affords the tenant an opportunity to submit and to support with evidence the considerations, if any, that the occupant wishes the Secretary to take into account before reaching a determination and which require an explicit decision by the Secretary of any issue framed by the statement of his grounds for termination and the statement of opposing considerations that adequately disposes of the issue

We believe that this order will not prove unduly burdensome for the Secretary to comply with — its requirements are less than the evidentiary-type hearing required in Goldberg v. Kelly, supra, and it allows the Secretary great flexibility to devise satisfactory procedures. The order of the district court, however, will provide plaintiffs and those like them with a measure of freedom from the arbitrary action to which they have been, until now, subjected.

Judgment affirmed on both appeals.

DANAHER, Senior Circuit Judge

(concurring):

I concur in Judge Feinberg’s excellent treatment of the issues before us, particularly as he explicates and gives effect to the several opinions in which Judge Dooling has discussed various aspects of the problem.

It is abundantly clear that Judge Dooling’s preliminary injunction contemplated that the officers of the Department of Housing and Urban Development were to be bound to rule on the plaintiffs’ and intervenors’ requests for waiver of the requirement of vacant delivery. The trial judge envisioned that an administrative hearing of some sort was essential, but what type of hearing? Assuredly not a trial-type!

The district court’s order relates the hearing requirement to “compliance with rulemaking procedures as set forth in 5 U.S.C. § 553.” We may note in Langevin v. Chenango Court, Inc., 447 F.2d 296, 300 (2 CA 1971) that Judge Friendly said:

Any argument that at least the rule-making procedures in § 4 of the APA, 5 U.S.C. § 553, were demanded would be answered by the exception in § 553(a) for “a matter relating to agency management or personnel or to public property, loans, grants, benefits or contracts.” In all this we are in accord with Hahn v. Gottlieb, 430 F.2d 1243, 1247 fn. 4 (1 Cir. 1970).

The extract from Judge Dooling’s order, as set forth by Judge Feinberg, simply demonstrates that basically, as we all agree, the tenants or evictees should have a right to be heard. What is involved, in short, is an effort to achieve a balance of conflicting rights. The substantial interest of occupancy by the plaintiffs is not arbitrarily to be terminated as a result of governmental action, but conversely, we recognize that the rights of the mortgagees to recover their insurance are to be considered. On the present record, it appears that the barrier to the protection of such respective rights has been the Secretary’s insistence, up to now, that the premises be delivered unoccupied.

We have no doubt that the Secretary can adapt to administrative necessity such formulae as Judge Dooling envisioned in dealing with the equities to be considered. Regulations, or at the very least guidelines, can be formulated by the Secretary to govern situations such as here have been presented.

In any event we now are doing what can be done along lines required by the order of the district court that conceptions of essential fairness are to control.

      . There were originally eight plaintiffs in this action. Thereafter, several additional occupants of defaulted FHA-insured properties were allowed to intervene.

      . These were the Commissioner of the FHA, the HUD Regional Administrator for Region II, and the Realty Officer of the Hempstead, N. Y., FHA office. FHA is a sub-agency of HUD.

      . The Federal National Mortgage Association held the mortgages on the properties involved.

      . This ruling was made in a 16-page memorandum dated November 6, 1972, D.C., 390 F.Supp. 210. A judgment dismissing the causes of action based upon the Relocation Act was entered in August 1973.

      . This ruling was made in a 31-page memorandum dated June 13, 1973, D.C., 390 F.Supp. 210.

      . Judge Dooling’s opinions, see notes 4 & 5 supra, contain a full discussion of the facts, which we will not repeat here.

      . Manners v. The Secretary, 71 C 550 (E.D.N. Y.).

      . only one of the opinions in the related Manners case has been reported. 333 F.Supp. 829 (E.D.N.Y.1971) (denial of motion for injunction).

      . E. g., § 4651(1) refers to negotiation, and § 4651(8) refers to eminent domain.

      . The federal defendants also argue that “Federal financial assistance,” referred to in the 42 U.S.C. § 4601(6) definition of displaced persons, cannot include the situation presented here because the Relocation Act elsewhere defines “Federal financial assistance” to exclude federal guarantees or insurance. . 42 U.S.C. § 4601(4). In view of our holding that these acquisitions are not part of a federal program, we need not reach this issue.

      . This handbook is for the guidance of the FHA field workers who are required to pass on applications for a waiver of vacant delivery. It was issued by HUD in September 1970, and is continuously updated. Also of relevance is the Mortgagees’ Guide, FHA G 4015.9, Administration of Insured Mortgages, April 1970. This provides, in paragraph 3 — 4, that the mortgagee is expected to evict the occupants and remove their personal property prior to conveyance to FHA.

      . Manners v. The Secretary, supra, decision dated May 16, 1973, at 37. The opinions of Judge Dooling in this case expressly incorporate his findings in Manners.

      . The prime beneficiaries probably were the mortgagees who had their interests insured under 12 U.S.C. §§ 1707 et seq., and the mortgagors who were able thereby to obtain a mortgage.

      . Manners v. The Secretary, supra, 333 F.Supp. at 832-833.

      . Judge Dooling found that the federal defendants “evince[d] no pattern of consistent conduct or consistent application of articulate principle.” Memorandum of June 13, 1973, 390 F.Supp. at 225. This statement reaffirmed the findings thejudge had already made.in the earlier Manners decisions that the FHA had been lax and slipshod in passing upon requests for waiver of the vacant delivery requirement.

      . Judge Oakes dissented in Langevin.

      . Manners v. The Secretary, supra, Amended Final Judgment, at 2.

      . In the alternative, Judge Dooling’s order also allowed the lifting of the preliminary injunction against the federal defendants if they applied to him in the instant action, and on notice to the plaintiffs and intervenors involved, declaring the Secretary’s intention to require vacant delivery along with the reasons for that intention for each affected property in the suit.

      . One could more readily appreciate the extent to which Judge Dooling has penetrated the intricacies in this area had his pertinent opinions been reported. E. g., he noted that
      No consideration was given by the Federal defendants to the interests of the occupants, the possibility that their tenancy might conserve the property, or to the reality of the theoretical possibility that the property could be expeditiously vacated, rehabilitated and resold advantageously. (Page 12, Judge Dooling’s memorandum re Jean Caramico property, June 13, 1973.)

      . And see Brown v. Housing Authority of City of Milwaukee, 471 F.2d 63, 68 (7 CA 1972).

      . As Judge Feinberg has pointed out, supra n. 18, Judge Dooling has preserved in his order an alternative basis upon which the Federal defendants may seek dissolution of the preliminary injunction.

      . Perhaps the Department itself will so act. As Judgé Hastie noted, HUD before now has changed policy and practice where the courts and agency experience have demonstrated a need for such action. Cf. Jackson v. Lynn, 506 F.2d 233 (D.C.Cir. 1974).

