text:
    Mildred BABB, Plaintiff-Appellant, v. Frank S. SCHMIDT, District Director of Internal Revenue and the United States of America, Defendants-Appellees.
    No. 71-2621.
    United States Court of Appeals, Ninth Circuit.
    May 10, 1974.
    Rehearing Denied Aug. 27, 1974.

      Herbert S. Miller (argued), Schiff, Hirsch, Levine, Burk & Schreiber, Beverly Hills, Cal., for plaintiff-appellant.
    Donald H. Olson, Washington, D. C. (argued), John M. Scott, Jr., Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D. C., Martin N. Gelfand, U. S. Atty., Los Angeles, Cal., for defendants-appellees.
    Before MERRILL, CARTER and SNEED, Circuit Judges.
   OPINION

MERRILL, Circuit Judge:

In 1959 Kroger Babb, now husband of the appellant, was assessed by the district director, pursuant to a decision of the Tax Court, for taxes, interest and penalties arising out of the 1944 and 1945 tax years. In 1961 appellant Mildred Babb and Kroger Babb were married. In 1970 the director served a levy upon certain bank accounts in California and Nevada, community property of these California citizens, for the purpose of obtaining partial satisfaction of the husband’s premarital tax liabilities described above.

Plaintiff brought this action under 26 U.S.C. § 7426 for wrongful levy upon her community interest in the bank accounts. The district court granted summary judgment for the Government.

26 U.S.C. § 6321 creates “a lien in favor of the United States upon all property and rights to property * * * belonging to” a person who has neglected or refused to pay federal taxes for which he is liable. The issue presented here is whether this lien reaches a California wife’s community one-half interest where the lien is for taxes owed by the husband before the marriage.

In Aquilino v. United States, 363 U.S. 509, 512-513, 80 S.Ct. 1277, 1280, 4 L.Ed.2d 1365 (1960), the Court stated:

“The threshold question in this case, as in all cases where the Federal Government asserts its tax lien, is whether and to what extent the taxpayer had ‘property’ or ‘rights to property’ to which the tax lien could attach. In answering that question, both federal and state courts must look to state law, for it has long been the rule that ‘in the application of a federal revenue act, state law controls in determining the nature of the legal interest which the taxpayer had in the property . . . sought to be reached by the statute.’ Morgan v. Commissioner, 309 U.S. 78, 82 [, 60 S. Ct. 424, 84 L.Ed. 585.] Thus, as we held only two Terms ago, Section 3670 [26 U.S.C. § 6321] ‘creates no property rights but merely attaches consequences, federally defined, to rights created under state law . . . . ’ United States v. Bess, 357 U.S. 51, 55 [, 78 S.Ct. 1054, 2 L.Ed.2d 1135.]”

It is • conceded that under California law the wife has a vested interest in her share of the community. Appellant contends that this being so, her husband cannot be said to have “property or rights to property” in that which is her property. She relies on United States v. Overman, 424 F.2d 1142, 1146 (9th Cir. 1970), and In re Ackerman, 424 F.2d 1148, 1150 (9th Cir. 1970), in both of which this court held that the Government’s lien for the husband’s premarital tax debt could not extend to the wife’s half of the community estate.

State law, however, provides the basis for distinction. Overman dealt with Washington law, and Ackerman dealt with Arizona law, both of which deny premarital creditors of the husband access to the wife’s share of the community. California law is established to be otherwise. In Grolemund v. Cafferata, 17 Cal.2d 679, 111 P.2d 641, cert. denied, 314 U.S. 612, 62 S.Ct. 87, 86 L.Ed. 492 (1941), it was implied that a wife’s community interest can be reached for satisfaction of the husband’s premarital debts. That such has continued to be the law of the state was made clear in Weinberg v. Weinberg, 67 Cal.2d 557, 563-564, 63 Cal.Rptr. 13, 15, 432 P.2d 709, 711 (1967). There the California Supreme Court stated (citing Grolemund) :

“The policy of protecting the husband’s creditors outweighs the policy of protecting family income even from premarital creditors of the husband. Community property is therefore available to such creditors.”

The proposition is now generally recognized. See, e. g., Marsh, Property Ownership During Marriage, in State Bar of California, 1 The California Family Lawyer § 4.36, at 134 (1962); H. Verral & A. Sammis, Cases and Materials on California Community Property 285 (1971) (semble). The California Supreme Court in Grolemund expressly distinguished Washington law on matters of the liability of the community for the husband’s debts, and declined to follow Washington precedents in this area. It said that the differences in result arise from the concept of “community debts” which California rejects but which is fundamental to the law of Washington (and of Arizona). See also Marsh, supra (contrasting with California law both Washington and Arizona in this regard) .

Appellant seeks to reduce this rule of state law to something less than one of “property or rights to property,” and to make of it no more than a rule regulating creditors’ rights. She points to this language of our court in Overman:

“Labels aside, state law regulating creditors’ rights does not apply to the United States because the United States has not looked to state law to decide how to enforce federal tax liens * *

424 F.2d at 1146.

This language was directed to the contention of the taxpayer in Overman that the husband’s share of the community could not be reached by the Government because, under Washington law, no part of the community could be reached for premarital debts of the husband. We held that notwithstanding this limitation on the rights of creditors generally, the husband’s interest in the community did constitute “property and rights to property” reachable by the United States.

“We agree with the Government that the right of the United States to enforce its liens on Washington community property does not depend on Washington law regulating the rights of creditors generally.”

424 F.2d at 1145.

The point appellant fails to recognize is that while creditors’ rights can be less extensive than a debtor’s property right (under state law there may be property rights that a creditor is not permitted to reach), they can hardly be more extensive. If California law makes the wife’s share of the community property available to creditors of the husband, California law has by the same rule implicitly given the husband rights in that property sufficient to meet the requirements of 26 U.S.C. § 6321. Cancino v. United States, 451 F.2d 1028, 1033-1034, 196 Ct.Cl. 568 (1971), cert. denied, 408 U.S. 925, 92 S.Ct. 2504, 33 L.Ed.2d 337 (1972).

On appeal for the first time appellant contends that the applicable law may be different as to the Nevada bank account. This issue was not tendered to the district court and we decline to consider it here.

Judgment affirmed.

      . § 5117 of the California Civil Code exempts earnings of the wife from liability for any debts of the husband, except those contracted for necessities of life while husband and wife are living together. Appellant here makes no claim that the bank accounts involved represented her earnings.

      . The court stated:
      “The Washington statutes are based on the theory of tenancy by entireties, with its fundamental concept of ‘community debts’, and in that state the community property is not liable for the separate debts of the husband * * * but is liable only for so-called ‘community debts’. * * * But in California there is no like concept of ‘community debts’, though occasionally the courts in this state refer to such, overlooking the fact that the phrase is not appropriate to the California system. * * * [0]ur community system is based upon the principle that all debts which are not specifically made the obligation of the wife are grouped together as the obligations of the husband and the community property (with the single exception of the wife’s earnings, which are exempted from certain types of debt * *
      17 Cal.2d at 688, 111 P.2d at 645.


source: Caselaw Access Project

author: LEVIN H. CAMPBELL, Circuit Judge.

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Ernesto RODRIGUEZ VALLEJO, Defendant, Appellant.
    No. 73-1240.
    United States Court of Appeals, First Circuit.
    Argued Feb. 5, 1974.
    Decided May 16, 1974.
    Benicio Sanchez Castaño, San Juan, P. R., with whom Cesar Andreu Ribas and Benicio Sanchez Rivera, San Juan, P. R., were on brief, for appellant.
    Jorge Rios Torres, Asst. U. S. Atty., with whom Julio Morales Sanchez, U. S. Atty., was on brief, for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

Rodriguez Vallejo appeals from a judgment of conviction for possessing narcotics with intent to distribute and for distribution in violation of 21 U.S. C. § 841(a) (1). The only issue is whether he was denied effective representation of counsel. Rodriguez complains of being forced to trial with original counsel notwithstanding his request, made a day before the scheduled trial, for time to procure new counsel.

