text:
    KELLSTONE INC., Petitioner, v. NATIONAL LABOR RELATIONS BOARD, Respondent.
    No. 73-2088.
    United States Court of Appeals, Sixth Circuit.
    Argued April 5, 1974.
    Decided April 10, 1974.
    A. David Mikesell, Charles H. Tobias, Honigman, Miller, Schwartz & Cohn, Detroit, Mich., on brief, for petitioner.
    Peter G. Nash, Gen. Counsel, John S. Irving, Deputy Gen. Counsel, Patrick Hardin, Associate Gen. Counsel, Elliott Moore, Deputy Associate Gen. Counsel, Jay E. Shanklin, John M. Flynn, Attys., National Labor Relations Board, Washington, D. C., on brief, for respondent.
    Before WEICK, EDWARDS and MILLER, Circuit Judges.
   ORDER

This case is before the Court on the petition of Kellstone, Inc., (the Company) to review and set aside an order issued by the National Labor Relations Board on September 24, 1973, and upon the cross-application of the Board for enforcement of its order reported at 206 NLRB No. 27.

The Board, contrary to the findings of the Administrative Law Judge, found that the Company wrongfully repudiated its contract with the Kelley’s Island Employees Association (the Association) as well as its entire bargaining obligation under the Act. It further found that the employees struck in response to this action by the Company and that they were accordingly unfair labor practice strikers. After such repudiation of its contract with the Association, a majority of the employees, as found by the Board, selected the Steelworkers’ Union as their collective bargaining representative. Consequently, the Board concluded that the Company violated Sec. 8(a)(5) and (1) of the Act by repudiating its contract with the Association and by repudiating its entire statutory bargaining obligation. As the Board found that the strike was in protest of the Company’s unfair labor practices, it further determined that the Company violated Sec. 8(a)(3) and (1) by discharging and refusing to reinstate the striking employees.

The Board’s order requires the Company to cease and desist from these unfair labor practices or in any other manner interfering with, restraining or coercing employees in the exercise of their rights under Sec. 7 of the Act. The order further affirmatively requires the Company to bargain upon request with Local 8070, United Steelworkers, as the duly designated exclusive bargaining representative in the appropriate unit, and to offer reinstatement with back pay to the employees discriminated against. The order also directs the posting of the usual notices.

Upon consideration of the entire record, the Court finds that the Board’s factual findings are supported by substantial evidence on the record considered as a whole, that its legal conclusions are in conformity with applicable and controlling principles of law, and further, that its remedial order is adequate and proper to meet the violations found to have occurred.

It is therefore ordered that the petition for review filed on behalf of the Company is hereby denied. The Board’s application is granted and its order of September 24, 1973, will be accordingly enforced.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    Benjamin F. SAPPINGTON et al., Appellants, v. ASSOCIATED TRANSPORT, INC., a body corporate, Appellee.
    No. 73-1486.
    United States Court of Appeals Fourth Circuit.
    Argued Oct. 4, 1973.
    Decided Nov. 5, 1973.
    As Amended Nov. 29, 1974.
    Benjamin Lipsitz, Baltimore, Md., for appellants.
    Charles P. O’Connor, Washington, D. C. (Avrum M. Goldberg, William W.' Cahill, Jr., Baltimore, Md., Morgan, Lewis & Bockius, Washington, D. C., and Weinberg & Green, Baltimore, Md., on brief), for appellee.
    Before BRYAN, Senior Circuit Júdge, and RUSSELL and WIDENER, Circuit J udges.
   PER CURIAM:

This action was brought under the Labor Management Relations Act § 301 (a), 29 U.S.C. § 185(a), by the appellant truckdrivers of Associated Transport, Inc., who charged that a breach of their collective bargaining agreement had been committed by Associated in the change of its road operation from Baltimore to points in Pennsylvania. The nub of their complaint is that the proposed change was submitted to the Eastern Conference Joint Area Committee of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, of which they were members, without first submitting the proposal for approval to the Joint Maryland-District of Columbia Area Committee of the Freight Drivers and Helpers Local Union No. 557, an affiliate of International. The District Court held there was no breach and dismissed the complaint. The drivers appeal.

Upon consideration of the record and the arguments of counsel, on brief and orally, we observe no error in the findings of fact and conclusions of law of the District Judge and affirm on his opinion. Sappington v. Associated Transport, Inc., 365 F.Supp. 164 (D.C. 1973).

Affirmed.


text:
    Vedora STALLWORTH, as Administratrix of the Estate of Ernest Lee Stallworth, etc., Plaintiff-Appellant, v. Otis McFARLAND et al., Defendants-Appellees.
    No. 73-2828.
    United States Court of Appeals, Fifth Circuit.
    May 16, 1974.
    Donald L. Mayeuy, Louis Dischler, Jr., Robert K. Guillory, Eunice, La., for plaintiff-appellant.
    Donald Soileau, John Saunders, Ma-mou, La., for Otis McFarland.
    James Lynn Davis, Henry H. Lemoine, Jr., Many, La., for Edgar Saveli.
    Wilton, H. Williams, Jr., Joseph W. Milner, Shreveport, La., for Sabine River of La.
    Before JONES, THORNBERRY and COLEMAN, Circuit Judges.
   PER CURIAM:

The facts of the case, the questions presented, and the disposition by the district court are set forth in that court’s opinion. Stallworth v. McFarland, W.D.Louisiana, 350 F.Supp. 920. The decision is free from error. The judgment is affirmed.


text:
    Edward J. JONES, Plaintiff-Appellant, v. SUPREME SUGAR REFINERY, DIVISION OF J. ARON & CO., INC., et al., Defendants-Appellees.
    No. 74-1229.
    United States Court of Appeals, Fifth Circuit.
    May 20, 1974.
    Ronald P. Nabonne, Nils R. Douglas, New Orleans, La., for plaintiff-appellant.
    Michael S. Fawer, Wm. C. Tidwell, III, Benjamin E. Smith, New Orleans, La., for defendants-appellees.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.
   PER CURIAM:

Upon consideration of the appellant’s unopposed motion for summary reversal of the district court’s order granting the motion of the appellee for summary judgment, it is our conclusion that the motion is meritorious. Accordingly, the order of the district court granting summary judgment is vacated and this case is remanded to the district court for further proceedings consistent with Alexander v. Garner-Denver Company, 415 U.S. 36, 94 S.Ct. 1011, 39 L.Ed.2d 147 (1974).

Vacated and remanded.


text:
    ALPHA DISTRIBUTING COMPANY OF CALIFORNIA, INC., Plaintiff-Appellant, v. JACK DANIEL DISTILLERY et al., Defendants-Appellees.
    No. 72-2776.
    United States Court of Appeals, Ninth Circuit.
    April 12, 1974.
    Rehearing Denied May 31, 1974.
    J. Albert Hutchison, San Francisco, Cal. (argued), for plaintiff-appellant.
    Arthur B. Dunne, San Francisco, Cal. (argued), for defendants-appellees.
    Before CHAMBERS, MOORE and ELY, Circuit Judges.

       The Honorable Leonard P. Moore, United States Circuit Judge for the Second Circuit, sitting by designation.

   PER CURIAM:

The court previously remanded the case to make findings on specific issues. See Alpha Distributing Company of California, Inc., v. Jack Daniel Distillery, Lem Motlow Prop., Inc., 9 Cir., 454 F.2d 442 (1972).

No further evidence was offered.

While it is a matter of opinion, it is our opinion that the district court did make the findings directed to be made.

Finding no error, we affirm.


text:
    James Murray CARRINGTON, Appellant, v. A. E. SLAYTON, Jr., Superintendent, Virginia State Penitentiary, Appellee.
    No. 73-1856.
    United States Court of Appeals, Fourth Circuit.
    .Argued April 1, 1974.
    Decided April 29, 1974.
    Charles Stephen Ralston, New York City (Charles M. L. Mangum, Lynch-burg, Va., Court-appointed, and Jack Greenberg, New York City, on brief), for appellant.
    Robert E. Shepherd, Jr., Asst. Atty. Gen. (Andrew P. Miller, Atty. Gen. of Va., on brief), for appellee.
    Before BRYAN, Senior Circuit Judge, and WINTER and ADAMS, Circuit Judges.

       United States Circuit Judge for the Third Circuit, sitting by designation.

   PER CURIAM:

Complaining that the juries indicting and convicting him were unconstitutionally chosen through a systematic exclusion and underrepresentation of blacks, James Murray Carrington, himself a black, in his petition in habeas corpus seeks discharge from the custody of the Virginia penitentiary. He is confined pursuant to sentences in the Circuit Court of Appomatax County in 1970 for rape and in 1971 for abduction. The District Court refused the writs and Carrington appeals. For reasons included in the opinion of the District Judge, we decline to disturb the judgment. Carrington v. Slayton, Jr., Superintendent, 359 F.Supp. 189 (W.D.Va.1973).

Affirmed.


author: BY THE COURT.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Harman Victor USHER, Defendant-Appellant.
    No. 73-4022
    Summary Calendar.

    United States Court of Appeals, . Fifth Circuit.
    May 20, 1974.
    Edward C. Stone, Atlanta,' Ga. (Court-appointed), for defendant-appellant.
    William Schloth, U. S. Atty., Macon, Ga., for plaintiff-appellee.
    Before GEWIN, GODBOLD and CLARK, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

   BY THE COURT.

Although the record in this cause presents a substantial question as to whether the sentence imposed is an illegal sentence or a sentence imposed in an illegal manner, within the meaning of Fed.R.Crim.P. 35, and despite the fact that defendant’s correspondence with the district court from which the present appeal has been allowed occurred more than 120 days after sentence was imposed, this court deems it just under the circumstances to remand this cause to the district court for the making of express findings as to whether at the time sentence was imposed the defendant, who was then a youth offender, would not derive benefit from treatment under 18 U.S.C. § 5010(b). United States v. Dover, 489 F.2d 688 (5th Cir. 1974). Upon making such express findings, the court below is directed to supplement the record on this appeal with such findings.

