author: CELEBREZZE, Circuit Judge.

text:
    Jewell McTAVISH, Administratrix of the Estate of Peter R. McTavish, Deceased, Plaintiff-Appellant, v. CHESAPEAKE AND OHIO RAILROAD CO., Defendant-Appellee.
    No. 72-2085.
    United States Court of Appeals, Sixth Circuit.
    Argued June 4, 1973.
    Decided Oct. 16, 1973.
    Edward M. Post, Louisville, Ky., for appellant; H. S. Horen, Louisville, Ky., on brief.
    Gerald Kirven, Louisville, Ky., for appellee; Matthew R. Westfall, Joseph H. Terry, Louisville, Ky., on brief; Middleton, Reutlinger & Baird, Louisville, Ky., of counsel.
    Before PHILLIPS, Chief Judge, and CELEBREZZE and PECK, Circuit Judges.
   CELEBREZZE, Circuit Judge.

This is an appeal from the District Court’s entry of summary judgment for Appellee, Chesapeake and Ohio Railroad Co., in a wrongful death action by Appellant as administratrix of the estate of Peter R. McTavish, who was killed in an auto-train collision involving one of Appellee’s trains. Jurisdiction is based upon diversity of citizenship, and Kentucky law is therefore controlling.

McTavish was killed when his ear was struck at the grade crossing of Appellee’s tracks and Kentucky Highway 801 in Farmers, Kentucky. The crossing was marked with a standard yellow “RE” sign, a standard railroad cross-buck, and a state highway stop sign. The accident occurred in daylight at approximately 6:45 a. m., on a clear day.

Appellant alleged that the Railroad was negligent in that McTavish’s view of the track was obstructed by overgrown foliage along the track; the train was traveling at an excessive speed; the train’s crew failed to give any signal; and the train’s crew failed to keep a proper lookout at what was known to be an extra-hazardous crossing.

According to the depositions of four eye witnesses, McTavish stopped at or near the stop sign about 25 feet from the track and stopped again near or on the track before attempting to proceed across the track. It was Appellant’s contention that due to the overgrown foliage, McTavish was unable to see the approaching train when he first stopped near the stop sign. Appellant further asserted that McTavish then proceeded slowly (at about 3 to 4 MPH), but when he finally did see the train it was impossible for him to avoid entering the train’s path. It then became necessary for him to remove himself from this danger zone by rapidly proceeding across the tracks.

Appellee’s argument, as accepted by the District Court, is that under the holding of the Kentucky Court of Appeals in Louisville & N. R.R. v. Fisher, 357 S.W.2d 683 (Ky.1962), McTavish was contributorily negligent as a matter of law and is therefore barred from recovery. In Fisher, a wrongful death action for a motorist killed at a railroad crossing, it was argued that the crossing was extra-hazardous due to an overgrowth of vegetation which obstructed the motorist’s view of the approaching train. The Court held that regardless of whether the crossing was extra-hazardous, the decedent had been contributorily negligent as a matter of law because he had failed to exercise due care in ascertaining the presence of the oncoming train. Basing its decision on the holding that the existence of an obstruction requires a greater degree of care to be exercised by a motorist, the Court stated:

“The fallacy in plaintiff’s position is that a motorist has exhausted his duty to exercise care upon reaching a STOP sign. This could not be true from the standpoint of common sense, rational conduct, or the law.
* * * * -X- -x-
“Surely if a motorist’s view Is obstructed when he stops at a STOP sign, he is under a duty to proceed with caution until he can discover the particular hazard the sign warns him to expect.
«X- * -X- * -X- *x-
“The extra-hazardous condition upon which plaintiff pins his case is the very condition which the motorist must observe and can neutralize if he obeys the literal warning of the sign and arrests his progress. Stopping puts him in a position of mobility, which we have heretofore discussed in connection with the duties of a pedestrian. Warned by the sign and confronted with an unseen but predictable peril on his right, a reasonably prudent person would certainly take extra precautions to discover his danger. The circumstance of obscured vision imposed on Fisher more rather than less care.” 357 S.W.2d at 691-692. (Emphasis in original).

In Fisher, the Court assumed without deciding that the jury could have found the Railroad negligent due to the condition of the crossing and/or the acts of its employees. The decision precluded any recovery on that basis because the contributory negligence of the decedent was a complete defense to a finding of negligence. We are unable to rule that the District Court erred in concluding that McTavish was contributorily negligent as a matter of law under the Fisher holding.

However, two degrees of negligence are recognized in Kentucky: ordinary negligence, or the “failure to exercise care which ordinarily prudent persons would exercise in like or similar circumstances”; and gross negligence, which is the “absence of slight care”. Lowe v. Commonwealth, 298 Ky. 7, 181 S.W.2d 409, 412 (1944); Shearer v. Hall, 399 S.W.2d 701 (Ky.1966); Louisville & N. R.R. v. George, 279 Ky. 24, 129 S.W.2d 986 (1939). We interpret the Fisher decision as dealing with contributory negligence as a defense to ordinary negligence, not as a defense to gross negligence. In the present case, in addition to the obstructed view of the railroad track, it was also alleged that the excessive speed of the train and the failure of the crew to give any signals or to keep a lookout at an extra-hazardous crossing were elements of Appellee’s negligence. Appellant contends that these additional elements, not present in Fisher could have resulted in a finding of gross negligence by the jury. Our question, then, is whether the evidence presented a genuine issue of material fact as to Appellee’s gross negligence — an issue not considered by the District Court in its entry of summary judgment. Every negligence case, of course, rests upon its own facts and circumstances. Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526 (Ky.1969). An act which would not be negligent under one set of circumstances could be negligent in a different situation. And an act constituting ordinary negligence could, when combined with other acts, constitute gross negligence. See Brown v. Riner, 500 P.2d 524 (Wyo.1972); Ferguson v. Ferguson, 212 Va. 86, 181 S.E.2d 648 (Va.1971).

The affidavits and depositions submitted in the District Court indicate that the overgrowth of vegetation obstructed the decedent’s view of the track until some point between the stop sign and the track. The depositions of the witnesses also presented conflicting statements regarding the speed of the train, the signals given by the crew and the lookout maintained by the crew at what appears to have been an extra-hazardous crossing. It is therefore apparent that the pleadings, depositions, affidavits, etc., before the District Court raised genuine issues of fact which were material to the question of Appellee’s gross negligence.

As the Kentucky Court of Appeals recognizes, summary judgment should be exercised with caution:

“We are aware that caution should be exercised in granting summary judgment in negligence cases, because determination of the issue of fact involved in these cases depends upon the application of .the standard of care of an ordinarily prudent individual. The facts and circumstances of individual cases affect the extent of care to be expected from the parties involved.” Bonn v. Sears, Roebuck & Co., 440 S.W.2d 526, 530 (Ky.1969).

And in a Kentucky case, we have recently discussed the question of summary judgment:

“It is well settled that it is the rare negligence case that can be resolved by summary judgment. Aetna Insurance Co. v. Cooper Wells & Co., 234 F.2d 342, 344 (6th Cir. 1956). In Rogers v. Peabody Coal Company, 342 F.2d 749 (6th Cir. 1965), we said:
‘Summary judgment should be granted only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is and no genuine issue of fact remains for trial. The purpose of the rule is not to cut litigants off from the right to trial by jury if they really have issues to try. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620 [627], 64 S.Ct. 724, 88 L.Ed. 967 (1944).
‘In the instant case, plaintiff seeks recovery based upon defendant’s alleged negligence. This Court has previously noted that there is eminent authority in support of the proposition that issues of negligence are ordinarily not susceptible of summary adjudication, but should be resolved by trial in the ordinary manner [citations omitted]. It is only in the exceptional negligence case that the rule should be invoked, [citation omitted]. And even where the trial judge reasonably may surmise that plaintiff is unlikely to prevail upon a trial, that is not a sufficient basis for refusing him his day in court with respect to issues which are not shown to be sham, frivolous, or so unsubstantial that it would obviously be futile to try them [citations omitted].’ 342 F.2d at 751.
“There is here the denial of the opportunity afforded by our adversary system to put opposing factual contentions against each other to determine truth. To say as a matter of law that this crash occurred only because of crew negligence overlooks the potential acceptability of other contentions. This is the function of the trial. It is there the necessary sifting out of facts occurs.” Reidinger v. Trans World Airlines, Inc., 463 F.2d 1017, 1021-22 (6th Cir. 1972).

Applying this standard to the issues of fact respecting Appellee’s gross negligence in the present case, we hold that the District Court erred in granting Appellee’s motion for summary judgment. A contrary holding would preclude a motorist’s recovery in every conceivable case involving a railroad crossing collision, regardless of the degree of care, or total lack thereof, exercised by the railroad. We do not read the Fisher case as requiring this result.

The judgment of the District Court is vacated and the case is remanded for further proceedings consistent with this opinion, with no costs allowed.

      . We distinguish this Court’s decision in Baird v. Cincinnati, N.O. & T.P. R.R., 315 F.2d 717 (6th Cir. 1963), inasmuch as the Court in Baird failed to mention or apply the rule of Louisville & N. R.R. v. Fisher, supra. See Thompson v. Illinois Central R. R., 423 F.2d 1257 (6th Cir. 1970).

      . In the Fisher case it was uncontradicted that the train’s bell was ringing before the train reached the crossing, and the only witness testified that he heard both the bell and the whistle. 357 S.W.2d at 689. Moreover, the only evidence on these issues appeared to indicate that the train was not speeding, id. at 684, and that the train’s crew was maintaining a lookout, id. at 688.