To decide whether the court acted properly, or whether instead it acted “[with] myopic insistence upon expeditiousness in the face of a justifiable request for delay”, it is of course essential to look at the circumstances. Ungar v. Sarafite, 376 U.S. 574, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1963). Chronologically the following appears from the docket and transcript:

Rodriguez was indicted September 21, 1972. His privately retained counsel was Mr. Alfredo Alvarez Linares, who entered an appearance without qualification. Alvarez petitioned on September 18 and 22 for bail reduction, and took part in a hearing at which his client’s bail was reduced. As the defendant was in custody the court announced that the case was to be set for trial as soon as possible. On October 11, Alvarez argued a motion to have his client released upon filing a $50,000 bond. Because Alvarez had another trial commitment, the court continued a later hearing on proposed sureties. Alvarez argued the surety matter on October 20. Six days later appellant, again by Alvarez, moved for time to raise cash; the motion was granted after argument.

Neither Alvarez nor his client appeared at the arraignment which was scheduled for January 8, 1973. However, alleging he had another ease pending that day, Alvarez had filed a motion to change the arraignment date; he was thus able to satisfy the court that it should withdraw a warrant issued for Rodriguez’ arrest and re-set the arraignment for January 15, 1973. This time Alvarez and his client appeared. The court set the case for trial on February 27, and scheduled a pretrial conference for February 20. There is nothing to indicate any objection by Rodriguez or by Alvarez to these dates. Defendant claims that he attended the pretrial conference in company both of Alvarez and Attorney Belen Trujillo. But Mr. Trujillo did not file an appearance, and on February 26, a day before the scheduled trial day, told the court in chambers that he did not desire to do so. Prior to February 26, there is nothing in the record suggesting that Alvarez was not to be Rodriguez’ trial counsel.

On February 26, Alvarez filed a motion for leave to withdraw as attorney for the defendant and that the trial not go forward the next day as scheduled: The motions were argued the next day. Alvarez requested only a “continuance for another day”, reiterating that he was inexperienced, and that Trujillo, who would be available on the following day, was to take charge of the case. He told the court that he was not prepared for trial because the defendant did not understand the importance of the case and had not made himself available for interviews. Alvarez also moved for a delay in order that the defendant have a mental examination.

“The undersigned attorney, upon being requested by the defendant to represent him, advised the Honorable Hiram Cando, Chief Judge, that he would only undertake to represent said defendant at the arraignment and for the purpose of preliminary motions such as the matter of bail for defendant, because of lack of fluency in the English language, and because undersigned, although an experienced practitioner of civil laws, has slight experience in criminal matters, particularly Federal criminal matters, and could not adequately represent said defendant, defendant has retained Belen Trujillo, Esq., to represent him at the trial of this case; however, Mr. Trujillo has a muerder [sic] case, already commenced, set for trial on the 27th of February, 9:00 A.M.”

The prosecutor opposed both motions. He argued that the defendant was not unfamiliar with the criminal courts and had on prior occasions been represented by well-known criminal lawyers to whom he had ready access when he wanted them. As the defendant had at no previous time indicated dissatisfaction with his counsel or the trial date, the prosecutor suggested that the motion was merely dilatory. The prosecutor represented that he had already summonsed witnesses, at government expense, from Atlanta and Miami. He opposed the motion for a mental examination because the defendant had used that “tactic” in a previous criminal case; allegedly defendant insisted upon his competence when, wanting to plead guilty, it became convenient to do so. A later psychiatric report concluded that Rodriguez did not suffer from a mental condition.

The court denied the motion for mental examination, finding the request to be a subterfuge. At first the court also denied a continuance, noting that Trujillo had informed it on the day previous that “he did not wish to enter his appearance”. The court said,

“There is no showing here of diligence, there is no showing here of cooperation, it seems . . . simply a matter of doing whatever is necessary to get this case continued so that it will not have to go to trial today If additional counsel were needed or ii other counsel were wanted, there was ample time to get both, there has been no showing, there has been no overt act, there has been no attempt as far as this Court knows to secure any other counsel. And that failure has to be charged to the defendant. If he hasn’t any interest any more in the trial of his case or the disposition of this case, then why should this Court give him any consideration in granting a continuance ?
“He hasn’t shown any consideration, he has shown no cooperation of any kind to help himself, and as far as I know, from what I understand, he is an intelligent person.”

The court expressed a suspicion that if the case were continued one more day, yet another continuance would be requested.

But Rodriguez insisted that Trujillo had told him the night before that he would try the case, and said, “If you give me 24 hours I will have an attorney here that will be able to represent me”. The following then occurred :

“THE COURT: Well, the defendant has gotten himself in this situation but I am going to do this, and this is all, I will continue this case until 9:30 tomorrow morning. I will not release Mr. Alvarez Linares from this case, he will still be in this case and this case will start tomorrow morning at 9:30, whether you have another attorney or whether you do not have another attorney. Does he understand that?
“THE DEFENDANT: I will get one tonight.
“THE COURT: And Mr. Alvarez Linares, this Court is not releasing you from the responsibility of this case, you will still be an attorney in this case, and if the defendant does not have another lawyer when we go to trial tomorrow morning, this Court expects you to conduct the defense, because this is a thing that should never have happened.
“MR. ALVAREZ: I will be here tomorrow morning.”

The next day Trujillo did not appear. Instead Alvarez moved again to withdraw as counsel and for a continuance, saying the defendant had contacted other attorneys who “are ready to take charge of the case, but not today, maybe some time”. Rodriguez claimed he had relied upon Trujillo. He said he had a receipt for money allegedly paid to Trujillo, but did not offer it to the court or produce any corroboration. The motions were denied, and the trial commenced. At the close of the government’s case, Alvarez requested a continuance until the next day to prepare a defense, which was granted. Rodriguez repeated his request for a further continuance, but at no time did he indicate that he wished to proceed pro se without Alvarez’ help. He said that he had contacted several lawyers who for various reasons were not available. The court refused the request, asserting,

“You had ample time from the day of the indictment to the date of trial after having been notified on two different occasions concerning the trial date to secure counsel.
“On Monday of this week, Mr. Belen Trujillo appeared in chambers of this Court and requested a continuance. The Court asked Mr. Belen Trujillo if he had entered his appearance in this case and he said no. I advised Mr. Belen Trujillo at that time that until he had entered his appearance [sic] and he did not enter his appearance; then there were several motions for continuance made for the reasons set out in those motions. The Court heard those motions and refused them because there was no merit in what was said, there was ample time for you to secure another lawyer if you wanted one, . . .if there were any dilatory negligence in this matter it was laid at your door and it was your fault and no one else’s.
“You should have had the opportunity to secure another lawyer if you had wanted when all motions for a continuance failed. Then you came forward with the motion to be examined by a psychiatrist because you claimed you were not physically and mentally capable of standing trial. The Court reviewed the report made by the psychiatrist approximately a year ago which was practically a proceeding identical with the proceeding here in Court. Relying on the psychiatric report which was made approximately a year ago in which you were found mentally competent, without psychoses, and able to cooperate with counsel and to stand trial, and when you requested today leave to address the Court, I gave you ample time to, I want it in the record, the statement that you were making, to show that you were capable of standing trial, that you did know what you were doing and that you did know what the proceedings were and the record amply discloses that and the Court would not permit the subterfuge to [sic] practiced here when all other methods failed, then you wanted a psychiatric examination, I think the past history, you had at least one and possibly two psychiatric éxaminations and you were found competent in both cases, so this Court would not be willing to be used as a tool to circumvent justice.
“In one of those prior statements that you made to the Court, you made a statement to the effect that the United States Attorney was interested in seeing that justice was done. I told you at that time that the United States was interested in seeing that justice be done and that the Court was interested that justice be done and that they tried to see that justice would be done.
“This Court and no other Court of the United States is going to lend itself to be used in the subterfuge and in the methods to keep from going to trial. The Supreme Court of the • United States and all the inferior courts repeatedly said and the Congress of the United States has said that all criminal cases should be terminated with expediency and that they should not be dragged on time after time.
“In view of the fact that you were indicted last September, which is approximately six months ago, and in view of the fact that you were repeatedly notified that this ease was going to trial on Februrary 27th and in view of the fact that you did have ample time within which to secure any lawyer that you wished to secure, and in view of the fact that you did come into Court with the lawyer of your own choosing, this Court would not and will not grant any continuance in this case, . . . . ”

On appeal, the defendant stresses his attorney’s trial behavior, claiming that he was denied effective assistance of counsel. We have little hesitancy, however, in sustaining the rulings of the district court and in affirming the conviction.