Remanded.


author: DURFEE, Senior Judge.

text:
    SEA-LAND SERVICE, INC. v. The UNITED STATES.
    No. 473-72.
    United States Court of Claims.
    March 20, 1974.

      Gerald A. Malia, Washington, D. C., atty. of record, for plaintiff. Ragan & Mason, Washington, D. C., of counsel.
    Raymond B. Benzinger, Washington, D. C., with whom was Acting Asst. Atty. Gen., Irving Jaffe, for defendant. William A. Mogel, Washington, D. C., of counsel.
    Before DURFEE, Senior Judge, and SKELTON and NICHOLS, Judges.
   ON PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT

DURFEE, Senior Judge.

Sea-Land Services, Inc., a Delaware corporation, petitions this court to set aside an adverse final opinion and order of the Assistant Secretary of Commerce for Maritime Affairs (the “Assistant Secretary” or “MARAD”). The dispute involves the exchange of three vessels owned by plaintiff in return for three vessels owned by defendant, pursuant to the parties’ contract, under the authority of the Vessel Exchange Act. Sections 1 and 2 of the Wunderlich Act provide the standard for judicial review. For the reasons hereinafter discussed, we conclude that the decision of the Assistant Secretary in this case was correct, that plaintiff’s motion for summary judgment must be denied and that defendant’s cross-motion for summary judgment must be granted.

I

On May 13, 1965, Sea-Land entered into Contract No. MA-3856 (the “Exchange Contract”) with the United States for the exchange of three of its vessels, the CHATHAM, COLORADO and FANWOOD (the “exchange” or “traded-in” ships) for three Government-owned vessels, the ARIZPA, WA-COSTA and WARRIOR (the “transfer” or “traded-out” ships).' The ultimate issue in this case is whether the values assigned by the contracting officer to both the exchange and transfer ships were “fair and reasonable” as required by the Vessel Exchange Act, 46 U.S.C. § 1160(i) (2) (1970).

The transfer ships which were to be traded out to Sea-Land were to be converted into containerships and were therefore not immediately available for commercial operation. For that reason, the parties entered into Use Agreement Contract No. MA-3857, under which MARAD chartered the traded-in vessels back to plaintiff, permitting it to retain and operate those ships in United States foreign and domestic commerce until the traded-out vessels were converted into containerships. The Exchange Contract and the Use Agreement were executed simultaneously, on May 13, 1965, the date of exchange.

The vessels’ service was not interrupted for drydocking and condition surveying ; the ships were assigned the following “unadjusted fair and reasonable values” as of the date of exchange, based upon the findings of MARAD’s Ship Valuation Committee:

Exchange Ships

CHATHAM ............ $468,000

COLORADO ............ 453,750

FANWOOD ........... 458,500

TOTAL.......... $1,380,250

Transfer Ships

ARIZPA ...............$444,250

WACOSTA............. 444,250

WARRIOR............ 453,750

TOTAL.............. $1,342,250

These values were agreed to by both parties and were embodied in Article 4 of the Exchange Contract.

The parties agreed in the Exchange Contract that Sea-Land would accept title to the transfer ships on an “as is, where is” basis, and that the “unadjusted” fair and reasonable values of the transfer ships would be their fair and reasonable values. In short, the values assigned to the traded-out vessels by MARAD’s Ship Valuation Committee would be their final values for purposes of the vessel exchange.

On the other hand, the parties agreed for an adjustment to be made to the values the Ship Valuation Committee had assigned to the exchange vessels. The unadjusted values of the exchange vessels were to be reduced by the cost of in-class repairs found to be necessary when those ships were physically delivered to MARAD (hereinafter referred to as “date of redelivery”) at the end of the use period. Article 3 of the Exchange Contract provides, in pertinent part:

(b) The “fair and reasonable value” of an Exchange Ship means:
(1) The unadjusted fair and reasonable value of the Exchange Ship as stated and agreed upon in Article 4(a) hereof
******

minus

(3) The cost of in-class work necessary on the Exchange Ship, but not performed prior to delivery, as finally estimated by the Contracting Officer, based upon a physical survey of the Ship, taking into account the provisions of Article 7 of this Contract.
******

The terms “in-class” and “in-class work” were defined in article 3(c) and (d) of the Exchange Contract, as follows:

(c) The term “in-class”, as applied in this Contract to an Exchange Ship, means the condition of the Ship is such as to entitle it to: (1) the highest classification of the American Bu-
reau of Shipping for the specific type ship, and (2) valid Certificates of Inspection for compliance with the regulations of the United States Coast Guard, the United States Public Health Service, and the Federal Communications Commission.
(d) The term “in-class work,” as applied in this Contract to an Exchange Ship means drydocking, surveying as required by the regulatory bodies, towage, and other work or services incidental to the survey, and all class requirements found during the course of the survey, as determined by the Contracting Officer based upon the delivery survey, taking into account the provisions of Article 7 of this Contract, but does not include the cost of the Shipowner’s surveyors or agents, or any other overhead expense.

The parties agreed that Sea-Land would pay to MARAD the amount by which the values of the transfer ships traded out to Sea-Land exceeded the values of the exchange ships traded in, as determined by the contracting officer after delivery and survey of the exchange ships. Pending the determination of the class work found to be necessary during the course of the survey, Article 4(a) of the Exchange Contract provided for an “estimated” cost of necessary repairs of $40,000 per ship to be deducted from the unadjusted value of each exchange vessel, as required by MARAD regulations. When the Exchange Contract was executed on the date of exchange Sea-Land paid to MARAD $82,000, representing the estimated amount by which the values of the traded-out vessels exceeded the values of the traded-in vessels.

The exchange ships, the CHATHAM, COLORADO and FANWOOD were dry-docked, physically surveyed and redelivered to MARAD at the completion of the use (charter) period on April 7, April 22, and August 18, 1966, respectively. Based upon the survey reports, which were signed by representatives of both parties, the contracting officer determined the cost of in-class work required on the exchange vessels was $356,000, $255,000 and $250,000, respectively, for the CHATHAM, COLORADO and FAN-WOOD. These amounts were deducted from the unadjusted values, after making certain other adjustments to those values required by the contract, to ascertain the fair and reasonable values of the exchange ships. This resulted in final adjusted fair and reasonable values as follows:

CHATHAM ......... $110,116.76

COLORADO .......... 208,513.61

FANWOOD .......... 206,715.33

The contracting officer concluded that Sea-Land owed the United States $816,904.30 less $82,000 paid by Sea-Land when it signed the Exchange Contract, representing the amount by which the total value of the traded-out ships exceeded the total value of the traded-in ships.

Sea-Land subsequently paid, under protest, the balance of $734,904.30, and appealed the contracting officer’s final decision within the Maritime Administration, as provided by the Disputes Clause (Article 16) of the Exchange Contract. An initial decision by the MARAD Chief Hearing Examiner, to whom Sea-Land’s appeal had been referred for an evidentiary hearing, recommended that Sea-Land be reimbursed in the full amount of $816,904.30 in order to perfect the vessel exchange. On December 7, 1972 the Assistant Secretary issued his final opinion and order affirming the decision of the contracting officer, rejecting the initial decision and recommendation of the Chief Hearing Examiner, and dismissing Sea-Land’s appeal with prejudice. Sea-Land now seeks Wunderlich Act review of MARAD’s final opinion and order.

MARAD’s factual determinations are entitled to finality unless they are determined to be fraudulent, capricious, arbitrary, or so grossly erroneous as to imply bad faith, or are not supported by substantial evidence. 41 U.S. C. § 321; United States v. Carlo Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963); Koppers Co. v. United States, 405 F.2d 554, 186 Ct.Cl. 142 (1968). We are not constrained, of course, by MARAD’s determinations with respect to matters of law, and are free to reach our own conclusions. 41 U.S.C. § 322; Northwestern Industrial Piping, Inc. v. United States, 467 F.2d 1308, 199 Ct.Cl. 540 (1972); Maxwell Dynamometer Co. v. United States, 386 F.2d 855, 181 Ct.Cl. 607 (1967) ; Blount Bros. Const. Co. v. United States, 346 F.2d 962, 171 Ct.Cl. 478 (1965). We are mindful, however, that the construction given to the provisions of the Vessel Exchange Act by the Maritime Administration is entitled to great weight if reasonable. United States v. American Trucking Assoc., Inc., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940).

As previously noted, the ultimate question in the case is the fair and reasonable values of the transfer and exchange ships. The first disputed issue relevant to that question concerns the reduction of the unadjusted values, assigned to the exchange ships by the cost of placing those vessels in class. Plaintiff maintains that MARAD erroneously interpreted pertinent provisions of the Vessel Exchange Act and the Exchange Contract relative to in-class repairs. A second disputed issue involves MARAD’s interpretation of the statutory requirement that the fair and reasonable value of the vessels be determined “as of the date of the exchange.” 46 U.S.C. § 1160(i)(2) (1970). Plaintiff contends that MARAD erred in failing to rule that the requirement is mandatory. A third disputed issue relates to whether the values of the exchange and transfer ships, were required to be calculated “in the same manner,” as provided by section 510 (i) (2) of the Vessel Exchange Act. 46 U.S.C. § 1160(i) (2) (1970). Plaintiff urges us to hold erroneous MARAD’s ruling that the valuations were determined in accordance with this provision of the statute.