      . The complaint alleged that the accident was caused by Appellee’s operation of its facilities “in a negligent and careless manner”, and that the decedent’s death was proximately caused by Appellee’s “negligence and carelessness”. The District Court refused to permit Appellant to amend her complaint so as to allege gross negligence after Appellee had pleaded contributory negligence as a defense. We believe that the issue of Appellee’s gross negligence was nonetheless before the District Court.
      As we noted supra, two degrees of negligence are recognized in Kentucky: ordinary negligence and gross negligence. In both Shearer v. Hall, 399 S.W.2d 701 (Ky.1966), and Lowe v. Commonwealth, 298 Ky. 7, 181 S.W.2d 409 (1944), it was alleged that the negligence and carelessness of the defendant had caused the plaintiff’s injuries. In neither case does it appear that the degree of negligence was alleged, i. e., ordinary or gross, although in both cases the question of gross negligence was considered by the Court. Thus, it is apparent that in Kentucky, an allegation of “negligence and carelessness”, with no stipulation regarding the degree of negligence, includes an allegation of both ordinary and gross negligence. We conclude that the question of gross negligence was properly before the District Court.


source: Caselaw Access Project

author: WALLACE, Circuit Judge: CONTI, District Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. James William EPPERSON, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harold Gene EASLEY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Donald D. WARREN, aka Robert Cox, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Harold Don CLABORN, Defendant-Appellant.
    Nos. 73-1609-73-1612.
    United States Court of Appeals, Ninth Circuit.
    Sept. 21, 1973.
    Lawrence Turoff (argued), Scottsdale, Ariz., for appellants.
    Daniel Knauss, Asst. U. S. Atty. (argued), William C. Smitherman, U. S. Atty., Phoenix, Ariz., for appellee.
    Before MERRILL and WALLACE, Circuit Judges, and CONTI, District Judge.

       Honorable Samuel Conti, United States District Judge, San Francisco, California, sitting by designation.

   WALLACE, Circuit Judge:

A jury found Warren and Claborn guilty of one count of marijuana possession with intent to distribute and aiding and abetting to do so and a second count based upon conspiracy. Epperson and Easley were found guilty only of the possession and aiding and abetting count.

Appellants raise two issues on this appeal : first, that the evidence was insufficient to sustain the convictions; and second, that the trial court erred in giving a jury instruction which allegedly comments improperly on the appellants’ failure to testify. We affirm as to Warren and Claborn and reverse as to Epperson and Easley.

On July 29, 1972, United States Customs Agent Macias commenced a surveillance of Warren and Claborn which led him to a motel in Yuma, Arizona. Warren- and Claborn were registered in room 12, and the Chrysler they had been driving was in the parking lot in front of their room.

The surveillance was discontinued on the morning of July 30, but resumed that evening, at which time Agent Macias discovered a Buick parked next to the Chrysler. Later, when the door to room 12 was left open, he observed that Easley and Epperson were in the motel room with Warren and Claborn.

At 12:30 a. m. on the morning of July 31, a Chevrolet bearing Mexican license plates arrived at the motel parking lot. The driver backed the Chevrolet up to the Chrysler so that the trunks of the two cars were facing each other. The driver got out of the ear and walked directly to room 12, knocked and went in. Two minutes later Warren and Claborn exited from the room with the unidentified driver of the Chevrolet. The trunks of the two cars were opened and Warren and Claborn transferred two burlap sacks from the trunk of the Chevrolet to the trunk of the Chrysler.

During the transfer, Easley was standing at the door of room 12 and looking in the direction of the cars which were approximately ten yards away. Epperson was walking around in the room.

After the transfer, the Chevrolet drove off and Warren and Claborn returned to the room. Ten minutes later all four appellants, Warren and Claborn in the Chrysler and Easley and Epperson in the Buick, began to drive out of the parking lot. At this point the cars were stopped and searched by the customs agents.

Sixty-three pounds of marijuana were discovered in two burlap sacks in the trunk of the Chrysler and a walkie-talkie tuned to Channel 1 was found on the front seat. No marijuana was located in the Buick, but another walkie-talkie, of the same make and tuned to the same channel, was found under its front seat.

Mere presence at the scene is insufficient, without more, to establish guilt. United States v. Camarillo, 431 F.2d 616, 618-619 (9th Cir. 1970). The added fact that Easley and Epperson had in their possession a walkie-talkie tuned to the same channel as the other walkie-talkie is not sufficient to leave reasonable jurors “free of ‘the kind of doubt that would make a person hesitate to act’ in the more serious and important affairs of his own life.” United States v. Nelson, 419 F.2d 1237, 1245 (9th Cir. 1969). The jury needed some evidence as to the reasonable connection between the two cars and the walkietalkies. We may all speculate that those in the Buick were planning to scout the way for the car with the marijuana and warn of danger by use of the walkietalkie. But there was no evidence upon which such an inference could reasonably be drawn by the jury. An objection, sustained by the trial court, prevented the government from providing this connection. Therefore, we reverse and remand as to Epperson and Easley.

Claborn, who was driving the Chrysler, does not raise the question of sufficiency of the evidence. Warren attempts to bring himself under the umbrella of the passenger doctrine. See United States v. Thomas, 453 F.2d 141, 143 (9th Cir. 1971), cert. denied, 405 U.S. 1069, 92 S.Ct. 1516, 31 L.Ed.2d 801 (1972) and cases cited therein. However, he was more than a mere passenger. He even participated in the physical transfer of the marijuana. The government presented facts against Warren “from which the trier of fact could draw the reasonable inference that the appellant was guilty beyond a reasonable doubt.” United States v. Magana, 453 F.2d 414, 415 (9th Cir. 1972). See United States v. Bonds, 435 F.2d 164 (9th Cir. 1970).

The only other question raised was whether it was reversible error to give, over objection by three of the appellants, the following instruction which was requested by Warren:

The law does not compel a defendant to take the witness stand and testify, and no presumption of guilt may be raised and no inference of any kind may be drawn from the failure of a defendant to testify.

The trial court was put between the proverbial rock and the hard spot. However, he correctly stated:

I know of no way of not giving it and giving it at the same time. So the only thing I can do is either not give it or give it. So I am going to give it, because I think the law supports this more than it would be against it.
And that is the reason for the record, that I am giving it because one of the defendants does wish to have the instruction read, and I think he is entitled to it.

Under these circumstances it was not error to give the instruction. United States v. Schroeder, 433 F.2d 846, 851 (8th Cir. 1970), cert. denied, 401 U.S. 943, 91 S.Ct. 951, 28 L.Ed.2d 224 (1971). See Coleman v. United States, 367 F.2d 388 (9th Cir. 1966).

The judgment is affirmed as to Warren and Claborn and reversed and remanded as to Epperson and Easley.

Affirmed in part and reversed in part.

CONTI, District Judge

(dissenting):

I dissent from the reversal and remand as to Epperson and Easley.

It appears to me that we have more than mere presence which would vindicate said defendants. The facts presented by the government and considered by the jury must be taken in their totality and placed in perspective as to the events and transactions occurring at the time the crime was committed. The more important incriminating facts here are:

(1) Epperson and Easley, at 12:30 a. m., were at the motel room with defendants Warren and Claborn when the driver of the Chevrolet (the original car carrying the marijuana) knocked and entered the room.

(2) Easley watched, from the door, the transfer of two burlap sacks from the Chevrolet to the Chrysler, while Epperson was walking around the room. The door of the motel room was open at this time and approximately 30 ft. distant.

(3) After the transfer of the marijuana into defendants’ (Claborn and Warren) Chrysler, they returned to the motel room with Epperson and Easley and ten minutes thereafter all four came out of the room and began putting articles and clothes into the trunk of the Buick.

(4) The four returned to the room several times and then Claborn and Warren got into the Chrysler and Epperson and Easley into the Buick, with Easley driving, Easley starting out of the parking lot first and the Chrysler following immediately.

(5) Each car had a walkie-talkie of the same make and tuned to the same channel.

When one considers the time of night, the persons present, the activities engaged in and the close proximity of each of the participants in the criminal transaction, one can only conclude that there existed more than “mere presence” at the scene by Epperson and Easley, and there was, rather, sufficient evidence for the jury to conclude that Epperson and Easley were active participants in the commission of the crime and not merely there as spectators.


author: TYLER, District Judge:

text:
    UNITED STATES of America, Appellee, v. Stephen KURZYNA, Appellant.
    No. 1073, Docket 73-1421.
    United States Court of Appeals, Second Circuit.
    Argued July 20, 1973.
    Decided Oct. 5, 1973.
    Paul J. Curran, U. S. Atty. S. D. N. Y., by George E. Wilson and John W. Nields, Jr., Asst. U. S. Attys., for appellee.
    Alfred Lawrence Tombs, New York City, for appellant.
    Before HAYS and OAKES, Circuit Judges, and TYLER, District Judge.

       Sitting by designation.

   TYLER, District Judge:

Stephen Kurzyna appeals from a judgment of conviction entered on March 6, 1973 in the United States District Court for the Southern District of New York (Tenney, J.), after a one day bench trial. In that judgment, the trial court sentenced Kurzyna to imprisonment for two years but suspended execution of sentence and placed him on probation for two years upon the special condition that he register with the Selective Service System within 30 days of judgment.

Kurzyna basically raises two contentions on appeal. First, he contends that the Selective Service regulations require or permit the “involuntary registration” of persons who refuse to participate in the registration process, on the theory that prior to the filing of the indictment various government agencies, through appellant and otherwise, had obtained substantially all the necessary information needed to complete in effect his registration. Second, it is claimed that the judge erred as a matter of law in refusing to rule that the probation disposition was subject to relevant provisions of the Youth Corrections Act, 18 U.S.C. Sections 5010(b) and 5021(b).

Appellant’s initial claim that his local board should have registered him “involuntarily” is precluded by this court’s decision in United States v. Matusewitch, 481 F.2d 174, decided June 22, 1973. The fact that other governmental agencies had in their possession almost all of the information requisite for registration of Kurzyna cannot suffice to distinguish his case from Matusewitch. Kurzyna asserted to the Selective Service authorities that he would not voluntarily submit to registration; he also indicated to all concerned that he was aware of the consequences of his refusal to cooperate. To require a local draft board to seek necessary information, even from other governmental agencies, under these circumstances would place an undue burden on the Selective Service System and would be contrary to the plain language of the operative statute and regulations. Title 50 Appendix U.S.C. Section 453; 32 C.F.R. Section 1613.13 and Section 1613.16. Undeniably, the statutory and regulatory language establishes that a registrant must present himself for and submit to the registration process. The trial judge properly found that Kurzyna did neither. In substance, appellant’s sole contact with the Selective Service authorities at the time he was supposed to register was through a letter in which he declared his intentions not to register. He later appeared in person at Selective Service headquarters, but again only for the express purpose of informing the Service of his reasons for refusing to register. See United States v. Matusewitch, supra; United States v. Koehn, 457 F.2d 1332 (10th Cir. 1972).

