author: FAIRCHILD, Circuit Judge.

text:
    INTERSTATE COMMERCE COMMISSION, Plaintiff-Appellant, v. ALL-AMERICAN, INC., Defendant-Appellee.
    No. 74-1019.
    United States Court of Appeals, Seventh Circuit.
    Argued June 5, 1974.
    Decided Nov. 4, 1974.

      Bernard A. Gould and Robert S. Turk-ington, I. C. C., Washington, D. C., Miles L. Kavaller and Edward D. Greenberg, Chicago, III., for plaintiff-appellant.
    Joel H. Steiner, Chicago, 111., for defendant-appellee.
    Before CLARK Associate Justice, and FAIRCHILD and STEVENS, Circuit Judges.

       Associate Justice Tom C. Clark, United States Supreme Court (Ret.) is sitting by designation.

   FAIRCHILD, Circuit Judge.

This action was instituted in the district court by the appellant Interstate Commerce Commission under 49 U.S.C. § 322(b)(1), seeking to enjoin appellee All-American, Inc., a motor carrier engaged in the transportation of property in interstate or foreign commerce pursuant to certificates of public convenience and necessity issued by the Commission, from extending credit to shippers who it knows, or should know, will not pay its tariff charges within a seven day period from the date of presentation of the freight bill in violation of Section 223 of the Interstate Commerce Act (49 U.S.C. § 323) and Section 1322.1 of Title 49 of the Code of Federal Regulations. The Commission further sought to prevent All-American from providing credit until it had taken precautions sufficient to assure payment of its tariff charges within such seven day period as required by the regulation. All-American filed a motion to dismiss the Commission’s amended complaint and the district court entered an order granting the motion. It is from that order that the Commission appeals. We reverse.

The district court, in its order dismissing the Commission’s amended complaint, relied upon the doctrine of primary jurisdiction, ruling that, despite a clear grant of jurisdiction to the court to enforce I.C.C. regulations in 49 U.S.C. § 322(b)(1), “the power should not be exercised when technical questions of fact involving administrative expertise are involved.” Concluding that the regulation in question raised many technical questions in interpretation and application, the court found that “scrutiny by the Commission’s expertise is clearly required before this court should attempt to exercise its power by an injunction.”

The doctrine of primary jurisdiction determines whether the federal court will refrain from exercising its unquestioned jurisdiction over a dispute until after an administrative agency has resolved some question arising in the proceeding before the court. It represents a recognition of the need for an orderly coordination between the functions of court and agency in securing the objectives of their often overlapping competency. Far East Conference v. United States, 342 U.S. 570, 575, 72 S.Ct. 492, 96 L.Ed. 576 (1952). The doctrine, first enunciated in Texas & Pacific R. v. Abilene Cotton Oil Co., 204 U.S. 426, 27 S.Ct. 350, 51 L.Ed. 553 (1907), has been developed and refined in subsequent decisions. “[I]n cases raising issues of fact not within the conventional experience of judges or eases requiring the exercise of administrative discretion, agencies created by Congress for regulating the subject matter should not be passed over.” Far East Conference v. United States, supra, 342 U.S. at 574, 72 S.Ct. at 494. “Primary jurisdiction . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. . ” United States v. Western P.R. Co., 352 U.S. 59, 64-65, 77 S.Ct. 161, 165, 1 L.Ed.2d 126 (1956).

An examination of the complaint in the instant proceeding persuades us of the inapplicability of the doctrine to the present dispute. “[T]he question is whether the reasons for the existence of the doctrine are present and whether the purposes it serves will be aided by its application.” United States v. Western P.R. Co., supra, at p. 64, 77 S.Ct. at p. 165. Initially, we note that the Commission itself is a party to the dispute and has brought the action in the district court to enforce its regulation. Ordinarily, the doctrine of primary jurisdiction attaches in instances where the case is taken into the courts without any direct involvement of the administrative agency. It has been suggested by one commentator that, in cases where the appropriate administrative body is before the court, the doctrine should not apply since a principal function of the rule, acquainting the court with the agency’s position concerning the matter, has been satisfied. Davis, Administrative Law Treatise, Volume 3, § 19.02, p. 14, note 41 (1951). “Therefore, the doctrine does not apply when the agency itself is plaintiff.” C.A.B. v. Aeromatic Travel Corp., 489 F.2d 251 (2d Cir. 1974). In the present case, the Commission has considered what action it should follow and has determined to pursue a judicial rather than administrative procedure. This provides strong indication of the Commission’s view as to the necessity of administrative fact finding or expertise. Cf. Civil Aeronautics Board v. Modern Air Transport, 179 F.2d 622, 625 (2nd Cir. 1950).

Further, it is clear that the reasons for the existence of the doctrine and the purposes it- serves do not support its application in a proceeding brought by an agency to enjoin further violations of a valid rule or regulation. See, Texas & P.R. Co. v. Gulf C. & S.F.R. Co., 270 U.S. 266, 271-273, 46 S.Ct. 263, 70 L.Ed. 578 (1926); Pennsylvania R. Co. v. International Coal Co., 230 U.S. 184, 197, 33 S.Ct. 893, 57 L.Ed. 1446 (1913). “[T]his doctrine is not applicable where the issue, regardless of its complexity, is not the reasonableness of the rate or rule, but a violation of such rate or rule. Thus it has been continuously asserted that courts have original jurisdiction to interpret tariffs, rules, and practices where the issue is one of violation, rather than reasonableness.” Civil Aeronautics Board v. Modern Air Transport, Inc., supra, 179 F.2d at p. 624. See also, Jaffe, Primary Jurisdiction, 77 Harv.L.Rev. 1037, 1042 (1964).

Moreover, the statutory scheme involved in the present proceeding is clear, and any difficulties presented the court in its construction are amenable to traditional judicial processes. 49 U.S.C. § 323 precludes common carriers from extending credit on delivery of goods unless Commission rules and regulations are complied with. 49 C.F.R. § 1322.1, the relevant Commission regulation, permits the extension of credit by the carrier only “upon taking precautions deemed by them to be sufficient” to assure payment of the tariff charges within a seven day period fnom the presentation of the freight bill.

These are not novel, unique, or unduly technical regulations requiring the administrative expertise or discretionary action of the Commission. The statutory provision in question has been enacted as law since 1935, and is substantially identical in its substantive provisions with 49 U.S.C. § 3(2), governing the extension of credit to shippers by railroads, first enacted in 1920. Similarly, the requirement of “precaution deemed by them to be sufficient” has been a part of the Commission regulations concerning credit since their inception. Examination and review of the relevant Commission expressions concerning the extension of credit to shippers by railroads and motor carriers during this period provides a familar method of construction and resolution available to the district court. We agree with the Tenth Circuit, which held in an action to enforce the credit regulations under the civil forfeiture provisions of 49 U.S.C. §§ 16(8), (9):

The statute and the rules are exercises in futility unless some means is provided for enforcement. Section 16(8) and (9) provide the means. The statutory method of enforcement may not be avoided by the assertion that the Commission, before it invokes § 16(8) must adjudicate specific rights and responsibilities in specific instances. United States v. Western P.R. Co., 385 F.2d 161, 163 (10th Cir. 1967), cert. denied, 391 U.S. 919, 88 S.Ct. 1805, 20 L.Ed.2d 656 (1968).

All-American seeks to avoid this result by urging that the Commission itself has indicated that credit transactions such as the present are of the sort which must be resolved through agency discretion and fact finding. First, relying upon Ex Parte No. 73 — Regulations for Payment of Rates and Charges, 326 I.C.C. 483 (1966), an administrative proceeding conducted to consider modification of the rules and regulations governing the extension of credit by motor cai’-riers and railroads, it is argued that the Commission has rejected the sort of relief sought in the district court in favor of a more flexible agency examination. While there is similarity between the relief requested below and the proposed rules modifications rejected by the Commission in Ex Parte No. 73; such a conclusion would place this court in the anomalous position of asserting that the Commission, through its Bureau of Enforcement, was purposely violating its own standards and procedures. We assume unity of action and intention within the Commission when a proceeding is brought to enforce a rule or regulation. If the Commission is dissatisfied with the actions taken by its Bureau of Enforcement, it, rather than the courts, may act to require conformity with its requirements and expectations.