Defendant asserts a counterclaim in its answer to the petition demanding payment of $986,115, which claimed amount represents the cost of required class and other necessary repairs for which Sea-Land is allegedly liable under Use Agreement Contract No. MA-3857. Defendant subsequently moved to suspend proceedings on the counterclaim until final determination of identical issues involved in a proceeding before the Maritime Subsidy Board. Sea-Land has moved to dismiss the counterclaim.

These issues relative to the main claim and the counterclaim are considered in turn.

II

MARAD reduced the unadjusted values of the exchange ships by the cost of in-class repairs as determined by the contracting officer upon drydocking, physical survey and redelivery. Sea-Land first of all asks us to assign error to that adjustment in values. The parties specifically disagree as to the meaning of the statutory language which requires the Secretary of Commerce, in determining the fair and reasonable values of the traded-in and traded-out vessels, to consider “* * * the cost of placing the vessels in class with respect to hull and machinery * * 46 U.S.C. § 1160(i)(3) (1970).

At 46 U.S.C. § 1160(i) (2), the Vessel Exchange Act provides as follows:

(2) The fair and reasonable value of the traded-in and traded-out vessels shall be determined, as of the date of the exchange, pursuant to subsection (d) of this section. * * *

Subsection (d) of section 510 of the Merchant Marine Act, 1936, as amended, 46 U.S.C. § 1160(d), provides that such value to be determined shall be based upon a consideration of (1) the scrap value in American and foreign markets, (2) the depreciated value, and (3) the market value for operation in world trade or in foreign or domestic trade of the United States.

The Vessel Exchange Act next provides, at 46 U.S.C. § 1160(i) (3):

(3) In determining said fair and reasonable value the Secretary shall consider the cost of placing the vessels in class with respect to hull and machinery, and, with respect to any traded-out vessels of the military type, the cost of reconverting and restoring such vessels for normal operation in commercial service. * * * In determining the value of the traded-in vessel or vessels the Secretary may take into consideration the cost to the owner of compliance with subpara-graph (8), clauses (A) and (B), of this subsection. [Emphasis supplied]

Subparagraph (8), clauses (A) and (B) of subsection (i) refers to the expense incurred by the owner of the traded-in vessel for deactivating and preparing the traded-in ship for storage and layup and for delivery at a location designated by the Secretary of Commerce.

The Act did not define the terms “the cost of placing the vessels in class with respect to hull and machinery.” MARAD’s regulations defined the terms in language similar to that included by the parties in the Exchange Contract :

“In class with respect to hull and machinery” * * * shall * * * encompass all work necessary to place a vessel in such condition as will entitle it to:
(1) The highest classification of the American Bureau of Shipping [ABS] for the specific type of vessel, and
(2) Valid Certificates of Inspection for compliance with the regulations of the United States Coast Guard, the United States Public Health Service [PHS], and the Federal Communications Commission [FCC].

The operating condition of the U.S.flag vessels is regulated primarily by the ABS regarding classification of U.S. vessels (see 46 U.S.C. § 881), by the United States Coast Guard regarding safety and navigation (see 14 U.S.C. § 2), by the PHS regarding health (see 42 U.S.C. § 269), and by the FCC regarding communications (see 47 U.S.C. §§ 351-384). The ABS, a private organization, issues a classification every four or five years for cargo ships operating in U.S. foreign ocean commerce. For such classification ABS requires after the initial ship construction a special periodical survey every four years and compliance with repair items found as a result of the survey. A fifth year of grace before requiring reclassification may be permitted depending on the condition of the ship and the report of its last annual survey. The ships usually do not lose their classification while complying with repair items and may only lose classification by being stricken from the ABS record. The other agencies, the Coast Guard, PHS and FCC, issue certificates of inspection annually or biannually for compliance with their regulations which, if withdrawn or not issued, restrict operation of such vessels.

The traded-in vessels actually possessed the highest ABS classification at the time they were redelivered to MARAD; each of the three ships were generally in the final months of the fifth grace year. They also possessed valid certificates of inspection from the Coast Guard, PHS and FCC. Nonetheless, the reports based upon the physical survey of the ships at the time of redelivery indicated numerous class requirement repair items for each of the vessels, including some “presently outstanding” repair items under ABS requirements.

Plaintiff argues as follows: that the statute clearly provides that the “class” allowance authorized is for placing the vessel in class, not for retaining the vessel in class or for prolonging the “in-class” status for some future period of time; that the requirement only applies to instances when vessels are not in-class (i. e., when they do not possess ABS classification and valid regulatory certificates), and since the CHATHAM, COLORADO and FANWOOD all possessed ABS classification and valid regulatory certificates on the date of exchange and when redelivered, the requirement did not apply to them; that Sea-Land’s liability (for which it assumes responsibility) is limited to one “outstanding” class recommendation on the CHATHAM.

The Government asks us to affirm MARAD’s final opinion and order by interpreting the statutory language “the cost of placing the vessels in class” to mean the cost of all class work necessary to place the vessels in condition, as determined at the date of redelivery, to entitle it to the highest ABS classification and valid certificates from the Coast Guard, PHS and FCC.

It is a familiar policy in the construction of statutes that the meaning of particular terms used is to be derived not only by consideration of the words themselves, but also of the context, the purpose of the law, and the circumstances under which the terms were used. Puerto Rico v. Shell Co. (P.R.), Ltd., 302 U.S. 253, 58 S.Ct. 167, 82 L.Ed. 235 (1937). This rule serves as a guide to direct our inquiry into legislative intent.

The Vessel Exchange Act amended the Merchant Marine Act of 1936 to authorize the exchange of certain privately-owned vessels for more modem and efficient vessels owned by the United States. The primary purpose of the legislation, as stated therein, was “ * * * to improve the type and suitability of vessels operating in the domestic and foreign commerce of the United States, and to further the policies of this chapter.”

The statute sets forth the “conditions” to which the contemplated exchanges are subject in nine subpara-graphs. Subparagraph (2) provides for the determination of the fair and reasonable value of the traded-in and traded-out vessels, and subparagraph (3) provide that “\_i]n determining said fair and reasonable value the Secretary shall consider the cost of placing the vessels in class * * *.” [Emphasis supplied.] The statute emphatically states the reason for inclusion of the provision relative to in-class repairs — the costs of such repairs are to be a factor in the determination of a vessel’s fair and reasonable value. The construction we give to the statutory terms must be consistent with, and in furtherance of, the purpose for which they were included in the statute.

We conclude that Congress intended the phrase “the cost of placing the vessels in class” to mean the cost of all class requirement work necessary, as determined at the time of the exchange, to put the vessels in a condition which would then entitle them to the highest ABS classification and valid certificates from the Coast Guard, PHS and FCC. Such an interpretation is consistent with the stated purpose of considering the cost of in-class repairs — the determination of a ship’s value — because it takes account of the actual condition of the vessel, the only true measure of its value. The standard against which the actual condition of a vessel is measured for the purpose of determining its value is the condition which would entitle it to the highest ABS classification and valid certificates from the Coast Guard, PHS and FCC.

Sea-Land’s contention that the “in-class” provision of the statute is applicable only in instances when a vessel does not possess ABS classification or valid certificates from the regulatory agencies must be rejected. Such an interpretation of the statutory terms fails to consider them in light of the purpose for considering the cost of in-class repairs —the determination of fair and reasonable values. No measure of value can be derived from the fact that a vessel merely possesses ABS classification or valid certificates at the time of the exchange. ABS classification surveys are conducted only once in four or five years. A vessel’s condition with respect to in-class requirements — -and hence its value —might be quite different in its fifth year of operation after ABS survey and classification than what it was in its first year of operation after survey and classification. As noted earlier, all three of the exchange vessels involved in this case were in their fifth (grace) year of operation. To accept Sea-Land’s contention that the “in-class” provision of the statute applied only when a vessel had never been in class, or had lost its classification, would emasculate the statutory condition that vessels be exchanged on the basis of their “fair and reasonable values.” Additionally, such an interpretation would render the “in-class” provision of the statute insignificant and practically meaningless, especially in light of MARAD’s finding that it would only be in the “rarest of instances” when a vessel lost its ABS classification or certificates of inspection.

Plaintiff attempts to rely upon A. H. Bull Steamship Co. v. United States, 108 F.Supp. 95, 123 Ct.Cl. 520 (1952) and upon Nautilus Shipping Corporation v. United States, 158 F.Supp. 353, 141 Ct.Cl. 391 (1958) in support of its interpretation of the “in-class” provision of the Vessel Exchange Act. Both Bull and Nautilus concerned the Merchant Ship Sales Act of 1946, 60 Stat. 41 as amended 62 Stat. 1199, 46 U.S.C. § 864a (1970), which required the U. S. Maritime Commission, predecessor to the Maritime Administration, to adjust the statutory sales price of a vessel by deducting the amount estimated by the Commission for “putting such vessels in class.” Both cases are inapposite to the issue in the case at bar. If Bull and Nautilus had held that the “in-class” requirement of the Merchant Ship Sales Act did not apply when a ship possessed valid classification certificates at the date of sale, then those cases might be relevant, by way of analogy, to aid our interpretation of the “in-class” provision of the Vessel Exchange Act. Those eases do not so hold. Neither case mentioned whether or not the vessels involved in the sales possessed valid classification certificates at the times the adjustments to the statutory sales prices were made.

Finally, plaintiff argues that the Exchange Contract does not require adjustment of the unadjusted values of the exchange ships by the cost of all “in-class” work found to be necessary during the course of the survey required at the time of redelivery, but rather that the contract only requires that the cost of “outstanding” class requirements be considered. Plaintiff also maintains that the “in-class” provisions of the contract are ambiguous, and that they should therefore be construed against their drafter, the Government.