Alvarez was not per se incompetent to try the case. The record indicates that he had a sufficient command of English, and that he had experience in the trial of civil cases with some little criminal experience. With six months to prepare, he could acquire a sufficient knowledge of the federal rules; the pre-trial and post-trial motions which he filed and argued show no lack of professional competence. Cf. Rolon Marxuach v. United States, 398 F.2d 548, 551 (1st Cir.), cert. denied, 393 U.S. 982, 89 S.Ct. 454, 21 L.Ed.2d 443 (1968). His passive behavior at the trial itself seems less- to have reflected a lack of confidence and knowledge than a willingness to join with his client in sullen opposition to the court’s insistence that there be a trial. Such conduct on the part of an attorney comes perilously close to being improper; and it is plainly not grounds for a claim of incompetence by a client who hired the attorney, who failed to use diligence to seek out a new one, and who both abetted and acquiesced in the tactics.

The right to have counsel at all —as well as the right to counsel of one’s choice — may be waived if one able to afford counsel does not retain him within a reasonable time. See, e. g., United States v. Terry, 449 F.2d 727 (5th Cir. 1971); United States ex rel. Davis v. McMann, 386 F.2d 611, 618 (2d Cir. 1967), cert. denied, 390 U.S. 958, 88 S. Ct. 1049, 19 L.Ed.2d 1153 (1968); Leino v. United States, 338 F.2d 154 (10th Cir. 1964); United States v. Arlen, 252 F.2d 491 (2d Cir. 1958). The district court was entitled to find that Rodriguez, who had been informed of the trial date over a month previous thereto, had not exercised diligence when, within that period, he procured no new attorney willing to enter an appearance.

Moreover, Alvarez’ unheralded last minute attempt to withdraw, coupled with the sudden request for a continuance, was susceptible of interpretation as a mere contrivance to postpone trial.

The right to counsel may not be manipulated in a cat and mouse game with the court. Relerford v. United States, 309 F.2d 706, 708 (9th Cir. 1962). Whether the attorney is deemed satisfactory or not, the court, at some point, may require the defendant to go to trial.

“The right to counsel cannot mean that a defendant may continually delay his day of judgment by discharging prior counsel or by persistently refusing to select a new lawyer or any lawyer to defend him. The exercise of the right to counsel must be balanced with the necessities of sound judicial administration. A speedy trial, also guaranteed by the Sixth Amendment, is a desirable object of the criminal law ... If appellant’s decision . . '. to dismiss counsel of such long standing . . . was undertaken for purposes of delay or disruption of the proceedings, we find nothing in the Sixth Amendment to require acquiescence by the trial judge.”

United States v. Mitchell, 354 F.2d 767, 769 (2d Cir. 1966). See also United States v. Hampton, 457 F.2d 299 (7th Cir.), cert. denied, 409 U.S. 856, 93 S.Ct. 136, 34 L.Ed.2d 101 (1972); Giacalone v. Lucas, 445 F.2d 1238 (6th Cir. 1971); United States v. Leach, 429 F.2d 956 (8th Cir.), cert. denied, 402 U.S. 986, 91 S.Ct. 1675, 29 L.Ed.2d 151 (1970); United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3d Cir.), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1969); United States ex rel. Gallo v. Follette, 270 F.Supp. 507 (S.D.N.Y. 1967). The district judge is, of course, in the best position to evaluate the good faith of the defendant. For this reason, the matter of continuances is traditionally within the discretion of the trial court. “[I]t is not every denial of a request for more time that violates due process even if the party fails to offer evidence or is compelled to defend without counsel.” Ungar, supra, 376 U.S. at 589, 84 S.Ct. at 849. We find no clear abuse of discretion under the circumstances.

Affirmed.

      . The record does not reflect whether Mr. Trujillo was present. In a later colloquy with the court, Alvarez stated: “Trujillo left me alone to see the pretrial.” On the motion for a new trial the court wrote next to the contention that Trujillo had been present: “my recollection he was not present”.

      . This assertion that Mr. Alverez so advised Judge Oancio (who presided at the bail hearings but was not associated with the trial) is entirely uncorroborated in the record. The prosecutor represented to the trial judge, when the motion for continuance was argued on February 27, that he was not aware of any in-court or out-of-court conversations to that effect, and as Alvarez made no attempt to withdraw until the eve of trial, the court was entitled to discount his testimony. Appellant’s claim that Alvarez was to handle only preliminary matters seems more doubtful in light of the fact that he was still retained after the trial and after other attorneys had been employed. On March 23, April 17, and May 4, Alvarez filed post-trial motions on behalf of the defendant. He was also present at the sentencing on June 1, along with two other attorneys. He did not withdraw from the case until June 22, 1973.

      . Although the written motion states that Alvarez had “slight” experience in criminal law, he asserted orally on the 27th that he had no experience. On appeal, appellant only claims that Alvarez “practices almost always”, but not exclusively, in civil matters.

      . Alvarez put no questions to the jurors after the court had thoroughly interrogated each juror as to possible prejudice. Alvarez briefly cross-examined the first witness, a government agent, extensively cross-examined and recross-examined the second witness, also a government agent, and did not question the third, a chemist. On one occasion he objected to testimony on the grounds of hearsay. Appellant asserts that Alvarez did not object to other objectionable testimony; but upon reviewing the specified testimony, we do not find it objectionable. On the court’s suggestion, Alvarez moved for acquittal but did not argue the motion. No witnesses were called for the defense. Alvarez made no closing argument to the jury, advising the court that he would prefer to “submit the case”.


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellant, v. Anthony LaBORDE, Defendant-Appellee.
    No. 73-1574.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 11, 1974.
    Decided April 16, 1974.

      Gordon S. Gold, Asst. U. S. Atty., for plaintiff-appellant; Ralph B. Guy, Jr., U. S. Atty., Gordon S. Gold, Asst. U. S. Atty., Detroit, Mich., on brief.
    William B. Daniel (court appointed), Detroit, Mich., for defendant-appellee.
    Before PHILLIPS, Chief Judge, WEICK,' Circuit Judge, and CONTIE, District Judge.

       The Honorable Leroy J. Oontie, Jr., United States District Judge for the Northern District of Ohio, sitting by designation.

   PER CURIAM.

On August 17, 1971 defendant-appellee was indicted on two counts by a federal grand jury in the Eastern District of Michigan, Southern Division. Count One charged defendant-appellee with possessing a hand grenade that was not registered to him, as required by law, and Count Two charged defendant-appellee with harboring a fugitive. The day previously, August 16, 1971, defendantappellee had been indicted in Queens County, New York om charges of grand larceny and armed robbery.

On December 6, 1971, defendant-appellee pled guilty in a Michigan State Court to a separate crime of attempting to conceal a weapon and received a sentence of from one to two and one-half years in prison.

On September 1, 1971, a District Judge of the Eastern District of Michigan signed an Order for Limited Release to the New York State authorities, ordering the release of defendant-appellee to New York authorities for the purpose of standing trial on the New York charges. On December 30, 1971, defendant-appellee’s federal case was transferred to another District Judge. On January 19, 1972, the District Judge signed an Order of Release to the Michigan State authorities. Custody of defendantappellee was thereby surrendered for the purpose of his serving the sentence imposed for attempting to conceal a weapon.

On January 26, 1972, defendant-appellee was sent to Queens County, New York, and on March 15, 1972, pled guilty to the crime of robbery, third degree. On May 24, 1972, he was sentenced to three years, said sentence to run concurrently with the sentence imposed by the Michigan State Court. On July 10, 1972, defendant-appellee was returned to Michigan authorities.

On August 22, 1972, defendant-appellee filed a motion to dismiss the federal indictment pending against him asserting the lack of a speedy trial. Oral arguments were heard on this motion on March 5, 1973. Further oral arguments were heard on April 19, 1973, and on April 24, 1973 the District Judge entered an Order dismissing the indictment for lack of a speedy trial. In so dismissing the indictment the District Judge cited as his reason the court’s inability to grant the defendant-appellee a speedy trial because of his congested docket. Further, reference was made to the denial, by the Board of Parole of defendant-appellee’s request for parole. It was asserted, although the record shows no specific determination made, that said denial was the possible and/or probable result of the fact that defendant-appellee had the District Court’s federal charge pending against him.