Second, All-American argues that the Commission’s reopening of Ex Parte No. 73, supra, and Ex Parte No. MC-1— Payment of Rates and Charges for Motor Carriers, 38 F.R. 7820, establishes that the resolution of credit regulation disputes lies exclusively within the Commission’s rule-making function. Such an argument fails to discern the distinction between rule making and rule enforcement. While concededly the Commission enjoys the power to promulgate regulations concerning motor carriers and railroads, this power does not detract from or diminish its authority to enforce the provisions of the Interstate Commerce Act and regulations adopted pursuant thereto. Congress has provided the Commission with appropriate enforcement mechanisms. (Cf. 49 U.S. C. § 322) and the institution of actions for injunctive relief in the district court is one (49 U.S.C. § 322(b)). Reopening rule making proceedings does not suspend or limit this power and, in the instant case, the Commission, through its Bureau of Enforcement, has determined to pursue judicial action. Again, we accept the determination of the agency in this matter. A remand to it for further consideration would be fruitless.

For the foregoing reasons, the judgment appealed from is reversed and the cause is remanded for further proceedings consistent with this opinion.

      . Section 322(b)(1) provides in pertinent part as follows:
      “If any motor carrier or broker operates in violation of any provision of this chapter (except as to the reasonableness of rates, fares, or charges and the discriminatory character thereof), or any lawful rule, regulation, requirement, or order promulgated by the Commission, or of any term or condition of any certificate or permit, the Commission or its duly authorized agent may apply for the enforcement thereof to the district court of the United States for any district where such motor carrier or broker operates.

      . Section 323 provides in pertinent part as follows:
      “No common carrier by motor vehicle shall deliver or relinquish possession at destination of any freight transported by it in interstate or foreign commerce until all tariff rates and charges thereon have been paid, except under such rules and regulations as the Commission may from time to time prescribe to govern the settlement of all such rates and charges, including rules and regulations for weekly or monthly settlement, and to prevent unjust discrimination or undue preference or prejudice . . ..”
      Section 1322.1 of Title 49 C.F.R. provides in pertinent part:
      Carrier may extend credit to shipper.
      (a) Extension of credit. Upon taking precautions deemed by them to be sufficient to assure payment of the tariff charges within the credit period herein specified, common carriers by motor vehicle may relinquish possession of freight in advance of the payment of the tariff charges thereon and may extend credit in the amount of such charges to those who undertake to pay them, such persons herein being called shippers, for a period of 7 days excluding Saturdays, Sundays, and legal holidays. . . .”

      . See, Ex Parte 73, Regulations for Payment of Rates and Charges, 57 I.C.C. 591, 596 (1920); Ex Parte No. MC-1, Payment of Rates and Charges of Motor Carriers, 2 M.C.C. 365, 378 (1937).

      . See, e. g., General Orders, F.Carr.Cas., ¶ 23,009 (1936); Ex Parte No. 73, 57 I.C.C. 591 (1920); Glama Dress Co. v. Mid-South Transport, Inc., 335 I.C C. 586 (1969); Ex Parte No. 73, 326 I.C.C. 483 (1966).

      . The relief requested in this action is, however, less extensive than the proposal discussed in Ex Parte 73, 326 I.C.C. 483 in that no demand is made that All-American place shippers on a casli basis or require that it seek written assurance from a formerly defaulting shipper before resuming credit transactions.


source: Caselaw Access Project

author: O’SULLIVAN, Senior Circuit Judge.

license: Public Domain

text:
    INGRAM CORPORATION et al., Plaintiffs-Appellees, v. The OHIO RIVER COMPANY, Defendant-Appellant.
    No. 73-1488.
    United States Court of Appeals, Sixth Circuit.
    Nov. 1, 1974.

      John S. Stith, Cincinnati, Ohio, James G. Apple, T. Kennedy Helm, Jr., Louisville, Ky., for defendant-appellant.
    William P. Schroeder, Cincinnati, Ohio, for plaintiffs-appellees.
    Before WEICK and PECK, Circuit Judges, and O’SULLIVAN, Senior Circuit Judge.
   O’SULLIVAN, Senior Circuit Judge.

We consider the appeal of The Ohio River Company (Ohio), defendant in a suit in admiralty, from a judgment awarding damages to plaintiff, Ingram Corporation (Ingram), in the amount of $51,635.87 and to plaintiff, Texaco, Inc., in the amount of $7,145.01. These damages allegedly arose as a consequence of a collision between a barge owned by Ingram and a barge owned by Ohio which had sunk and was lying beneath the surface of the Ohio River. The award to Ingram was for the cost of repairs to and the loss of use of its damaged barge and its vessel M/V (motor vessel) BROADFOOT. The award to Texaco was for its loss of a cargo of gasoline which was being transported in the damaged barge owned by Ingram. The involved vessels had, prior to the casualty, been underway upstream between Louisville, Kentucky and Cincinnati, Ohio. The location of Ohio’s sunken barge was given as being opposite Mile 533.2. This means that the barge was five hundred thirty-three and two-tenths miles downstream from Pittsburgh, Pennsylvania. A vessel navigating upstream in this area would have Kentucky on its right or starboard side and Indiana on its left or port side.

The case was tried to District Judge David S. Porter sitting in the United States District Court for the Southern District of Ohio, Western Division, at Cincinnati. His Opinion and Order are reported as Ingram Corporation v. Ohio River Company, at 382 F.Supp. 481 (1974).

We affirm.

For their respective causes of action Ingram and Texaco charged first, that the captain of defendant Ohio’s M/V (motor vessel) the ZIMMER, navigating upstream in the Ohio River, was negligent, in a maneuver which brought about the sinking of one of its barges and second, that Ohio was negligent in its failure to mark the location of such sunken barge in compliance with relevant rules of navigation.

Defendant’s answer, denying the negligence charged to it, asserted that the captain and crew of Ingram's M/V BROADFOOT, also navigating upstream in the Ohio River, were guilty of negligence in proceeding to the point of collision, notwithstanding the knowledge that they had, or should have had, of the location of Ohio’s sunken barge.

The tow of the ZIMMER (Ohio’s boat) consisted of seventeen barges; fifteen of them were arranged forward of the ZIMMER in five rows of three barges each and there was one barge on each side of the ZIMMER. On Sunday, November 3, 1968, at about 2:30 a. m., this assemblage arrived at the vicinity of Markland Lock as a vessel ahead of it was in the process of locking through, and the ZIMMER had to await the other boat’s clearance of the lock. To hold the ZIMMER and its barges from drifting during this period, the ZIMMER’S master decided to secure the front end of the tow against a sandbar on the Indiana side of the river at the mouth of Log Lick Creek. In attempting this action, however, he hit the sandbar so fast and hard that it became difficult to free his tow therefrom, and in an effort to overcome this problem, the ZIMMER’S engines were put in reverse and extra power was applied. As a consequence, the wheel wash from the ZIMMER began to flood the barge attached to the right — starboard—side of the ZIMMER, causing it to sink. Thereafter, the sunken barge, identified as the OR 740, was lying some seven to nine feet below the surface of the navigable channel of the river. So positioned, it was an obstruction to navigation and, as such, called for obedience to the provisions of the Wreck Act, 33 U.S.C. § 409, and regulations promulgated thereunder. Section 409 provides in part:

“And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidently or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful;

Regulations issued under § 409, 33 C.F. R., 64.01, provided:

“64.01-1 General.
(a) The owner of a vessel sunk in the navigable waters of the United States who fails to mark the wreck immediately for the protection of navigation with a buoy or daymark during the day and a light at night may in addition to being in violation of 33 U.S.C. § 409, be liable for resulting damage to the public. The owner of a sunken obstruction other than a vessel which creates an obstruction to the navigable capacity of any of the waters of the United States may, in addition to being in violation of 33 U.S. C. § 403, be liable for resulting damage to the public.
(b) The Coast Guard is authorized to mark for the protection of navigation any sunken vessel or other obstruction that is not suitably marked. Marking by the Coast Guard does not relieve the owner of any such obstruction from the duty and responsibility suitably to mark the obstruction and remove it as required by law.
§ 64.01-5 Marking by owners.
Buoys, daymarks, and lights established by owners of sunken vessels or other obstructions to mark such obstructions for the protection of navigation shall conform to the lateral system of buoyage prescribed by Sub-part 62.25 of this chapter. Such markings shall be maintained until the obstruction is removed or the right of the owner to abandon is legally established and has been exercised.”