      . The Court has told us that certain landlord-tenant relationships (not too greatly dissimilar in principle) present legislative, not judicial functions. Lindsey v. Normet, 405 U.S. 56, 74, 92 S.ct. 862, 31 L.Ed.2d 36 (1972). The Congress surely can act in areas where judicial remedies may not be available for social and economic ills.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Amadeo Augusto Luciano SANTELISES, Defendant-Appellant.
    No. 517, Docket 74-2311.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 7, 1975.
    Decided Jan. 9, 1975.
    Austin T. Fragomen, Jr., New York City (Fried, Fragomen & Del Rey, New York City, of counsel), for defendant-appellant.
    Thomas E. Engel, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty. for the Southern district of New York, Bart M. Schwartz, John D. Gordan, Asst. U. S. Attys., of counsel), for appellee.
    Before KAUFMAN, Chief Judge, and FEINBERG and MANSFIELD, Circuit Judges.
   PER CURIAM:

Amadeo Santelises is no stranger to this court. In United States v. Santelises, 476 F.2d 787 (2d Cir. 1973), we rejected his claim that his guilty plea was not knowingly and voluntarily tendered because he was not informed that deportation was a collateral consequence of his plea. He now appears before us once again after a denial of his coram nobis petition by Judge Tenney. All that is new is an appended affidavit from Robert Mitchell- — -his counsel at the plea proceedings — which states that Mitchell did not inform Santelises that he might be subject to deportation. This affidavit, however, is of no legal significance. Since Mitchell does not aver that he made an affirmative misrepresentation, Santelises fails to state a claim for ineffective assistance of counsel. Id. at 789 — 790. Nor is Santelises’s plea rendered involuntary because he was unaware that he might be deported. See, id.; Michel v. United States, 507 F.2d 461 (2d Cir. 1974). Accordingly, we must affirm.

Having disposed of the merits of the appeal we cannot overlook another aspect of Santelises’s plight which concerns us. We are informed that Santelises has been in the United States nine years since he was indicted for the preparation and use of false immigration documents, which led to his plea. He served his concurrent one-year probation sentences without incident, and since then has lived, worked, and established strong ties in this country. We are told also that his wife and children are American citizens, and that in less than one year, Santelises would be able to seek relief under 8 U.S.C. § 1254(a)(2). That section authorizes the Attorney General to suspend deportation upon a showing that the affected alien has been a person of good moral character, and that his deportation would result in exceptional hardship to him, his spouse, or his child. It would appear not to be improbable that Santelises may be able to make such a showing if the allegations of his counsel are true. In view of the time which has ' passed since he committed the deportable offense, we hardly think the Immigration and Naturalization Service would be remiss in its duty if it were to wait the few months necessary to afford Santelises an opportunity to apply pursuant to § 1254.

      . And in Santelises v. Immigration and Naturalization Service, 491 F.2d 1254 (2d Cir.), cert. denied, 417 U.S. 968, 94 S.Ct. 3171, 41 L.Ed.2d 1139 (1974) we rejected Santelises’s claims that deportation constitutes cruel and unusual punishment and denies aliens equal protection of the law.

      . In fact, the indictment indicates that Santelises may already be eligible for consideration under 8 U.S.C. § 1254(a)(2), since it alleges that the acts constituting grounds for deportation were committed in 1962 and 1963, and the statute provides that the continuous ten-year residence period commences with the “commission” of the offense.


author: RONEY, Circuit Judge:

text:
    NATIONAL LABOR RELATIONS BOARD, Petitioner, v. MUELLER BRASS CO., a subsidiary of U. V. Industries, Inc., Respondent.
    No. 74-1840.
    United States Court of Appeals, Fifth Circuit.
    March 17, 1975.

      Elliott Moore, Deputy Associate Gen. Counsel, Charles P. Donnelly, N.L.R.B., Washington, D. C., John J. A. Reynolds, Jr., Director, Reg. 26, N.L.R.B., Memphis, Tenn., for petitioner.
    Emile C. Ott, M. Curtiss McKee, Jackson, Miss., for respondent.
    Before COLEMAN, CLARK and RONEY, Circuit Judges.
   RONEY, Circuit Judge:

This is a typical NLRB enforcement proceeding. The applicable law is settled and the sole question for us on review is whether or not the record contains substantial evidence to support two findings of the Board: first, that the Company created the impression of surveillance of its employees’ Union activities; and second, that a single employee’s three-day suspension occurred because of his Union activities. Failing to find such evidence, we deny enforcement.

The National Labor Relations Board (the Board) adjudged the respondent, Mueller Brass Company, a subsidiary of U. V. Industries, Inc. (the Company) guilty of violating Section 8(a)(1) of the National Labor Relations Act (the Act) in a surveillance incident involving one employee and of violating Sections 8(a)(1) and (a)(3) of the Act in a separate incident involving the suspension of another employee. The Board petitions for enforcement of its Decision and Order requiring that the Company (1) cease its violations of the Act, and (2) make the suspended employee whole for any loss of earnings suffered as a result of the Company’s discrimination against him for Union activities.

The Board’s determination must be sustained if supported by substantial evidence. NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 278, 13 L.Ed.2d 839 (1965); Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). If the Board’s decision is based upon such relevant evidence as might be accepted as adequate by a reasonable person, we are not at liberty to deny enforcement merely because the evidence may also reasonably support other conclusions or because we might have reached a different conclusion had the matter come before this Court de novo. NLRB v. United Insurance Co., 390 U.S. 254, 88 S.Ct. 988, 19 L.Ed.2d 1083 (1968); NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d 197 (5th Cir. 1967); NLRB v. Camco, Inc., 369 F.2d 125 (5th Cir. 1966). Although the scope of our review is thus limited, we may deny enforcement of an order of the Board if, after full review of the record, we are unable conscientiously to conclude that the evidence supporting the Board’s decision is substantial. Universal Camera Corp. v. NLRB, 340 U.S. at 488, 71 S.Ct. 456; NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d at 200.

Surveillance — Employee Stockton

The facts which formed the basis for the Board’s decision that the Company created the impression of surveillance of Union activity in violation of Section 8(a)(1) of the Act are brief. Abe Rubel Stockton worked as a janitor from May 1972 until February 27, 1973, in the Company’s plant at Fulton, Mississippi, where the Company, a manufacturer of copper tubing, employed approximately 350 workers. The United Steelworkers of America, AFL — CIO—CLC (the Union) has been trying to organize the Company’s employees at the Fulton plant since 1971. Having lost a representation election in September 1971, the Union began a new campaign in the summer of 1972. Sometime in the fall of 1972, Stockton was cleaning the break room when Farris Gregory, the plant personnel manager, entered the room to purchase a cup of coffee. At the hearing before the Administrative Law Judge, Stockton recounted the ensuing conversatipn:

He got a cup of coffee at the vending machine and he turned around to me, and he said, “Rubel, I have been hearing some tales on you,” and I said, “What’s that, Farris?” He said, “I have heard from some of the boys that you have been loaning your car to boys to go to Union meetings.” I just laughed and told him, I said, “Well, it’s my car, I can do as I please.” That was the extent of the conversation. He went on out.

Although Stockton testified that he did not consider the incident “a joke,” he stated that Gregory smiled at him and that he returned the smile because “when a fellow is nice to me, I’m nice to him.” Stockton further testified that no other persons heard the conversation and that, in fact, he had not been lending his car to persons to attend Union meetings.

At the conclusion of the hearing, the Administrative Law Judge ruled that the Company was guilty of creating the impression of surveillance of Union activity in violation of Section 8(a)(1) of the Act. The Administrative Law Judge based his decision upon two factors: (1) the unrefuted testimony of Stockton at the hearing, and (2) certain findings which the Board made in a prior case involving the Company. In the case at bar, the Board affirmed the findings and conclusions of the Administrative Law Judge and adopted his cease and desist order.

The Company first contends that the conversation between Stockton and Gregory occurred more than six months prior to March 8, 1973, the date on which the charge against the Company was filed with the Board and, thus, any proceeding against the Company was barred by the Statute of Limitations established by Section 10(b) of the Act. Section 10(b) reads in part:

Provided, That no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board and the service of a copy thereof upon the person against whom such charge is made

The Company argues that only an alleged violation of the Act which occurred after September 9, 1972, could be the subject of a charge filed on March 8, 1973, and the Company points out that Stockton testified that the conversation in question occurred “ . . . around September or maybe October ’72.” The Board, adopting the Decision and Order of the Administrative Law Judge, found that the incident in question occurred in the “fall of 1972.” The Statute of Limitations is an affirmative defense and, as such, must be proved by the party alleging same. In the case at bar, the Company offered no evidence in opposition to Stockton’s testimony. The Company, therefore, has failed to establish that the conversation between Stockton and Gregory occurred prior to September 9, 1972.