The issue for us to determine is whether the District Court abused its discretion in dismissing the indictment pursuant to the authority of Rule 48(b) of the Federal Rules of Criminal Procedure. This requires consideration of the guidelines adopted by the Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, and other pertinent decisions.

In the Barker case, the Supreme Court, after determining that the deprivation of the right to speedy trial does not prejudice an accused’s ability to defend himself per se, established a balancing test to be used to determine if and when 3uch right is denied.

A balancing test necessarily compels courts to approach speedy trial cases on an ad hoc basis. We can do little more than identify some of the factors which courts should assess in determining whether a particular defendant has been deprived of his right . (W)e identify four such factors: Length of delay, the reason for delay, the defendant’s assertion of his right, and prejudice to the defendantBarker v. Wingo, supra at 530, 92 S.Ct. at 2192.

In the instant case, defendantappellee was not brought to trial for 21 months. We find that such a time period alone does not require the dismissal of the indictment.

The passage of time in and of itself does not constitute denial of a speedy trial. United States v. Beard, 381 F.2d 325, 328 (C.A.6 1967).

See also United States v. Stribling, 469 F.2d 443 (C.A.6 1972), cert. den. 410 U. S. 957, 93 S.Ct. 1432, 35 L.Ed.2d 691.

Turning back to the Barker test the next criterion to be considered is the reason for the delay. The District Court, in granting the defendant-appellee’s motion, stated in relation to the delay that “ . . . I think it is the fault of the Court”. Oral Decision of the District Court, April 19, 1973. In Barker, the Court stated that:

Closely related to length of delay is the reason to justify the delay. Here, too, different weights should be assigned to different reasons. A deliberate attempt to delay the trial in order to hamper the defense should be weighed heavily against the government. A more neutral reason such as the negligence of overcrowded courts should be weighed less heavily. Barker v. Wingo, supra 407 U.S. at 531, 92 S.Ct. at 2192.

Thus, since the reason for the delay is the “more neutral reason” of an overcrowded docket, the weight to be attached to the delay is minimal. We further consider that the defendant-appellee was outside the jurisdiction of the Michigan District Court from January 26, 1973 to July 10, 1973. Both of these facts, taken together lead us to the conclusion that the court created delay of 21 months in the instant case did not abridge defendant-appellee’s constitutional right to a speedy trial.

Defendant-appellee asserts that he made a timely demand for a speedy trial and that the delay of nine months from the time of said demand to the trial date infringed his constitutional right. However, similar demands have been turned down by other courts. United States v. Schwartz, 464 F.2d 499 (C.A.2 1972), cert. den. 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302; United States v. Altro, 358 F.Supp. 1034 (E.D. N.Y.1973); United States v. Dornau, 356 F.Supp. 1091 (S.D.N.Y.1973).

In the Schwartz case the court therein specifically stated that:

. . . We conclude that the 9-month delay between the demand and the commencement of the trial in March, 1971, is not of sixth amendment proportions. United States v. Schwartz, supra, 464 F.2d at 505.

Upon review of the facts in the instant action we are convinced that a like conclusion must be drawn.

Turning to the remaining test of Barker, it must be determined what prejudice, if any, inured to defendant-appellee. In Barker, the Supreme Court established three sub-divisions to this inquiry :

Prejudice, of course, should be assessed in the light of the interests of the defendants, which the speedy trial right was designed to protect. This Court has identified three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility the defense will be impaired. Of these, the most serious is the last . Barker v. Wingo, supra, 407 U.S. at 532, 92 S.Ct. at 2193.

As related to prevention of oppressive pre-trial incarceration, defendant-appellee’s sole argument rests upon the fact that no resolution of any charges against him resulted until four months after his arrest. As of December 6, 1971, defendant-appellee had been sentenced to one to two and one-half years by a Michigan State Court. We conclude that a four month delay, without a demand for trial or a specific showing of prejudice is not of constitutional dimensions.

Incarceration after this point in time could have had no prejudicial effect save defendant-appellee’s argument that he was denied parole because of the pending federal charge. This court notes, however, that defendant-appellee was, at the time of his parole hearing, serving concurrent time for a felony conviction in New York. We therefore conclude that defendant-appellee’s argument that he suffered prejudice as the result of the pending federal charge is highly speculative. Such prejudice, if any, is deserving of little weight in the balancing process to determine a constitutional violation of a person’s right to a speedy trial. See United States v. Cabral, 475 F.2d 715 (C.A.1 1973); McCrory v. Cook, 329 F.Supp. 83 (N.D. Miss.1971), aff’d. 454 F.2d 1173 (C.A.5 1972).

As to the anxiety and concern of defendant-appellee over his pending federal indictment, the record is devoid of any reference to such factors.

While at least some such adverse effects would appear inherent in every trial delay, where . . . there has been no allegation or evidence of any inconvenience, public embarrassment or manifestation of prejudice the overall adverse effect can be assumed to be insubstantial. United States v. Daley, 454 F.2d 505 (C.A.l 1972) at 509.

Turning finally to whether the delay caused any prejudice to the defendantappellee’s defense, the record is again void as to any facts which could be so construed. Conversely, due to the factual basis of the charge, any prejudice which results from the delay may well fall upon the government. As such, this factor also bears little weight, if any, on the balancing process.

Having thus fully analyzed the facts of the ease before us, and having applied the balancing tests imposed by the Barker decision, we conclude that the District Court erred in dismissing the indictment against defendant-appellee. While this court' can empathize with the District Courts and their heavy case loads, the tests of Barker must nevertheless be applied. We find that after applying these tests none of the balancing factors support the District Court’s decision. We must, therefore, conclude that the District Court abused its discretion in dismissing the indictment against defendant-appellee.

The judgment of the District Court is hereby reversed and the case is remanded for the prompt trial of defendant-appellee.


author: WILLIAM E. MILLER, Circuit Judge.

text:
    A. P. HOPKINS CORPORATION, a Michigan corporation, Plaintiff-Appellant, v. STUDEBAKER CORPORATION, ONAN DIVISION, a Michigan corporation, et al., Defendants-Appellees.
    No. 73-1611.
    United States Court of Appeals, Sixth Circuit.
    Argued Feb. 5, 1974.
    Decided May 15, 1974.

      Philip A. Gillis, Detroit, Mich., for plaintiff-appellant.
    Carson C. Grünewald, Detroit, Mich., for defendants-appellees; Bodman, Longley, . Bogle, Armstrong & Dahling, Detroit, Mich., on brief.
    Before McCREE, MILLER and EN-GEL, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

This action was instituted in the court below by appellant, A. P. Hopkins Corporation, against appellees, Studebaker Corporation, Onan Division, Carroll-Stuart Corporation, Arthur B. Stuart, Stewart R. Kaufman and Harry M. Hennequin, to recover trebel damages for alleged violations of federal antitrust laws. 15 U.S.C. Sec. 1 et seq.

Studebaker Corporation, Onan Division, is a manufacturer of engine driven generators, parts and accessories, which are sold throughout the country to selected distributors. Appellant had been a distributor of Onan products from 1958 to 1965, in the eastern half of lower Michigan, selling both plants (generators) and parts. Its distributorship, however, was terminated by Onan on May 28, 1965, effective July 1st of that year. It was succeeded by appellee, Carroll-Stuart Corporation, as the Onan distributor in the same area. Appellee, Arthur Stuart, was one of the incorporators of the Carroll-Stuart Corporation, and appellees, Kaufman and Hennequin, were former employees of the appellant who became employees of Carroll-Stuart upon its formation as an Onan distributor. The gravamen of appellant’s claim was that in cancelling the distributorship Onan entered into a conspiracy with appellees and others to destroy appellant as a competitor of Carroll-Stuart. In order to effectuate the alleged conspiracy appellant claimed that there were four “means adopted” by the appellees:

(1) Interference by Onan with appellant’s customers and contracts;

(2) The hiring away of appellant’s employees by Carroll-Stuart;

(3) The illegal refusal of appellees and Onan’s agents and distributors to sell Onan products to appellants ; and

(4) The alleged imposition by Onan of illegal territorial restrictions upon its distributors.

