author: ROBERT P. ANDERSON, Circuit Judge;

text:
    In the Matter of Contempt Proceedings against Robert F. WILLIAMS.
    No. 74, Docket 73-2697.
    United States Court of Appeals, Second Circuit.
    Argued Sept. 30, 1974.
    Decided Jan. 10, 1975.

      Melvin L. Wulf, American Civil Liberties Union Foundation, New York City (Leon Friedman, American Civil Liberties Union Foundation, New York City, on the brief), for appellant.
    Gerald A. Rosenberg, Asst. U. S. Atty., S. D. N. Y. (Paul J. Curran, U. S. Atty., S. D. N. Y., Dennison Young, Jr., and John W. Nields, Jr., Asst. U. S. Attys., S. D. N. Y., on the brief), for appellee.
    Before HAYS, ANDERSON and MANSFIELD, Circuit Judges.
   ROBERT P. ANDERSON, Circuit Judge;

The case of Robert F. Williams v. Trans World Airlines was tried in the United States District Court for the Southern District of New York from October 12, 1973 through October 16, 1973, before Honorable Richard H. Levet, Judge, sitting without a jury. The suit was based upon a claim for damages by Williams, who had a valid and confirmed ticket on a particular flight by Trans World Airlines (TWA) from London, England to Detroit, Michigan, but who was refused carriage on the designated flight by TWA, allegedly because of unjust discrimination and racial prejudice in violation of the provisions of 49 U.S.C. § 1374(b). The district court held, however, that under the circumstances concerning Williams and his proposed air flight, TWA was authorized and justified under 49 U.S.C. § 1511 in refusing him passage. Williams appealed and the judgment has been affirmed by this court.

Several times in the course of the trial the district judge threatened to hold Williams in contempt but actually deferred doing so until the end of the trial against TWA. During the morning of the last day of the proceedings the court issued an order to Williams to show cause why he should not summarily be held in contempt “by reason of disorderly conduct, failure to obey the instructions of the court, volunteering answers, [and] improperly attempting to question the court.” After both sides had rested later in the day, the court took up the show cause order. At the time the order issued there was a mixture of argument and testimony by Williams and his counsel, which ran on for a dozen and a half pages of transcript, until the court terminated it. There was no statement by Williams or argument by his counsel at the time the court declared him guilty. Following these introductory comments we turn to a recitation of the events leading to the contempt citation.

Because of an unavoidable delay in traveling from Michigan to New York, Williams was unable to reach New York in time for the commencement of the trial on Friday, October 12th, but counsel stipulated that the witnesses for the defense could testify first and the plaintiff could follow on Monday, October 15, which he did. As a result of this arrangement Judge Levet had heard the evidence about Williams’ allegedly dangerous character, his schizophrenia, his habit of carrying arms, his tendency toward violence, revolution and political protest against racial segregation and unfair treatment of black people, as well as the information that Williams was under indictment for kidnapping in North Carolina and that he had been and still was a fugitive from justice. The judge was well aware of the many instances in which racial protest had been carried into the courtrooms for the purpose of disrupting and making a shambles out of the trials sought to be conducted there. By Monday, October 15th, when Williams testified, Judge Levet was reasonably certain that the court would probably be faced with protests against racial prejudice, disruption and obstruction to the orderly conduct of the trial. He was properly aware of his duty as the presiding judge to maintain order in the court and to keep the proceedings within lawful bounds. It is also apparent that he was determined to excise, at its very inception, the slightest indication of any deviation from his procedural directions, particularly anything on the part of the plaintiff or his counsel, which suggested argumentation or dissertation on matters involving race prejudice or socio-political theories.

The main thrust of the plaintiff’s case was that TWA had acted unreasonably in refusing him passage from London to Detroit in fulfillment of the ticket plaintiff had purchased, and that TWA had been derelict in its duty in not investigating the FBI’s sources of information against him. In his brief he says,

“In pursuit of that theory, plaintiff intended to show at trial, at no great length, the racially segregated condition of life in Monroe, North Carolina; plaintiff’s leadership there in the black struggle for equality; the threats and attempts that had consequently been made against his life; that for that reason he had frequently carried weapons with him for self-defense; and the extreme bias against plaintiff by the Monroe, N. C. police, who were the source of the information contained in the FBI Wanted Bulletin.”