The Company also argues that the Administrative Law Judge erred in allowing the Board to amend its complaint against the Company to conform the date of the incident in question to the testimony of Stockton. The Company, however, has been unable to demonstrate that it was in any way prejudiced by the amendment. We, therefore, dismiss this argument and proceed to the merits.

The Company contends that Stockton’s testimony, standing alone, does not establish a per se violation of Section 8(a)(1). The Company additionally asserts that the Administrative Law Judge erred in taking judicial notice of the former proceeding between the Company and the Board which, at the time of the instant hearing, was before this Court on a petition for .enforcement, arguing that the prior findings of the Board were not “final” for the purposes of notice because they were subject to rejection by this Court.

Section 8(a)(1) of the Act does not proscribe all surveillance of employee activities by the employer. The only surveillance, or impression of surveillance, which the Act prohibits is that which tends to interfere with, restrain, or coerce Union activities. NLRB v. Southwire Co., 429 F.2d 1050 (5th Cir. 1970), cert. denied, 401 U.S. 939, 91 S.Ct. 932, 28 L.Ed.2d 218 (1971). As we stated in Hendrix Mfg. Co. v. NLRB, 321 F.2d 100 (5th Cir. 1963),

Surveillance becomes illegal because it indicates an employer’s opposition to unionization, and the furtive nature of the snooping tends to demonstrate spectacularly the state of the employer’s anxiety. From this the law reasons that when the employer either engages in surveillance or takes steps leading his employees to think it is going on, they are under the threat of economic coercion, retaliation, etc.

321 F.2d at 104-105, n. 7.

Stockton’s testimony, in and of itself, does not prove that the Company created an impression of surveillance in violation of Section 8(a)(1) of the Act. Standing alone, without evidence of a background of antiunion animus or a widespread pattern of antiunion conduct on the part of the Company, Stockton’s statements do not establish that the Company interfered with, restrained, or coerced Union activities in any manner. From Stockton’s account of the smiling encounter at the coffee machine, the personnel manager might well have intended his remarks to reflect the Company’s prounion sentiments. In fact, however, Stockton’s testimony is not the sole evidence of the Company’s alleged violation of Section 8(a)(1).

In order to supply a background of antiunion animus for Stockton’s statements, the Administrative Law Judge took judicial notice of certain findings which the Board had made in a prior proceeding between the instant parties. Although the previous decision of the Board was before this Court on a petition for enforcement at the time of the administrative hearing in the instant case, it was not error for the Administrative Law Judge, or the Board in adopting the findings of the Administrative Law Judge, to take notice of that proceeding. In NLRB v. American Art Industries, Inc., 415 F.2d 1223 (5th Cir. 1969), we reviewed two separate proceedings involving the Board and American Art Industries, Inc. and held that it was proper for the trial examiner to take judicial notice of the first proceeding between the parties during the second. In the case at bar, we also note that, prior to oral argument, another panel of this Court granted enforcement of the Board’s first order against the Company in all respects. Thus, the Company’s argument that the findings of the Board in the prior proceeding might be overturned on review was mooted by the decision of this Court in NLRB v. Mueller Brass Co., 501 F.2d 680 (5th Cir. 1974).

Against a backdrop of the Company’s antiunion sentiment, the question is whether Stockton’s testimony constitutes substantial evidence that the Company created an impression of surveillance in violation of Section 8(a)(1). After a full review of the record, we are unable conscientiously to conclude that Stockton’s statements substantially support a decision that the Company, through the actions of Personnel Director Gregory, created an impression of surveillance that interfered with, restrained, or coerced Stockton in the exercise of his Section 7 rights. The Act does not prohibit a conversation which merely acknowledges the employer’s awareness of an employee’s Union activities. Until surveillance, or the impression of surveillance, tends to cause interference with or restraint of an employee in the exercise of his statutory rights, it does not assume the proportions of an unfair labor practice under Section 8(a)(1) of the Act. There is no such evidence in this case.

Unquestionably, the findings which the Board made in the prior proceeding show that the Company was hostile to the Union. Hostility toward the Union, however, is not an unfair labor practice. With or without a background of anti-union animus on the part of the Company, it must be proved that the Company, under the instant circumstances, committed an unfair labor practice. On review, we find that the unrefuted testimony of Abe Rubel Stockton, even considered against the Company’s prior antiunion sentiment, does not constitute substantial evidence that the Company created an impression of surveillance in violation of Section 8(a)(1). We therefore will deny enforcement of the cease and desist order.

Suspension — Employee Rogers

James Roy Rogers was suspended for three days shortly prior to a Union election. The Company said Rogers falsified excuses for absenteeism. The Board held the Company was motivated to suspend Rogers because of his Union activities. The detailed facts are necessary to the understanding of these conflicting positions.

On March 4, 1973, Rogers was a machine operator in the Company’s Fulton plant. During his fifteen months as an employee, Rogers had been both a Union activist and an excessive absentee. Prior to the incident which triggered his suspension, Rogers, a member of the Union’s organizing committee, had worn Union buttons and distributed Union literature, had testified against the Company in the prior proceeding between the Board and the Company, and had been absent from work a total of twenty-one times. Rogers’ supervisor, Foreman Everett Gunter, had spoken to Rogers about his attendance on one occasion pri- or to March 4, 1973.

On Sunday, March 4, the first day of Rogers’ work week, Rogers’ wife called the plant at 10:30 p. m. to report that her husband was sick and would not work that evening. Rogers worked the 11:00 p. m. to 7:00 a. m. shift. Raising Rogers’ total absences to twenty-two, this absence was the thirteenth which had occurred on a day on which the work week either began or ended. Specifically, Rogers’ absence from the night shift on March 4, 1973, was the tenth Monday which Rogers had been absent during his tenure at the Company.

The following evening, March 5, the second day of the work week, Rogers reported to work as usual. At the beginning of his shift, Rogers approached Foreman Gunter while Gunter was giving out work assignments and mentioned that he might have to take a few days off for medical reasons. Gunter agreed to discuss the matter with Rogers at a later time. At approximately 12:00 p. m., Rogers attended a Company meeting for night shift workers where the Company’s president spoke against the Union and where Rogers made certain remarks displaying his pro-Union sentiments.

Sometime after Rogers returned to his work station following the meeting, Foreman Gunter approached him and asked Rogers how he was feeling. Rogers stated that he was suffering from an infection. In response to an inquiry by Gunter, Rogers stated that his doctor was Dr. Ratliff and that he had last seen his doctor “today.”

The following morning, Tuesday, March 6, Gunter instructed a plant secretary to check with Dr. Ratliff’s office concerning Rogers’ alleged visit. Receiving word from the secretary that Dr. Ratliff had no record of a visit by Rogers on Monday, March 5, Gunter spoke with Paul Stamper, the plant’s general foreman, who directed Gunter to check with Rogers that evening to verify the doctor’s name. In answer to Gunter’s inquiry Tuesday night, Rogers again identified his doctor as Dr. Ratliff and, the following morning, Wednesday, March 7, Gunter requested the plant secretary to check with Dr. Ratliff’s office once again. When the secretary reported that there was no record of an office visit by Rogers to either of the doctors in the Senter-Ratliff Medical Center on Monday, March 5, Stamper told Gunter to verify the name of Rogers’ doctor for the second time. Again, Rogers stated that his doctor was Dr. Ratliff.