We do not find the Exchange Contract ambiguous; on the contrary, the contract sets out in clear and cogent terms what was contemplated by the parties. Article 3(b) (3) of the contract provides that in determining the fair and reasonable values of the exchange ships the unadjusted values shall be reduced by—

(3) The cost of in-class work necessary on the Exchange Ship * * * as finally estimated by the Contracting Officer, based upon a physical survey of the Ship, taking into account the provisions of Article 7 of this Contract.

Article 3(d) of the contract provides that the definition of the term “in-class” work includes “all class requirements found during the course of the survey,” as determined by the contracting officer, taking into consideration Article 7 of the contract, Article 7 (c) of the contract provides in pertinent part:

* * * Based upon the survey report there shall be established a listing of in-class work necessary on the Exchange Ship which is not to be performed prior to delivery for the purpose of making the determination required under Article 3(b)(3) of this contract.

The Exchange Contract clearly requires the unadjusted values of the exchange ships to be reduced by the cost of the class requirements found to exist at the time the vessels were surveyed. Inclusion of the above-quoted provisions in the Exchange Contract would be inexplicable if the parties understood the “in-class” provisions of the statute and the Exchange Contract to apply only when a vessel did not possess valid ABS classification and certificates of inspection. The short answer to plaintiff’s contention that the contract required only the cost of “outstanding” class requirements to be considered in determining the fair and reasonable values of the vessels is that the contract expressly provides otherwise. The contract states that the survey report would include “all class requirements found during the course of the survey” and that the cost of all such class requirements would be considered in adjusting the fair and reasonable values of the exchange vessels. Had the parties intended only that the cost of “outstanding” class requirements be considered, they would have so provided.

Additionally, plaintiff commits the same error in interpreting the “in-class” provisions of the Exchange Contract as it does in interpreting the “in-class” provisions of the Vessel Exchange Act. The true meaning of the terms cannot be determined out of context and without regard to their purpose. The “in-class” provisions were included in the Exchange Contract so that the condition and ultimately the value of the vessels could be determined. Plaintiff’s contended-for interpretation of the provisions — that only the cost of “outstanding” class requirements from a prior ABS survey be considered in adjusting the fair and reasonable values of the exchange ships — is inconsistent with the purpose for their inclusion in the contract.

The exchange vessels were drydocked and jointly surveyed by the parties in accordance with Article 7 of the Exchange Contract. Representatives of Sea-Land signed without exception or reservation each survey report with attached lists of deferred class work items. The contracting officer estimated the costs of deferred class work on the CHATHAM, COLORADO and FAN-WOOD as $356,000, $255,000 and $260,000, respectively, and these amounts were sustained on appeal. Plaintiff has failed to show that these factual findings are arbitrary, capricious or unsupported by substantial evidence; they are therefore entitled to finality and binding upon this court. 41 U.S.C. § 321; Bianchi, supra.

Ill

Sea-Land arid the Government agreed to delay the final determination of the fair and reasonable values of the exchange vessels until redelivery of those ships after the period of charter under the Use Agreement. The parties further agreed to the “unadjusted” values assigned to those ships by MARAD’s Ship Valuation Committee which, as previously noted, were to be adjusted by the cost of in-class repairs found to exist during the course of the parties’ joint survey upon redelivery. Sea-Land now contends that this arrangement was not in compliance with the Vessel Exchange Act, which calls for the determination of the values of the traded-in vessels “as of the date of the exchange.” 46 U.S.C. § 1160(i) (2) (1970). Plaintiff argues that the statutory terms must be applied literally and mandatorily.

The actual question to be decided is whether the arrangement contracted for by the parties was legally invalid and in derogation of the statutory provision that the ships’ fair and reasonable values shall be determined “as of the date of exchange.” We conclude that the adjustments made to the values of the exchange ships upon redelivery were not precluded by the statute.

In the first place, the statutorily prescribed requirement was complied with because the exchange vessels were valued as of the date of the exchange. It is true, the valuation determination was fixed on an “unadjusted” basis as of that time, but the determination of the final values was deferred, as found by the Assistant Secretary, “largely at Sea-Land’s behest so as to afford it continued use of the traded-in vessels.” The true condition of the exchange vessels — and therefore their final values— could not be determined until they were free of cargo, drydocked and surveyed. Since the exchange vessels were at sea when plaintiff applied to MARAD to trade them in, and since the traded-out ships were not then available for Sea Land’s use, Sea-Land requested postponement of drydocking and surveying, thereby delaying a finalized determination of the ships’ values.

Plaintiff asks us to apply the statutory terms, “as of the date of exchange” literally so as to preclude any and all adjustments to a ship’s value subsequent to the date of exchange valuation. This we cannot do because such an unqualified literal application of the statutory provision would defeat the •general purpose and policy of the Vessel Exchange Act. Construction of Statutory terms must be consistent with the purpose of the statute as a whole so as to advance and effectuate the legislative design. United States v. American Trucking Assoc., 310 U.S. 534, 60 S.Ct. 1059, 84 L.Ed. 1345 (1940), rehearing denied, 311 U.S. 724, 61 S.Ct. 53, 85 L.Ed. 472 (1940).

The Assistant Secretary concluded that if a final and conclusive trade-in allowance must be established as of the date of an exchange contract, no contracts could be executed until after the traded-in vessels were drydocked and surveyed and deductions for the cost of placing the vessels in class were made. Such a procedure would vitiate the benefits to those shipowners wishing to upgrade their fleets but unable o.r unwilling to interrupt their commercial service at the date of exchange. This consequence of plaintiff’s interpretation of the statutory language in its literal sense would clearly be inconsistent with the purpose and policy of the Vessel Exchange Act.

The Act was passed to improve the type and suitability of U. S.-flag vessels operating in the domestic and foreign commerce of the United States, and to further the policies of the 1936 Merchant Marine Act, including fostering the development and maintenance of a merchant marine sufficient to carry all U.S. domestic and a substantial portion of U.S. foreign water-borne commerce. The reasons why the parties’ arrangement to defer a final valuation on the exchange ships was consistent with the purposes of the Act, and why plaintiff’s unimaginative and literal interpretation of the “date of exchange” provision would frustrate the purposes of the Act, were succinctly stated by the Assistant Secretary in his final opinion, at 13-14:

* * * [The Vessel Exchange Act’s] legislative purposes were furthered by the deferred valuation determination since Sea-Land’s merchant fleet services continued to operate uninterrupted during the period of reconstruction of the traded-out vessels, thereby providing additional carriage of U.S. foreign waterborne commerce. Contrariwise, an immediate survey would have interrupted Sea-Land’s commercial service, diminished U.S.-flag waterborne service until the traded-out vessels were reconstructed, and placed an unanticipated burden upon the owner’s opportunity under the Exchange Act to upgrade its fleet.

Courts have not refused to qualify the apparent absolutes of a statutory provision when the harsh and inflexible consequences of literalism would frustrate the patent purpose of the whole act. Church of Holy Trinity v. United States, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226 (1892); Markham v. Cabell, 326 U.S. 404, 66 S.Ct. 193, 90 L.Ed. 165 (1945). We conclude that Congress could not have intended the “date of exchange” valuation requirement to be so inflexibly and mechanically applied as to defeat the policy and purpose of the Vessel Exchange Act.

It is important to again note that the construction given a statute by the officers or agency charged with its administration is entitled to great weight. Udall v. Tallman, 380 U.S. 1, 85 S.Ct. 792, 13 L.Ed.2d 616 (1965). The Maritime Administration, by the promulgation of General Order 92, authorized the use of exchange vessels by shipowners under the terms and conditions of use agreements while transfer vessels were being readied for normal operation. The regulations further allowed for adjustment to the unadjusted fair and reasonable value of exchange ships (determined at the date of exchange) by the cost of in-class repairs needed, as determined by survey at the time of actual delivery. MARAD’s flexible interpretation of the statutory terms, as implemented through its regulations, to allow the subsequent adjustment to the “date of exchange” value of a vessel which is not available for survey on the date of exchange, is a reasonable interpretation consistent with the Congressional purpose underlying the statute.

We do not read out of the Vessel Exchange Act the requirement that a ship’s fair and reasonable value shall be determined as of the date of exchange. That requirement still stands. We hold only that the. requirement is not so inflexible as to preclude adjustment of a ship’s fair and reasonable value, determined as of the date of exchange, by the cost of placing the vessel in class, as determined at some later date.

Finally, Sea-Land contends that even assuming arguendo that MARAD was correct in “valuing the Exchange Ships as of the date of 'redelivery’ in 1966,” MARAD erred in rejecting evidence that the value of C-2 vessels — and therefore the value of the exchange ships — increased during the period between the date of exchange and the date of redelivery in 1966. Plaintiff mistakes what occurred when it argues that the exchange ships were “valued” as of the date of redelivery in 1966. They were “valued” by the Ship Valuation Committee as of the date of exchange, as required by the statute, with in-class “adjustments” to be made as of the date of redelivery. Title to the exchange and transfer ships was transferred as of the date of exchange, and defendant was the owner of the CHATHAM, COLORADO and FAN-WOOD during the period of claimed increase in market value. Clearly, any increase in the market value of the exchange ships after the date of exchange ran to the benefit of the Government, just as any increase in the market value of the transfer ships after the date of exchange ran to the benefit of Sea-Land.

IV

While the Exchange Contract provided for the unadjusted values of the exchange ships to be reduced by the cost of in-class repairs found to be necessary on the redelivery date, the transfer ships were to be accepted by Sea-Land on an “as is, where is” basis, their unadjusted fair and reasonable values as found by M ARAD’s Ship Valuation Committee to be final. Plaintiff now asks us to set aside the parties’ agreed-to transaction, claiming that it violates section 510 (i) (2) of the Act, which provides that the value of the traded-in and traded-out vessels shall be calculated “in the same manner.” 46 U.S.C. § 1160(i)(2) (1970).