Kurzyna’s final claim is superficially more compelling. During the sentencing colloquy, Kurzyna’s counsel correctly informed the trial court that Kurzyna was then 20 years old and had specifically requested sentence pursuant to the Youth Corrections Act. After considering the matter, the trial judge expressly refused to impose sentence upon Kurzyna as a youth offender. He suspended execution of the two year commitment, however, and placed appellant on probation for two years, subject to the special condition heretofore noted. At the urging of defense counsel, the judge then made the following finding:

“The Court: I find that the defendant is in no way remorseful for his prior offense, that he has shown no indication of accepting gainful employment, and I don’t believe that he would obtain any benefit by treatment as a youthful offender.” (SM 134).

It is Kurzyna’s claim, however, that he was a statutorily defined “Youth Offender” within the meaning of Section 5006(e) of Title 18. Thus, in appellant’s view, by operation of law the judge was required to impose probation under- the Youth Corrections Act.

Further in support of this conclusion, Kurzyna suggests that, by its terms, Section 5010(d) of that Act does not authorize any sentence to “adult probation”; he claims there is no statutory authority for a sentence of “adult probation” in the case of one whose tender years theoretically qualify him as a youth offender. Still further, it is claimed that the trial judge’s determination to specifically reject probation under the Act was erroneous in that it divested the court of discretion to determine later whether or not appellant qualified for having his conviction expunged from the record. 18 U.S.C. Section 5021(d).

We are not persuaded by this ingenious reasoning, partly because it does not accord with the legislative history of the Act and partly because the closest federal appellate decision in point, United States v. Jarratt, 471 F.2d 226 (9th Cir. 1972), holds to the contrary with what we regard as persuasive analysis. Moreover, we think that appellant overlooks the force of the following plain language of Section 5023(a) of the Act:

“Nothing in this chapter shall .limit or affect the power of any court to suspend the imposition or execution of any sentence and place a youth offender on probation or be construed in any wise to amend, repeal, or affect the provisions of chapter 231 of this Title or the Act of June 25, 1910 (ch. 433, 36 Stat. 864), as amended (ch. 1, Title 24, of the District of Columbia Code), both relative to probation.”

Chapter 231 of Title 18, of course, deals with “straight” or “adult” probation in cases where the offender is not eligible by reason of age to be considered under the Youth Corrections Act.

Nothing in the legislative history of the Act seems to indicate that Congress intended by its passage to preempt chapter 231 or to otherwise carve out an explicit exception to Section 5023(a). Indeed, the Senate Committee on the Judiciary, which favored the Act, reported as follows:

“While this bill (the Act) would not deprive the court of any of its present functions as to sentencing, it provides that upon conviction, the court may place the youth offender on probation, proceed under the Juvenile Delinquency Act, or sentence under any applicable law relating to the offense.” S. Rep.No.1180, 81st Cong., 1st Sess. 1 (1949).

Similarly, the House Committee on the judiciary, which also favored the Act, stated:

“The proposed legislation (the Act) is designed to make available for the discretionary use of the Federal Judges a system for the sentencing and treatment of (youth offenders) . . .”
H.R.Rep.No.2979, 81st Cong, 2nd Sess. 2 U.S.Code Cong.Serv. p. 3983 (1950).

In light of this legislative history, the Ninth Circuit in Jarratt, supra, rejected the interpretation here argued by Kurzyna because “it unnecessarily fetters the discretion of the district court in sentencing.” 471 F.2d at 229. The appellate court noted in Jarratt, however, that the trial judge had omitted to specify or find that the appellant would not derive benefit from treatment under subparagraphs (b) and (c) of Section 5010. Accordingly, it remanded the case for resentencing so that the judge could clarify his intentions to place Jarratt on probation as an adult pursuant to sub-paragraph (d) of the same section.

The trial court here, of course, made its intentions abundantly clear in this respect. True, the judge did not specifically refer to Section 5010(d). We assume, however, that the veteran trial judge was well aware of the statutory section just mentioned, and Kurzyna does not claim to the contrary.

Although not pressed particularly by appellant, there is one other aspect of legislative history, not considered by the Ninth Circuit in Jarratt, which should be mentioned briefly here. In 1961, Congress amended the Youth Corrections Act, basically to correct an anomaly which was present in the original statute. Prior to that year, a probation disposition pursuant to the Act was unavailable, and a youth sentenced to probation could not have his record subsequently expunged, while one sentenced to institutional treatment could obtain such relief. Thus it was that in 1961 Congress added amendments which are now embodied, of course, in Sections 5010(a) and 5021(b). There is nothing in the history of the amendments to suggest that Congress intended to fetter the flexibility or discretion of district judges which its steering committees had so clearly in mind at the time of the enactment of the original provisions of the Act, and it is highly improbable that one anomaly would be replaced by another — i. e. a judge could sentence a youth offender to prison as an adult but not place him on probation as an adult. Finally, nothing was done to alter the plain intendment of Section 5010(d) which states:

“If the court shall find that the youth offender will not derive benefit from treatment under subsection (b) or (c), then the court may sentence the youth offender under any other applicable penalty provision.”

The judgment of conviction is affirmed on the merits. We find no error of law or abuse of discretion committed by the trial court in respect to the sentence imposed on Kurzyna.

      . This and other federal appellate courts have assumed that trial judges are not barred by the terms of the Act, or otherwise, from imposing “adult” sentences upon offenders eligible by reason of age for disposition under the Act. United States v. Guzman, 478 F.2d 759 (2d Cir. 1973); see also Cox v. United States, 473 F.2d 334 (4th Cir. 1973) and United States v. Coefield, 476 F.2d 1152 (D.C.Cir. 1973) (en banc).

      . Since Judge Tenney made ratlier explicit findings, this case does not squarely present the question, expressly left open by this court in United States v. Guzman, 478 F.2d 759 (1973), and apparently now sub judice before another panel of the court, United States v. Kaylor, of whether or not a trial judge must make an explicit finding that an otherwise eligible offender will “not derive benefit from treatment” under the Act. 18 U.S.O. Section 5010(d). The Fourth and District of Columbia Circuits have recently answered this question in the affirmative. Cox v. United States, 473 F.2d 334, at 337 (4th Cir. 1973); United States v. Coefield, 476 F.2d 1152, at 1158-1159 (D.C.Cir. 1973) (en banc).


author: GODBOLD, Circuit Judge: MORGAN, Circuit Judge

text:
    Garland Wayne KELLY and Allen Eugene Kelly, Sr., Plaintiffs-Appellees, v. J. C. SMITH and Chicot Land Company, Inc., et al., Defendants-Appellants.
    No. 72-3285.
    United States Court of Appeals, Fifth Circuit.
    Aug. 28, 1973.
    Rehearing and Rehearing En Banc Denied Nov. 19, 1973.

      O. C. Burnside, Jr., Lake Village, Ark., for J. C. Smith.
    Roy D. Campbell, Jr., James L. Robertson, Lawrence D. Wade, Greenville, Miss., for Chicot Land Co.
    Philip E. Henderson, Robert L. Morris, Houma, La., for Allen Kelly and Garland Kelly.
    M. E. Ward, R. E. Parker, Jr., Vicksburg, Miss., J. Albert Lake, Greenville, Miss., for Anderson-Tully.
    Before TUTTLE, GODBOLD and MORGAN, Circuit Judges.
   GODBOLD, Circuit Judge:

This case arises from a mini ship-to-shore gun battle in the Mississippi River. The vessel, no ship of the line, is a 15-foot outboard boat. The combatants are irregular forces, fleeing deer poachers afloat and outraged defenders of a private hunting preserve ashore. The armament, rather than coastal batteries and earronades on the gun deck, consists of hunting rifles. The forces encountered one amother as the result of actual, though unintended, aerial reconnaissance. The engagement commenced with solid shot — from a rifle — fired from shore across the bow of the boat to signal it to stop. It continued on course. The gunners ashore lowered their elevation and fired into the water beside the boat. The boat continued in flight at full speed ahead, and the next rounds were fired into the boat, holing the boat and wounding the man at the tiller, who was the senior man on board, and another. The force afloat, having suffered these serious casualties, dispatched a few rounds shoreward, broke off the engagement and retired from the scene in disarray. The land detachment won the battle but lost the lawsuit. We affirm.

The central issue is whether the tort claims of plaintiffs, casualties aboard the boat, are within admiralty jurisdiction. In addition, defendants-appellants contend that the court erred in failing to sustain their plea of laches to this 5 y2 year old cause of action and in finding Chicot Land Company vicariously liable for the' actions of defendants Smith and Bledsoe.

On November 27, 1965 Allen Eugene Kelly, Sr. and his three sons, all residents of Mississippi, slipped across the Mississippi River to Woodstock Island in their 15-foot boat for a day of clandestine deer hunting. The island is located on the west side of the main channel. It is covered with timber and well stocked with wild game, especially deer. It was owned by Anderson-Tully Co., which had granted to Chicot Land Company, an Arkansas land management corporation, a license for exclusive hunting rights on the island. In return for the license Chicot paid a fee, maintained roads and fire lanes on the island, employed the caretaker, and assumed general responsibility for the well being of the island. Woodstock Hunting Club, the hunting rights licensee prior to Chicot, was an association formed to enjoy hunting on the island and to communally share the expenses of the license and hunting. Chicot succeeded to the hunting club’s license because the club was unable to pay the annual rental regularly or to perform the necessary maintenance and construction on the island. After Chicot took over the license the club members continued to enjoy the hunting rights, and the club reimbursed Chicot for'its expenses as the club members paid their dues. Defendant J. C. Smith, a resident of Arkansas, had been the caretaker of the island for its various owners since the 1930’s. He was also the prime mover in organizing and running the hunting club. At the time of the incident Smith was employed by Chicot to maintain its heavy construction equipment, and to serve as caretaker for the island.

During the afternoon of November 27, 1965, Defendants Smith and Bledsoe were at the clubhouse on the island. Another club member flying a light airplane evidently sighted the Kellys’ boat and dropped a note to Smith and Bledsoe informing them of the suspected poachers on the island. The Kellys, suspecting discovery, took to their boat in an attempt to flee. Simultaneously, Smith and Bledsoe rushed to where the note indicated the boat was docked. At that point the parties’ stories diverge. The exchange of gunfire ensued. Smith and Bledsoe claimed that they signaled and yelled at the Kellys to return to the island in order to establish their identity and that the Kellys responded by shooting at them. The Kellys contended that Smith and Bledsoe fired first. The District Court found that Smith and Bledsoe initiated the firing, first across the bow of the vessel to indicate that it should stop, then into the water next to the boat. The Kellys continued at full speed to try to get out of range, and Kelly, Sr., indicated he would not return to the bank. The two men on shore then fired into the boat, striking Kelly, Sr., and Garland Wayne Kelly. One of the Kelly sons then fired his rifle at Smith and Bledsoe.