During this period of time, John Williams, the Vice-President of Industrial Relations of the Company’s parent corporation, was in Fulton to conduct a series of meetings with the plant supervisors. When Gunter informed Stamper that Rogers identified his doctor as Dr. Ratliff for the third time, Stamper discussed the matter with Williams. The decision was made to suspend Rogers pending the investigation of an alleged violation of a Company rule, which provides for disciplinary action for falsification of any “reports or records including personal absences, sickness . . . Rogers, thus, was suspended on Thursday, March 8, 1974.

On March 9, the Company continued its investigation of Rogers’ absence by placing a third call to Dr. Ratliff’s office. When an associate of Dr. Ratliff confirmed that there was no record of a visit by Rogers on Monday, March 5, the decision was made to continue Rogers’ suspension until March 13. In all, Rogers was suspended a total of three work days.

At the conclusion of the hearing, the Administrative Law Judge found that the Company knew of Rogers’ pro-Union activities, that Rogers’ suspension preceded a representation election on March 16, and that prior to the absence in question, the Company had never followed a procedure of investigating Rogers’ absences due to illness and had only sporadically followed a procedure with respect to other night shift employees. Taking judicial notice of the Board’s findings in the previous proceeding as background evidence of both the Company’s antiunion animus and the Company’s awareness of Rogers’ pro-Union sentiments, the Administrative Law Judge concluded that the Company had suspended Rogers for his conspicuous involvement in Union activity in violation of Sections 8(a)(1) and (a)(3) of the Act. Although the Administrative Law Judge specifically found that the Company justifiably believed that Rogers had not visited Dr. Ratliff on March 5, the Administrative Law Judge rejected the Company’s claim that the basis of Rogers’ suspension was his falsification of an illness report. The Board affirmed the findings and conclusions of the Administrative Law Judge in regard to the Rogers’ incident and adopted the cease and desist order and the order to make James Roy Rogers whole for any loss of earnings suffered as a result of his suspension.

In controversies involving employee discharges or suspensions, the motive of the employer is the controlling factor. NLRB v. Brown, 380 U.S. 278, 85 S.Ct. 980, 13 L.Ed.2d 839 (1965). Absent a showing of antiunion motivation, an employer may discharge or suspend an employee without running afoul of the fair labor laws for a good reason, a bad reason, or no reason at all. NLRB v. O. A. Fuller Super Markets, Inc., 374 F.2d 197 (5th Cir. 1967). If the specific employee happens not only to break a Company regulation but also to evince a pro-Union sentiment, that coincidence alone is not sufficient to destroy the just cause for his discharge or suspension. See NLRB v. Soft Water Laundry, Inc., 346 F.2d 930 (5th Cir. 1965). The Board must sustain its burden of showing evidence on the record as a whole which establishes a reasonable inference of causal connection between the employer’s antiunion motivation and the employee’s discharge.

In the case sub judice, Vice-President Williams testified concerning the Company’s corporate practice on absenteeism:

We normally establish rules in our plant and then we go through a very thorough training session on their intent, how to apply them, and how to interpret the rules and so forth.
As part of this there are rules on absenteeism and we run an absentee control program throughout the company. All supervisors are instructed to inquire as to the absence of an employee everytime he is absent; “We missed you. Where were you?” If they give any information we can check to verify this.
This is part of keeping people aware that we are interested and we want them on the job. That’s the reason we employ them.

As to the operation of the Company’s absentee policy at the Fulton plant, General Foreman Stamper testified that he usually instructed his foremen to check on the reason for a worker’s absence. Commenting that the Company placed particular emphasis on attendance during the night shift where absenteeism is an increased problem, Stamper recalled three incidents where investigations were conducted into the reasons for workers’ absences. In all three, the Company found that the employees had falsified the excuses for their absences and, in all three, the workers were suspended. The three employees were Jimmy Strode who was suspended for falsely stating that his father had died, Jarvis McKinnie who was suspended for stating that his wife was in the hospital, and Willie Dixon who was terminated for stating that his wife was in the hospital. The Company explained that Willie Dixon was terminated when Strode and McKinnie were only suspended because Dixon had been suspended four times previously.

Rogers’ night shift foreman, Everett Gunter, explained how he personally ascertained the reason for an employee’s absence. Gunter stated that, when a man was absent, he spoke to him individually about his absence unless there was a death in the family or some other basis for the nonattendance which was a matter of common knowledge around the plant. Gunter testified that he did not investigate every excuse to insure that an employee had not falsified a report, rather Gunter explained that he limited his investigations to those workers who had poor attendance records or who evinced a “suspicious” attitude when he questioned them. Gunter enumerated three prior cases where the excuses which his workers offered for a work-miss were checked. The three employees were Paul Holcomb, James Moore, and Earl Hoyle. In the case of employee Earl Hoyle, the investigation led to a determination that Hoyle had not seen a doctor for his illness as he had told Gunter. Earl Hoyle, Gunter stated, was suspended for three days for falsifying attendance records.

Discrediting the testimony of Williams, Stamper, and Gunter, the Board found that the Company had followed a procedure of investigating absences due to illness only sporadically prior to the Rogers’ incident. The Board noted that Donald Smith and Ronald Smith, brothers who worked on the night shift, and Otho Stevens, an employee who, like Rogers, worked under Gunter, testified that, on those occasions when they called in sick, no inquiry was made about their medical treatment or the name of their doctor. Based upon the statements of these witnesses and the testimony of Gunter to the effect that he had investigated the absences of only three employees prior to Rogers’ absence, the Board found that the sole purpose of the Company’s investigation was to find some colorable basis for an act of reprisal against Rogers for his prominence in the Union movement. The Board concluded, therefore, that the Company’s suspension of Rogers for falsification of a sickness report was an unfair labor practice under Section 8 of the Act.

The sum and substance of an unfair labor practice under Section 8(a)(3) is employer discrimination. The Act prohibits an employer, “by discrimination in regard to hire or tenure of employment ... to encourage or discourage membership in any labor organization.” Under the Act, discrimination consists in treating like cases differently. NLRB v. Whitfield Pickle Co., 374 F.2d 576 (5th Cir. 1967).

The simple facts before us demonstrate that the cases of Donald Smith, Ronald Smith, and Otho Stevens are not “like cases” to that of James Roy Rogers. Donald Smith stated that he had been absent only twice in his three years of employment at the Company. Otho Stevens, who had worked for the Company for seven months, testified that he had been absent on two occasions, once when he had the flu with apparent symptoms and a second time when his child underwent an operation for which Stevens filled out insurance claims. Of the three employees, Ronald Smith had the poorest work attendance with ten or twelve absences over a period of approximately nineteen months. And Smith admitted at the hearing that his supervisor had asked him about his absences on occasion.

The total, combined number of absences of Smith, Stevens, and Smith does not equal Rogers’ absentee record. In the course of fifteen months of employment at the Company, Rogers was absent a total of twenty-one times. Rogers’ absence on Sunday, March 4, 1973, was not only his twenty-second absence but also his thirteenth absence on a day on which the work week either began or ended. Gunter had previously warned Rogers about his absenteeism and when Rogers’ wife reported him sick on March 4, Gunter was justifiably concerned about Rogers’ absence. Under these circumstances, the Company cannot be said to have committed an unfair labor practice by investigating the facts of Rogers’ absence.

To follow the Board’s lead in this case would be effectively to insulate every Union activist from investigation and discipline for violation of Company rules, especially at the time of a Union election. The law was not intended to provide such insulation.

In concluding that the Company violated Sections 8(a)(1) and (a)(3) by suspending Rogers, the Board placed great emphasis on the fact that General Foreman Stamper testified that he had no reason to doubt that Rogers was actually sick on Sunday, March 4. The Board suggested that, where an employee is actually ill, a false statement concerning a visit to his doctor would not violate the purpose of the rule. The Board stated,

Thus, in the case of alleged illness, the rule is properly viewed as aimed at a misrepresentation as to the existence of such a condition, and not at any gratuitous elaboration on the nature of the illness or the treatment received therefor.