The action was tried by the district judge without a jury. The proceeding occupied 16 trial days and involved 20 witnesses and a large number of exhibits. The transcript of the trial, excluding a number of depositions which were introduced in evidence, extended to 1,967 pages. After the case was briefed and argued and proposed findings of fact and conclusions of law were submitted, the district judge rendered an exhaustive memorandum opinion (consisting of 36 pages), dated December 29, 1972, in which he analyzed with meticulous care and in great detail all of the contentions of the appellant and concluded that the claim of antitrust violations was not supported by the evidence. Accordingly, judgment was entered dismissing the action. More specifically, the district judge in his opinion found that while there was some conflict in the evidence the appellant had failed to meet its burden of proof in the establishment of a conspiracy in violation of the antitrust laws.

After a careful examination of the entire record, including the comprehensive opinion of the district judge, we are of the view that his findings of fact are not clearly erroneous, and that his conclusions of law are consistent with apposite and controlling decisions of the Supreme Court.

Indeed, other than the general contention that the district court’s findings of fact relative to the alleged conspiracy, and the alleged means for effectuating it, were clearly erroneous, (a contention which apparently is not seriously advanced on appeal) the appellant makes only two contentions. First, it is contended that the district court, having reserved ruling pursuant to Rule 41(b) of the Federal Rules of Civil Procedure on the appellee’s motion to dismiss at the conclusion of the appellant’s case, erroneously dismissed the action at the conclusion of all of the proof in the case by considering only the proof offered by the appellant without taking into account the entire evidence at the trial. For its position on this point appellant relies upon A & N Club v. Great American Insurance Co., 404 F.2d 100, 104 fn. 3, (CA6, 1968); King & Shuler Corp. v. Petitioning Creditors, 427 F.2d 689, 690 (CA9, 1970); and United States v. Doyle, 468 F.2d 633 (CA10, 1972). We are in agreement with the proposition of law advanced by the appellant that under such circumstance's the trier of facts should look to the entire evidence in deciding the case on its merits. Also we agree that there are isolated statements in the district court’s opinion which may be interpreted as indicating that the court looked only to the evidence introduced by the appellant in its final disposition of the action. Yet, when the lengthy opinion is scrutinized in its entirety, it is evident that the court did in fact consider all of the evidence in the case. Thus, after finding that the evidence was insufficient to establish an antitrust conspiracy, the court stated:

In addition we note that defendants’ case was supportive of this result. As indicated above in the statement of facts, much of the testimony introduced by defendants gave additional business reasons for the decisions of these distributors to discontinue sales to plaintiff. Thus, in considering the case upon all the evidence we reach the same conclusion.

In any event, if the district court’s opinion should be construed as considering only the appellant’s evidence in the dismissal of the action on its merits, we do not believe that the error could be in any wise regarded as prejudicial to the appellant. The appellees’ evidence strongly corroborates the findings of the district court that the charge of illegal conspiracy was not supported by substantial evidence and that the claim of antitrust violations was without merit. The appellant has not called to our attention any substantive evidence admitted after the close of its case that would have affected the result reached by the district court.

Appellant’s final contention on the present appeal is that the district court erred in limiting various extra-judicial statements to show the state of mind of the declarants rather than admitting them as substantive evidence of a conspiracy. There appear to be three statements falling within this category: (1) a letter written by one Ed Sloane, the Onan distributor in Cincinnati, to appellant; (2) a letter to appellant from one A. F. Shane, owner of the Pittsburgh Onan distributorship; and (3) a certain conversation between Richard Nelson, the Onan zone manager for Indiana and one Arthur Jordan, a distributor of Kohler generators and other Kohler products in Indiana, in which Jordan stated that he needed a generator of a size not manufactured by Kohler and that he would like to have a bid from appellant on an Onan generator. He was told by Nelson that he would “put a plug in” to prevent Jordan from buying the generator from anyone other than the Onan distributor in Elk-hart, Indiana.

The district court ruled that these statements, in the absence of independent proof of a conspiracy, fell within the hearsay category and could be received only for the purpose of showing the state of mind of the declarants. For various reasons appellant argues that the statements fall within exceptions to the hearsay rule. In our view, it would not be profitable, however, to explore these contentions in minute detail. Arguably, one or more of the statements might have been admitted under a liberal application of the rules of evidence as having some relevance toward the establishment of a conspiracy. Yet, there was a vast amount of evidence, credited by the district judge, in conflict with the statements, and it appears that their admission would have been, at best, of slight or inconsequential probative value. In the total context of the case, if their exclusion was error, the error must be regarded as harmless. That the ultimate outcome of this protracted antitrust litigation could have been materially affected by the district court’s refusal to admit the statements as substantive proof is inconceivable to us.

It is not without significance that the appellant in its reply brief has been candid enough to compliment the district judge in his handling of the case:

Although we quarrel with some of the trial judge’s legal rulings, his opinion was eminently fair to us. It clearly discloses the judge’s thought process and the basis of his rulings. He did not, as some judges do unfortunately, inter the legal issues by clothing them in nonappealable findings of fact.

For the district court’s opinion, see A. P. Hopkins Corporation v. Studebaker Corporation et al., 355 F.Supp. 816 (1972).

The judgment of the district court must be and it is hereby

Affirmed.

      . This letter reads in pertinent part:
      Sorry to have to return your order Al, but Don Barhart was in yesterday and laid the law down to us in regards to out of territory sales. As much as I would like to accommodate your needs, I cannot place our association with Onan in jeopardy. Please accept our apologies.

      . This letter reads as follows :
      “Dear Al:
      Further reference is made to our recent conversations regarding the possibility of furnishing you with ONAN parts, etc. As stated, I mailed your order into ONAN for direct shipment to you. My reason for doing this was to more or less put up a trial balloon to see what their reaction would be. The result was that Mr. Ed Swenson telephoned me last Friday, August 27th, and discussed this order, stating that he had been informed by Bud Stano, Manager of the Parts Department that the order would not be shipped. Upon receipt of this information I called Bud Stano on Monday, August 30th, and further discussed your order with him. At this time he agreed to ship this one order but refused to ship any further or- . ders.
      Under the above conditions, I regret to advise that there is no way that we could possibly handle your business without placing ourselves in jeopardy, as they most certainly would be able to check any future orders and may also question our own orders, as inasmuch as we have just received a' Government contract for the Westcoaster Mailster equipment. I am sorry that this liad to happen and regret that I could not be of any more help.
      We are herewith returning the large parts order sent us and trust you will be able to work out some solution.
      We hope to be able to visit you in Detroit at some date in the future.
      Sincerely yours,
      A. F. SHANE COMPANY /s/ A. F. Shane President”


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    Joyce ST. HILAIRE MOYE, Appellee, v. Emmett HENDERSON and Doris Collins, Appellants.
    No. 73-1871.
    United States Court of Appeals, Eighth Circuit.
    Submitted March 14, 1974.
    Decided May 8, 1974.

      George Pike, Jr., Little Rock, Ark., for appellants.
    Henry Woods, Little Rock, Ark., for appellee.
    Before VAN OOSTERHOUT, Senior Circuit Judge, and LAY and ROSS, Circuit Judges.
   VAN OOSTERHOUT, Senior Circuit Judge.

This is an action in admiralty brought by Joyce St. Hilaire Moye against Emmett Henderson, Basil Henderson, Doris Collins, and Bill Hobson seeking damages arising out of a boating accident which took place on the Arkansas River, a navigable stream, on June 6, 1971. The plaintiff suffered serious and permanent injuries, for which she seeks compensation and punitive damages. Jurisdiction is based on 28 U.S.C. § 1333(1). A pre-trial motion to dismiss based on lack of admiralty jurisdiction was overruled. After trial to the court, Judge Henley presiding, and pursuant to a Memorandum Opinion reported at 364 F.Supp. 1286 (E.D.Ark.1973), the plaintiff was awarded a judgment of $84,000 against Emmett Henderson and Doris Collins. Those defendants appeal from that judgment.