In early 1971 Kelly, Sr., and his injured son, Garland Wayne Kelly, filed suits for their injuries in federal district court against Smith, Bledsoe, Chi-cot, Anderson-Tully, and the members of the Woodstock Hunting Club, alleging diversity of citizenship and admiralty jurisdiction. The District Court dismissed the Club on a motion for summary judgment. ***After a nonjury trial the court concluded that despite the Kellys’ status as trespassers, Chicot, Smith, and Bledsoe were jointly and severally liable to Kelly, Si’., for $69,772.40 and to Garland Wayne Kelly for $2,593.96. It found that Chicot was vicariously liable for Smith’s actions under respondeat superior and for Bledsoe’s actions because Bledsoe was acting under the instructions and at the request of Smith to protect and defend Chicot’s valuable hunting rights on the island. AndersonTully was absolved of liability because Smith and Bledsoe were not acting in its behalf. Integral to the District Court’s decision were its conclusions that the cause of action was one in admiralty and that the Kellys were not barred by laches. Those are the issues on appeal, plus the issue of Chicot’s vicarious liability. Defendants do not contest, under the clearly erroneous rule, the District Court’s finding that Smith and Bledsoe were the aggressors, nor the conclusions that Smith and Bledsoe committed the intentional tort of assault and battery and that the force used in protecting Chicot’s exclusive hunting rights was excessive.

a. Admiralty tort jurisdiction

The issue of jurisdiction is crucial. If jurisdiction was sustainable only on diversity grounds the Kellys’ Erie-bound claim was barred by the Mississippi one-year statute of limitations for assault and battery cases. Miss.Code Ann. § 732.

Historically the standard for determination of maritime tort jurisdiction was viewed as a question of the locality of the tort. Maritime law governed' only those actions where the “substance and the consummation of the injury” took place on navigable waters. The Plymouth, 70 U.S. (3 Wall.) 20, 33, 18 L.Ed. 125, 127 (1886). The strict locality standard was perfunctorily repeated with such frequency that most courts seemingly lost track of the failure of the Supreme Court to explicitly decide whether maritime tort jurisdiction turned solely on maritime locality. In Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914), a case involving injuries sustained by a stevedore on board a vessel while loading copper, the Court upheld federal admiralty jurisdiction but explicitly found it unnecessary to consider whether maritime locality alone was sufficient. The Court did not address the question directly again until 1972. In Executive Jet Aviation v. Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), plaintiff’s plane lost power from ingesting seagulls into its engines while taking off from defendant’s airport and came to rest and sank off the end of the runway in Lake Erie. Plaintiff sued in admiralty, alleging that defendant negligently failed to keep its runway free of seagulls or to warn of their presence. The Court of Appeals found that the tort occurred on land, therefore the case was not cognizable in admiralty. Executive Jet Aviation, Inc. v. City of Cleveland, 448 F.2d 151, 154 (CA6, 1971). But the Supreme Court faced the broader question of whether maritime locality alone is sufficient to create admiralty tort jurisdiction.

In the factual context of Executive Jet the Court declared:

. . . the mere fact that the alleged wrong “occurs” or “is located” on or over navigable waters — whatever that means in an aviation context — is not of itself sufficient to turn an airplane negligence case into a “maritime tort.” It is far more consistent with the history and purpose of admiralty to require also that the wrong bear a significant relationship to traditional maritime activity. . . .

409 U.S. at 268, 93 S.Ct. at 504, 34 L.Ed.2d at 467.

In reaching its decision about airplane negligence cases the Court pointed out that

. . . there 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 consonant with the purposes of maritime law than is a purely mechanical application of the locality test.

Id. at 249, 93 S.Ct. at 501, 34 L.Ed.2d at 463.

Foreshadowing the Supreme Court’s analysis and conclusion in Executive Jet, this court recognized the inadequacies of the strict locality test in Watz v. Zapata Off-Shore Co., 431 F.2d 100, 109-111 (CA5, 1970). And in Peytavin v. Government Employees Ins. Co., 453 F.2d 1121 (CA5, 1972), we concluded that the facts and circumstances of each claim must have a substantial connection with maritime activities or interests in order to invoke the admiralty jurisdiction of the federal courts.

The analysis and thrust of Executive Jet, coupled with our decision in Peytavin, dictate the conclusions that maritime locality alone is no longer sufficient to sustain maritime jurisdiction, and that the wrong must bear a significant relationship to maritime activity.

In Executive Jet, Peytavin, and Watz, the courts presented and analyzed the rationale for adopting significant relationship to maritime activity as a requirement for admiralty jurisdiction. The strict locality test suffered from a susceptibility to mechanical application and from a tendency to create inconsistent results in cases otherwise conceptually analogous. In Smith & Son v. Taylor, 276 U.S. 179, 48 S.Ct. 228, 72 L.Ed. 520 (1928), a longshoreman knocked from a wharf into the water by a sling being lowered from a vessel had remedies only under state law, while in Minnie v. Port Huron Term. Co., 295 U.S. 647, 55 S.Ct. 884, 79 L.Ed. 1631 (1935), the longshoreman who was standing on the vessel and knocked onto the wharf had federal law remedies. Another problem engendered by the strict locality rule was determination of where the tort occurred. See the Sixth Circuit’s opinion in Executive Jet, supra. Indeed courts often equated injury with the broader concept of tort, which encompasses not only injury but causation and considerations of public policy. In 1948, as a result of cases which held that injury to property on land caused by vessels on navigable streams was not a maritime tort, e. g., The Plymouth, supra, Congress adopted the Extension of Admiralty Act, 46 U.S.C. § 740. See, Black, Admiralty Jurisdiction; Critique and Suggestions, 50 Colum.L.Rev. 259 (1950); 7A Moore, Federal Practice, Admiralty ¶ .325 [4].

The District Court found that the stretch of the Mississippi River where the Kellys were injured was navigable. The evidence of navigability, including testimony by a tugboat captain who regularly traveled that stretch, is sufficient to support the court’s finding, and it is not clearly erroneous. Rule 52(a), F.R.Civ.P.; McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954); Chaney v. City of Galveston, 368 F.2d 774 (CA5, 1966).

However, in this case admiralty jurisdiction does not arise from the bare facts that the Kellys’ injury was consummated on navigable waters while they were in a boat. While those facts weigh towards maritime jurisdiction, we must look to all the circumstances for a substantial maritime relationship. Both Peytavin and Executive Jet offer guidelines for the determination.

The incident in Peytavin was a rear-end car collision on a floating pontoon used for loading and unloading a ferry, which resulted in a whiplash neck and back injury to plaintiff. The court, admitting that both parties were using facilities which were connected to maritime commerce, focused on the relationship to maritime activities or interests of the parties, the nature and apparent cause of the accident, and the injury sustained. Finding that a rear-end collision between terrestrial vehicles, operated by landlubbers, and resulting in a typical automobile traffic accident injury lacked sufficient maritime flavor, we concluded that admiralty jurisdiction was absent. 453 F.2d at 1126.

In Executive Jet, the Court recognized that superficial similarities may exist between the plights of sinking ships and airplanes downed on water but pointed out that “. . . the plane’s unexpected descent will almost invariably have been attributable to a cause unrelated to the sea. ...” The Court also stressed the inherent differences between water and air transportation and said:

[Admiralty] [r]ules and concepts . are wholly alien to air commerce, whose vehicles operate in a totally different element, unhindered by geographical boundaries and exempt from the navigational rules of the maritime road. The matters with which admiralty is basically concerned have no conceivable bearing on the operation of aircraft over land or water.

409 U.S. at 270, 93 S.Ct. at 505, 34 L.Ed.2d at 468. The Court did not decide whether an aviation tort could ever bear a “sufficient relationship to traditional maritime activity to come within admiralty jurisdiction . . .,” and indeed it suggested that an aircraft performing a function traditionally performed by waterborne vehicles might bear a sufficient relationship. 409 U.S. at 270, 93 S.Ct. at 505, 34 L.Ed.2d at 469. See, e. g., Hornsby v. Fishmeal Co., 431 F.2d 865 (CA5, 1970) (mid-air collision of light aircraft used in spotting schools of fish); Hark v. Antilles Airboats, Inc., 355 F.Supp. 683 (D.V.I., 1973) (seaplane crash).

From the facts and analysis of Executive Jet and Peytavin we can discern factors to be considered in the circumstances before us: the functions and roles of the parties; the types of vehicles and instrumentalities involved; the causation and the type of injury; and traditional concepts of the role of admiralty law.

The party most seriously injured was the pilot, the person responsible for the safe navigation of the river. The vehicle involved was a boat, not an automobile or airplane, whose function was transportation across navigable waters, a traditional role of watercraft.

The other instrumentalities involved— firearms — and the injuries they caused, are not so inherently indigenous to land as to preclude any maritime connection. Additionally, upholding admiralty jurisdiction does not stretch or distort long evolved principles of maritime law. Admiralty has traditionally been concerned with furnishing remedies for those injured while traveling navigable waters.