This provision was inserted as an addition to the original Vessel Exchange Act when the Act was extended on October 10, 1965. It thus became effective five months subsequent to the May 13, 1965 exchange involved in this suit. Sea-Land argues for a retroactive application of this amendment to the May 13, 1965 exchange in that it “effectuates, rather than than changes, the basic policy” of the law. The governing rule, however, is that Congress is presumed to have intended statutes or amendments to operate prospectively unless there is clear statutory expression or legislative history to the contrary. Brewster v. Gage, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed. 457 (1930); Cameron v. United States, 231 U.S. 710, 34 S.Ct. 244, 58 L.Ed. 448 (1914). The language of the amendment to the Act does not evidence that Congress intended retroactive application, nor is such an intention manifest in the legislative history.

There is, in any event, a logical explanation to justify the different treatment given the valuation of the transfer and exchange ships. A complete understanding of the transaction entered into under the Exchange Contract requires that account be taken of a previous vessel exchange between the parties. The prior exchange occurred on November 10, 1964. Under Exchange Contract No. MA-3740 McLean Industries, Inc. traded in six vessels to the Government including the ARIZPA, WACOSTA and WARRIOR in exchange for six vessels traded out by the Government to McLean’s subsidiary, Waterman Steamship Co. The traded-out ships were to be converted to containerships, and were therefore not immediately available for commercial operation. Accordingly, the parties simultaneously executed Use Agreement No. MA-3741 under which the Government agreed to let Waterman use the six traded-in vessels in its service until the traded-out vessels could be readied for operation. Litton Industries Leasing Corporation was to do the conversions, and thereafter the traded-out ships were to be chartered by Waterman to McLean’s other subsidiary, Sea-Land, for operation in the latter’s service.

Some time after McLean/Waterman had traded in the ARIZPA, WACOSTA and WARRIOR, McLean decided that their hulls and configurations would be better for conversion to containerships than the CHATHAM, COLORADO and FANWOOD in Sea-Land’s fleet. McLean therefore sought to acquire back these three vessels through another ship exchange, the exchange presently in dispute. Since Waterman had authority to operate the three vessels under an unexpired Use Agreement, McLean, Sea-Land, Waterman and Litton proposed that Waterman forego further operation of the three vessels under its Use Agreement and redeliver the same at sea; that the Government accept them “as is, where is,” and transfer title to the vessels simultaneously to Sea-Land; that Sea-Land accept simultaneously said vessels, “as is, where is” at sea.

No further adjustments in valuation were made to the transfer ships under Exchange Contract No. MA-3856, and McLean/Waterman received the unadjusted valuation of said vessels without further adjustment under Exchange Contract No. MA-3740. The arrangement enabled McLean and its subsidiaries to engage in these vessel exchanges, and at the same time left McLean’s service uninterrupted. McLean was clearly the real party in interest under both exchange contracts. No purpose would have been served by drydock-ing and surveying the transfer ships to estimate the cost of in-class repairs. Any adjustment for class work to the values of the ARIZPA, WACOSTA and WARRIOR when those were traded in under Exchange Contract No. MA-3740 would have been identical to any adjustments for class work to those same vessels when they were traded out under Exchange Contract No. MA-3856. The parties took this offset into consideration and simply omitted a procedure which would have caused unnecessary delay and expenditure.

V

Sea-Land finally argues that MARAD’s demand for payment of $734,904.30 as a condition to the processing of certain other unrelated contracts, and that MARAD’s retention of that amount (together with the retention of the $82,000 paid to MARAD at the date of exchange) while delaying decision herein until December 7, 1972, are unlawful. Plaintiff offers no evidence or authority to support its assertion that the processing of other contracts was conditioned upon payment under this contract, or that MARAD in any way delayed its decision in the instant case. Plaintiff agreed under Article 2(b) of the Exchange Contract to pay, within ten days of the contracting officer’s determination, the amount by which the values of the transfer ships, exceeded the values of the exchange ships. Plaintiff further agreed under the Disputes Clause (Article 16) to proceed diligently with the performance of its contractual responsibilities and in accordance with the contracting officer’s decision pending final decision of any dispute. Plaintiff is bound by these terms.

VI

Defendant interposes a counterclaim in the amount of $986,155 pursuant to Rule 40(a). The claimed amount represents plaintiff’s alleged liability under Use Agreement Contract No. MA-3857 for the cost of “in-class” repairs and all repairs necessary to maintain the exchange ships in a “good state of repair and in efficient operating condition and in accordance with good commercial maintenance practices.” The Government doubly protected itself by including provisions rendering Sea-Land responsible for the cost of in-class work on the exchange vessels in both the Exchange Contract and the Use Agreement. Any recovery on the counterclaim under the Use Agreement would therefore be reduced by Sea-Land’s liability for “in-class” repairs under the Exchange Contract. This means, in effect, that the actual amount sought under defendant’s counterclaim is $115,155.

On December 20, 1972, the contracting officer rendered a final decision finding that plaintiff owed the Government $986,155 as the cost of repairs that should have been performed by and at the expense of Sea-Land under Clause 6 of the Use Agreement. He credited Sea-Land with $871,000 for sums already paid for necessary class repairs under the Exchange Contract, and accordingly made a demand on Sea-Land for the balance amount of $115,155. On January 9, 1973 plaintiff appealed that decision, and on July 16, 1973, plaintiff’s administrative appeal was docketed (Maritime Subsidy Board No. CA-80) for oral hearing and recommended decision. Thereafter, on July 24, 1973, defendant moved to suspend proceedings on its counterclaim until completion of the administrative proceedings and issuance of a final determination of these issues by the agency. Plaintiff opposes suspension of proceedings on defendant’s counterclaim and moves for its dismissal. The parties have advised us since oral argument that proceedings before the Maritime Subsidy Board on the issue of Sea-Land’s liability for repairs under the Use Agreement have been stayed pending our determination of defendant’s counterclaim.

Plaintiff grounds its motion to dismiss the counterclaim on the relevant statute of limitations, 28 U.S.C. § 2415(a) (1970), which provides in part:

(a) * * * every action for money damages brought by the United States or an officer or agency thereof which is founded upon any contract express or implied in law or fact, shall be barred unless the complaint is filed within six years after the right of action accrues * * *.

Assuming the counterclaim would be time-barred because it was brought more than six years after the cause of action accrued, the limitations provision is rendered inapplicable, in any event, by virtue of 28 U.S.C. § 2415(f), which provides, in pertinent part:

(f) The provisions of this section shall not prevent the assertion, in an action against the United States * * * of any claim of the United States * * * against an opposing party * * * that arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim. * * *

Plaintiff argues that the facts of the case do not support a finding that defendant’s counterclaim arises out of the same “transaction or occurrence” as the main claim. We disagree. Plaintiff points out that the main claim relates to its liability under the Exchange Contract whereas the Government’s counterclaim relates to its liability under the Use Agreement. This factor is hardly dispositive of the issue. Two claims arise out of the same “transaction or occurrence” if they are “logically related.” Lesnik v. Public Industrials Corp., 144 F.2d 968 (2d Cir. 1944). Although the parties entered into two separate contracts — the Exchange Contract for the swap of the traded-in and traded-out vessels, and the Use Agreement for the charter of the traded-in vessels to Sea-Land while the traded-out vessels were being converted into containerships — they engaged in one single transaction. The two contracts involved the same ships, they were executed on the same day and they incorporated each other by reference. The joint survey of the exchange ships conducted by the parties at the termination of the use period serves as the basis for Sea-Land’s repair obligations under both the Exchange Contract and. the Use Agreement. The charter of the exchange vessels to Sea-Land under the Use Agreement was the event that deferred final valuation under the Exchange Contract. The facts and circumstances of the case clearly support a finding that defendant’s counterclaim arises out of the same “transaction or occurrence” that is the subject matter of plaintiff’s main claim. Accordingly, the counterclaim is not time-barred by the provisions of 28 U.S.C. § 2415.

Whether defendant unreasonably delayed in presenting its claim to Sea-Land for the costs of repair obligations under the Use Agreement is yet another matter. It is not apparent from the record before us why the contracting officer’s final decision regarding Sea-Land’s repair obligations under the Use Agreement was not issued until January 20, 1972, whether this delay was reasonable under the circumstances of the case, or whether the delay was in any way prejudicial to plaintiff. These matters are now before the Maritime Subsidy Board on plaintiff’s appeal of the contracting officer’s final decision. The administrative agency is the appropriate forum for consideration of these matters in the first instance. United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966).

Defendant filed its counterclaim pursuant to Rule 40(a), which requires inclusion in the answer of any claim defendant has against plaintiff arising out of the transaction or occurrence that is the subject matter of the petition. The compulsory counterclaim rule was designed to prevent multiplicity of actions, and to achieve resolution in a single lawsuit of all disputes arising out of common matters. Southern Construction Co. Inc. v. Pickard, 371 U.S. 57, 83 S.Ct. 108, 9 L.Ed.2d 31 (1962). The issues raised by defendant’s counterclaim should not be considered here now, however, because they are properly and necessarily before the Administrative Agency. Grace, supra. It is apparent that defendant filed its counterclaim herein only to protect against a finding by the Maritime Administration that the issues relative to Sea-Land’s liability for repairs under the Use Agreement involve a “breach of contract” over which it lacks jurisdiction.

Accordingly, in order to give effect to the policy underlying our compulsory counterclaim rule, and to ■ preserve defendant’s rights in the event the Maritime Administration determines that the issues in plaintiff’s administrative appeal involve a “breach of contract” over which it lacks jurisdiction, proceedings on defendant’s counterclaim will be suspended.