The Ohio vessel, the ZIMMER, did not have aboard the buoys needed to comply with Section 409 and after being advised that such buoys were not available at the Markland Lock, its captain — Rogers —sought to provide substitute warnings. He found an empty grease can (36 inches in length and 16-18 inches in diameter) and anchored it on the upstream end of the sunken barge. An empty bleach (Clorox) bottle was similarly attached to the downstream end. Captain Rogers then requested that Markland notify the Coast Guard of the sunken barge. He then, at about 5:00 a. m., continued on his way and after locking through the Markland Lock proceeded upstream. At 9:30 a. m., Ohio’s Captain Rogers called Ohio’s office in Huntington, West Virginia informing it of the sunken barge and the markers which had been used.

The Coast Guard evidently received the news of the sunken barge (probably from Markland Lock) in the morning of November 3, 1968, and soon thereafter issued a notice to mariners which read as follows:

“SAFETY BROADCAST. USCG NOTICE TO MARINERS 2ND DIST NR 571. OR. THE LOCK MASTER AT MARKLAND LOCK AND DAM REPORTED A BARGE SUNK AT MILE 533.0 OHIO RIVER, IT IS MID CHANNEL 300 FT BELOW MARKLAND LIGHT COVERED WITH 6 OR 7 FEET OF WATER AND MARKED WITH A BLUE & WHITE OIL DRUM AT UPPER END AND A WHITE GALLON JUG AT LOWER END. CAUTION IS ADVISED.”

Such messages were generally sent by teletype to two radio stations, one near St. Louis, and the other near Pittsburgh, so that they could be periodically broadcast to river craft.

There was evidence that the above maritime notice was, in fact, broadcast periodically on November 3 and 4 on the Pittsburgh station, but the log of the St. Louis station was no longer in existence at the time of trial and there was no positive proof that the maritime notice, NR 571, was broadcast from that station.

There was testimony by a man on duty at McAlpine Lock — one McCarty- — • that by radio he advised plaintiff’s boat, the BROADFOOT, of the sunken barge and its location, and that he got an acknowledgment of his message from some unidentified member of the BROAD-FOOT crew. The captain of the BROADFOOT, as well as all members of the crew, however, denied receiving any messages, by radio or otherwise, telling of the sinking of Ohio’s barge OR 740 and its location in the river. There was evidence, also, of many circumstances including poor atmospheric conditions and other natural phenomena which could have interfered with the crew of the BROADFOOT actually receiving any radio messages claimed to have been given. The District Judge fully considered all of these factors, and made a factual finding resolving, in favor of plaintiff, the issue of whether the BROADFOOT had received notice of the sinking of Ohio’s barge and its location. His opinion sets out the reasoning which led him to that conclusion.

The Coast Guard sent a message to Ohio’s office in Cincinnati by which Ohio was informed of its duty to mark the sunken barge. This message, sent on November 3, 1968, at about 9:30 a. m. stated:

“UNCLASSIFIED. INFORMATION HAS BEEN RECEIVED BY THIS OFFICE THAT YOUR BARGE OR 740 HAS BEEN SUNK AT MILE 533.0, OHIO RIVER. THE LAW REQUIRES THIS SUNKEN VESSEL TO BE MARKED BY A BUOY OR DAY MARK DURING THE DAY AND A LIGHT AT NIGHT. YOU HAVE A LEGAL DUTY TO MARK THIS BARGE UNTIL IT IS EITHER REMOVED OR YOUR RIGHT TO ABANDON IT HAS BEEN LEGALLY ESTABLISHED AND HAS BEEN EXERCISED AS PROVIDED IN 33 CFR 67.01.
“IF YOU CANNOT SUITABLY MARK THIS BARGE, THE COAST GUARD WILL UNDERTAKE MARKING AT YOUR EXPENSE IN ACCORDANCE WITH 33 CFR, 64.05. PLEASE ADVISE THIS OFFICE OF YOUR INTENTIONS REGARDING MARKING.” (Emphasis supplied.)

At about 2:02 p. m., on the same date, the Coast Guard received a reply from Ohio saying: “Requested (sic) sunken barge be marked with lighted buoy as soon as possible.” Subsequently, a Coast Guard cutter was dispatched to the site of the sunken barge, but it had to come from St. Louis, Missouri, and did not arrive at the scene until about three o’clock in the afternoon the next day, November 4th, some 33 hours after the sinking of the OR 740 had occurred. We should here emphasize, in support of the District Judge’s finding of negligence, that neither the Ohio River Company nor any of its agents did anything to protect traffic on the Ohio River after the above-described request to the Coast Guard. Thus, the makeshift marking by the grease can and Clorox bottle remained as the only visible warning to river craft for more than a full day.

On November 4th, the plaintiff’s Motor Vessel BROADFOOT, owned by Ingram, was underway upstream in the Ohio River, on a trip from Mount Vernon, Indiana, to Cincinnati, Ohio. In its tow were four gasoline and fuel barges. After dropping two of them at Louisville, the BROADFOOT continued upstream and locked through what is identified as McAlpine Lock and Dam at 4:30 a.m. and was approaching the Markland Lock, which is located upstream from McAlpine Lock. The BROADFOOT’S captain, Saunder Brooks, at about 6:00 a.m., had relieved the pilot who had been navigating the BROADFOOT. He was travelling against a slow current at a speed of 9 miles per hour, and from a distance of about one mile he noticed the grease drum and Clorox bottle through his binoculars. Captain Brooks testified that he did not consider that these objects had a purpose of marking an obstruction to navigation, and that he assumed that they were debris commonly seen on the river. He said, however, that he was aware that at times such makeshift markings were employed awaiting opportunity for correct obedience to the applicable statute and regulations. At 11:45 a.m., on November 4th, the BROADPOOT’S tow struck Ohio’s sunken barge. As a result, Ingram’s barge —• the Illinois — was damaged and its cargo of gasoline poured into the river.

The barge Illinois was out of service for repairs from November 4 to December 4. The vessel, the BROADFOOT, was delayed 3% days at the scene of the collision and while Ingram’s barge was being repaired at Paducah, Kentucky, the company lost the profits that use of the barge would have produced.

We summarize the issues for review as presented by appellant as follows:

“(1) Whether appellant was negligent in the sinking and marking of its barge;
“(2) Whether appellant’s negligence was the proximate cause of the collision of Ingram’s tow and barge;
“(3) Whether the negligence of both appellant and appellee caused the collision requiring the application of the divided damages rule;
“(4) Whether damages awarded were properly calculated by the District Court.”

I. THE STANDARD FOR REVIEW

The District Judge held that appellant’s master was negligent both in running appellant’s tow too hard against the sandbar and in his subsequent maneuver which brought about the sinking of its barge. He found negligence also in Ohio’s failure to take the steps necessary to properly mark the location of the sunken barge. The findings of fact necessary to such holdings must, under Rule 52(a), Fed.R.Civ.P., be sustained on review unless they are clearly erroneous. Appellant contends, however, that because much of the evidence presented in this case was by deposition, the above rule does not control a reviewing court, and our consideration of this admiralty case should be in the nature of a de novo hearing.

In United States Steel Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir. 1969), cert. denied, 398 U.S. 958, 90 S.Ct. 2162, 26 L.Ed.2d 542 (1970), Judge Phillips speaking for this Court, recognized the division between the circuits on this question and held that the clearly erroneous rule should control even where the entire record consisted of “depositions, Coast Guard records, and other written material.” We have adhered to this rule in the later cases. Lambros v. Commissioner, 459 F.2d 69, 72 (6th Cir. 1972); H. K. Porter Co. v. Goodyear Tire and Rubber Co., 437 F.2d 244, 246 (6th Cir. 1971), cert. denied, 404 U.S. 885, 92 S.Ct. 203, 30 L.Ed.2d 169 (1971). We adhere to these decisions now.

II. DEFENDANT’S NEGLIGENCE

We find no error in the District Judge’s finding that appellant’s master was negligent in the conduct which brought about the sinking of the barge OR 740. This finding could have been legitimately predicated first upon the manner of the attempt to secure the head of the ZIMMER’S tow in the sandbar and secondly upon the means thereafter employed to undo the consequence of the original negligence.

The District Judge also found negligence in the failure of Ohio and its agents to make or secure required markings of the location of its sunken barge. We have set out hereinabove the applicable section of the Wreck Act, 33 U.S.C. § 409, which cast upon the owner of the vessel ZIMMER and its barges the duty to

“. . . immediately mark it [the sunken craft] with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned. . . .”