The Board surmised, therefore, that if the Company believed that Rogers was truly sick, it had no legitimate reason to make an issue out of Rogers’ reference to a visit to his doctor.

Any employer has the right to demand that its employees be honest and truthful in every facet of their employment. Absent an antiunion motivation, any employer has the right to discipline an employee for his dishonesty or untruthfulness. On the record as a whole, we find no substantial evidence to indicate that the Company treated the Rogers’ incident differently from other incidents where employees falsified a report in violation of the Company rule. Accordingly, the enforcement of the Board’s order as to the suspension of Rogers is denied.

Enforcement denied.

      . 29 U.S.C.A. § 158(a)(1).

      . 29 U.S.C.A. §§ 158(a)(1) and (a)(3).

      . The Board’s Decision and Order are reported at 208 NLRB No. 76 (1974).

      . The Board’s Decision and Order are reported at 204 NLRB No. 105 (1973). This Court granted enforcement in NLRB v. Mueller Brass Co., 501 F.2d 680 (5th Cir. 1974).

      . The prior findings were:
      (1) That respondent’s plant manager, Tyonburner, was averse to organization of the employees by the Union.
      (2) That respondent’s industrial relations manager, Gregory, told an .employee in September 1972, that Rogers’ name was on the desk of every employer in the area as a “union pusher” and that, if he lost his job with respondent, he would be unable to get another in that area.
      (3) That in September 1972, Gregory told another employee, after displaying some Union cards, that respondent knew what was going on and that Union adherents would have difficulty obtaining jobs with other area employers.
      (4) That respondent’s suspension and ultimate discharge of an employee, Blanton, for soliciting for the Union was unlawful.

      . The Company’s plant rules read in pertinent part as follows:
      Any employee who fails to maintain, at all times, proper standards of conduct or who violates any of the following rules, shall subject himself to disciplinary action, including discharge.
      Falsifying information on employment applications. Giving false information concerning employment qualifications. Falsifying time records, production records, employees’ records or any other reports or records, including personal absences, sickness and production records, or falsely stating or making claims of injury.

      . See footnote 5, supra.

      . The Administrative Law Judge found that the Company also violated Section 8(a)(4) of the Act by suspending Rogers. The Board stated, “While Rogers gave testimony in the prior unfair labor practice proceeding against respondent (204 NLRB No. 105), there is insufficient evidence in this case that his testimony in fact supplied a motive for his suspension.”


author: GODBOLD, Circuit Judge:

text:
    In re GULF & MIDLANDS BARGE LINE, INC., owner of the M/V MILKA M. PELLEGRIN, praying for exoneration from or limitation of liability, Plaintiff-Appellee. In the Matter of ARCHIE TOWING CO., INC., owner of the M/V RAMROD, praying for exoneration from or limitation of liability, Plaintiff-Appellee. UNITED STATES of America, owner of BARGES LOX 4 and LOX 5, Plaintiff-Appellant, v. The TUG RAMROD, her engines, tackle, etc., et al., Defendants-Appellees. UNITED STATES of America, Plaintiff-Appellant, v. GULF COAST TOWING COMPANY, INC., et al., Defendants-Appellees.
    No. 73-3984.
    United States Court of Appeals, Fifth Circuit.
    March 17, 1975.

      Gerald J. Gallinghouse, U. S. Atty., John R. Schupp, Asst. U. S. Atty., New Orleans, La., Allen Van Emmerick, Allan J. Weiss, Leonard Schaitman, Admiralty & Shipping Section, U. S. Dept, of Justice, Washington, D. C., for plaintiff-appellant.
    Theodore G. Dimitry, New Orleans, La., for Gulf & Midlands Barge Line, etc.
    Cornelius Van Dalen, New Orleans, La., for Tug Ramrod, and others.
    Before THORNBERRY, GOLDBERG and GODBOLD, Circuit Judges.
   GODBOLD, Circuit Judge:

This case involves liability for damage to two special-purpose barges owned by the United States. The damage was incurred in a collision with a bridge when the barge was in tow, concededly caused by the negligence of the towing tugs. The owners of the tugs brought actions for limitation of liability. The United States, which had libeled one of the tugs, counterclaimed against the owners for damages of $94,000. All cases arising from the collision were consolidated for trial, and in all actions summary judgments were given for the tugs and their owners. The United States appeals, and we affirm.

In early 1966 the National Aeronautics and Space Administration sought bids on a contract for towing Saturn rocket boosters and special barges containing liquid oxygen and liquid hydrogen between the Michoud Assembly Plant in New Orleans, Louisiana, and the Mississippi Test Facility located on the East Pearl River in Mississippi. Gulf Coast Towing Company, a small owner-operated company which had a prior contract for doing similar work, was awarded the contract in May 1966 following an exchange of letters and subsequent negotiations.

In August 1966 a giant liquid oxygen tank used in Saturn test flights from Cape Kennedy, Florida, collapsed. This caused a delay in a test flight program, the losses amounting to $1,000,000 per day. In an attempt to cut losses, NASA decided to obtain additional liquid oxygen tanks for Cape Kennedy from the Mississippi Test Facility. Operating under a provision in the Gulf Coast contract concerning “shifting service,” NASA officials procured the services of Gulf Coast to tow four liquid oxygen barges from the Mississippi site to Carrabelle, Florida, the first leg of the movement to Cape Kennedy. Cape Kennedy was unable to produce other tugs for the second leg, and later for the third leg, so in conditions of high emergency Gulf Coast arranged at NASA’s request to make the tow all the way to Cape Kennedy. In the words of the government’s counsel, Gulf Coast “saved NASA’s bacon not once but three times.” On the return trip, however, the tugs towing two of the barges permitted them to collide with a highway bridge of the State of Florida, damaging both bridge and barges. The litigation arose from this casualty.

The court below held that as a matter of law Gulf Coast was not liable even if it were negligent.

Exactly what the contract was that was applicable at the time of the casualty is not free from doubt. Despite voluminous NASA papers and records to the contrary, the U.S. denies there was any modification of the original May 1966 contract, relying solely on that contract. Considering the issues in terms of the original contract, we affirm the judgment in favor of Gulf Coast. Thus we need not consider the details of the modification, which was at least as favorable to Gulf Coast on the issue of liability, if not more so, than the May 1966 contract.

The contract in question consisted of ten pages of “schedule articles,” a total of 15 articles drafted specifically for this particular contract. They set out the acts to be done by each party and related duties of both the towers and NASA, concerning both the conduct of the tow and the facilities to be provided. Attached to these schedule articles are some 20 pages of form contract provisions inserted by NASA into its contracts. One such form is the “Government-furnished Property Form (October 1963),” called the Long Form, inserted into all NASA fixed-price contracts and applicable because the barges were government-furnished property. The schedule article concerning contractor’s liability and the relevant portion of the Long Form are printed in the margin.

The District Court concluded that the government through use of this Long Form agreed to shift the risk of loss to itself. It also treated the liability provisions of Art. I.B.2(h) as inapplicable to any government-owned property, Conclusion of Law No. 7, rendering Gulf Coast free from liability under the facts of this case. We agree with the result, but arrive at it by somewhat different means.

The parties do not dispute that a tower is normally liable in tort for loss resulting from negligent acts or omissions in the course of a tow. The first two questions concern whether certain provisions of this contract which were clearly intended to affect allocation of the risk of loss are applicable to the facts of this case. The government raises two subsequent questions of public policy regarding waivers of liability.