CONCLUSION

For all the foregoing reasons, the fair and reasonable values of the traded-in and traded-out vessels were those found by the Assistant Secretary, as determined by the Contracting Officer. The decision of the Maritime Administration is supported by substantial evidence, is not arbitrary or capricious, and is not based upon errors of law. It is therefore, by Wunderlich Act standards, binding here. Accordingly, plaintiff is not entitled to recover on its claim. Defendant’s cross-motion for summary judgment is granted and plaintiff’s motion for summary judgment is denied. Plaintiff’s motion to dismiss the counterclaim is denied. Proceedings on the counterclaim will be suspended for a period of six months to await the conclusion of proceedings between the parties pending before the Maritime Administration. Defendant’s counsel is hereby designated reporting attorney responsible for advising the court, at intervals of 90 days or less, of the status of the proceedings before the Maritime Administration.

      . U.S. Department of Commerce, Maritime Administration/Maritime Subsidy Board Docket No. CA-43.

      . ex officio. Maritime Administrator, U.S. Department of Commerce.

      . The Vessel Exchange Act, Pub.Law No. 86-575 (July 5, 1960), 74 Stat. 312, 46 U.S. C. § 1160 (i) (1970), was an amendment to the Merchant Marine Act of 1936, 46 U.S.C. §§ 1101 etseq., (1970).

      . 68 Stat. 81, 41 U.S.C. §§ 321, 322 (1970).

      . 46 C.F.R. § 375.3 (k) (3) (1965).

      . Maritime Subsidy Board Docket No. CA-43.

      . Now entitled “Chief Administrative Daw Judge.”

      . Sea-Land also - argues that MARAD erred in rejecting the initial decision of the Chief Hearing Examiner, which recommended that plaintiff be reimbursed the $816,904.30 previously paid to MARAD. Plaintiff does not contend that MARAD’s failure to adopt that decision is error per se; rather, we understand it to be plaintiff’s position that MARAD erred in not adopting that decision because the Chief Examiner’s conclusion as to the fair and reasonable value of the vessels was correct, and his interpretation of the relevant statute, regulations and contract provision s was legally sound.
      We are engaged, of course, only to review the administrative decision, i. e., the final opinion and order of the Maritime Administration, under the Tucker Act, 28 U.S.C. § 1491, in accordance with Wunderlich Act standards, 41 U.S.C. §§ 321, 322. The correctness of the Chief Hearing Examiner’s findings and legal theories, to the extent they are now urged by plaintiff, will be considered in the course of this opinion.

      . We here consider the meaning of the statutory terms. The reasons why the parties agreed not to consider the cost of placing the transfer vessels in-class is discussed infra.

      . The parties are unable to cite us to any testimony at the legislative hearings which would aid us in unlocking the meaning of these terms, and our own investigation of the legislative history has led us to none.

      . 46 C.F.R. § 375.2(d) (1965).

      . “presently outstanding” repair items refers to those items already determined by the ABS to be needed but allowed to be deferred.

      . 46 U.S.C. § 1160 (i). The purpose for enactment of the original Merchant Marine Act was set forth in its “Declaration of Policy,” 46 U.S.C. § 1101, as follows :
      “It is necessary for the national defense and development of its foreign and domestic commerce that the United States shall have a merchant marine (a) sufficient to carry its domestic water-borne commerce and a substantial portion of the water-borne export and import foreign commerce of the United States and to provide shipping service essential for maintaining the flow of such domestic and foreign water-borne commerce at all times, (b) capable of serving as a naval and military auxiliary in time of war or national emergency, (c) owned and operated under the United States flag by citizens of the United States, insofar as may be practicable, (d) composed of the best-equipped, safest, and most suitable types of vessels, constructed in the United States and manned with a trained and efficient citizen personnel. It is declared to be the policy of the United States to foster the development and encourage the maintenance of such a merchant marine.”

      . The relevant point in time under this exchange contract for determination of class work necessary on the exchange ships was the date of redelivery rather than the date of exchange.

      . This finding is entitled to finality. 41 U.S.C. § 321; United States v. Carlo Bianchi & Co., supra. Plaintiff has not convinced us that it was arbitrary, capricious or unsupported by the evidence merely by citing us to Great American Ins. Co. v. Bureau Veritas, 338 F.Supp. 999, 1003 (S.D.N.Y.1972) and to United Distillers of America, Inc. v. T/S Ionian Pioneer, 130 F.Supp. 647, 649 (E.D.La.1955), aff’d 236 F.2d 78 (5th Cir. 1956), in which cases it was mentioned that the ships involved therein had lost classification.

      . Both parties agree that the “date of exchange” is May 13, 1965, the day on which the Exchange Contract was executed.

      . See note 13, supra.

      . 46 C.F.R. § 375.3(o) (1965).

      . 46 C.F.R. § 375.3 (k) (3) (1965).

      . Petition, at 17.


author: RICH, Judge.

text:
    The FALK CORPORATION, Appellant, v. TORO MANUFACTURING CORPORATION, Appellee.
    Patent Appeal No. 9190.
    United States Court of Customs and Patent Appeals.
    April 4, 1974.
    Rehearing Denied May 23, 1974.

      Allan W. Leiser, Milwaukee, Wis., Quarles, Herriott, Clemons, Teschner & Noelke, Milwaukee, Wis., attorney of record, for appellant.
    Thomas A. Lennon, Minneapolis, Minn., attorney of record, for appellee.
    Before MARKEY, Chief Judge, and RICH, BALDWIN, LANE and MILLER, Judges.
   RICH, Judge.

This appeal is from the decision of the Patent Office Trademark Trial and Appeal Board, 176 USPQ 221 (1972), sustaining, by a divided vote, an opposition to appellant’s application for registration of TORUS as a trademark for “rubber element shaft couplings,” serial No. 344,845, filed November 28, 1969. We reverse.

The Board Opinions

The majority of the board, after reciting five of appellee’s registrations of the mark TORO, reviewing its extensive advertising and sales of lawn-care equipment and parts therefor under the mark, and comparing TORO with TORUS, concluded there would be likelihood of confusion or mistake. The dissenting board member said TORO and TORUS do not look or sound sufficiently alike to make confusion, mistake, or deception likely and said the marks have no similarity in meaning. ,

The briefs of the parties are in agreement that the sole issue in this case is likelihood of confusion within the meaning of section 2(d) of the Trademark Act, 15 U.S.C. § 1052(d). However, that basic issue brings with it certain subsidiary issues.

Opposer’s Mark and Goods

Opposer, Toro Manufacturing Corporation (Toro), makes and sells, under the trademark TORO, a well-known, nationally-distributed line of lawn-care equipment or “turf products” ranging in size and cost from a small edge trimmer to tractor-drawn gang mowérs which will cut a 26-foot swath. Toro’s expenditures for advertising have climbed from over half a million dollars in 1962-63 to over a million and a half in 1970-71. There can be no question but that TORO is a very well-known mark in its field. The TORO line includes motorized reel, rotary, riding, and tractor-drawn lawnmowers of many kinds and sizes and other equipment such as snow throwers, tillers, brushes, and leaf blowers. Toro services all of this equipment, as is customary in such a business, by supplying replacement parts through a far-flung dealer and distributor organization. Since Toro has been in business for many years, this parts or “after market” business is very large. It is said to include from fourteen to fifteen thousand different parts, apparently including in that number many of the nuts and bolts. Toro’s evidence shows that the parts are, like the original equipment, sold under the trademark TORO by applying it to the packing slips, cartons, and labels or gummed tape used to close the shipping containers. When each piece of original equipment is sold, the customer receives with it an owner’s manual and a reference drawing and parts list, from which replacement parts can be ordered by part nulnber.

Applicant Falk’s Mark and. Goods

Appellant, The Falk Corporation (Falk), seeks to register TORUS as a wordmark for “rubber element shaft couplings.” The description of goods in the application as filed was “rubber element couplings.” The examiner rejected the application on a registration of TO-RUSEAL (with a circle design combined with the initial “T”) for “gaskets or seals of metal tubing for bolted flanges and flanged joints in housings, pipe lines, and combustion chambers,” Reg. No. 576,401, and called for additional information “as to the nature and/or use of applicant’s ‘rubber element couplings’.” In response, Falk amended its description of goods by inserting the word “shaft” and sent to the examiner the items on the following list appearing in the “Remarks” accompanying the amendment (bracketed matter added by us):

Bulletin 461-110 [a 16-page catalog entitled “FALK Torus Couplings type WA,” with the notice “Copyright 1967 and 1970 The Falk Corporation.”]

Direct mail piece 680902, “Falk Power Transmission News” [“TORUS COUPLING ISSUE,” Copyright 1969, 8 pages of description of the alleged six-year development, operation, and testing of the TORUS coupling.]

Advertisement 804 [a double-spread ad, undated, depicting a TORUS coupling in operation.]

Advertisement D812 [a one-page ad of the TORUS and two other Falk couplings, undated.]

Advertisement 2000-9 [actually 20000-9, a 2-page ad of a TORUS and two other Falk couplings, 1 page in full color, undated.]

Items [1] — [5] all bear the Patent Office Mail Room stamp dated “Dec 10 1970,” Item [5] was introduced into evidence by opposer in this opposition in the form of a copy (Ex. 17). The other items were not introduced into evidence by anyone during the trial period.

After the submission of this material and the amendment of the description of goods, together with argument, the application was passed to publication by the examiner and this opposition followed.