Judge Levet ruled the offer of evidence of Williams’ personal history, his struggles to overcome segregation, his conflicts with the Ku Klux Klan and the probable sources of the FBI’s information to be irrelevant to plaintiff’s claims against TWA but said he would admit some of it but “just generally” and indicated it would have to be connected with TWA and the making of its decision to refuse passage to Williams. In this context and obviously motivated by his apprehension that the case could easily get out of hand and be turned into a disorderly and disruptive protest demonstration, he endeavored to keep a very tight rein on Williams’ testimony and showed curtness and impatience in limiting Williams’ answers to questions. Although the contempt certificate speaks in conclusory terms of four different types of offenses against the court, there were no findings; an examination of the minutes of the trial, however, reveals that the offenses most frequently charged in the course of the trial, were “volunteering answers” and “failure to obey the instructions of the court,” principally in testimony regarding various aspects of racial discrimination which, in the trial court’s opinion, either went beyond the bounds of the court’s “just generally” ruling — never clearly defined — or were not responsive to the questions asked.

From the advantageous standpoint of hindsight, which is afforded a reviewing court, it becomes abundantly clear that the circumstances which generated the subject matter of the contempt were brought about by two fatal misconceptions. The first, on the part of the trial judge, was the assumed likelihood that the plaintiff would attempt to disrupt the orderly processes of the trial and use the proceedings as a sounding-board for racial protest and the enunciation of his socio-political views. The second was on the part of the plaintiff who, after years of struggling to combat the evils of race prejudice and discrimination, which had followed him like a malignant shadow practically all of his life, appraised the thoughts and motivations of others and the meaning and significance of actions and events, when adverse to him or his interests, as manifestations of racial discrimination. At the trial he became convinced that the trial judge was strongly prejudiced against him as a black man and that the judge’s rulings and instructions stemmed not from the application of recognized principles of law, but from racial prejudice. This conclusion was reinforced in his mind when the court became increasingly strict in limiting the plaintiff’s testimony as well as being severely critical of his responses to his attorney’s questions on direct examination.

Whatever else may be said of Judge Levet’s conduct of the trial, there is no evidence whatever to support the notion that his actions at any time were tainted or slanted by considerations of color or race.

Moreover, it is reasonably clear from the record before us that Williams, when he took the witness stand, had no intention or purpose to disrupt or delay the proceedings. This was further evidenced by his stipulation that the trial start two or three days before he could be present. As he now argues, he came into court as a plaintiff in a civil action, seeking the recovery of damages, and not as a defendant in a criminal case who was brought in against his will. There was nothing about his speech or conduct during the very inception of his testimony which would tend to confirm the court’s fears. Early in the plaintiff’s testimony, however, the court quite properly questioned the relevancy of plaintiff’s counsel’s question asking for a description of the conditions of racial segregation in Monroe, North Carolina in Williams’ childhood. A short colloquy between court and counsel ensued and the court decided to admit the question but limited the scope of the answer by saying, “Just generally, sir.” Although repeatedly thereafter the court declared to be irrelevant testimony regarding racial segregation and discrimination and the claimed false and prejudicial information given to the F.B.I. upon which its bulletin and reports were allegedly based, it continued to permit plaintiff’s counsel to ask Williams to testify about similar matters in connection with the background for the kidnapping charge against Williams in North Carolina. The trial judge many times cautioned the plaintiff against volunteering and failing to confine his answers to the precise bounds of the questions. Unfortunately, however, the court was not entirely consistent in this regard and the record shows that at times Williams was tacitly encouraged to say more than a strict interpretation of the question called for. When the judge questioned the relevancy of plaintiff’s counsel’s “theory of the case,” that the FBI bulletin and reports were based upon information given the FBI by the Monroe, N. C. police, who fabricated it out of racial hostility and prejudice against the plaintiff, counsel did not try to support his position by legal argument to the court but instead made emotionally toned attacks on the judge and his rulings which reinforced Williams’ conviction that the judge was prejudiced against blacks and against him in particular.