At the outset it is clear that the two provisions in question must be read in pari materia. This is so not only because of their intimate relation to common subject matter but also because the Long Form specifically provides for exceptions in the schedule, and the schedule article, drafted after the Long Form was made part of the contract, specifically refers to the Long Form.

Broadly speaking, the Long Form partially shifts the risk of loss to government property from the contractor to the government by providing that the contractor shall not be liable for loss caused by “any peril” off the contractor’s premises, and by certain listed perils when the property is on the contractor’s premises. Gulf Coast asserts that “any peril” as used in this provision includes the peril of collision, whether or not there is negligence on the part of the crew. Thus the first question is whether the loss in this case is one the risk of which was shifted to the government by this Long Form.

The Long Form provides for contractor non-liability “except as specifically provided in the clause or clauses of this contract designated in the Schedule.” Art. I.B.2(h) is clearly such an exception because of its internal reference to the Long Form, combined with its clear placement of certain risks on the contractor. The parties do not dispute this but disagree on the meaning of the provision. Art. I.B.2(h) says Gulf Coast must indemnify the government against loss “arising from . . . the unseaworthiness of the tug or tugs, or by deficiency in, or failure of, the equipment, machinery or personnel on board.” Gulf Coast says this provision, insofar as pertinent here, provides for indemnity for loss or liability arising only from unseaworthiness of the tugs, which is not in issue. The government insists that the language “failure of personnel on board” includes common negligence.

To carry its point that it is not liable for its negligence because the contract shifts the risk to the government, Gulf Coast must establish both points — that it otherwise is within the non-liability provision in the Long Form, and that it is not excepted from non-liability by the agreement to indemnify.

The government finally asserts two public policy arguments. First, it says that even if there is a waiver of liability, the Long Form is so ambiguous that it lacks the clarity required of such an agreement and that it must be construed strictly against the party asserting it. Second, it also says that the provision should not be enforced because it runs afoul of the public policy against waivers of liability of towers.

We hold that the Long Form did shift the risk of loss from the tug to the government even where the loss was caused in part by the negligence of the tug’s crew; that the indemnity provision only provided for contractor’s liability for its vessel’s unseaworthiness, not its crew’s negligence; that the rule of strict construction of waivers of liability is not applicable here where the party seeking to invoke it wrote the language; and that the public policy against towers’ waivers of liability is not applicable under the facts of this case.

I. The government-furnished property form

This standard addition to NASA negotiated fixed-price contracts, the Long Form, implemented NASA’s policy of self-insuring for most risks because of the high cost of commercial insurance for its unusual and risky venture. NASA policy statements, published in 41 C.F.R. §§ 18-10.303 and 18-13.102-1, set out in the margin, contain two interlaced features: first, NASA would assume liability for loss in the event of damage to government property, and second, NASA would self-insure, and its contractors would not include in their charges to NASA any additional charge reflecting the cost of insurance. These were the policies to be effectuated by the Long Form.

Paragraph (f)(1) of the Long Form, see footnote 4 above, provided for the contractor’s non-liability for loss “caused by any peril where the property is in transit off the Contractor’s premises” and for losses on the contractor’s premises caused by (A) perils listed, more or less within the Act of God rubric, and (B) perils “customarily covered by insurance in accordance with the prevailing practice in the industry in which the Contractor is engaged . .” Further, subparagraph (2) bars the contractor from charging the government for insurance for any of these perils.

We consider the term “any peril” first in terms of general insurance law. The general phrase “any peril” in (f)(1)(i) must include the Act of God and insurable perils descriptions in (f)(1)(ii)(A) and (B), since those are particular perils. Moreover, “any peril” must be insurable perils, for otherwise the proscription in (f)(2) against procuring insurance would be nonsensical. We see no logical reason to limit this use of “peril” to “any peril other than the tower’s negligence,” which is what the government contends we should do. Loss from one’s own negligence is an obvious peril to insure against. By generally proscribing insurance for any peril the government must have meant all kinds of insurance, and concomitantly the waiver of liability must cover all kinds of liability against which that insurance was designed to protect the policyholder. Virtually any insurance which the contractor might procure would include protection against its own negligence, e. g., property damage insurance or accident insurance. For example, the policyholder’s own negligence is no defense to recovery under — and hence is protected by — accident insurance policies. See, e. g., United States Mut. Acc. Assn, v. Barry, 131 U.S. 100, 9 S.Ct. 755, 33 L.Ed. 60 (1889) (death benefits policy); Zurich General Acc. & Liability Ins. Co. v. Flickinger, 33 F.2d 853 (CA4, 1929) (death resulting from drinking wood alcohol, believed to be grain alcohol, was accidental).

Considering the term “any peril” in terms of maritime law and insurance practice, we achieve the same result. “Perils of the sea” is a well known but protean term in maritime law. For the purposes of marine insurance policies, perils of the sea includes those risks associated with the seas, including, for example, features of the sea that may cause damage directly, or indirectly through collisions, stranding and the like. It includes collision, whether the crew was negligent or not. As between the insurer and insured, for purposes of ascertaining the scope of the insurance policy, the negligence of the insured is no defense to recovery on the policy, unless the negligence goes to the issue of seaworthiness of the vessel. See, for example, Reisman v. N. H. Fire Ins. Co., 312 F.2d 17, 19 (CA5, 1963).

The term has a distinctly different meaning when used in a bill of lading for the carrier’s non-liability for perils of the sea. In that situation, the term does hot include the negligence of the carrier. See e. g., Liverpool and Great Western Steam Co. v. Phenix Ins. Co., supra, note 8, and J. Gerber & Co. v. S.S. Sabine Howaldt, 437 F.2d 580, 588 (CA2, 1971). Finally, the term is also used in the Carriage of Goods by Sea Act (COGSA), 46 U.S.C. § 1304(2)(c), and its predecessor, the Harter Act, 46 U.S.C. § 192. Carriers are not liable to shippers for damage to goods caused by perils of the sea, but that term does not include the carrier’s negligence, for which there would be liability to the shipper. But only negligence in the care of the goods, not negligence in the handling of the ship, so-called errors of navigation, brings on liability. 46 U.S.C. § 1304(2)(a); R. T. Jones Lumber Co. v. Roen S.S. Co., 270 F.2d 456 (CA2, 1959). Professor Gilmore summarizes:

[P]erils of the sea . . . has the same meaning in a bill of lading or in COGSA as it has in the “perils clause” of the marine insurance policy. The important difference is that, as a bill of lading exception, the term does not include losses caused by the carrier’s negligence, or that of his agents. Law of Admiralty, § 3 — 32, at 139 — 140.

Interpretation of the clause based on bills of lading and COGSA is not apposite here where it was the customer, not the merchant marine party, who inserted the clause containing the term. This contract does not fit within the category of bills of lading in which carriers attempt to avoid liability by use of the term “perils of the sea.” On the other hand, it is closely allied to problems of relations between insurer and insured. NASA was instructing its contractor not to procure insurance covering “perils of the sea,” in return for NASA’s agreeing to assume the risk of loss that such insurance would cover. Since Gulf Coast could have recovered under a perils clause in a marine insurance policy¡ its own negligence notwithstanding, it should be held free of liability where it is instructed not to procure insurance because the other party does not want to bear the insurance costs and will assume the liability not covered by insurance.