OPINION

What Is In Evidence

A preliminary legal question arises in connection with the determination of what is encompassed by Falk’s description of goods. The question is whether we can look at all of the materials which the examiner looked at. It arises because Falk’s brief asked us to look at the specimen filed with the application, which includes an exploded view of a Falk rubber element shaft coupling. Toro countered with the contention that it is “not properly of record” and “therefore cannot be considered,” quoting from the decision of the Trademark Trial and Appeal Board in M & T Chemicals, Inc. v. Stepan Chemical Company, 150 USPQ 570 (1966), as follows:

It is well established, however, that specimens or documentary material submitted with an application cannot be used as evidence in behalf of the party filing them unless identified and introduced in evidence as other exhibits during that party’s trial period.

Appellee’s quotation ends there but the board opinion continues, saying, “See: Rule 2.126.” Toro further cites the decisions of this court in In re Fielder, 471 F.2d 640 (1973), and Rexall Drug Co. v. Manhattan Drug Co., 284 F.2d 391, 48 CCPA 756 (1960). In neither Fielder nor Rexall did we pass on the question whether papers in a trademark application file are of record in an opposition. Fielder was a patent case and we merely refused to consider patents relied on by an applicant which were not of record. In Rexall we merely refused to look at third party trademark registrations which were not of record.

We think the question of our right to look at the specimen and the literature submitted to the examiner and contained in the application file of the opposed application is settled in the affirmative by Trademark Rule 2.122, which reads in part as follows:

2.122 Matters in evidence, (a) The files of the applications or registrations specified in the declaration of interference or in the notice in case of concurrent registration proceedings, of the application against which an opposition is filed, and of the registration against which a petition for cancellation or an affirmative defense requesting cancellation is filed,' form part of the record of the proceeding without any action by the parties, and •may be referred to for any relevant and competent purpose. . [Emphasis ours.]

Our purpose is to refer to the specimen and the literature submitted to and considered by the examiner to determine, as accurately as we can, what the description of goods means, which is certainly relevant to this proceeding, whatever a “competent purpose” may be. Now what of the M & T case and Rule 2.126 which it relied on ?

Trademark Rule 2.126 reads:

2.126. Allegations in application not evidence on behalf of applicant. The allegation of dates of use in the application for registration of the applicant or registrant cannot be used as evidence in behalf of the party making the same nor are exhibits attached to pleadings, or specimens in application and registration files, considered as evidence of use on behalf of the party who filed them, unless identified and introduced in evidence as other exhibits. [Emphasis ours.]

On the face of it, there appears to be some inconsistency between Rules 2.122 and 2.126. For the purposes of this case, however, it seems sufficient to note that we are looking neither to the specimen nor to the publications as evidence of dates of use by applicant or as evidence of use but as shedding light on what “rubber element shaft couplings” means. We therefore think that Rule 2.-122 is controlling and that 2.126 is not. We further note that in forwarding the certified transcript of the Patent Office record to this court the Certifying Officer, pursuing the normal procedure, notified us, on behalf of the Commissioner:

Attachments to Amendment, filed December 10, 1970 in Trademark Serial Number 344,845; and Third Party Registrations (55), filed with Notice of Reliance, December 13, 1971; will follow later.

These are deemed to be part of the record as certified, they did follow later, and we consider them to be part of the “file” of the application referred to in Rule 2.122.

The M & T case, which relied on Rule 2.126, cited by appellee, appears to us to be at least partially inconsistent with Rule 2.122. To that extent its ruling is untenable.

What Goods Are Described by Falk

Looking at the literature submitted to the examiner, as well as the specimen which shows one coupling, considerable light is shed on the nature of the goods described in Falk’s application because Falk makes, advertises, and describes a number of different shaft couplings and the literature discusses the shaft coupling problem. From consideration of this material, it appears to us that the goods described are mechanical couplings which couple a driving with a driven shaft, in end-to-end relation, to transmit rotary motion and must contain a rubber element for the purpose of compensating for various types of shaft misalignment, by virtue of the flexibility of the rubber. Thus, a “shaft coupling” couples two rotatable shafts and, of course, rotates with them.

Appellee’s Case

About a year ago we decided a case heavily relied on by Falk, Toro Manufacturing Corp. v. The Gleason Works, 474 F.2d 1401 (1973), in which we affirmed the dismissal of an opposition by Toro to the registration of the trademark TOROID for gears, among other things. There, as here, the board decision, by the same panel, was two to one, but the other way around, the majority saying the words “do not look or sound very much alike.” (167 USPQ 315.) Toro argued before us that because its TORO mowers etc. contain gears the goods “become identical.” We said:

There is no indication of record that the TORO mark is used on gears and, although appellant contends otherwise, we are not persuaded that there is likelihood of confusion merely because appellant’s lawn mowers and other goods sold under the TORO mark contain gears. [Emphasis ours.]

Falk here cites the Gleason case in support of its argument that TORO and TORUS are no more alike than were TORO and TOROID, and no more likely to cause confusion.

Toro, apparently endeavoring to remedy evidentiary deficiencies it saw in Gleason, has here tried to show by evidence that it uses its mark TORO on “the same identical goods” described in appellant’s application. It distinguishes this case from Gleason on the ground it has made such a showing. To do so Toro produced as a witness its Director of Distribution Control. Among other duties, he was in charge of replacement parts. He was examined by counsel about the owner’s manual parts lists supplied with four mowers and was asked to select therefrom anything which was a “flexible coupling.” He was not asked, we note, to find any “rubber element shaft couplings,” which is Falk’s actual goods description.

During the taking of the testimony of Toro’s witness on the sale of replacement parts, Falk was not represented and there was, therefore, no cross-examination. While it is not our duty to represent. a party who chose not to represent itself, it is our duty to examine the record to determine whether and to what extent the evidence supports the allegations of counsel and the decision of the board which is on appeal. We have to form a judgment on the claim — which is challenged by Falk — that Toro has been selling goods identical with those designated .in the Falk application, and, if so, the volume of such sales, which the board-, uncritically we think, found to amount to over $93,000 in a year. We will now consider what the evidence shows.

The first parts list Toro’s witness testified about was for the Toro 21" Power Greensmower. In it he identified three parts he said constituted a “flexible coupling.” Examination of the parts list and reference drawing shows they are a power takeoff (shaft), a coupling yoke, and a flexible coupling disc through which the shaft is coupled to a pulley. The pulley, in turn, is mounted on the engine drive shaft. We here note, for reasons which will appear, that a shaft is not a part of the shaft coupling.

The second parts list was for the Toro 76" Professional mower from which five parts were selected, namely, two “ball studs,” a rubber “ball socket,” a socket right half, and a socket left half. This connection has the structure of a ball- and-socket joint with a rubber “socket” or covering on the metal ball, being a kind of “flexible coupling” between a ball and something else, but not connecting two shafts. The ball studs are fixed into mower frame members. The socket apparently connects to a link, not to a rotating shaft.

The third parts list was again for an earlier model of the same machine as the second and involves similar parts.

The fourth parts list was for the Toro “Super Pro” mower, a 12 H.P. 3-reel unit which cuts an 81" swath. Selected from its parts as “flexible coupling” components were a shaft assembly, a complete torque limiter, an adjusting stud, a spring, a ball, and a key. It is noted that 4 each of the stud, spring, and ball are required in each unit. They are all parts of the torque limiter assembly which appears to be friction-drive clutch for connecting a shaft to a chain-driven sprocket.

We cannot conclude, as counsel for Toro would have us do, that all of the above-described parts are the “same identical goods” described as “rubber element shaft couplings,” when that description is read in the light of appellant’s disclosures to the Patent Office. The closest approach appears to be the yoke, disc, and pulley combination found in the 21" mower first described, which at least couples two shafts, albeit through the engine pulley. While it may be that the other parts found in the second, third, and fourth parts lists about which the witness testified are “flexible couplings,” which is what the witness was asked to look for, we consider that they are not “rubber element shaft couplings,” according to Falk’s goods description. To that extent we have to disagree with the contention of Toro’s counsel that sales of such parts are sales by Toro of “identical goods.”

We reach this conclusion on the basis of the parts lists themselves, which Toro put in evidence, and which contain the “reference drawings” and the names of the parts, showing with reasonable clarity what they are, where they are used, and how they function.

What is clear to us from these exhibits and the testimony is that Toro’s witness selected as parts coming within Falk’s goods description anything that connected a rod or a shaft, whether rotatable or not, and whether containing a rubber element or not, to another member. Many of the parts connect a rod to a metal ball fixed on the end of a stud fastened into a frame member, some of them involving a rubber covering on the ball which gives a degree of flexibility justifying classification as a “flexible coupling.” Some of them apparently do not involve any rubber element. The net result is a great exaggeration of the number of “rubber element shaft couplings” sold by Toro. This same exaggeration underlies the asserted dollar amount of Toro’s business in this field.

Toro alleges sales of over $93,000 worth of so-called “flexible couplings.” This amount was the total taken from a hand-written tabulation by the witness (Exs. 15-A, 15-B) which he said was “a partial list of parts sold by Toro Manufacturing that we consider to be flexible couplings.” It shows dollar sales of each of the. listed parts for 1970-71. The witness said it was “a random list of parts selected for this exhibit.” It lists many parts other than those selected from the four parts lists put in evidence and described above.

The first thing that detracts from the credibility of the alleged sales of $93,426.67 of “flexible couplings,” however, is the inclusion among such “couplings” of $8,221.52 worth of itemized shafts and rods. Assuming that a few of the parts listed are for rubber element shaft couplings, surely sales of the shafts and rods themselves are not sales of couplings. The next thing is that the last 5 items on the list, including the largest dollar item listed, are itemized as “U-Joint” for “Lawn Trac.” and “Riders.” We are directed to no evidence which explains what these items are, whether or not they connect shafts, or whether they contain rubber elements. They account for $28,931.39 of the total. The list contains a large number of “Ball Joints” for various mowers. We cannot check them all but we note total sales of two ball joint items we can check, part 3-8863 with sales of $7,-223.52 and part 5-3928 with sales of $3,081.00, which are not within Falk’s goods description but are ball joints attached to opposite ends of part 5-3927 which is cataloged as a “Rod, Push,” (Ex. 5, p. 6). We do not consider such parts to be “rubber element shaft couplings,” even should they contain rubber in the ball joints, which seems doubtful since none is indicated in the parts list. Without the aid of cross-examination or the chance of a complete check, the evidence thus shows us over $47,000 worth of items we consider not to be within Falk’s goods description. These eviden-tiary self-contradictions taint the whole computation.