Regulations promulgated under the statute provide:

“(a) The owner of a vessel sunk in the navigable waters of the United States who fails to mark the wreck immediately for the protection of navigation with a buoy or daymark during the day and a light at night may, in addition to being in violation of 33 U.S.C. § 409, be liable for resulting damage to the public. . . .”
“(b) The Coast Guard is authorized to mark . . . any sunken vessel . that is not suitably marked. Marking by the Coast Guard does not relieve the owner of any such obstruction from the duty and responsibility suitably to mark the obstruction and remove it as required by law.” (Emphasis supplied.) 33 C.F.R. 64.01-1(a) and (b).

Appellant relies in part upon an excerpt from a Coast Guard publication identified as the Mississippi River Light List. This excerpt, after describing the statutory obligation of an owner to mark an obstruction to navigation, adds this caveat:

“Provided, that until the owner has an opportunity to establish such standard markings, he shall maintain the most suitable markings available under the circumstances which will warn the navigator of the sunken wreck.” (Emphasis in the original.)

The District Judge was of the view that this proviso did not absolve the master of .the appellant’s vessel from fault. As we read it, the above provision permits the use of “the most suitable markings” until and only until the owner has had opportunity to see to the establishing of a suitable marking— the marking required by the statute. We need not here determine whether the grease can and Clorox bottle could be considered “the most suitable markings.” They were indeed not sufficient to warn the master of plaintiff’s vessel, the BROADFOOT, whose captain saw them but considered them merely debris on the water’s surface. It could be legitimately inferred that the BROAD-FOOT’S captain, an experienced river pilot, would not have proceeded as he did had he considered the markings, the grease can and Clorox bottle, as warning that a sunken barge was in his path. Indulging an assumption that the ZIM-MER’S captain did the best he could in the immediacy of the danger that was his own creation, he and his employer had ample time thereafter to make sure that an adequate warning was provided. Their total conduct was first to ask those on duty at the Markland Lock to notify the Coast Guard. The ZIMMER then proceeded on its way without any assurance that the Coast Guard would act as its substitute in providing proper markings. We note again that regulations issued under the governing statute provide that:

“ . . . Marking by the Coast Guard does not relieve the owner of any such obstruction from the duty and responsibility suitably to mark the obstruction. . . .”33 C.F.R. 64.01-1 (b).

The Cincinnati Office of Ohio had been advised by the Coast Guard, “You have a legal duty to mark this barge until it is either removed or your right to abandon it has been legally established.” The Coast Guard’s message also said, “If you cannot suitably mark this barge, the Coast' Guard will undertake marking .” The appellant then sent a message to the Coast Guard requesting that “the sunken barge be marked with a lighted buoy as soon as possible.” This was Ohio’s last attention to the matter.

Ohio’s office in Cincinnati was only a one and one-half to two hour drive by land from the location of the sunken barge and one or more of Ohio’s employees did, in fact, make the trip on November 3rd or 4th. It may fairly be inferred that appropriate markings, buoys and lights could have been obtained at Cincinnati, but Ohio paid no heed to the sunken barge after asking the Coast Guard to undertake the placing of the required markings. It did not inquire as to when the Coast Guard might carry out its request.

Appellant relies on Petition of Anthony O’Boyle, Inc., 161 F.2d 966 (2d Cir. 1947), where the Second Circuit said:

“[W]e note, in passing, the reasonableness of Miss O’Boyle’s assumption that notification of the Coast Guard was equivalent to a request that they mark the wreck; such a request would probably have been sufficient to discharge O’Boyle’s duty to mark. See The Plymouth, 2 Cir., 225 F. 483.” 161 F.2d at 967. (Emphasis supplied.)

That case, like the present, involved an allegation of failure to properly mark a sunken barge. However, in O’Boyle both the sunken barge and the one which later hit it were in the same tow, and the focus of decision was on the fact that the tow boat had been negligent in striking its own barge.

The Second Circuit re-examined the position taken in O’Boyle in the case of Berwind-White Coal Mining Co. v. Pit-ney, 187 F.2d 665, 669 (2d Cir. 1951), where it was stated:

“Although the Coast Guard’s search for the wreck may, if made with due diligence in the light of the facts within the knowledge of the owner, operate to discharge the owner’s duty, the mere fact that the Coast Guard undertakes a search does not relieve the owner of liability for failure to make all reasonable efforts to mark. . . . The dicta in Petition of Anthony O’Boyle, Inc., 2 Cir., 161 F.2d 966, 967, and Red Star Towing & Transportation Co. v. Woodburn, 2 Cir., 18 F.2d 77, 79, which may indicate the contrary should be discounted accordingly.”

See also Morania Barge No. 140, Inc. v. M. & J. Tracy, Inc., 312 F.2d 78, 83 (2d Cir. 1962).

We believe the position taken by the Court in Berwind-White is correct; it is consistent with the rule that the duty to properly mark under the Wreck Act is non-delegable. See, e.g., Elizabeth Co. v. Mesick & Mesick, Inc., 298 F. 743, 744 (2d Cir. 1924); The Anna M. Fahy, 153 F. 866, 868 (2d Cir. 1907) ; The Snug Harbor, 53 F.2d 407, 411 (E.D.N.Y. 1931).

We find no circumstances in the case before us which would dictate a result contrary to the rule of Berwind-White. Appellant clearly had reasonable time to mark the barge. As pointed out by the District Court,

“It must be recalled that the Coast Guard was in St. Louis and the vessel Lantana which was dispatched November 3, 1968, to mark the barge with lighted buoys had hundred (sic) of miles to go to the scene of the wreck. Hence, on reason, as well as authority, it would make no sense to conclude that notification of the Coast Guard relieved the owner of liability.”

The findings of fact upon which the District Judge predicated negligence of defendant are not clearly erroneous. We are of the view that there was evidence upon which Ohio could be found negligent not only in the style of its captain’s attempt at makeshift marking, but also in its apparent indifference to its responsibilities after it had asked the Coast Guard to provide proper markings. Moreover, we agree that the facts found in the case at bar warranted the conclusion that defendant’s negligence was a proximate cause of the casualty involved.

III. ALLEGED NEGLIGENCE OF PLAINTIFF INGRAM

If the crew of the BROAD FOOT were guilty of negligence which joined with that of defendant in bringing about the casualty, all damages suffered by the parties would, under the American rule, be borne in equal shares by appellant Ohio and appellee Ingram.

We have discussed hereinabove the evidence which defendant contends should have led to the conclusion that Ingram was guilty of contributory negligence. This evidence consists primarily of the fact that the captain of plaintiff’s vessel saw the grease can and Clorox bottle through his binoculars when he was about one mile below the sunken barge. In addition, there was evidence that grease cans had, in the past, been used as a means of emergency marking of an obstruction to navigation; but, on the other hand, there was evidence also that navigators frequently proceed past such things when concluding that they are but debris floating on the river’s surface. Certainly, had the makeshift markings been adequate notice of the presence of the sunken barge, good seamanship would have suggested to a reasonably careful river pilot that he could not navigate into that part of the area until he could be assured of the safety of such conduct. The BROADFOOT’S captain testified to his belief that what he saw was debris, and it was for the District Judge to determine whether this version- of his conduct was believable and credible. He concluded that it was. In dealing with a somewhat similar factual background in The E. M. Millard, 285 F. 94 (E.D.N.Y.1922), the Court stated:

“There is nothing in the record to justify a finding that a coffee can is a proper buoy. It is a matter of common knowledge that floating cans of various sorts are not uncommon in the harbor of New York . . . This accident occurred in a place where there should be no difficulty in placing at once the kind of buoy required by the regulations of the Lighthouse Service in a case of a sunken wreck, to wit, a spar buoy painted with red and black horizontal stripes. The respondent had ten hours in which to anchor such a buoy. Its failure is negligence, and the failure of the tug captain to see and interpret a coffee can as indicating a sunken wreck in the harbor of New York was not negligence on his part.” 285 F. at 95. (Emphasis supplied.)