Conceding that the Long Form “is not well suited to marine towage,” the government makes an argument to the following effect. The Long Form was intended for situations where contractors are also bailees of government property, e.g., one using a bulldozer for construction, or storing cloth to cut uniforms, or chemicals to make munitions. The Long Form relieves these contractors of their bailment liabilities, and they do not need to procure property damage insurance, which is specifically referred to in 41 C.F.R. § 18 — 10.303. Where the contractor is a bailee, it is clear that the Long Form waiver applies only to such bailee’s liability and its complementary insurance, and not to liability for negligence and the insurance against liability for negligence. In that setting, the government theory continues, it is clear that the Long Form was not intended to be a complete waiver of liability. The use of the Long Form in the situation in this case, where there is no bailment liability, has led to confusion and error. Because the court thought that some kind of liability and insurance must be waived, and because the normal bailee’s liability and property damage insurance are not present, the court has erroneously concluded that the only remaining liability — that for negligence — must have been waived.

Even accepting this explanation of the Long Form, we still think the government cannot prevail. Whatever the intended or habitual use of the Long Form, the fact remains that it was used in the present situation. It nowhere appears that Gulf Coast had any hint of the normal use of this form or the meaning attached to it by government counsel. At the very best, the government argument concedes that use of the Long Form in this case renders its meaning ambiguous. But in fact its case is even weaker, for it appears that both Gulf Coast and the government’s own agent in this case gave the Long Form a meaning wholly at variance with that suggested by the government. In light of these facts, the government must tolerate the reasonable construction put on its form provision by the adverse party. One who supplies form contractual provisions in circumstances like the present case must, tolerate a reasonable construction against it. See the discussion below in Part III.

II. The schedule articles

Subparagraph (f)(1) of the Long Form provides two exceptions to the government’s assumption of the risk of loss to its property. The exception relevant here provides that the waiver of liability applies “except as specifically provided in the clause or clauses of this contract designated in the Schedule . . . ”, supra, note 4. The clause of the schedule in question, Art. I.B.2(h), supra, note 3, requires Gulf Coast to fit out and maintain the tugs properly and to indemnify the government against loss due to unseaworthiness of the tug or “by deficiency in, or failure of, the equipment, machinery or personnel on board.”

The issue is whether the agreement to indemnify described above, I.B.2(h), refers only to seaworthiness of the tug, or whether by reason of the phrase “failure of . personnel” there is also an understanding to indemnify for losses due to the negligence of the crew as well.

The factors listed in this indemnification provision all relate to matters normally considered elements of seaworthiness. Seaworthiness in marine insurance contracts means

that the materials of which the ship is made, its construction, the qualifications of the captain, the number and description of the crew, the tackle, sails, the rigging, stores, equipment, and outfit, generally, are such as to render it in every respect fit for the proposed voyage or service. [Emphasis added.]

Buglass, Marine Insurance and General Average in the United States, 20 — 21 (1973). Having a full complement of crew members all of whom are trained and competent is as much a part of seaworthiness as having a sound vessel. Aguirre v. Citizens Cas. Co. of N. Y., 441 F.2d 141 (CA5), cert. denied 404 U.S. 829, S.Ct. 65, 30 L.Ed.2d 58 (1971). The words used in Art. I.B.2(h) described exactly what, besides the vessel itself, is included in the implied warranty of seaworthiness given by insureds to their marine insurers. We think the additional disjunctive phrase is properly read as intended by the parties to make explicit what is normally only implied in seaworthiness provisions. With regard to the government property in the tow of Gulf Coast, NASA was in a position much like that of an insurer of the cargo of a vessel or of a general insurer of a tug. We agree with Gulf Coast that NASA, as a self-insurer, would naturally require a warranty of seaworthiness just as a marine insurer would require such warranty from its insured.

Any other interpretation would produce serious anomalies in this contract, besides straining at the meaning of words. To construe this clause as including common negligence would permit the Schedule article exception to the government-insured property clause to swallow up the general rule of paragraph (f)(1). Moreover, to attach to this language the meaning of negligence when such well understood terms as “negligence” itself or “errors in navigation” were available is to reward obscurity and confound the reasonable expectations of those reading contractual terms. If negligence is what the government meant, it should have said so.

III. The requirement of clarity in waivers

We are not persuaded by the government’s argument that it should prevail because the agreement does not meet the standard that an agreement to shift the burden of loss must be clearly and unambiguously expressed. At the outset, the provisions in quéstion do not, as the government suggests, benefit only the tower. NASA did not insist on using its Long Form out of magnanimity, nor was it forced on an unwilling NASA by an overbearing, powerful, private towing concern. NASA knew that the cost of insuring its special and expensive equipment with commercial insurers, whether through its contractors or directly by the government itself, would be high and that bidders would include the cost in their bids. By waiving the contractors’ liability and prohibiting the charging of insurance premiums, NASA benefitted by reducing its direct costs.

The demand for clarity is puzzling, coming as it does from the party that supplied the terms. Gulf Coast did offer an “understanding” in its original response to NASA’s request for bids unambiguously to the effect that the government assumed “all liability for loss of, and/or damage to Government-owned Property.” It is not clear from the negotiations whether Gulf Coast expected its exact language to be incorporated into the contract. It is clear that the government contracting officer thought such language was unnecessary. He said in a deposition that contractors would be liable for damage to government property only if there were willful misconduct or the involvement of “some high official of the company.”

The government’s policy argument conflicts with a directly contrary policy of construing contractual language against the party that supplied the language. This doctrine has been applied against the government many times, and although no case in which the government was involved appears to have raised the issue in this circuit, it has been applied by this court in suits between private parties. For the most part, those cases concerned contractual terms capable of two equally logical meanings. We are not faced here with such precise ambiguity, but we think the policy is appropriate where the ambiguity is in a standard form required by the government. At the very least, where a provision of a contract benefits both parties, one party cannot rely on a policy of construing such terms strictly in its favor where it supplied and insisted upon the very terms that are ambiguous.

IV. Application of the Bisso-Dixilyn doctrine

Bisso-Dixilyn proscribes as against public policy contracts by which towers are exculpated from liability for their own negligence. The basis for the policy was the fear of overreaching by the towing industry of those in need of its services. A small, owner-operated company like Gulf Coast could hardly overreach the United States government, and it is clear no overreaching occurred. Gulf Coast was one of three companies that responded to NASA’s request for bids, and presumably it was selected because it offered to perform the required work at the lowest price.

Even if Gulf Coast were not without market power, Bisso-Dixilyn would not apply here for two other related reasons. First, we have permitted parties to make their own agreements as to which shall bear the cost of insurance. Most recently, we have held that the parties may provide by contract that each party must (1) procure insurance to protect against his own loss; (2) make the other an assured under the other party’s insurance policy; and (3) require its insurer to waive its subrogation rights against the other party. We think the United States was doing the same thing in the contract in this case. Its self-insurance program and the prohibition against the contractor’s procuring insurance for “excepted perils” were part of an agreement as to who should procure insurance. Because the government elected to be self-insured, its .waiver of the contractor’s liability was analytically identical to, and served the same function as, an agreement of one party to require its insurer to waive subrogation rights against the other party. Indeed, with one party self-insuring, this result could be achieved in no other way.

Second, where the waiver of liability is forced on the tower pursuant to a well established, prior policy of the other party, application of Bisso-Dixilyn would be grossly unfair. Especially is this so where the other party is the government and where it forbids its towing contractors to procure insurance to protect themselves. Barring the shifting of liability would render ineffectual NASA’s attempt to reduce its insurance costs by, its program of self-insurance. Bisso-Dixilyn should not have that effect.

In summary, we think the Government-furnished Property Form, the Long Form, was intended to shift from contractor to government the risk of loss to such property in the contractor’s possession, whether such loss arose from the negligence of the contractor or some external source, so long as the loss was one that might have been insured against. The indemnity agreement did not operate as an exception to the non-liability provision except where unseaworthiness was the cause of the loss. Finally, no judicially-developed public policy should prevent the United States from assuming liability where it chooses to do so with its eyes wide open.

Affirmed.