FACTS

Shortly before the accident here involved, Basil Henderson purchased an eighteen-foot motorboat powered by a 225 horsepower inboard engine. On June 6, 1971, he loaned the boat to his son, Emmett Henderson, for a pleasure outing on the Arkansas River. In the early afternoon the boating party met at a launching ramp near North Little Rock. Included were Emmett Henderson, Pat Henderson, Bill Hobson, Doris Collins, Carolyn McRae, and the plaintiff. The party cruised on the river for some time, with some intoxicants being consumed. Henderson allowed Hobson to operate the craft for a period, during which Doris Collins asked Hobson to be allowed to drive. She falsely represented to Hobson her experience in operating boats of this size and type. Mrs. Collins was feeling the effects of the intoxicants, and Carolyn McRae objected to allowing her to take the controls of the boat. Nevertheless, Hobson allowed her to drive after first securing the consent of Henderson, the master of the boat.

In the meantime, the plaintiff and Pat Henderson had assumed a perch atop the rear deck of the boat, with their feet on the rear seat. The plaintiff was holding a glass of wine. While the boat was traveling about 25 miles per hour, Pat Henderson shouted to Mrs. Collins three times, the last rather forcefully, to stop the boat so that someone could water ski. Mrs. Collins then pulled the combination gearshift-throttle lever backward through the neutral position into reverse gear. The boat stopped suddenly and tilted violently, throwing Henderson and the plaintiff into the water. The plaintiff was struck in the leg by the propeller, receiving serious and permanent injuries.

PROCEEDINGS BELOW

Suit was filed in federal court under its admiralty jurisdiction, the Arkansas River being a navigable stream. Named as defendants were Emmett Henderson, Basil Henderson, Bill Hobson, and Doris Collins. All of the defendants joined in a motion to dismiss the complaint on the ground that the court was without jurisdiction because admiralty did not extend to accidents involving small pleasure craft engaged in non-commercial navigation. The motion was overruled, Judge Henley holding in an unreported opinion that the case was clearly within the court’s admiralty jurisdiction because the accident happened on navigable waters and “directly resulted from the operation of a boat which is certainly a traditional maritime activity.” Judge Henley felt that admiralty applied regardless of the size of craft or the type of activity in which the boat was being operated.

After trial, Judge Henley found that Basil Henderson and Bill Hobson were free of negligence and absolved them of liability. 364 F.Supp. at 1291-1292. Such determination is not challenged on this appeal. However, he found that Doris Collins and Emmett Henderson were each guilty of negligence proximately causing the plaintiff’s injuries. Id. The court determined that $112,000 would be fair and reasonable compensation for the plaintiff’s injuries, but reduced this amount by 25% because of her own negligence in sitting on the rear deck instead of the seat. Id. at 1292, 1296. Judgment was thus entered against Emmett Henderson and Doris Collins for $84,000.

Those defendants appeal from that judgment, urging as grounds for reversal that the trial court erred in the following respects:

1. In holding that admiralty jurisdiction was established.

2. In determining that federal law controlled and refusing to apply and enforce the law of Arkansas.

3. In failing to hold that the plaintiff’s negligence was the sole proximate cause of her injuries. We reject such contentions and affirm the judgment for the reasons hereinafter stated.

ADMIRALTY JURISDICTION

The judicial power of the United States extends “to all Cases of admiralty and maritime Jurisdiction; . . . ” U.S.Constitution, Art. Ill, § 2. Congress has conferred original jurisdiction on the district courts of “[a]ny civil case of admiralty or maritime jurisdiction, . . . ” through 28 U.S.C. § 1333(1). Whether the district court had jurisdiction over this case depends on whether the law of admiralty extends to the operation of small pleasure craft engaged in non-commercial navigation on navigable waters. The defendants contend on appeal that the admiralty jurisdiction of the federal courts does not extend this far. Thus, they reason, Judge Henley erred in holding that admiralty jurisdiction was present in this case, and the federal court was without jurisdiction, there being no diversity of citizenship among the parties.

The federal courts for many years exercised admiralty jurisdiction over torts governed only by the standard that the tort must have occurred on navigable wáters. This standard was set down in The Plymouth, 70 U.S. (3 Wall.) 20, 36, 18 L.Ed. 125 (1865): “The jurisdiction of the admiralty does not depend upon the fact that the injury was inflicted by the vessel, but upon the locality — the high seas, or navigable waters where it occurred. Every species of tort, however occurring and whether on board a vessel or not, if upon the high seas or navigable waters, is of admiralty cognizance.” This “locality test” was often reiterated by the federal courts. See, e. g., Victory Carriers, Inc. v. Law, 404 U. S. 202, 205, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971) (note list of cases in n. 2); Grant Smith-Porter Co. v. Rohde, 257 U.S. 469, 476, 42 S.Ct. 157, 66 L.Ed. 321 (1922); Weinstein v. Eastern Airlines, Inc., 316 F.2d 758, 761 (3d Cir. 1963). See also 7A J. Moore, Federal Practice, ff.325[3] (1972).

However, over the years a number of courts questioned whether the maritime locality of a tort is alone sufficient to invoke the admiralty jurisdiction of the federal courts. Several lower courts had by 1972 held that a tort, in addition to having a maritime locality, must involve a significant relationship to maritime navigation and commerce in order to invoke admiralty jurisdiction. See Peytavin v. Government Employees Ins. Co., 453 F.2d 1121, 1127 (5th Cir. 1972); Chapman v. City of Grosse Point Farms, 385 F.2d 962, 966 (6th Cir. 1967); Smith v. Guerrant, 290 F.Supp. 111, 114-115 (S.D.Tex.1968); McGuire v. City of New York, 192 F.Supp. 866, 868 (S.D.N.Y.1961). Finally, in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the Supreme Court was squarely faced with this question. In that case the plaintiff’s airplane lost its power while taking off from the defendant’s airport after ingesting seagulls into its engines, and crashed into Lake Erie, a navigable body of water. After discussing the history of the locality test, Justice Stewart summarized as fol-. lows;

[Tjhere has existed over the years a judicial, legislative, and scholarly recognition that, in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test. Id. at 261.

Finding that a crash of land-based aircraft while operating between two points of land had little to do with the focus or purpose of the law of admiralty, the Court held that maritime locality alone is no longer sufficient to sustain admiralty jurisdiction in aviation accidents. Rather, the wrong must “bear a significant relationship to traditional maritime activity.” Id. at 268. Such a maritime nexus is not present in the crash into navigable waters of a land-based aircraft operating between two points in the continental United States. Id. at 274.

The strict locality test for admiralty has thus been extensively altered. An accident must now involve a traditional maritime activity to sustain' admiralty jurisdiction. Thus, the question of whether admiralty jurisdiction existed in the instant case depends on whether the accident arose out of “traditional maritime activity.”

The defendants rely on Executive Jet to support their contention that this case does not fall within the admiralty jurisdiction of the federal courts, even though the accident occurred on navigable waters. They contend that the operation of small pleasure craft engaged in non-commercial navigation does not constitute a “traditional maritime activity.” Rather, they would limit that term to commercial endeavors. In addition, they rely on policy grounds for leaving disputes of this type to state courts, which are competent to handle these essentially local cases, thus freeing the federal courts from the burden of trying such cases.

Several cases have interpreted Executive Jet and its effect on the admiralty jurisdiction of the federal courts. In Crosson v. Vance, 484 F.2d 840 (4th Cir. 1973), a water skier brought suit against the operator of the towing motor boat for injuries suffered when he ran into shoal waters on a navigable tributary of Chesapeake Bay. Judge Haynsworth explained the historical basis of admiralty jurisdiction.

The admiralty jurisdiction in England and in this country was born of a felt need to protect the domestic shipping industry in its competition with foreign shipping, and to provide a uniform body of law for the governance of domestic and foreign shipping, engaged in the movement of commercial vessels from state to state and to and from foreign states. The operation of small pleasure craft on inland waters which happen to be navigable has no more apparent relation to that kind of concern than the operation of the same kind of craft on artificial inland lakes which are not navigable waters.
* -x- * * * *
[W] e can perceive no apparent federal interest in providing a forum or a uniform body of law for the adjudication of claims growing solely out of the operation of pleasure craft. Id. at 840, 841.