Policy militates toward admiralty jurisdiction in this case. The admiralty jurisdiction of federal courts stems from the important national interest in uniformity of law and remedies for those facing the hazards of waterborne transportation. Rifle fire directed at a vessel, albeit a small one, on a major commercial artery, and injuring the pilot, presents sufficient danger to maritime commerce for the federal courts of admiralty to assume jurisdiction and to furnish remedies to those aboard the vessel and injured by that conduct. Regardless of whether the Kellys had available remedies in state courts, the federal interest in protecting navigation on the Mississippi River overrides any considerations of federal-state comity or conflicts of interest.

b. Laches

In Watz v. Zapata Off-Shore Co., supra, and Powell v. City of Key West, 434 F.2d 1075 (CA5, 1970), we discussed the interrelated and often overlapping elements, excuse for delay and prejudice to the defendant, that bear on whether a long-delaying plaintiff is time-barred. See also, McMahon v. Pan American World Airways, Inc., 297 F.2d 268 (CA5, 1962); Molnar v. Gulf coast Transit, 371 F.2d 639 (CA5, 1967); Akers v. State Marine Lines, 344 F.2d 217 (CA5, 1965). The Kellys were diligent in seeking to bring this suit, but, the court found, were thwarted by the failure of reputable law firms to diligently represent them. The District Court found that the delay by the Kellys in bringing the suit was justifiable, and that defendants suffered no prejudice, in fact were aided by the delay. An unknown witness became available to defendants after the running of the Mississippi statute of limitations. The trial judge enjoys a wide area of discretion in ruling on a claim of laches, Powell v. City of Key West, supra, and we cannot say that he exceeded it in this case.

c. Chicot’s vicarious liability

Although some evidence suggests that Chicot lacked substantial control over Smith’s activities on the island, there is sufficient evidence indicating that Smith was indeed acting as an agent protecting Chicot’s interests on the island to warrant the finding of vicarious liability. The conclusion that Bledsoe was acting to protect Chicot’s interest under the instructions of Smith also finds sanctuary in the plainly erroneous rule.

Affirmed.

MORGAN, Circuit Judge

(dissenting) :

In spite of the beacon provided by the Supreme Court in Executive Jet Aviation, Inc. v. City of Cleveland, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), the majority seems to have run aground on the rocks of admiralty jurisdiction. Had I been in command, I would have charted our course differently by holding that the federal courts have no jurisdiction over this cause of action.

After years of intellectual erosion, the “pure locality” test for admiralty jurisdiction has been washed to sea. Since Executive Jet, a condition of admiralty tort jurisdiction is that “the wrong bear a significant relationship to traditional maritime activity.” 409 U.S. at 268, 93 S.Ct. at 504, 34 L.Ed.2d at 467. Everyone agrees that “locality plus” is the test in this case, but we are still faced with the question, “locality plus what?” The majority holds that, “we must look to all the circumstances for a substantial maritime relationship.” I agree with them that the important considerations are the functions and roles of the parties, the types of vehicles and instrumentalities involved, the causation and type of injury and the role of admiralty law.

But an additional consideration is present when assertion of admiralty jurisdiction involves a potential conflict with applicable state law. Such a conflict exists here, because state rules also govern these events. Even if brought in federal court on diversity grounds, the state substantive law, including its statute of limitations, would apply. Ragan v. Merchants Transfer & Warehouse Co., Inc., 337 U.S. 530, 69 S.Ct. 1233, 93 L.Ed. 1520 (1949). Thus, by asserting admiralty jurisdiction, we effectively deprive the state of its-control over this cause of action. Such deprivation is justified in many cases, but only if the federal interest in uniformity outweighs the other interests at stake.

In this sense our analysis of the admiralty clause of the Constitution can be analogized to be now well-developed body of case law interpreting Erie R. Co. v. Tompkins. See Byrd v. Blue Ridge Rural Electric Cooperative, 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (Harlan, J. concurring) and Szantay v. Beech Aircraft Corporation, 349 F.2d 60 (4 Cir. 1965).

Using this type of analysis, we must examine the relevant federal and state interests in this case to see which is more important. The State of Mississippi has a strong interest in the outcome. This is shown by the fact that state substantive rules would apply if the case were based on diversity jurisdiction, by the existence of a state criminal penalty for the actions of some of the parties, and the local nature of the tort of assault and battery. The local nature of the incident is further emphasized by imagining a case in which the terrestrial, as opposed to maritime, participants in this battle were injured, and sued their attackers. Essentially, that case is the same as the one we are called upon to decide, yet the assertion of admiralty jurisdiction in the hypothetical would be a gross overextension of federal power into areas of local concern.

The federal interest, on the other hand, is minimal. The majority states that rifle fire directed at a vessel presents a danger to maritime commerce which the federal courts ought to recognize. But this language obscures the facts of this ease. Mr. Kelly and his cohorts used a 15-foot boat to sneak across the Mississippi River onto Woodstock Island to engage in poaching. There is simply no overriding federal interest in protecting such conduct. This is not to say that trespassers should not be protected against over-reaction by their victims. But the extent to which they should be protected is a matter of purely local concern, not of federal concern. The law of admiralty has purely commercial origins and purposes. Its usefulness is derived from the strong federal interest in controlling interstate and foreign commerce on water, and in fashioning a body of rules to govern the unique (sometimes uniquely hazardous) aspects of waterborne transportation. Watz v. Zapata Off-Shore Co., 431 F.2d 100 (5 Cir. 1970). The complex and peculiar rules of admiralty are particularly suited for deciding suits arising out of “traditional maritime activities, involving navigation or commerce on navigable waters.” Executive Jet Aviation v. Cleveland, 409 U.S. at 256, 93 S.Ct. at 498, 34 L.Ed.2d at 460. . In particular, one of the essential characteristics of admiralty jurisdiction is its uniformity, providing predictable and constant relationships between parties engaged in maritime activities. Moragne v. States Marine Lines, Inc., 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). But uniformity is hindered, not advanced by the majority’s decision in this case. A slight change in physical location would have produced entirely different results. The plaintiffs had no reasonable expectation as to which substantive law would be applied to their actions. No federal interest would be served by extending the admiralty rules to cover their activities, and, as shown above, significant state interests would be abrogated.

For these reasons, I believe that no admiralty jurisdiction exists over this case, and I must respectfully dissent.

      . The president of Chicot was a hunting companion of J. C. Smith and an officer and director of the Woodstock Hunting Club since its formation.

      . His duties as caretaker included the regulation and supervision of all hunts, the general care and maintenance of the clubhouse, keeping up the fire lanes and roads, making sure that an adequate food supply was available for the game, and keeping off all trespassers and poachers.

      . The incident spawned other litigation also. In 1968 a Mississippi state court had convicted and fined Smith and Bledsoe for criminal assault and battery. Also in 1968 the Kellys evidently brought suit against Smith and Bledsoe in an Arkansas court for damages to their boat.

      . That dismissal was not appealed.

      . The shifting of the river channel has created extensive litigation concerning the precise location of the Arkansas-Mississippi boundary, Anderson-Tully Co. v. Walls, 266 F.Supp. 804 (N.D.Miss.1967); Arkansas Land & Cattle Co. v. Anderson-Tully Co., 248 Ark. 495, 452 S.W.2d 632 (1970); Mississippi v. Arkansas, 403 U.S. 951, 91 S.Ct. 2273, 29 L.Ed.2d 862 (1971), but the parties to this action agreed that the incident in this case occurred in Mississippi.

      . Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469, 42 S.Ct. 157, 66 L.Ed. 321 (1922); State Indust. Comm. v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922); Victory Carriers v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971) (see exhaustive list of cases in fn. 2); Penn Tanker Co. v. United States, 409 F.2d 514 (C.A.5, 1969); 7A Moore, Federal Practice, Admiralty ¶ 325 [3] (2d ed. 1972).

      . Despite the general acceptance of the strict locality standard, a small line of cases recognized that Imhrovek had left the question open. The Raithmoor, 241 U.S. 166, 36 S.Ct. 514, 60 L.Ed. 937 (1916); The Poznan, 276 F. 418 (S.D.N.Y.1921); Sidney Blumenthal & Co. v. United States, 30 F.2d 247 (C.A.2, 1929); Kermarec v. Compagnie Generale Transatlantique, 245 F.2d 175 (C.A.2, 1957).

      . Sporadically other cases had adopted this view. Chapman v. Grosse Pointe Farms, 385 F.2d 962 (C.A.6, 1967); McGuire v. New York, 192 F.Supp. 866 (S.D.N.Y.1961); Smith v. Guerrant, 290 F.Supp. 111 (S.D. Tex., 1968); Campbell v. Hackfield & Co., 125 F. 696 (C.A.9, 1903). Cf. Gowdy v. United States, 412 F.2d 525 (C.A.6, 1969); Davis v. Jacksonville Beach, 251 F.Supp. 327 (M.D.Fla.1965); King v. Testerman, 214 F.Supp. 335 (E.D.Tenn.1963); Petersen Coal & Oil Co. v. United States, 323 F.Supp. 1198 (N.D.Ill.1970); O’Connor & Co. v. Pascagoula, 304 F.Supp. 681 (S.D.Miss. 1969); Hastings v. Mann, 226 F.Supp. 962 (E.D.N.C.1964), aff’d 340 F.2d 910 (C.A.4, 1965). The English courts adopted the same view. The Queen v. The Judge of the City of London Court, 1 QB 273 (1892). See also, 7A Moore, Federal Practice, Admiralty ¶ .325 [3]-[5] (2d ed. 1972); Black, Admiralty Jurisdiction; Critique and Suggestions, 50 Colum.L.Rev. 259 (1950); ALI, Study of the Division of Jurisdiction Between State and Federal Courts (1969).

      . If indeed locality alone actually ever was sufficient. As noted in Smith v. Guerrant, 290 F.Supp. 111, 112 fn. 4, (S.D.Tex.1968), in the cases where the Supreme Court most unequivocally set out the strict locality rule the relation between the dispute and maritime commerce was manifest. State Indust. Comm. v. Nordenholt Corp., supra; Grant Smith-Porter Ship Co. v. Rohde, supra.

      . Compare, Adams v. Montana Power Co., 354 F.Supp. 1111 (D.Mont.1973) (negligent operation of a recreational boat on a landlocked fishing and skiing lake); see, Stolz, Pleasure Boating and Admiralty, 51 Calif.L.Rev. 661 (1963).

      . The progeny of Executive Jet may abandon the requirement of a maritime locality altogether, and physical location will be only one factor in the equation. But since the district court found that this tort occurred in navigable waters, and that finding is not clearly erroneous, we are not faced with that question.


author: PER CURIAM.

text:
    Fred Donald JOHNSON, and Sandra Johnson, his wife, Plaintiffs-Appellants, v. JERRY PALS REAL ESTATE, and Erv Jurinek, Defendants-Appellees.
    No. 72-1546.
    United States Court of Appeals, Seventh Circuit.
    Argued April 26, 1973.
    Decided Sept. 13, 1973.
    Robert G. Schwemm and F. Willis Caruso, Chicago, Ill., and James M. Rosenbaum, Minneapolis, Minn., for plaintiffs-appellants.
    Samuel A. La Susa, Dom J. Rizzi, Chicago, Ill., for defendants-appellees.
    Before MOORE, Senior Circuit Judge, and CUMMINGS and PELL, Circuit Judges.