On redirect examination of Williams the court took over some of the questioning, which concerned the origins of the kidnapping allegation; in the course of it the court charged Williams with volunteering testimony. The plaintiff then accused the judge of an act of white supremacy and declared that the court was a white supremacy court. The court issued an order to Williams, “to show cause now during the trial of this case, . . . why he should not be held in contempt . . .” The court then asked plaintiff’s counsel if he had anything to say, and counsel charged the judge with being responsible for and provoking the statements and behavior on the part of the plaintiff which the court regarded as contempt. He also accused the judge of “baiting” him and his client and of being impatient, hostile and rude. There followed argumentative colloquies between the judge and plaintiff’s counsel and with the plaintiff himself. Although the court had stated that it intended to go forward immediately with the contempt citation, it did not do so. After the arguments between the court and the plaintiff and counsel, the redirect examination of the plaintiff resumed and was followed, by recross-examination. Both parties then rested and counsel made their arguments in Williams v. Trans World Airlines. At thé conclusion of the trial the contempt charge was taken up. Although the court referred to the proceeding as a civil contempt, it was a criminal contempt arising out of a civil action. See In Re Union Nacional de Trabajadores, 502 F.2d 113, 120 (1 Cir. 1974). The civil action itself was tried to the court alone, without a jury, and the rulings on evidence did not follow objections by counsel for TWA. In fact, in the course of the trial TWA’s counsel offered few, if any, objections or motions to strike. The court itself raised practically all of the questions on admissibility in an effort strictly to confine Williams’ testimony to what it considered relevant. Its manner of doing so appears to have been peremptory and brusque, which convinced Williams that the court was intent upon preventing him from proving his case because he, Williams, was black. While we are satisfied that the court was at no time motivated by any such consideration, the lack of clarity between what testimony was relevant and what was irrelevant, the lack of definite and unambiguous instructions to Williams, as a lay witness, as to what constituted a full and responsive answer to a question which did not, at the same time, become so extended that it crossed the boundary into the forbidden realm of testimony volunteered, i. e. that it went beyond the reasonable scope of the question, raises serious doubts as to the propriety of the citation for contempt. There are also issues concerning the lack of certification and of findings of fact, and whether in his colloquies with the plaintiff and with plaintiff’s counsel the trial judge personally embroiled himself in a running controversy with the plaintiff and plaintiff’s counsel.

The charge itself consisted of four conclusory allegations: disorderly conduct, failure to obey the instructions of the court, volunteering answers, and improperly attempting to question the court. For the purposes of review the lack of certification and the absence of factual findings which would state explicitly on what conduct each of these charges is based, are serious omissions. Rule 42(a), F.R.Crim.P., dealing with summary disposition in criminal contempt requires that the order of contempt “shall recite the facts . . . .” The trial court prefaced its order by saying, “. . .it appearing from said hearing and from the record of the trial ,” but this court, speaking through Judge Smith, had already ruled upon the inadequacy of such a procedure in reviewing a contempt order by the same trial judge,

“If in basing the contempt conviction ‘upon * * * the record of this court’ Judge Levet intended to rely upon all the other contumacious incidents set forth in the government’s appendix, we would doubt whether the certificate was sufficiently informative. While a certificate in support of a summary contempt conviction need not and probably should not set out all the relevant incidents verbatim from the record, it should summarize them, with appropriate references to the record, in such a way as to make clear their nature and contumacious tendency.” United States v. Galante, 298 F.2d 72 at 75, n. 1 (2 Cir. 1962).

Pietsch v. President of United States, 434 F.2d 861, 864 (2 Cir. 1970), cert. den. 403 U.S. 920, 91 S.Ct. 2236, 29 L.Ed.2d 698 (1971). See also United States v. Schrimsher, 493 F.2d 842, 845 (5 Cir. 1974), which quotes, with approval, from United States v. Marshall, 451 F.2d 372, 375 (9 Cir. 1971), as follows:

“ ‘Informed appellate review’ is possible only if the facts are stated in sufficient detail for the appellate court to determine whether the conduct upon which the conviction rests was contemptuous, factually and legally; whether it was of such character, and occurred in such circumstances, as to permit summary conviction under Rule 42(a), and because Rule 42 sentences are subject to appellate review and revision, whether the conduct relied upon justified the sentence imposed.” (Footnotes omitted.)

With regard to the trial judge’s personal embroilment in disputes over evidentiary issues which involved increasing personal overtones between the trial judge and plaintiff’s counsel and between the judge and the plaintiff, a thorough study of the entire record discloses that these personal attacks and counter-attacks started early in the trial and culminated in the citation for contempt. It is true that the provocations ran both ways, but “. . . instead of representing the impersonal authority of law, the trial judge permitted himself to become personally embroiled with the petitioner” and his counsel. Taylor v. Hayes, 418 U.S. 488, 94 S.Ct. 2697, 41 L.Ed.2d 897 (1974); Offutt v. United States, 348 U.S. 11, 75 S.Ct. 11, 99 L.Ed. 11 (1954). This raises the question of whether the contempt issue should have been heard by another, judge who was not presiding at the time of the charged misconduct. But for reasons hereinafter stated we do not need to pass upon this claim in the present case.