In view of these matters, we cannot accept at face value, as the board seems to have done, the asserted amount of sales by Toro of parts falling within appellant’s description of goods. It is apparent to us that the amount is grossly exaggerated by reason of the witness’s mistaken assumption as to what Falk’s goods description encompasses. Toro’s counsel asserted at oral argument that Toro’s annual sales of parts is of the order of $6 .million. Feeling, as we do, that the asserted amount of Toro’s sales of parts falling within Falk’s description of goods must be drastically reduced, such sales were a miniscule part of its total parts sales and were not large sales of “identical” parts, as Toro alleges. So much for getting the evidence in proper perspective as a preliminary to deciding the basic question of whether appellant’s use of TORUS as a trademark on its goods would be likely to cause confusion, or mistake, or to deceive.

Likelihood of Confusion, Etc.

Toro made of record, by attachment to its Notice of Opposition, eight registrations. We find it unnecessary to discuss them in detail because none of them makes any reference, in the goods named, either to parts of the equipment listed or to couplings of any kind. Five of the registrations are of the wordmark TORO, two are for a design representing, in conventionalized form, mounted steer’s horns, referred to by Toro as “BULLS HEAD DESIGN.” The other registration combines the word TORO and said design. The design mark registrations are irrelevant. Because appellant’s goods are not within any of the registrations, Toro cannot prevail merely on the ground that “rubber element shaft couplings” may be contained in some of its machines. Toro v. Gleason, supra. We come, then, to the question whether it has here succeeded in establishing such use of the mark TORO, under section 2(d), on goods so related to appellant’s goods as to give rise to a likelihood of confusion, etc., taking into account the circumstances of such use.

Assuming Toro made sales, prior to appellant’s earliest date, of some unknown quantity of couplings within Falk’s goods description, we think the controlling factor here, on the issue of likelihood of confusion, is the manner of their sale by Toro. The evidence makes it clear that sales or offers of sale by Toro have been and are only as spare or replacement parts. The purchasers are either users of, repairers of, or dealers in Toro’s lawn-care equipment who have a need for a particular part for a particular machine. To determine what shall be purchased, reference must be had to a parts list containing a reference drawing of the machine and identifying parts numbers keyed thereto. Order for the goods is placed by part number. Normally, this order will be for a TORO part and placed through TORO’s distribution system with no possibility of confusion as to the source. Toro produced evidence, however, showing the existence of an independent parts distributor, Lawnmower Parts Manufacturing Co., Inc., which sells some parts for TORO lawnmowers. Its catalog shows the method of sale, which is the same as Toro’s. Reference drawings of TORO mowers by model name have annexed parts lists keyed to the drawings and listing two numbers, first the seller’s number and next Toro’s number, headed “Our Part- #” and “Replaces Part #,” respectively. It is clear that nobody ordering from this list could be in doubt as to the source of the goods. It is evident that in this category of spare parts merchandising the sales take place without any reference to or reliance on trademarks. Parts are ordered from catalogs by part number from whatever available source the buyer selects — either the original-equipment supplier or one of its distributors, or from an independent competitor of known identity and known not to be the maker of the machine for which the part is being ordered. It is simply not a buying-by-brand operation, but buying by a part number which is tied to a source.

As to the marks themselves, we see no point in discussing their similarities, differences, meanings, or lack of meaning to prospective purchasers of the parties’ goods. The only important point to note is that the marks are different, so it cannot be said that registration to Falk will in any way interfere with Toro’s use of its mark TORO on any goods.

Conclusion

Taking into consideration the differences in the marks and the nature of op-poser Toro’s business in its closest approach to the goods described in Falk’s application, namely, the selling of certain replacement parts in the manner above described, we see no likelihood of confusion, mistake, or deception and the decision of the board is therefore reversed.

Reversed.

MILLER, Judge, with whom MAR-KEY, Chief Judge, joins, dissenting.

The majority’s decision appears to rest on two erroneous premises, namely: that, to support a holding that appellant’s mark so resembles appellee’s mark as to be likely to cause confusion or mistake, the goods of the parties must be identical or interchangeable; and that confusion must be likely with respect to the goods of the opposer (appellee).

Thus, it is pointed out that the description of appellant’s goods is “rubber element shaft couplings”; whereas, ap-pellee’s witness identified parts under the description “flexible coupling.” Great emphasis is placed on the fact that appellee’s brief argues that the goods are “identical,” but the brief also argues prior use of the mark TORO on “other flexible couplings and other forms of coupling devices.” Moreover, nowhere in appellee’s notice of opposition is there any allegation that the goods are identical. Rather, appellee alleged that “Many of Opposer’s TORO brand products utilize couplings, which are in turn ultimately sold as individual repair parts under the TORO and BULL’S HEAD DESIGN marks”; and that “potential purchasers or users of Applicant’s shaft couplings, being well acquainted with Opposer’s marks and products, are likely to- assume that Applicant’s products originate with, or are related to, Opposer.” Merely because the evidence of record does not support a finding that the goods of the parties are identical or interchangeable does not mean that the evidence fails to sustain these other allegations. Notwithstanding that the goods of the parties are not identical and even when there are differences between the marks, this court has not hesitated to find a likelihood of confusion or mistake. In re Knapp-Monarch Company, 296 F.2d 230, 49 CCPA 779 (1961); Schenley Industries, Inc. v. Fournier, Inc., 357 F.2d 395, 53 CCPA 1046 (1966); Ford Motor Co. v. Sherman Ford, Jr., d.b.a. Ford Records, 462 F.2d 1405, 59 CCPA 1124 (1972),

Contrary to the majority’s statement that the question is whether appellee “has here succeeded in establishing such use of the mark TORO, under section 2(d), on goods so related to appellant’s goods as to give rise to a likelihood of confusion, etc., taking into account the circumstances of such use,” section 2(d) refers to refusal of registration of a mark which, “when applied to the goods of the applicant,” is likely to cause confusion or mistake. In the absence of some limitation in appellant’s application or in appellee’s registration, the evidence here clearly shows that the goods of the parties . (couplings) are similar. This raises the presumption that the goods move in the same channels of trade. Esso Standard Oil Company v. Bigelow Clark, Inc., 266 F.2d 804, 46 CCPA 883 (1959). Appellant failed to come forward with any evidence to rebut this presumption, and the specimen and literature considered by the examiner certainly do not rebut this presumption. Although TORO parts are sold as spares or replacements under parts numbers, so that TORUS couplings would probably not be purchased for these because of confusion or mistake, the movement of these goods in the same channels of trade (primarily independent hardware stores) lays a foundation for confusion or mistake on the part of those who buy TORUS couplings in attributing the' source thereof to TORO, and this is a necessary question to be decided by the court.

I agree with the majority of the board that the record establishes TORO as a strong mark for tractors, mowers, related machinery and parts thereof; and that the marks TORO and TORUS are sufficiently similar in sound and appearance to establish that there would be a likelihood of confusion or mistake when used contemporaneously on the similar goods of the parties. See Paula Payne Products Company v. Johnson Publishing Company, Inc., 473 F.2d 901 (CCPA 1973).

The decision of the Trademark Trial and Appeal Board should be affirmed.

      . The examiner said in his action:
      If applicant has any advertisements or promotional material dealing with the instant goods, it is requested that a copy be furnished for the record. See Trademark Rule 2.61(b).
      The cited rule says:
      (b) The Examiner may require the applicant to furnish such information and exhibits as may be reasonably necessary to the proper examination of the application.

      . Among other things, this advertisement states: '
      What’s the Torus? It’s Falk’s new tor-sionally flexible coupling that smothers jolts, jerks and shakes before they get into machinery.
      * * * sH
      For more than 30 years, Falk has successfully made and sold other types of rubber element couplings. Now we’re adding the Torus coupling for general industrial application. After more than six years of lab torture and life tests, as well as actual field tests on ball mills, runout tables, crushers, centrifugal pumps and conveyors, we’re confident that Torus is ready for you.

      . There also appears to be inconsistency between rule 2.126 and rule 2.122(b) with respect to “exhibits attached to pleadings,” which might be an opposer’s registrations attached to a Notice of Opposition which Rule 2.122(b) says will be “received in evidence and made part of the record if two copies showing status and title of the printed registration or an order for such copies accompany the opposition * *

      . In Hardigg Industries, Inc. v. Toro Manufacturing Corp., 173 USPQ 813 (1972), the Trademark Trial and Appeal Board sustained Toro’s opposition to the registration of Toro-Pad for plastic pads for absorbing and dissipating shocks, which' obviously differs from opposer’s mark Toro only in the addition thereto of the descriptive word Pad. We affirmed without a published opinion, 180 USPQ 403 (COPA 1974).
      Rule 5.12(g) of this court, effective January 1, 1974, provides that unpublished opinions “shall not be cited as precedent.” In referring to our decision of affirmance, reported at 180 USPQ 403, we are not citing an opinion. In these matters it is essential to distinguish between decisions (affirmed, reversed, etc.) and the opinion giving the supporting rationale. See In re Facius, 408 F.2d 1396, 56 COPA 1348 (1969), footnote 9.