He then concluded that Executive Jet had negated the exercise of admiralty jurisdiction in cases involving water skiers, because the Court had cited a case involving a water skier as an example of a case involving no connection with traditional maritime activity. See 409 U.S. at 255-256 & n. 5. However, Judge Haynsworth did not go so far as to hold that admiralty would never extend to non-commercial enterprises. “[W]e need not speculate whether the Supreme Court’s opinion in Executive Jet Aviation would foreclose resort to admiralty in any case involving the operation of small pleasure craft, . . .” Id. at 842.

In Adams v. Montana Power Co., 354 F.Supp. 1111 (D.Mont.1973), admiralty law was held not to apply to the activities of boaters, water skiers, and fishermen on the Missouri River. However, at that point, the river had been dammed, forming a non-navigable lake upon which there was no “traditional maritime activity,” which that court defined as relating to the needs of commerce. Id. at 1112. In Rubin v. Power Authority, 356 F.Supp. 1169 (W.D.N.Y. 1973), divers were drowned in the water intakes of the defendant. Admiralty was held not to apply, on the ground that the failure of the defendant to post warning signs did not involve the requisite maritime nexus to justify admiralty jurisdiction. Id. at 1171. However, the court there distinguished eases involving the operation of vessels. Id. n. 1.

Other cases interpreting Executive Jet have limited its holding to narrower grounds. In Maryland v. Amerada Hess Corp., 356 F.Supp. 975, 976-977 (D.Md. 1973), the court stated that the Supreme Court had not rejected the locality test in all admiralty cases, but only for claims arising out of airplane accidents, which are “perverse” or “casuistic border line situation [s].” A close reading of the Executive Jet decision would support an interpretation limiting its holding to situations involving aircraft. Justice Stewart extensively discussed the differences between aircraft and waterborne vessels, 409 U.S. at 261-272, and that difference was the essential basis for the Court’s holding. Justice Stewart explicitly limited the rejection of the locality test to aviation tort cases. Id. at 274.

Other cases interpreting Executive Jet have held that admiralty certainly extends to the operation of waterborne vessels as a traditional maritime activity. In Oppen v. Aetna Ins. Co., 485 F.2d 252 (9th Cir. 1973), owners of private pleasure boats sustained damage from an oil spill in the Santa Barbara Channel. The Ninth Circuit held that damages for physical injury to maritime vessels and interference with their right of navigation presented a significant relationship to traditional maritime activity so as to sustain admiralty jurisdiction. Id. at 257. In Luna v. Star of India, 356 F.Supp. 59 (S.D.Cal.1973), the involvement of a vessel was considered alone sufficient to invoke admiralty jurisdiction. An accident occurring on an historical merchant vessel used as a dockside museum was held to present a sufficient nexus to traditional maritime activity. Id. at 66.

More support for holding that the operation of vessels, including pleasure craft, comes within admiralty jurisdiction is the fact that the Supreme Court itself has previously assumed the existence of admiralty jurisdiction in a number of cases involving the operation of pleasure craft, though it did not discuss the problem directly. Levinson v. Deupree, 345 U.S. 648, 73 S.Ct. 914, 97 L.Ed. 1319 (1953); Coryell v. Phipps, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363 (1943); Just v. Chambers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941). See Crosson, supra, at 842; cf. Petition of Porter, 272 F.Supp. 282, 284 (S.D.Tex. 1967). The holding in Executive Jet, limited on its face to aviation accidents, did not overrule these cases.

Perhaps the most persuasive case interpreting Executive Jet is Kelly v. Smith, 485 F.2d 520 (5th Cir. 1973). The plaintiffs there sustained personal injuries aboard their small outboard boat when fired upon by the defendants from shore. While the fact that the injury was received on navigable waters in a boat was considered significant, the Fifth Circuit indicated other factors must be considered to determine if a substantial maritime relationship existed. These factors included “the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and type of injury; and traditional concepts of the role of admiralty law.” Id. at 525. The court found a sufficient maritime nexus in the firing at a vessel on a major commercial stream. “Admiralty has traditionally been concerned with furnishing remedies for those injured while traveling navigable waters.” Id. at 526. In addition, the federal interest in protecting maritime commerce and navigation on navigable waters was considered to be compelling toward admiralty jurisdiction. Id.

Such reasoning is quite persuasive and should be accepted to sustain the exercise of admiralty jurisdiction in the instant case. The use of a waterborne vessel on navigable waters presents a case falling appropriately within the historical scope and design of the law of admiralty. “That law deals with navigational rules — rules that govern the manner and direction those vessels may rightly move upon the waters.” Executive Jet, supra, at 270. Even more compelling is the federal interest in protecting navigation and commerce on navigable waters. The navigation of waterborne vessels on those waters, even if not directly engaged in commerce themselves presents a potential danger to the operation of vessels which are engaged in commerce on those waters. This is the very basis of laws requiring vessels used on navigable waters to meet certain safety and operational standards. See, e. g., Motorboat Act of 1940, 46 U.S.C. § 526 (as amended, 1958). The law of admiralty must surely cover the operation of vessels which present potential dangers to commerce on navigable waters.

Nor may it be contended that the term “vessel” in admiralty law is limited to ships or vessels engaged in commerce. In 1 U.S.C. § 3 the term is defined as follows: “The word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” 46 U.S.C. § 713 provides in part: “[T]he term ‘vessel’ shall be understood to comprehend every description of vessel navigating on any sea or channel, lake or river. . . .” These definitions are surely broad enough to encompass the type of boat here involved.

In addition to the holding that the law of admiralty extends to the operation of all waterborne vessels on navigable waters, admiralty jurisdiction may be applicable under express statutory provision. The Extension, of Admiralty Jurisdiction Act, 46 U.S.C. § 740, provides in part: “The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” The purpose of this legislation was to extend the law of admiralty to encompass claims arising out of a relationship to maritime activities, regardless of the locality of the tort. Executive Jet, supra, at 260. However, the language of the statute is written in the broadest terms to cover all damage “caused by a vessel on navigable water.” All that is required for the Act to come into involvement is injury caused by a vessel on navigable waters. See Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1307 (9th Cir. 1970). As mentioned previously, statutory definitions of vessel do not limit the term to commercial boats, but cover any waterborne transportation device.

We affirm Judge Henley’s holding that the operation of a boat on navigable waters, no matter what its size or activity, is a traditional maritime activity to which the admiralty jurisdiction of the federal courts may extend. The Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740, provides an additional basis for the exercise of admiralty jurisdiction in this case.

APPLICABLE LAW

The defendants’ second contention on appeal is that even if the district court properly exercised admiralty jurisdiction in this case, it should have applied and enforced Arkansas law. That state has enacted a boat guest statute. Ark.Stat. Ann. § 21-235 (1968). This legislation, patterned after automobile guest statutes, forbids a social guest on a motorboat from recovering damages against the owner or operator of the boat unless it was “wilfully and wantonly operated in disregard of the rights of others.” Id. Application of this statute would have barred any recovery by the plaintiff, for Judge Henley found that neither Doris Collins nor Emmett Henderson were guilty of wilful or wanton operation of the vessel without regard to the rights of others. 364 F.Supp. at 1293.

A federal court sitting in admiralty does not sit as a diversity court; therefore, this is not a case “where state substantive law must be ascertained and applied.” Spiller v. Lowe, 466 F.2d 903, 907 & 908 n. 6 (8th Cir. 1972). Rather, admiralty suits are governed by federal substantive and procedural law. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625, 628, 79 S.Ct. 406, 3 L.Ed.2d 550 (1959); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 409, 74 S.Ct. 202, 98 L.Ed. 143 (1953); Branch v. Schumann, 445 F.2d 175, 178 (5th Cir. 1971). However, a federal court sitting in admiralty need not “invariably refuse to recognize and enforce a liability which the State has established in dealing with a maritime subject. On the contrary, there are numerous instances in which the general maritime law has been modified or supplemented by state action . . .” Just v. Chambers, 312 U.S. 383, 387-388, 61 S.Ct. 687, 691, 85 L.Ed. 903 (1941). See Southern Pacific Co. v. Jensen, 244 U.S. 205, 216, 37 S.Ct. 524, 61 L.Ed. 1086 (1917). Thus, admiralty courts may apply state law by express or implied reference or when the federal law of admiralty is incomplete. Baggett v. Richardson, 473 F.2d 863, 864 (5th Cir. 1973). See The Tungus v. Skovgaard, 358 U.S. 588, 594, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959). The Supreme Court has sustained the application of state laws which broaden the scope of liability beyond the general maritime standard. See Hess v. United States, 361 U.S. 314, 80 S.Ct. 341, 4 L.Ed.2d 305 (1960); Just, swpra. See also In re M/T Alva Cape, 405 F.2d 962, 969-970 (2d Cir. 1969).