Appellant further asserts that its evidence that warnings were given by radio as to the location of its sunken barge were in fact received by the crew of ap-pellee’s vessel, the BROADFOOT, should have prevailed over the denial by all of the crew of the BROADFOOT that no such warnings were received. The District Judge’s opinion recites his consideration of this conflict and he resolved it in favor of the plaintiff. We have read the testimony relevant to this factual conflict as well as the District Judge’s resolution of it, and we are not persuaded that he was incorrect. We note specifically that the BROADFOOT’S captain —Brooks—testified that he contacted the Markland Lock and Dam about five minutes before the collision, and that he received no warning of the sunken barge at that time.

Accordingly, we hold that the District Court’s conclusion that appellee Ingram Corporation was not negligent finds adequate support in the record and is based on factual findings which are not clearly erroneous within the meaning of Rule 52(a) of the Federal Rules of Civil Procedure.

IY. DAMAGES

For the most part, the damages awarded by the District Court were either stipulated or have not been challenged on this appeal. The agreed-upon damages were as follows: Texaco’s loss of fuel in the amount of $7,145.01; and physical damage to appellee’s barge Illinois in the amount of $86,178.87. The damage awards claimed to be in error are for: (1) loss of use of the barge Illinois while it was undergoing repairs ($8,052.00); (2) loss of use of M/V BROADFOOT and its tow for the three and one-half day period during which she was delayed at the scene of the collision ($5,339.00); and (3) expenses incurred in transporting the barge Illinois from Paducah, Kentucky, where it was repaired, to Mount Vernon, Indiana, for return to service ($2,066.00).

It is the rule in maritime cases that recovery for loss of use is permitted upon proper showing of such loss. See, e. g., Agwilines, Inc. v. Eagle Oil & Shipping Co., 153 F.2d 869, 870 (2d Cir. 1946); Sinclair Refining Co. v. The America Sun, 188 F.2d 64 (2d Cir. 1951); The Gylfe v. The Trujillo, 209 F.2d 386 (2d Cir. 1954). As stated by the Court in Sinclair Refining Co. v. The America Sun, supra, 188 F.2d at 66-67:

“Whatever the method employed [in calculating loss], it should be one that is reasonably adapted to the circumstances of each case so that there will, on the one hand, be no failure to award damages suffered and, on the other, no unreasonable award based upon some theoretical concept of loss.”

With respect to the first contested element of damages (loss of use of the barge Illinois), it was shown at trial that the Illinois was one of four barges built by appellee to transport fuel products for Texaco. The Illinois was delivered to appellee in August of 1968, and in the months preceding the collision, it averaged 3.5 trips per month between Mount Vernon, Indiana and Cincinnati. On such trips, appellee received one dollar per short ton for the transportation of the fuel. Based on the average capacity of the Illinois on previous trips, it was estimated that this barge produced income of $3,122.58 per trip.

Vladimir Slicho, Ingram’s traffic manager, testified that during the time the Illinois was under repair — November 4 to December 4- — the BROADFOOT made three trips, two of which were made with its three remaining fuel barges, and one on which appellee chartered an extra barge. Although on two trips the BROADFOOT had only three barges in tow, its operating expenses remained the same as when it operated four barges. Based on these factors, it was shown that appellee incurred losses of $3,122.58 on each of the first two trips, and $2,582.04 on the trip for which an extra barge was rented, for a total of $8,827.20.

Upon this element of damages, the District Court made its award in the following manner:

“As to the plaintiff’s claim for loss of use of the Barge Illinois on the three trips dated November 13, 20, and 26, 1968, no discussion is necessary, because the plaintiff appears willing to accept the lowest reasonable alternative of the defendant in calculating such loss of use, so the Court goes along with that. This is in the sum of $8,052.”

In our review of the record, we have not found evidence that, at trial, defendant-appellant proposed, nor that plaintiff-appellee acquiesced in, the specific sum of $8,052.00, but the record amply supports a recovery of that magnitude. Slicho, an official of the Ingram Corporation, testified that during the term of the contract in force at the time of the collision, there was never an occasion when Texaco did not have sufficient fuel to fill a full tow, and it is clear that Texaco had such a supply to be transported while the Illinois was under repair. Although the BROADFOOT made two trips with three — rather than the usual four — barges, Slicho stated that expenses were fixed, that no savings resulted from the reduced size of the tow and that every effort was made to charter an additional barge at the earliest possible opportunity. In its brief, Ingram relies, of course, upon the above-described calculation, derived from Slicho’s testimony, showing a loss of $8,827.20, but Ingram also urges that the award of $8,052.00 was not clearly erroneous. We agree.

With regard to the loss of use of the BROADFÓOT and its tow, our inquiry is, again, a limited one. Slicho’s testimony that Texaco had a constant supply of fuel to be transported, is relevant. There had been no time in the past when the BROADFOOT lacked fuel to transport, and the normal complete trip took approximately seven days. Downtime at the wreck was three and one-half days. The District Judge found that the average profit from a complete trip was $10,678.00, and based upon the above data, he determined that Ingram was entitled to one-half of the full-trip profit, or $5,339.00.

The major conflicting evidence was in the fact that from the beginning of the contract (April 1968) until December 1968, the BROADFOOT’S trips did average more than seven days. The record is unclear as to why this occurred, although Slicho did suggest that some time may have been spent in overhauling and repairing the equipment. Apparently no such overhaul occurred during October. -There was also evidence that delays were experienced periodically on all trips of the BROAD-FOOT. Such delays, however, were presumably included in the seven-day average time for a trip.

Based on the above facts, we do not regard the award of profits for three and one-half days — half the average time needed to make a trip — as being unreasonable. The award of $5,339.00 is therefore sustained.

Similarly, allowance of $2,066.00 for transportation of the barge Illinois from the repair site at Paducah, Kentucky, to Mount Vernon, Indiana, was deemed reasonable by the District Judge as an expenditure made for the purpose of avoiding loss of profit. Appellant has offered nothing to indicate that this result was clearly in error.

In awarding damages, the District Court sought to make appellee Ingram whole for deprivation of the use of its equipment and for unavoidable expenses, both of which were caused by the negligence of appellant Ohio Company. We have examined appellant’s alternative methods of valuing appellee’s losses, and we are not persuaded that they are more accurate or more reliable than the methods adopted by the Court below.

The judgment of the District Court is affirmed. Allowable costs shall be taxed to appellant.

      . Joined in this lawsuit as plaintiffs were Ingram Barge Company, the operating division of Ingram Corporation, and a number of insurance companies who might have had subrogation claims arising from the marine casualty here involved. No discussion of their interests is necessary to understanding of the issues involved. Ingram Corporation was the owner of the damaged barge and the vessel BROADFOOT. Judgment was entered in favor of Ingram Corporation.

      . Station WGK, a privately-owned commercial station, was located in Granite City, lili-nois, and was commonly referred to as the “St. Louis station.” Station WCM was also a private commercial station, located in Irwin, Pennsylvania and referred to as the “Pittsburgh station.” Both stations broadcast marine information for users of inland waterways,

      . Under a contract entered into between ap-pellee Ingram and Texaco, effective April 27, 1968, appellee agreed to “place a tow of sufficient capacity in service to handle [Texaco’s] transportation requirements” for petroleum products. (Plaintiff’s Exhibit 1).
      It was because of this commitment by ap-pellee that the four barges, including the Illinois, were acquired. •


author: GURFEIN, Circuit Judge:

text:
    Raymond ARGRO, Appellee, v. UNITED STATES of America, Appellant.
    No. 12, Docket 74-1664.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 9, 1974.
    Decided Oct. 8, 1974.

      S. Cass Weiland, Atty., Dept, of Justice, Washington, D. C. (David E. Tra-ger, U. S. Atty., E. D. N. Y., and Kenneth Kaplan, Asst. U. S. Atty., of counsel), for appellant.
    Phylis Skloot Bamberger, New York City (William J. Gallagher and The Legal Aid Society, New York City, of counsel), for appellee.
    Before SMITH, TIMBEES and GURFEIN Circuit Judges.

       At the time of the argument, Judge Gur-fein was a District Judge of the United States District Court for the Southern District of New York sitting by designation.

   GURFEIN, Circuit Judge:

This is an appeal by the United States from an order of the United States District Court for the Eastern District of New York (Dooling, J.) entered on February 1, 1974. That order requires the United States Parole Board to conduct a local hearing to determine whether the parole of the appellant, Raymond Argro, should be revoked. The District Court also admitted Argro to bail.