      . Senior Circuit Judge Leonard P. Moore of the Second Circuit is sitting by designation.

   PER CURIAM.

This civil rights action was filed under 42 U.S.C. §§ 1982 and 3604 and was based on defendants’ alleged refusal to show the Negro plaintiffs any suitable residences in Riverdale, South Holland and Dolton, Illinois. Plaintiffs sought $500 in damages plus reasonable attorneys’ fees and costs, as well as declaratory and injunctive relief. They also sought $10,000 in exemplary or punitive damages. After a bench trial, judgment was entered in favor of defendants, except in a minor respect.

The testimony showed that plaintiffs are a young Negro couple residing in Chicago with their two children. They have an equity of $5,000 in their present residence. The husband earns a salary of $12,000 per year. They desired to purchase a three or four bedroom bi-level home in the $24,000 to $30,000 price range located in Dolton, South Holland or Riverdale, Illinois. Therefore, on May 23, 1970, they visited the South Holland office of the defendant real estate company where they talked to defendant salesman Erv Jurinek. He told them no such properties were available. He encouraged them to consider moving to Harvey, which has a 31% black population. Eventually, he jotted down for them the addresses and prices of three ranch-type houses in Harvey, Calumet City and Dolton, Illinois. Jurinek told the Johnsons he would contact them by phone if any bi-levels became available in the desired locations, but he never telephoned them subsequently.

Half an hour beforehand, Mr. and Mrs. Paul Edwards, a white couple, were given formal listings for a bi-level with four bedrooms at 13629 Atlantic in Riverdale and a three-bedroom bi-level at 15224 Oak Street 'in Dolton, both meeting plaintiffs’ specifications. After the plaintiffs were denied bi-level listings in South Holland, Dolton and Riverdale, another white couple, the Jack Shapiros, were offered the same two listings in Riverdale and Dolton as the Edwards had been offered. The Shapiros and the Edwards were served by the defendant firm’s salesman Neil Verhagen, and follow-up sales attempts were directed toward both couples.

The testimony also showed that the Johnsons had not yet placed their home on the market for sale because they would first have to find a home in which they were interested. They were not asked if they had a home to sell, nor was such an inquiry made of the Shapiros. When asked, the Edwards indicated that they had a home to sell, although it was not on the market. The defendant firm has never sold a home to a Negro in Dolton or South Holland.

Allen Collins, a resident of Lansing, Illinois, was a white witness appearing for plaintiffs. He stated that one of the defendant firm’s agents, a Mr. Moore, responded in a laughing manner as follows when queried in 1971 by Collins as to whether he would show his listings to blacks: “We don’t have to show them everything. Ha. We can misplace a few pages.” The trial judge stated, “I can’t attach too much significance to that kind of a casual conversation.” We cannot agree.

According to the 1970 government census data, of Dolton’s 25,937 population, only 42 are Negro; of South Holland’s 23,931 population, only 12 are Negro; and of Riverdale’s 15,806 population, only 17 are Negro.

On October 27, 1971, the district court entered findings of fact and conclusions of law prepared by defense counsel. However, more than four months thereafter, the court amended those findings of fact and conclusions of law by entering substitute ones submitted on November 9, 1971, by plaintiffs’ counsel. These were in accordance with the court’s trial rulings in favor of defendants. The findings showed that the Edwards and the Shapiros were not actually seeking to purchase homes but were “testers” investigating to see if the defendant firm had any homes available conforming to plaintiffs’ requests. Finding 13 and conclusion 4 are crucial and provide as follows:

“13. That FRED DONALD JOHNSON and SANDRA JOHNSON, His Wife, were not deprived of the right of buying a home because they owned a home on May 23, 1970, and they did not put it up for sale.”
* *
“4. That although there was an aura and suspicion that there may have been some discrimination, the Plaintiffs were not deprived of the right of buying a home because they owned a home on May 23, 1970, ant it had not been placed for sale and, hence, they were not in the market for a house.”

It is undisputed that the foregoing finding and conclusion were drafted by plaintiffs’ counsel to mirror the district judge’s trial rulings. Therefore, defendants cannot legitimately assert that plaintiffs waived any error inherent in them.

The principal question on appeal is whether the district court’s judgment was correct because plaintiffs. had not placed their present residence for sale before seeking a new home in the three Chicago suburbs in question. This ground was embodied in conclusion of law 4 and was the sole basis advanced for the judgment in favor of defendants. They no longer champion this ground, and we certainly know of no such requirement before an action may be brought under 42 U.S.C. §§ 1982 and 3604. It is significant that even defendants exacted no such requirement from the plaintiffs or Shapiros. Since it is undisputed that plaintiffs were actual home seekers, it was erroneous as a matter of law for the district court to rest its decision on the fact that they had not placed their current home on the market before seeking a new residence.

No such requirement inheres in 42 U.S.C. § 1982 (note 2, supra) which bars all racial discrimination in the sale of property. Jones v. Mayer, 392 U.S. 409, 88 S.Ct. 2186, 20 L.Ed.2d 1189, see Bell Realty v. Commission on Human Relations, 130 Ill.App.2d 1072, 266 N.E.2d 769 (1971) under a comparable municipal ordinance. 42 U.S.C. § 3604(a) makes it unlawful to “refuse to negotiate for the sale * * * or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion or national origin.” Likewise, Section 3604(d) makes it unlawful to represent that a dwelling is not available for sale because of the inquirer’s race, color, religion or national origin. To permit the restrictive statutory interpretation adopted by the district court would be to encourage real estate agents to use such an artifice to avoid selling white properties to blacks, despite the clear Congressional mandate to the contrary. See Jones v. Mayér, supra at 447-449, 88 S.Ct. 2186 (concurring opinion of Mr. Justice Douglas); Smith v. Adler, 436 F.2d 344, 349-350 (7th Cir. 1970); Haythe v. Decker Realty Co., 468 F.2d 336, 338 (7th Cir. 1972); United States v. Real Estate Development Corporation, 347 F.Supp. 776, 781-783 (N.D.Miss.1972).

Defendants’ principal argument in favor of affirmance is that salesman Verhagen, who dealt with the Edwards and Shapiros, had an up-to-date listing of homes, whereas Jurinek, who dealt with the plaintiffs, was being phased out and supposedly had only badly organized and out-of-date listings. This defense is not persuasive. First of all, Jurinek testified that he did maintain a book of home listings when he met the Johnsons. If his listings were deficient, he could have borrowed Verhagen’s or other listing books or called back plaintiffs, as he had promised to do. There were no findings or conclusions entered by the district court to the effect that Verhagen’s listings were not included in Jurinek’s, nor did the court place reliance on any such theory. This explanation is particularly unpersuasive in light of the statement of defendant’s agent Moore, supra, indicating that the firm could veil discrimination by claiming to have misplaced pages.

A careful review of the record satisfies us that defendants clearly violated 42 U.S.C. §§ 1982 and 3604. Consequently, with liability now established, the judgment below must be reversed and remanded for determination of the amount of damages, if any (both actual and punitive), and other relief to be awarded plaintiffs. They are also entitled to costs and attorneys’ fees as prayed in the complaint. Pursuant to Rule 23, the cause shall be reassigned by the Executive Committee of the court below.

Reversed and remanded for further proceedings consistent herewith.

      . 42 U.S.C. § 1982 provides:
      “All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease, sell, hold, and convey real and personal property.”
      In pertinent part, 42 U.S.C. § 3604 makes it unlawful:
      “(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, or national origin.
      * * * * *
      “(d) To represent to any person because of race, color, religion, or national origin that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.”

      . The judgment assessed defendants with $200 costs for their attorney’s “unreasonable failure to cooperate in matters of Discovery and with the Court.” Defendants have not challenged this assessment and it will therefore remain undisturbed.

      . They were also offered two bungalows and four ranch-types in South Holland, Dolton and Harvey. All eight listings were pictorial and detailed.

      . The Shapiros were also offered three other bi-level residences in Dolton and South Holland. One of them was $2900 more than the Johnsons’ top range; another was $900 higher; and the number of bedrooms in the third does not appear in the record. Four of the five listings were pictorial and detailed.

      . But see note 3 supra.


author: JAMES HUNTER, III, Circuit Judge.

text:
    UNITED STATES of America, Appellant, v. Jasper Junior MOODY, Appellee.
    No. 73-1313.
    United States Court of Appeals, Third Circuit.
    Submitted Under Third Circuit Rule 12(6) July 2, 1973.
    Resubmitted Under Third Circuit Rule 12(6) Sept. 12, 1973.
    Decided Sept. 24, 1973.

      Robert E. J. Curran, U. S. Atty., Richard J. Stout, Asst. U. S. Atty., Philadelphia, Pa., for appellant.
    Edward H. Weis, Defender Assn, of Philadelphia, Philadelphia, Pa., for appellee.
    Submitted Under Third Circuit Rule 12(6) on July 2, 1973.
    Before GIBBONS and HUNTER, Circuit Judges.
    Resubmitted Under Third Circuit Rule 12(6) on Sept. 12, 1973
    Before GIBBONS, ROSENN and HUNTER, Circuit Judges.
   OPINION OF THE COURT

JAMES HUNTER, III, Circuit Judge.

This is an appeal by the government in a criminal case under 18 U.S.C. § 3731 (Supp.1973) from an order of the district court granting a motion to suppress as evidence 54 one-gallon jugs of nontaxpaid whiskey found in the trunk of a car driven by the defendant. The government contends that the trial court erred in holding that the defendant has standing to challenge the constitutionality of the search in question, and in failing to find the warrantless search conducted in the case justifiable under the “automobile exception.” The defendant-appellee challenges the district court’s finding of probable cause for the search. While we agree with the district court’s holding on the standing and probable cause issues, we find that it erred in holding the search unreasonable absent a warrant, and reverse.

The relevant facts are not in dispute. On April 5, 1972, Special Agent Dutch of the Bureau of Alcohol, Tobacco and Firearms received a telephone call from an unidentified informant. The agent was told that a 1961 Chevrolet bearing Pennsylvania license tag 97934G was leaving the 2500 block of Dover Street, Philadelphia, Pennsylvania, between the hours of 6:30 and 7:30 p. m., to make deliveries of nontaxpaid whiskey, and that the vehicle was moving approximately thirty cases each week. Agent Dutch observed the car in the area specified on the evening of April 6 and again on April 13. On the first occasion the car left the area unnoticed. On the second occasion, it was observed leaving at about 6:30 p. m., but Agent Dutch’s attempt to follow it proved unsuccessful.