However, state law may not be applied by a federal court if it would defeat or narrow any substantial admiralty rights of recovery, either as created by federal legislation or as defined by interpretive decisions of the federal courts. Pope & Talbot, supra at 410; Garrett v. Moore-McCormack Co., 317 U.S. 239, 243-246, 63 S.Ct. 246, 87 L.Ed. 239 (1942); Bagrowski v. American Export Isbrandtsen Lines, Inc., 440 F.2d 502, 506 (7th Cir. 1971); Alva Cape, supra, at 970. In addition, state law may not be applied to “contravene an act of Congress, to prejudice the characteristic features of the maritime law or to disrupt the harmony it strives to bring to international and interstate relations.” J. Ray McDermott & Co., Inc. v. Vessel Morning Star, 457 F.2d 815, 818 (5th Cir.) (en banc), cert. denied, 409 U.S. 948, 93 S.Ct. 271, 292, 34 L.Ed.2d 218 (1972). See Just, supra, at 389-390; Jensen, supra, at 216. Even if state law does not contravene an established principle of admiralty, it may be deemed pre-empted if it is in direct contravention of the' uniformity of the admiralty law in some crucial respect. Alva Cape, supra, at 970. See Branch, supra, at 178.

Application of the Arkansas statute herein involved would not be in accordance with these principles. The standards of maritime law measure the rights and liabilities arising from conduct occurring on vessels on navigable waters. Kermarec, supra, at 628. A tort action against the master of a vessel therefore is an action lying in federal maritime law, and negligence in the operation of a boat creates a federal right of recovery to all who are injured by that negligence. See Pope & Talbot, supra, at 409; Blevens v. Sfetku, 259 Cal.App.2d 527, 66 Cal.Rptr. 486, 491 (1968). The Arkansas statute limiting recovery for social guests on boats would defeat that federal right of recovery, and thus may not be applied in an admiralty court. In addition, Arkansas is the only state with a boat guest statute currently in force. Application of this local rule would be disruptive of the uniformity of the admiralty law, for only within the state of Arkansas would such a rule be operative to defeat the rights of persons injured by the negligence of boat operators on navigable waters. Such a local variation is not warranted in light of the need for a uniform and harmonious maritime law.

In addition, the Arkansas statute may well be in direct contravention of a preemptive federal statute. The Motorboat Act of 1940, 46 U.S.C. § 526, provided for the federal regulation of all motorized vessels used on navigable waters. Section 526Z, as amended in 1958, provided in pertinent part,

No person shall operate any motorboat or any vessel in a reckless or negligent manner so as to endanger the life, limb, or property of any person. To “operate” means to navigate or otherwise • use a motorboat or vessel.

A violation of this standard of conduct was a misdemeanor punishable by a fine of up to $2000 and/or imprisonment for one year under § 526m of the Act.

Judge Henley held that the legislation providing penalties for the negligent operation of motorboats did not purport to “deal with private remedies for injuries arising out of motor boat accidents occurring on navigable waters. . . . .” 364 F.Supp. at 1294. According to this reasoning, state civil remedies would not be in direct conflict with the above federal standard of care so as to be specifically pre-empted. Support for this holding may be found in Godinez v. Jones, 179 F.Supp. 135, 139 (D.P.R.1959).

However, we do not accept that conclusion. The federal act established a standard of conduct in 46 U.S.C. § 526Z prohibiting negligence or carelessness in the operation of a boat, and the state statute in question prevented the application of that standard in civil actions. The state statute thus conflicts with the federal standard and must necessarily fall. The Court of Appeal for California, interpreting a similar statute in that state, considered the state statute to conflict with the federal standard of conduct, and held that the latter must therefore pre-empt the former. See Blevens, supra, at 491. In addition, Judge Henley held that though the statutes did not conflict directly, the Arkansas statute undermined the uniformity of the federal maritime law and refused to apply and enforce it in the instant case. 364 F.Supp. at 1294. That result is in accordance with our own conclusion that application of the Arkansas statute would be disruptive of the uniformity of the admiralty law.

Federal legislation in force at the time of the accident may therefore be considered to have pre-empted the field, and the contradictory state statute could not have been enforced by the admiralty court. In addition, the state statute was destructive of the uniformity of federal maritime law, and therefore could not be enforced by the admiralty court even if the two acts were not directly contradictory. The district court did not err in refusing to enforce the Arkansas boat guest statute.

APPORTIONMENT OF NEGLIGENCE

The defendants’ third contention on appeal is that the district court erred in failing to hold that the sole proximate cause of the plaintiff’s injury was her own negligence in sitting atop the rear deck of the boat rather than in the seat. It is the responsibility of the trial judge as factfinder to assess the facts and apportion negligence among the parties as he deems proper under the doctrine of comparative negligence, which is applied in admiralty, See Pope & Talbot, supra, at 408-409; American President Lines, Ltd. v. Welch, 377 F.2d 501, 504 (9th Cir.), cert. denied, 389 U.S. 940, 88 S.Ct. 294, 19 L.Ed.2d 290 (1967). Judge Henley apportioned 25% of the total negligence to the plaintiff and reduced her judgment accordingly. Such a finding may be reversed in an appellate court only if it is clearly erroneous. Fed.R.Civ.P. 52(a); Guzman v. Pichirilo, 369 U.S. 698, 702, 82 S.Ct. 1095, 8 L.Ed.2d 205 (1962); McAllister v. United States, 348 U.S. 19, 20-21, 75 S.Ct. 6, 99 L.Ed. 20 (1954). The evidence presented in this case amply supports Judge Henley’s apportionment, and that finding should not be set aside on appeal.

The judgment is affirmed.

      . A more complete and detailed statement of facts may be found in Judge Henley’s opinion, 364 F.Supp. at 1289-1291.

      . Justice Stewart even limited the holding to “flights by land-based aircraft between points within the continental United States.” 409 U.S. at 274. He specifically rejected the notion that the Court was holding that an aviation tort could never bear a sufficient relationship to traditional maritime activity to come within admiralty. He recognized that an aircraft flying over international waters between foreign countries would be performing a function previously performed by waterborne vessels. Id. at 271; see id. at 264. Following that reasoning, a helicopter which crashed into the Gulf of Mexico while performing the functions of a crewboat was held to present a sufficient nexus to traditional maritime activity to justify the exercise of admiralty jurisdiction. Higgenbotham v. Mobil Oil Corp., 357 F.Supp. 1164, 1167 (W.D.La.1973). In accord was Hark v. Antilles Airboats, Inc., 355 F.Supp. 683, 687 (D.V.1.1973), where the court held admiralty jurisdiction extended to accidents arising from flights by seaplanes over international waters.

      . California also had a boat guest statute. However, the Court of Appeal of that state refused to apply it to defeat a federal right of recovery for negligent injury by a boat operator while in navigable waters. See Blevens v. Sfetku, 259 Cal.App.2d 527, 66 Cal.Rptr. 486, 491 (1968). That statute and all other guest statutes in California have been declared unconstitutional as a violation of equal protection under the 14th amendment, and thus are no longer operative. Brown v. Merlo, 8 Cal.3d 855, 106 Cal.Rptr. 388, 506 P.2d 212 (1973).

      . This section, among others, was repealed effective August 10, 1971. Act of August 10, 1971, Pub.L.No. 92-75, § 41(a)(1), 85 Stat. 228. However, it was in effect at the time of the accident here involved.

      . Repealed, Act of August 10, 1971, Pub.L. No. 92-75, § 41(a) (1) 85 Stat. 228.