Argro was released on parole from a federal prison in February of 1967 after serving more than three years of a fifteen-year sentence for violation of 18 U.S.C. § 2118 under a commitment pursuant to 18 U.S.C. § 4208(a)(2). While still on parole, he was arrested in June, 1972, in Binghamton, New York, on a state charge of possessing dangerous drugs. On the basis of that arrest the Board of Parole issued a violator’s warrant in July, 1972, which was executed in November, 1973, several months after Argro was convicted on the state charge and after he was already at liberty on bail pending appeal to the Appellate Division of the New York Supreme Court.

The regulations governing parole, release, supervision, and recommitment of prisoners, 28 C.F.R. §§ 2.1 et seq., require a preliminary hearing to determine whether probable cause exists that a violation has occurred. They also require a revocation hearing which may be conducted at or near the place of an alleged parole violation if so requested by the parolee in his preliminary interview. The local revocation hearing is available, however, only if “the prisoner has not been convicted of a crime committed while under community supervision,” Section 2.43(b)(2). After the revocation hearing the parole board determines the disposition to be made of the parolee. See Morrissey v. Brewer, 408 U.S. 471, 484-490, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972).

When, after his preliminary hearing, Argro was ordered removed to the Lew-isburg institution for his revocation hearing, he applied to the court for a stay of his removal. A stay was granted on December 21, 1973, and on February 1, 1974, the order on appeal continued that stay. Judge Dooling, in a reasoned opinion, admitted Argro to bail and ordered the parole board to grant Argro a local revocation hearing, rather than a hearing at Lewisburg, partly because he thought that, under the requirements of Morrissey, a conviction that was still on appeal could not be considered a “conviction” within the meaning of § 2.43(b)(2) of the regulations. The District Court also held that Ar-gro’s Morrissey-derived right to present mitigating evidence [and evidence rebutting the alleged violation] at his revocation hearing could only be protected in a local hearing, rather than in a hearing at the institution. In short, the Court held that the appellee was entitled to a local parole revocation hearing to determine disposition as well as violation.

I

When Judge Dooling made his decision, Roberson v. Connecticut, 501 F.2d 305 (2 Cir. 1974), had not yet been decided. There a revocation of probation was challenged on grounds similar to those asserted here. We held that a criminal conviction provides a “sufficient basis for revocation of probation, even if that conviction is still awaiting appellate review.” at 308 Since the due process requirements for parole revocation are generally the same as those applicable to probation revocation, see Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973), our holding in Roberson undercuts an important ground of Judge Dooling’s order. While, strictly speaking, Roberson is distinguishable from this case in that it dealt with the substantive contention that revocation was constitutionally improper when based on a conviction subject to direct appeal, rather than with the procedural requirements of revocation, its importance to the resolution of this case is evident. Moreover, Argro’s state conviction has now been affirmed by the Appellate Division of the New York Supreme Court. His parole revocation proceedings, therefore, have taken on a different aspect from that which Judge Dooling considered in February.

Because of the importance of Roberson and the significant change in the circumstances of Argro’s case, we have concluded that the cause should be remanded for further consideration by the District Court. Without passing finally on the merits of the appeal, we make several additional observations for special attention.

Concerning Judge Dooling’s holding that there is a right to present mitigating evidence which requires a local revocation hearing, we do not take this to be a mandated right under Morrissey v. Brewer, supra; see Cook v. U. S. Attorney General, 488 F.2d 667 (5 Cir. 1974). If the District Court adheres to this phase of its decision in the circumstances of this case, it would be desirable for it to make findings or at least to express particular reasons why a local hearing should be had on mitigation alone and, if so, whether the locality should be Binghamton (where the violation was committed) or New York City (where the appellee resides).

II '

The District Court granted bail on an appearance bond in the amount of $15,000 secured by the deposit of $1,500 in cash, largely because it gave “appropriate deference” to the admission of Argro to bail pending appeal in the state court, subject to a showing that the judge who granted bail had not known that the parolee was on federal parole and that a warrant had been issued but not executed. The appellee was unable to make bail and appellant did not make the proof suggested. Bail was subsequently modified to require a personal appearance bond in the amount of $25,000 without the deposit of cash or other security.

In view of the affirmance by the Appellate Division and the holding in Roberson, supra, the District Court will be given the opportunity to review the bail situation.

Implicit in that direction, of course, is the conclusion that the district judge did have the power to grant bail in this matter. While there is no constitutional right to bail in these circumstances, see In re Whitney, 421 F.2d 337 (1 Cir. 1970), we think there may be adequate ground to support its grant in unusual cases, at least in a bona fide inquiry into whether a parole revocation is being conducted pursuant to due process. See Baker v. Sard, 137 U.S.App.D.C. 139, 420 F.2d 1342 (1969); Johnston v. Marsh, 227 F.2d 528 (3 Cir. 1955).

The New York Court of Appeals has rejected a contention that there is a due process right to bail for a parolee detained in advance of a revocation hearing. The specific ground for the decision was that there was a lack of state statutory authority. People ex. rel. Calloway v. Skinner, 33 N.Y.2d 23, 34, 347 N.Y.S.2d 178, 300 N.E.2d 716 (1973). See also In re Law, 109 Cal.Rptr. 573, 513 P.2d 621 (1973). We need not decide whether there is never a right to bail on the normal detention of a parolee pending a revocation hearing.

Here the application to the District Court was on the propriety of the revocation proceeding itself. That is properly treated as akin to habeas corpus, which is also a civil action and where bail may be granted. See Johnston v. Marsh, supra; Boyer v. City of Orlando, 402 F.2d 966 (5 Cir. 1968).

The recognition that there is power to grant bail in these circumstances is not to say that it should be readily exercised. The presumption of innocence is no longer available and the threat of reincarceration may prove a strong inducement for flight. Though this is not a collateral attack on the original conviction, see Glynn v. Donnelly, 470 F.2d 95 (1 Cir. 1972), the history of the offender, already under sentence, militates against bail. In the case of a parolee convicted of a new offense while on parole, we would think release on bail pending a revocation hearing under challenge to be proper only under the most unusual circumstances. Cf. Calley v. Callaway, 496 F.2d 701 (5 Cir. 1974). See Douglas, J., upon an application for bail in Aronson v. May, 85 S.Ct. 3, 5, 13 L.Ed.2d 6 (1965).

Since we believe it proper for the District Court to reconsider this case in its present posture, the order is vacated, and the cause remanded for further proceedings consistent with this opinion. The stay will continue pending further action by the District Court.

      . The Government’s brief concedes that the petition is for a writ of habeas corpus, but denies that habeas lies since outright release is not sought. We think the writ is available since even a parolee at large is “in custody.” Jones v. Cunningham, 371 U.S. 236, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963). He seeks outright release if the parole board fails to comply with the procedural conditions sought to be imposed. See also text accompanying n. 9, infra.

      . The Section has since been renumbered Section 2.40, 28 C.F.R. (July 1, 1974), p. 87.

      . Morrissey was decided on the assumption that the record failed to show that “petitioners in fact have admitted the violations charged before a neutral officer.” 408- U.S. at 477, 92 S.Ct. at 2598.

      . The District Court said: “It must be supposed that Rule 2.43(b) (2) .-means such a conviction as puts guilt, and therefore parole violation, beyond question, and, lienee, leaves open only the Board’s determination to reinstate, revoke or modify the parole terms and conditions.”

      . See Morrissey v. Brewer, supra, 408 U.S. at 488, 92 S.Ct. 2593.

      . Putting a parole violator who is convicted of a new offense in a separate category was recognized as proper by the present Chief Justice in Hyser v. Reed, 115 U.S.App.D.C. 254, 318 F.2d 225, 246 (1963):
      “Those who have not denied the charged violation of parole or any whose parole was revoked because of a criminal conviction would not now be benefited by a hearing which is designed specifically to make a record only in cases where the fact of violation is controverted.”

      . An application for leave to appeal to the New York Court of Appeals has been filed.

      . A finding of “probable cause to hold the parolee for the final decision of the parole board on revocation . . . would be sufficient to warrant the parolee’s continued detention and return to the state correctional institution pending the final decision.” Morrissey v. Brewer, supra, 408 U.S. at 487, 92 S.Ct. at 2603. In People ex rel. Callo-way v. Skinner, infra, both the majority and minority opinions assumed that under Mor-rissey the requirement for a local hearing would apply only to the “preliminary hearing” to determine probable cause. 33 N.Y.2d at 34-35, 36, 347 N.Y.S.2d 178, 300 N.E.2d 716.