On April 19, the same informant telephoned Agent Dutch and told him that a delivery would be made by the 1961 Chevrolet to 1345 York Street at approximately 8:30 p. m. the following evening. Dutch and other agents set up a surveillance of that address on the 20th. At about 8:20 p. m., the 1961 Chevrolet arrived and a black male, identified as the defendant, was observed carrying a cardboard carton from the car into the 1345 York Street address. Two agents thereupon approached the parked car. As they did so, the defendant started to leave the York Street dwelling. Upon seeing the agents in the vicinity of the car, however, he returned to the dwelling. The agents then retired to a location where they could not be detected.

At approximately 10:00 p. m. the vehicle left the area and the agents, all of whom were white, followed. Their cars were unmarked and apparently nothing they wore clearly identified them as Federal Agents. As the defendant stopped at a traffic light, one of the agents pulled alongside his car and stared at him for several seconds. The defendant, seeing the agent, sped away and a chase ensued. After several turns, the defendant stopped his car in the traffic lane and successfully escaped on foot. Thereafter, one of the agents moved the vacant car to the side of the road, and using the keys left in the ignition, opened the car’s trunk and discovered the illegal whiskey.

The government’s first contention is that the defendant abandoned the car and its contents and, as a result, lacks standing to challenge the legality of the search and seizure. If abandonment did occur, there would be a loss of standing. Abel v. United States, 362 U.S. 217, 241, 80 S.Ct. 683, 4 L.Ed.2d 668 (1960). However, abandonment depends largely on the possessor’s intent, United States v. Minker, 312 F.2d 632, 634 (3d Cir. 1962), and the party relying on it must establish the necessary state of mind by clear and unequivocal evidence. Friedman v. United States, 347 F.2d 697, 704 (8th Cir. 1965); see United States v. Robinson, 430 F.2d 1141, 1143 (6th Cir. 1970). We agree with the district court that the government has not met its burden on this issue.

The only facts from which one can infer intent indicate that the defendant, a black man, was aware that his vehicle was being followed by several unidentified white men and that earlier two men (again white) had approached his car. On these facts one could reasonably reach two conclusions: that he knew he was being followed by law enforcement agents and was seeking both to avoid arrest and abandon the incriminating evidence in the trunk of his car; or, that he believed he was being pursued by private citizens who intended to do him harm, and that he only left his car temporarily in order to escape this danger. Since only the former state of mind would constitute an abandonment, the evidence on the issue is ambiguous and cannot support a finding that the car and its contents were abandoned.

The next issue — whether the agents had probable cause to conduct the search — is raised by the defendant-appellee and not by the government. Ordinarily a defendant would not be able to take an appeal from a ruling on a Motion to Suppress since it lacks the finality necessary under 28 U.S.C. § 1291 (1970). See Bova v. United States, 460 F.2d 404 (2d Cir. 1972). However, since the government’s appeal challenges an “order of a district court suppressing or excluding evidence,” 18 U.S.C. § 3731 (Supp.1973), the defendant can raise issues with regard to findings and rulings relevant to that order under the umbrella of the government’s appeal. United States v. Halbert, 436 F.2d 1226 (9th Cir. 1970). As a result, the question of probable cause is properly before us.

Probable cause for a warrant-less car search exists, if there is, “a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains that which by law is subject to seizure and destruction . . . .” Carroll v. United States, 267 U.S. 132, 149, 45 S.Ct. 280, 284, 69 L.Ed. 543 (1925). Clearly, the information provided by the anonymous informer could not meet this standard by itself. See Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964). We are satisfied, however, that when the “independently suspect activity” observed by the agent on the evening of April 20, is added to the anonymous tip and the evidence which corroborates it, there is sufficient evidence to support the district court’s finding of probable cause. United States v. McNally, 473 F.2d 934, 939-940 (3d Cir. 1973).

The first thing to note is that the events as they unfolded prior to the search bore out the informant in every respect. The make, year and license tag number of the car were all as indicated, and at the time and place specified for a delivery, the defendant was observed carrying a large cardboard carton from the car into the 1345 York Street home.

While this corroborative evidence may not be sufficient to bring the tip itself up to probable cause standards, Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969), it does give it added «’edibility when it is weighed in conjunction with the independent evidence of suspicious conduct observed by the agents conducting the search. See Id. at 418, 89 S.Ct. 584; United States v. McNally, supra, 473 F.2d at 939. When the defendant observed the agents in the vicinity of his car, he retreated into 1345 York Street and waited about one hour. Certainly from this, the agents could reasonably suspect that the ear contained contraband and that he was trying to avoid apprehension as its driver by delaying his departure until he was reasonably certain they had left. Further, when he sped away from the pursuing agents and then left the car (with the keys still in the ignition) in the middle of the street and fled on foot, the agents’ suspicions with regard to the use being made of the car were legitimately heightened and confirmed. United States v. Edwards, 441 F.2d 749, 752-754 (5th Cir. 1971) (alternative holding); Pegram v. United States, 267 F.2d 781 (6th Cir. 1959). While these actions might be viewed differently, interpreting them as indicia of criminal activity is entirely reasonable. When they are added to the tip and the events corroborating it, there is ample evidence to support the reasonableness of the search.

The government’s second contention, and the final issue raised, is that though no warrant was obtained for the search, it was justified under Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), which held that under certain circumstances the search of an automobile can be conducted without a warrant. The rationale for this rule lies in a car’s mobility which often makes a search possible only within a brief period of time. Coolidge v. New Hampshire, 403 U.S. 443, 459-460, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). As the Court explained in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970):

“. . . the circumstances that furnish probable cause to search a particular auto for particular articles are most often unforeseeable; moreover, the opportunity to search is fleeting since a car is readily movable. Where this is true, as in Carroll and the case before us now, if an effective search is to be made at any time, either the search must be made immediately without a warrant or the car itself must be seized and held without a warrant for whatever period is necessary to obtain a warrant for the search.” Id. at 50-51, 90 S.Ct. at 1981.

In Carroll, the option of an immediate warrantless search was held valid. Carroll, supra, 267 U.S. at 153, 45 S.Ct. 280.

The defendant, however, argues that this case is more akin to Coolidge v. New Hampshire, supra, in which the Court distinguished Carroll in holding that a warrant was required for a car search. In reviewing the facts of Coolidge, two key differences from the typical car search situation are apparent. First, the evidence which provided probable cause did not arise unexpectedly immediately before the search. It was known well in advance, so that the officers had ample opportunity to secure a warrant before the evening of the search, and avoid any delay in the carrying it out. Second, there was no real danger that the car would be moved even if the search were delayed while a warrant was obtained. The defendant had been under investigation for several weeks and had made no attempt to leave the area. Further, on the evening of the search, the car was parked, unoccupied, in his driveway, and there was no practical danger that he or any confederate would gain access to it. Coolidge, supra, 403 U.S. at 460, 91 S.Ct. 2022. Under these circumstances, the rationale for a warrantless car search was absent.

The Coolidge holding, however, does not help the defendant since in this case, unlike Coolidge, the basic facts required to make a warrantless car search justifiable, are present. First, probable cause for the search only arose as a result of the defendant’s behavior immediately prior to the search. There was no basis, absent that behavior, to secure a search warrant. Second, there was the distinct possibility that the car would be moved and the evidence tampered with if the search was delayed while a warrant was sought since the defendant’s action in leaving the car unattended was ambiguous. While he might have been abandoning it and the contraband it contained, he might well have been leaving it temporarily, with the intent to retrieve it later.

Under these circumstances, the risk inherent in delaying the search of a car —removal of the car by the owner or a confederate — was clearly operative and unavoidable, and the search without a warrant justified. Since the failure to obtain a warrant was the basis of the district court’s holding, we conclude that it erred in granting the motion to suppress.

The judgment of the district court will be reversed.

      . The charge against the defendant is violation of 26 U.S.C. §§ 5205(a)(2), 5604(a)(1) (1970).

      . Though the identity of the informant was still unknown, Agent Dutch concluded that this was the same informant since that is how he identified himself, and since he followed the instructions given to the April 5th caller by asking to speak to Agent Dutch or Steiger. Appendix to brief for Appellant at 26-A.

      . The government also challenges the defendant’s claim to “automatic standing” under Jones v. United States, 362 U.S. 257, 80 S.Ct. 725, 4 L.Ed.2d 697 (1960). In Jones the Court held that where “possession both convicts and confers standing, [there is no] necessity for a preliminary showing of an interest in the premises searched or the property seized.” Id. at 263, 80 S.Ct. at 732. The continuing validity of the rule has been specifically called into question by the Supreme Court dicta in Brown v. United States, 411 U.S. 223, 93 S.Ct. 1565 (1973).
      We do not deal with the continuing validity of the “automatic standing” rule in the present case, however, for several reasons. First, the Brown decision was issued after the district court completed the proceedings in issue here. At the time of the hearing on the ' motion to suppress, Jones was clear authority recently reaffirmed in this Circuit. See United States v. West, 453 F.2d 1351 (3d Cir. 1972). The defendant’s sole reliance on it for standing was reasonable. Further, it is likely the defendant could have asserted an alternate basis for standing had that appeared necessary, either by alleging a possessory interest in the contraband seized or in the vehicle searched (with regard to the vehicle, each of the government’s witnesses indicated that the defendant was driving the car). Therefore, even if we were to find that the automatic standing rule was no longer valid, it would appear unjust to deny the defendant an opportunity to amend his original motion, and given that opportunity, it is likely he would establish his standing in any case.
      Second, the issue was not raised by the government until this appeal, and as a result, the district court has had no opportunity to examine the question. It goes without saying that the proper function of the court is to review the work of the district court, and not to make initial determinations on complicated issues.
      Finally, since we hold for the government on the merits, a decision on this question would have no practical effect on the outcome of this case.

      . This is in conformity with decisions of the Supreme Court in interpreting statutory grants of analogous appeal rights to the government under the predecessor to the present § 3731. See, e. g., United States v. Borden, 308 U.S. 188, 205-207, 60 S.Ct. 182, 84 L.Ed. 181 (1939), distinguishing United States v. Curtiss-Wright Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936).