      . A second company owned by the same individual who owns Gulf Coast and a third company were also involved in this arrangement. They are parties here, and their positions are the same in this appeal. They will be referred to collectively as Gulf Coast.

      . The State made a claim in Gulf Coast’s limitation action, and their dispute has been settled. The issue between Florida and the tugs is substantially different from that between the United States and the tugs.

      . The schedule contained 15 articles, only the first of which is pertinent. It was entitled “Scope of Work,” and had five subheadings: (A) General; (B) Operations; (C) Schedule of Trips; (D) Contractor Personnel; and (E) General Requirements. The “Operation” subheading had two sections; one simply defined the endpoints of the tows and required the contractor to use a “reasonable” speed that “shall not be such as to endanger the tow.” The second section, Art. I.B.2, provided:
      “The contractor shall perform all tows in accordance with Exhibit C, Method of Tow, subject to the following provisions
      (h) The contractor shall fit out and maintain the tugs in a proper and sufficient manner in all respects and shall indemnify the government against any and all loss, damage, or liability arising from or attributable to, the unseaworthiness of the tug or tugs, or by deficiency in, or failure of, the equipment, machinery or personnel on board. For the purposes of this contract the term ‘government-furnished property’ as used in the government-furnished property (Long Form) (Oct. 1963) form attached to this contract is deemed to include any and all cargo and/or equipment carried, which has been carried, or is to be carried aboard government furnished barges.” [Emphasis added.]
      The language emphasized is that upon which the government relies in asserting that this provision includes a promise to indemnify for loss due to the negligence of the tug’s crew.

      . The sixth paragraph of the Long Form provides:
      “(f)(1) Except for loss, destruction or damage resulting from a failure of the Contractor due to willful misconduct or lack of good faith of any of the Contractor’s managerial personnel as defined herein, to maintain and administer the program for the maintenance, repair, protection and preservation of the Government-furnished Property, as required by Paragraph (e) hereof, and except as specifically provided in the clause or clauses of this contract designated in the Schedule, the Contractor shall not be liable for loss or destruction of or damage to the Government-furnished Property—
      (i) caused by any peril where the property is in transit off the Contractor’s premises, or
      (ii) caused by any of the following perils while the property is on Contractor’s or subcontractor’s premises, or on any other premises where such property may properly be located, or by removal therefrom because of any of the following perils:
      (A) Fire, lightning, windstorm, cyclone, tornado [and like perils] . . .; or
      (B) Other peril, of a type not listed above, if such other peril is customarily covered by insurance (or by a program of self-insurance) in accordance with the normal practice of the Contractor, or the prevailing practice in the industry in which the Contractor is engaged with respect to similar property in the same general locale.
      The perils as set forth in (i) and (ii) above, are hereinafter called ‘excepted perils.’
      * * *
      (2) The Contractor represents that he is not including in the price hereunder, and agrees that he will not hereafter include in any price to the Government, any charge or reserve for insurance (including self-insurance funds or reserve) covering loss or destruction of or damage to the Government-furnished Property caused by any excepted peril.”

      . Stevens v. The White City, 285 U.S. 195, 52 S.Ct. 347, 76 L.Ed. 699 (1932); New Orleans Coal & Bisso Towboat Co. v. Texas Co., 122 F.2d 141 (CA5, 1941); Dameron-White Co. v. Angola Transfer Co., 19 F.2d 12 (CA5, 1927); Offshore Co. v. G & H Offshore Towing Co., 262 F.Supp. 282, collecting cases at 286 (S.D. Tex., 1966).

      . 41 C.F.R. § 18-10.303:
      “NASA’s policy with respect to Government assumption for risk of loss of or damage to Government property in the possession of contractors is set forth in § 18-13.-102. This policy is implemented by the Government property clauses set forth in Subpart 18-13.7. . . . Except for contracts . . . where contractor responsibility for risk of loss or damage would not result in the inclusion of contingency charges in the contract, it is NASA’s policy to assume the risk of loss or damage. This policy is based on the principle that it is less costly for the Government to act as a self-insurer than to permit the contractor to take out property damage insurance
      41 C.F.R. § 18-13.102-1:
      “It is NASA policy not to hold a contractor responsible for loss or damage to Government property caused by certain perils when such Government property is provided under:
      (b) A negotiated fixed-price type procurement contract for which the price is not based on (1) adequate price competition, (2) established catalog or market prices of commercial items sold in substantial quantities to the general public or (3) prices set by law or regulation

      . Adherence to maritime insurance practice is appropriate here because the Long Form itself refers to perils “customarily covered by insurance ... in accordance with . the prevailing practice in the industry in which the Contractor is engaged . . . .” Although this language occurs in paragraph (f)(l)(ii)(B) regarding on-premises perils, it is clear that the “any peril” of (f)(l)(i) must encompass all the particular perils of (f)(l)(ü)(A) and (B).

      . Liverpool and Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 438, 9 S.Ct. 469, 470, 32 L.Ed. 788, 791 (1889).

      . Peters v. Warren Ins. Co., 39 U.S. (14 Pet.) 99, 108, 10 L.Ed. 371, 376-377 (1840); American-Hawaiian S.S. Co. v. Bennett & Goodall, 207 F. 510, 514 (CA9, 1913).

      . Cf. Tropical Marine Products, Inc. v. Birmingham Fire Ins. Co. of Pa., Inc., 247 F.2d 116 (CA5), cert. denied 355 U.S. 903, 78 S.Ct. 331, 2 L.Ed.2d 260 (1957), where it was held that even unseaworthiness was covered by an “Inchmaree Clause.”

      . The provision, supra, note 3, requires the contractor to indemnify the government for liability or loss “arising from or attributable to, the unseaworthiness of the tug or tugs, OR by deficiency in, or failure of, the equipment, machinery or personnel on board.” [Emphasis added.] ‘ To read the “by deficiency in [etc.]” phrase as a disjunctive clause adding additional liabilities leaves a wide overlap, for no interpretation of “deficiency in, or failure of, the equipment [or] machinery” could add anything that is not already implied in seaworthiness. We think it more plausible that the parties intended to make specific what was implied by the term “unseaworthiness” rather than that they intended to add some new liability and fortuitously employed language that looks strikingly like the implied warranty of seaworthiness in most of its features.

      . See, e.g., Garrison v. United States, 74 U.S. (7 Wall.) 688, 19 L.Ed. 277 (1869); Firestone Tire & Rubber Co. v. United States, 444 F.2d 547, 195 Ct.Cl. 21 (1971); Kenneth Reed Construction Corp. v. United States, 475 F.2d 583, 201 Ct.Cl. 282 (1973). [Cases are listed in Modern Federal Practice, Contracts § 155.]

      . Boyd Construction Co. v. T. L. James & Co., 477 F.2d 34 (CA5, 1973); W. C. Shepherd Co. v. Royal Indemnity Co., 192 F.2d 710 (CA5, 1951).

      . Bisso v. Inland Waterways Corp., 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955); Dixilyn Drilling Corp. v. Crescent Towing & Salvage Co., 372 U.S. 697, 83 S.Ct. 967, 10 L.Ed.2d 78 (1963).

      . Bisso, supra, 349 U.S. at 91, 75 S.Ct. at 632, 99 L.Ed. at 918; Fluor Western Inc. v. G & H Offshore Towing Co., 447 F.2d 35, at 38 (CA5, 1971).

      . Fluor Western Inc. v. G & H Offshore Towing Co., supra, note 14. See also In re Port Everglades Towing Co., 454 F.2d 276 (CA5, 1972); Slade, Inc. v. Samson Towing Co., 327 F.Supp. 555 (E.D.Tex., 1970).

      . Twenty Grand Offshore, Inc. v. West India Carriers, Inc., 492 F.2d 679 (CA5, 1974).