      . This treatment keeps clear the fact that primary jurisdiction over the parolee lies with the parole board.

      . As Chief Justice Burger (then Circuit Judge) has noted: “. . . It is hardly helpful to compare his rights in that posture [as appellee] with his rights before he was duly convicted.” Hyser v. Reed, supra, 318 F.2d at 235.


author: GEE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Alton R. FAIRCHILD, Defendant-Appellant.
    No. 74-2097.
    United States Court of Appeals, Fifth Circuit.
    Jan. 8, 1975.

      Phil Burleson, Michael P. Gibson, Dallas, Tex., for defendant-appellant.
    Frank D. McCown, U. S. Atty., Harold S. Jaquet, Asst. U. S. Atty., Ft. Worth, Tex., Charles D. Cabaniss, Wm. F. Sand-erson, Jr., Asst. U. S. Attys., Dallas, Tex., for plaintiff-appellee.
    Before GEWIN, AINSWORTH and GEE, Circuit Judges.
   GEE, Circuit Judge:

Alton Robert Fairchild was convicted of twice violating the Dyer Act, 18 U.S. C. § 2313. He now complains (1) that the evidence presented was insufficient to support a jury finding that he knew that the cars which he had received were stolen, (2) that the trial court committed error when it allowed the jury to hear testimony that he stood silent after he had been read his Miranda warnings and (3) that plain error was committed when the United States Attorney, in his summation, made a comment which implied that Fairchild’s failure to make a statement after his arrest showed that he had knowledge that the cars were hot.

In September of 1972, FBI Agent Is-raelson received information from a confidential informant that a Mr. Alton Robert Fairchild was in possession of a stolen 1972 Cadillac Eldorado. The informant also gave Israelson a Dallas telephone number at which Fairchild could be reached. Using the criss-cross index Israelson discovered the address of the telephone and proceeded there. When a young lady emerged he followed her to a Dallas motel. There he saw, parked next to a Ford LTD, a Cadillac fitting the description provided by his informant. He called in the license and vehicle identification numbers of the Cadillac and confirmed that it was, indeed, a stolen vehicle. A check also revealed that the Ford was registered to a Mr. Alton Robert Fairchild. At this point Agent Israelson contacted Detective Hobbs of the Dallas Police Department and brought him in on the case. Israelson and Hobbs put the Cadillac under surveillance. Eventually four people emerged from the motel, entered the Cadillac and drove to an apartment complex outside the Dallas city limits. The four were later identified as Mr. Fair-child, Dr. John Heisler and two women friends of theirs. At the apartment complex Mr. Fairchild and his companions were observed looking into a 1971 Buick Electra. A check revealed that this Buick, like the Cadillac, was a stolen vehicle. After looking at the Buick the four returned to the Cadillac and drove towards Dallas. As soon as they entered the city limits they were stopped by Detective Hobbs. Dr. Heisler, who was driving the Cadillac, explained that he was buying the car through Mr. Fairchild from a man named Ferguson. He denied that either he or Fairchild had knowledge that the car was stolen. Fairchild told essentially the same story —that he had purchased the ear from Ferguson and was selling it to Heisler —and produced papers which purported to show that he was in legitimate possession of the Eldorado. Unfortunately for him, some of the papers matched the Cadillac, some matched a Buick and none convinced Hobbs of his bona fides. The occupants of the Cadillac were placed under arrest and taken to a Dallas police station. There Mr. Fairchild was read his Miranda rights.

Knowledge that a vehicle received or concealed was stolen is a necessary element of the crime defined by 18 U.S.C. § 2313. E.g., United States v. Bryant, 490 F.2d 1372 (5th Cir. 1974). The burden of proving such knowledge is, of course, on the government. The prosecution is aided, however, by the well-established and judicially approved common law presumption that “an inference of guilty knowledge may be drawn from the fact of unexplained possession of stolen goods.” Barnes v. United States, 412 U.S. 837, 843, 93 S.Ct. 2357, 2362, 37 L.Ed.2d 380 (1973). Fairchild seems to argue that his evidence that he legitimately obtained the vehicles from a man named Ferguson — a phantom whom neither the defense nor the prosecution was able to produce at trial — -and his evidence that he had checked with a car dealer friend and determined that both the Cadillac and Buick were clean have somehow dissipated the common law presumption. However, the law of this circuit is that a defendant’s explanation of his possession of recently stolen goods does not necessarily overcome this permissible inference of guilty knowledge. This is so because the jurors are entitled to judge the- credibility of the defendant’s explanation and assign to the evidence whatever weight they feel it deserves. United States v. Smith, 502 F.2d 1250 (5th Cir. 1974). Fairchild’s claim that there was insufficient evidence of guilty knowledge might possibly be rejected on the basis of the presumption alone. There was, however, additional, circumstantial evidence which tended to prove that he knew of the stolen nature of the vehicles.

By his own testimony, Fairchild admitted that he had dealt with Ferguson on two separate occasions. Both times the cars which came into Fairchild’s possession proved to have been stolen. Twice Fairchild agreed to transfer Cadillac Eldorados to Dr. Heisler at prices well below their market value. At all times the papers on the cars which Fair-child came to possess were, to put it mildly, in a state of disarray. Not one official document indicated that any of the cars ever belonged to a Mr. Ferguson. Furthermore, in helping Dr. Heisler arrange for financing of the first Cadillac, Fairchild, in the presence of a notary, signed the name “Russell Sullivan” to an affidavit. This was the name under which that car had been registered in Alabama prior to Heisler’s registering it in Texas.

Since Fairchild has been found guilty, we must, in examining its sufficiency, view the evidence in the light most favorable to the government. Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942). This light shines on circumstantial as well as direct evidence. In order for circumstantial evidence to support a conviction, the inferences to be drawn from it must be consistent with the guilt of the defendant. Also, the evidence must be such that a jury could conclude that it is inconsistent with every reasonable hypothesis of innocence. United States v. McGlamory, 441 F.2d 130 (5th Cir. 1971). The circumstantial evidence presented against Fairchild was, under these standards, sufficient. Fortified by the presumption, it was more than sufficient.

During the trial, the prosecutor, over defense objection, was allowed to elicit from a government witness, Detective Hobbs, the fact that Fairchild had refused to make a statement after he had been read his Miranda rights. The admission of this testimony was, according to Fairchild, error. The government now seeks to sustain the admission of Hobbs’ revelation on two grounds. First, it argues that Fairchild’s silence was admissible for impeachment purposes. Second, it points out that it was Fairchild himself who opened the door for Hobbs’ testimony.

We have serious doubts that Fairchild’s silence following his arrest and following the receipt of his Miranda warnings was admissible for impeachment purposes. It is true that when Fairchild became a witness he subjected himself to impeachment for, as is the case with any other witness, the credibility of a defendant who takes the witness stand and of his testimony is open to legitimate attack. The attack on the defendant-witness and his testimony may, of course, take the form of impeachment by prior inconsistent act. We have held that, in extreme cases, silence following Miranda warnings can be the type of act which is inconsistent with certain exculpatory trial testimony. In such cases evidence of the silence is admissible. United States v. Ramirez, 441 F.2d 950 (5th Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 91, 30 L.Ed.2d 113 (1971), United States v. Quintana-Gomez, 488 F.2d 1246 (5th Cir. 1974). But, to be admissible, keeping silence must be much more than ambiguous. It must appear to be an act blatantly inconsistent with the defendant’s trial testimony. This will be the case when, as in Ramirez and Quintana-Gomez, the exculpatory testimony is of such a character that reasonable men would be left with the distinct impression that had it been true it would have been related to law enforcement authorities even though the defendant was specifically informed that he need not speak. Fairchild’s trial testimony, basically that he received the cars from the phantom Ferguson in what he believed to be a legitimate transaction, does not leave this impression. This is especially true since Fairchild had tried to persuade Detective Hobbs and FBI Agent Israelson, the officers who first confronted him, that he had purchased the car in which he was riding from Ferguson. Obviously, the officers had not believed his story, for they placed him under arrest and took him downtown. At this point, Fairchild must have known that he was in trouble and must have realized that repeating the Ferguson story, the same story that he was later to relate in expanded form from the witness stand, would do him little good. After Fairchild had been informed that he had the right not to speak until his lawyer was present he did what a reasonable man could be expected to do — he remained silent.