      . While his retreat might also have been prompted by the belief that the men in the vicinity of his car were private citizens seeking to do him harm, this is less plausible since he made no attempt to call the police or send one of the occupants of the 1345 York Street house for help. In any case, the agents needed only a reasonable belief of criminal activity, not conclusive proof, to justify the search.

      . In fact, a warrant (which proved to be procedurally invalid) was obtained prior to the search. 403 U.S. at 449-453, 91 S.Ct. 2022.

      . Prior to the evening of April 20, the only-information the agents possessed was the result of an anonymous tip. Since they had no information as to the informant’s reliability or as to factual basis for his accusations, and since they had almost no evidence corroborative of the tip, probable cause for a search did not exist. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).


author: CHOY, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. David Douglas OGDEN, Defendant-Appellant.
    No. 73-1041.
    United States Court of Appeals, Ninth Circuit.
    Sept. 12, 1973.
    As Amended on Denial of Rehearing Nov. 27, 1973.

      John J. Cleary (argued), Matthew N. Lees, Federal Defenders of San Diego, San Diego, Cal., for defendant-appellant.
    William A. Bower, Asst. U. S. Atty. (argued), Harry D. Stewart, U. S. Atty., Stephen G. Nelson, Asst. U. S. Atty., San Diego, Cal, for plaintiff-appellee.
    Before CHAMBERS and CHOY, Circuit Judges, and SWEIGERT, District Judge.

       The Honorable William T. Sweigert, U. S. District Judge for the Northern District of California, sitting by designation.

   CHOY, Circuit Judge:

David Ogden was convicted after a nonjury trial of conspiracy to possess and possession with intent to distribute forty-six pounds of marijuana in violation of 21 U.S.C. §§ 841(a)(1), 846. He was sentenced to two five-year terms of imprisonment to run concurrently. We affirm.

Ogden and his wife, Theresa Ann, approached the United Airline ticket counter at the San Diego airport on September 27, 1972 at approximately 1:30 p. m. They presented two tickets for the 2:20 p. m. flight to Los Angeles with Monterey, California as their final destination, and checked three bags. Mr. Winenger, senior custom service agent for United, determined that the Ogdens fit the FAA hijack profile in every respect and noted that one bag was extremely heavy. Winenger circled the tags on the baggage to indicate to airline employees that the owners of the baggage had been designated as profile selectees. The purpose of this procedure is to prevent flight delay from removal of baggage' if its owner is taken off a flight.

The three bags passed on a conveyor belt to the baggage room where an airline employee, Ailshie, seeing the encircled tags, set them aside. Ailshie noted that one of the bags was very heavy and felt solid objects inside. He "tried to hit the sides of it, and just smelled the marijuana.” (R.T. at 24). Ailshie used a screwdriver to pry open the edge of the bag, detected a stronger scent of marijuana and observed brick-shaped objects inside. He then closed the bag.

Ailshie informed Winenger of his find. Winenger called his supervisor, who alerted federal agent Anderson. When Anderson arrived at the bag room at 1:45 p. m., Ailshie reported what he had found. Anderson drew to within six inches of the suspect bag and smelled the strong odor o'f marijuana, an odor with which he was familiar. Ailshie asked, “Would you like us to open it again?” Anderson replied, “If you had it open, yes.” The bag was reopened to reveal marijuana bricks wrapped in bluish-green and red cellophane.

The Ogdens were placed under arrest a little later and apprised of their constitutional rights in accordance with Miranda. The couple was then separated and federal agents secured the consent of Mrs. Ogden to open all the bags. All three contained contraband.

I.

We must first determine whether the search conducted by Ailshie, the airline employee, was a governmental search either by virtue of the FAA regulations pursuant to which the airlines had put the anti-hi jacking system into operation at the nation’s airports, or as a result of federal participation in the discovery of the contraband in the bag room.

The airlines and the federal government have jointly developed security programs to combat the wave of hijackings which have plagued the nation. The role of the government has been characterized as dominant. United States v. Davis, 482 F.2d 893 (9th Cir. 1973). Davis dealt with the preboarding search of passenger carry-on luggage by a private airline employee. This court held that since the search was conducted as part of the overall, nationwide anti-hijacking effort, it made no difference whether a private employee or public official actually search the passengers; compliance with the Fourth Amendment was required. Accord, United States v. Lopez, 328 F.Supp. 1077, 1101 (E.D. N.Y.1971).

But Davis is distinguishable from the instant case. There the preboarding search was an integral part of the anti-hijacking system. Ailshie’s removal of the Ogdens’ baggage from the conveyor belt when he saw the encircled tags was government action since the procedure was part of the airline security program. However, Ailshie’s ensuing search of the bag containing the marijuana was not directed or authorized by any federal regulation. Therefore, the search cannot be characterized as a federal search on the basis of the FAA regulations. The same conclusion was reached by the Eighth Circuit in United States v. Burton, 475 F.2d 469 (8th Cir. 1973).

The Fourth Amendment was intended to restrain the activities of the sovereign. We must determine whether there was sufficient federal participation in Ailshie’s search of the bag to render the search of federal one. If the search was private, the Fourth Amendment does not apply. Burdeau v. McDonald, 256 U.S. 465, 475, 41 S.Ct. 574, 65 L.Ed. 1048 (1921); Coolidge v. New Hampshire, 403 U.S. 443, 487, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Eisentrager v. Hocker, 450 F.2d 490, 492 (9th Cir. 1971). The rule for identifying a federal search was set out in Lustig v. United States, 338 U.S. 74, 78-79, 69 S.Ct. 1372, 1374, 93 L.Ed. 1819 (1949):

. . . a search is a search by a federal official if he had a hand in it . The decisive factor . . is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it.

The leading cases in this circuit on the application of the Lustig rule are Corngold v. United States, 367 F.2d 1 (9th Cir. 1966) and Gold v. United States, 378 F.2d 588 (9th Cir. 1967). In Corngold, customs agents, after demonstrating to an airline manager that the contents of a package were not as declared, asked if the manager had the authority to open the package, then aided him in doing so. This court found, in an en bane decision, that the airline employee opened the package solely to serve the purposes of the government and characterized the search as a federal search cast in the form of a carrier inspection.

Gold involved substantially different circumstances. There government agents contacted an airline manager and informed him that the description on an air waybill was inaccurate and that the address of the shipper was nonexistent. The agents then departed without revealing what they suspected the true contents to be, after which the manager opened one of the packages and discovered obscene film. The court held that the government agents had the right to point out the inaccuracy of the shipping document and that the opening of the package was the discretionary act of the manager, not so connected with goverment participation as to constitute a federal search. Accord, Clayton v. United States, 413 F.2d 297, 298 (9th Cir. 1969); United States v. Cangiano, 464 F.2d 320, 324-325 (2nd Cir. 1972).

Ailshie’s search cannot be deemed a federal search. Federal agents did not initially contact United Airlines regarding the Ogdens or their baggage. Nor was there any government encouragement to open the Ogdens’ bag or assistance in doing so. Ailshie did not open the bag pursuant to the airline’s inspection clause, as in Gold and Cangiano, but solely as the result of his own curiosity. In short, the search here was neither a federal search cast in the form of a carrier inspection, nor the discretionary act of the airline for its own purposes. Ailshie’s search was his individual action and not subject to the Fourth Amendment.

II.

Ailshie closed the Ogden bag after he discovered the marijuana and prior to contacting his supervisor who in turn contacted federal authorities. When federal agent Anderson arrived at the bag room, he did not find the contraband in plain view as in United States v. Tripp, 468 F.2d 569, 570 (9th Cir. 1972). But Anderson had probable cause to search the bag based upon his experience, the odor he detected and the unequivocal statement of Ailshie that the suitcase contained marijuana. United States v. Valen, 348 F.Supp. 1163 (M.D. Pa.1972). The issue is whether the suitcase should have been reopened without first obtaining a search warrant. A search without the prior approval of a judge or magistrate is per se unreasonable under the Fourth Amendment subject only to a few well-delineated exceptions. Coolidge, supra, 403 U.S. at 455, 91 S.Ct. 2022.

There can be no tenable argument that the search here was incident to the lawful arrest of the Ogdens. The bags had been opened and the marijuana discovered prior to the arrest. Nor can consent be a justification for failure to obtain a search warrant. Mrs. Ogden’s consent to open the bags was not obtained until after the search was completed. There is authority in this circuit that once the bags are opened by private individuals, government agents need not obtain a search warrant before conducting their own search. Wolf Low v. United States, 391 F.2d 61, 63 (9th Cir. 1968). But we need not resolve that question for the exigent circumstances here provide an exception to the warrant requirement. United States v. Rabinowitz, 339 U.S. 56, 70 S.Ct. 430, 94 L.Ed. 544 (1950). The government has satisfied its burden of demonstrating that there was insufficient time to procure a warrant.

Where the exigencies of time and the possible removal of the contraband to another state create an emergency, no warrant is required. Johnson v. United States, 333 U.S. 10, 14-15, 68 S.Ct. 367, 92 L.Ed. 436 (1948); Clayton v. United States, supra, 413 F.2d at 298. The leading decision in this circuit is Hernandez v. United States, 353 F.2d 624 (9th Cir. 1965). There the authorities were contacted at 8:30 p. m. The appellant and his luggage were scheduled to depart for New York at 10:50 p. m. There was uncontradicted testimony that a search warrant could not have been obtained until the following morning. The warrantless search was upheld. Similarly, in Romero v. United States, 318 F.2d 530 (5th Cir. 1963), no warrant was required where a passenger waiting for a train could reclaim his baggage before a customs agent could obtain a search warrant.

The Ogdens were ticketed for Monterey, California with a stopover in Los Angeles. Their plane was scheduled to depart approximately one-half hour from the time federal agent Anderson arrived in the bag room. The bags had either to be held or allowed on the plane along with the Ogdens. To hold the bags while a warrant was being procured would have been the equivalent of a seizure. See Chambers v. Maroney, 399 U.S. 42, 52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). The exigencies of time and the possibility of removal of both the contraband and the suspects justified the warrant-less search by Anderson.

Affirmed.

      . This was confirmed in camera.

      . FAA regulations governing airport security-are :
      14 C.F.R. § 107.1 (1972); id. § 107.3; id. § 121.538; and id. § 121.589.