Miranda establishes that the prosecution may not use as a part of its case in chief a criminal defendant’s silence following his arrest and warning. This evidence, even though it might be relevant and probative, is normally excluded. But it is important to note that it is excluded for the purpose of protecting certain rights of the defendant. It is not excluded so that the defendant may freely and falsely create the impression that he has cooperated with the police when, in fact, he has not. After getting Agent Israelson to admit that his client had no previous criminal history and had voluntarily provided handwriting samples, Fairchild’s counsel attempted to create this impression when he asked, “During the period of time that this investigation has been going on, to your knowledge has Mr. Fairchild cooperated fully with the FBI and U. S. Attorney’s office in responding with anything that you all wanted?” Having thus raised the question of his cooperation with the law enforcement authorities, Fairchild opened the door to a full and not just a selective development of that subject. United States v. Paquet, 484 F.2d 208 (5th Cir. 1973). Assuming the law would have excluded from evidence Fairchild’s silence had he not broached the subject of cooperation, once he did broach it the bar was lowered and he discarded the shield which the law had created to protect him. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), Walder v. United States, 347 U.S. 62, 74 S.Ct. 354, 98 L.Ed. 503 (1954). The fact that Fairchild’s silence would have been excluded for constitutional reasons does not change the situation. Constitutional rights, like others, may be waived; and a criminal defendant may, by his conduct, make otherwise constitutionally inadmissible evidence admissible for certain purposes. Harris v. New York, 401 U.S. 222, 91 S.Ct. 643, 28 L.Ed.2d 1 (1971). Here the evidence of Fair-child’s Miranda silence was admissible for the purpose of rebutting the impression which he attempted to create: that he cooperated fully with the law enforcement authorities. Thus, it was not error for the trial court to admit Detective Hobbs’ testimony concerning Fairchild’s silence at the police station following his Miranda warnings.

In his closing argument the prosecutor made the following comment:

But one thing is for sure, Mr. Alton Robert Fairchild wouldn’t say a thing. He was confronted right out there with this proposition .... He was confronted right out there with the proposition that nothing matches up — silence. He wouldn’t even tell them where he lived. They had to drag it out of him. Now, why is that? It’s because he knew what was going on, ladies and gentlemen.

We agree with Mr. Fairchild that this comment is a reference to his silence following his arrest and following his Miranda warnings. We also agree that this comment is an attempt to utilize his silence as direct evidence that he knew that the vehicles which he received were stolen. Since Fairchild’s silence was admissible only for the purpose of rebutting the impression that he had actively cooperated with the police, this comment should have been excluded and a corrective instruction should have been given. However, at the time that the comment was made no objection to it was raised. ■Thus, we are at liberty to take notice of the trial judge’s error in failing to exclude the comment and in failing to give a corrective instruction only if it was plain error. F.R.Crim.P. 52(b).

Courts have struggled valiantly to define plain error, see 3 Wright, Federal Practice and Procedure, Criminal § 856, 372-373 (1969), but the fact remains that “the ultimate decision whether or not to take notice of an error not raised below must depend on the facts of the particular case.” United States v. Morales, 477 F.2d 1309, 1315 (5th Cir. 1973). After taking notice of all of the facts of this case, including the evidence both for and against Mr. Fair-child and the context within which the somewhat ambiguous prosecutor’s comment was made, we have concluded that the trial court’s failure to strike the offending passage sua sponte and to issue a corrective instruction was not plain error.

Affirmed.

      . Initially, a four-count indictment was brought against Mr. Fairchild. Count 1 charged him with interstate transportation of a stolen vehicle, a Cadillac Eldorado, in violation of 18 U.S.C. § 2312. Count 2 charged him with receiving and concealing the same vehicle in violation of 18 U.S.C. § 2313. Counts 3 and 4 accused him of receiving and concealing two stolen Buick Electras. At the close of evidence verdicts of acquittal were directed on counts 1 and 4.

      . Miranda v. Arizona, 384 U.S. 436, 83 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In a later check of the apartment complex parking lot Israelson found a second stolen Buick. This vehicle was the basis for count 4 of the indictment against Fairchild, one of the counts on which a verdict of acquittal was directed.

      . Usually tlie presumption is phrased as applicable to recently stolen goods.

      . Prior to the incident under discussion Fairchild, according to his own testimony, had assisted Dr. Heisler in purchasing a Cadillac from B'erguson. We shall refer to this automobile as the first Cadillac. Mira-hile dietu, it turned out to be a stolen vehicle.

      . Both Fairchild and Heisler testified that the first Cadillac was a car which belonged to Mr. Ferguson but which he wished to unload quickly and for cash because he was getting a divorce. The other cars were supposedly obtained by Ferguson from a bankruptcy proceeding in Alabama.

      . Other circuits luive disagreed witli us. United States v. Anderson, 498 F.2d 1038 (D.C.C.1974). Johnson v. Patterson, 475 F.2d 1066 (10th Cir.), cert. denied, 414 U.S. 878, 94 S.Ct. 64, 38 L.Ed.2d 124 (1973). We have, however, enlisted some support. United States ex rel. Burt v. New Jersey, 475 F.2d 234 (3rd Cir.) cert. denied, 414 U.S. 938, 94 S.Ct. 243, 38 L.Ed.2d 165 (1973), Agnellino v. New Jersey, 493 F.2d 714 (3rd Cir. 1974).

      . We recognize that some may argue that the exercise of a constitutional privilege may not be considered evidence of lack of cooperation. We would point out, however, that defense counsel was obviously trying to create the impression that Fairchild actively cooperated with the police in order to build up his client in the eyes of the jury (and possibly to counteract the presumption that the unexplained possession of recently stolen' goods implies guilty knowledge). Thus, the question is not whether the exercise of a constitutional privilege to remain silent is, in the abstract, evidence of lack of cooperation but whether it refutes an inference of active cooperation. We believe that it does.

      . Having, as it does, a lingering fragrance of rebuttal: “ . . . confronted right out there with the proposition that nothing matches up . . . .” may well refer to Fairchild’s attempt to justify himself on the spot with title papers which did not tally in full with the Eldorado.


author: PER CURIAM.

text:
    PETROLEUM, INC., et al., Plaintiffs-Appellees, v. LIBERTY PETROLEUM CORPORATION, Defendant-Appellant.
    No. 74-1323.
    United States Court of Appeals, Sixth Circuit.
    Nov. 15, 1974.
    William E. Longthorne, Swartzbaugh, Longthorne & Spore, Toledo, Ohio, for defendant-appellant.

      John M. Curphey, Robison, Curphey & O’Connell, Toledo, Ohio, for plaintiffs-appellees.
    Before WEICK, McCREE and EN-GEL, Circuit Judges.
   PER CURIAM.

Plaintiffs-Appellees’ suit in the District Court against Liberty Petroleum Corporation, defendant-appellant, was to recover damages for breach of an oral agreement for the drilling by defendant of a wildcat well, under an exploration license granted by the Petroleum Administration of Turkey to the plaintiff, International Petroleum, Inc.

Jurisdiction of the Court was based on diversity of citizenship.

The principal issues in the case were whether the minds of the parties had ever met on the terms and provisions of the agreement; whether defendant’s agents had authority to enter into the agreement; whether the Court erred in the admission of evidence; and whether the agreement violated the Ohio statute of frauds.

In addition to oral testimony of witnesses* there were a number of letters, cablegrams and telegrams between representatives of the parties which evidenced and confirmed the agreement.

The District Court submitted the ease to the jury under appropriate instructions, and the jury returned its verdict in favor of the plaintiffs in the amount of $30,000.

In our opinion the District Court did not err in denying defendant’s motion for a directed verdict. The factual issues were sharply in dispute; this required the District Court to submit such issues to the jury. Defendant engaged in just too much activity, not only in this country but also in Turkey, to make plausible its claims that the minds of the parties had not met on the terms and provisions of the contract or that its agents lacked authority.

After the minds of the parties had met, defendant appointed a resident agent in Turkey, applied to Petroleum Administration of Turkey and secured an extension of time within which to drill the well, and attempted to interest some four hundred other people to participate in its project.

We are further of the opinion that the verdict of the jury is supported by sufficient evidence; that the Court did not commit prejudicial error in its admission of evidence, nor in its instructions to the jury; and that the correspondence, cablegrams and telegrams passing between the parties were sufficient to take the case out of the operation of the Ohio statute of frauds.

The judgment of the District Court is therefore affirmed.