The minutes of the trial make clear that the most frequent and most serious transgression in the view of the trial judge, on the basis of which he found the plaintiff in contempt, was plaintiff’s proclivity to volunteer testimony which, once repeated, also constituted a failure to obey the instructions of the court. Although the trial judge was satisfied that Williams knew what “volunteering” meant and Williams’ counsel had, at the direction of the court, privately informed Williams what was meant by it, the record does not disclose what those instructions were. Williams appears to have been intelligent and articulate and was making a good faith effort to answer the questions propounded to him in a responsive and responsible manner. As a layman he did not understand the rules of evidence and could not fully comprehend what constituted a complete and responsive, but narrowly precise answer to a specific question, particularly in view of the judge’s rulings which called for the most terse and literal response conceivable to a specific question.

The matter was further confused by the court, in several instances, by permitting what it had been referring to as volunteering and therefore prohibited, to be received in evidence. Moreover, instead of ruling out as entirely irrelevant the early history of Williams’ life, his experiences with racial segregation and like matters, the court ruled it could be testified to, but “just generally.” A lay witness should not be held in contempt where there is ambiguity in the court’s directions. Granny Goose Foods Inc. v. Teamsters, 415 U.S. 423, 444, 94 S.Ct. 1113, 39 L.Ed.2d 435 (1974), citing International Longshoremen’s Ass’n v. Philadelphia Marine Trade Ass’n, 389 U.S. 64, 76, 88 S.Ct. 201, 19 L.Ed.2d 236 (1967). The court’s rulings on relevancy and on volunteering testimony were likely to confuse a layman, and Williams received no apparent help from counsel. “. . . [W]here there is ambiguity in the court’s direction, it precludes the essential finding in a criminal contempt proceeding of willful and contumacious resistance to the court’s authority.” United States v. Joyce, 498 F.2d 592, 596 (7 Cir. 1974).

It is true that the record discloses several instances where it may be said that the plaintiff was discourteous and accusatory in his addresses to the court, particularly when he said that the judge was prejudiced and a racist, exercising white supremacy, and that the court was a white supremacy court. But the appellee expressly disclaims that the contempt order was based on these statements. In other circumstances such conduct might be held to be contumacious. Nothing in the record suggests that these remarks were accompanied by rude and hostile gestures, nor was Williams loud or boisterous or brazenly hostile. To Warrant a conviction in criminal contempt, the contemnor’s conduct must constitute misbehavior which rises to the level of an obstruction of and an imminent threat to the administration of justice, and it must be accompanied by the, intention on the part of the contemnor to obstruct, disrupt or interfere with the administration of justice. Eaton v. City of Tulsa, 415 U.S. 697, 94 S.Ct. 1228, 39 L.Ed.2d 693 (1974); In re Little, 404 U.S. 553, 92 S.Ct. 659, 30 L.Ed.2d 708 (1972); United States v. Seale, 461 F.2d 345, 367 — 368 (7 Cir. 1972). A thorough review of the entire record in this case fails to disclose evidence sufficient to prove beyond a reasonable doubt that the plaintiff possessed such an intent in this case.

The judgment holding Williams in contempt is reversed.

      . 369 F.Supp. 797 (S.D.N.Y.1974).

      . 49 U.S.C. § 1511 reads:
      “Authority to refuse transportation. Subject to reasonable rules and regulations prescribed by the Administrator, any air carrier is authorized to refuse transportation to a passenger or to refuse to transport property when, in the opinion of the air carrier, such transportation would or might be inimical to safety of flight.”

      . 509 F.2d 942 (2 Cir. 1975).

      . The entire order in summary contempt, holding Williams guilty, is as follows:
      “The undersigned Judge of the United States District Court for the Southern District of New York having heretofore directed that the above-mentioned R. Franklin Williams show cause as to why he should not be held in contempt by reason of disorderly conduct, failure to obey the instructions of the court, volunteering answers, improperly attempting to question the court, and a hearing having been held thereon on Tuesday, October 16, 1973 in court room 2704, during the trial of the above-entitled action, and the court having heard Melvin L. Wulf, Esq. of the American Civil Liberties Union, counsel for the said Williams, in opposition, and the court having heard the said Williams in opposition thereto, and it appearing from the said hearing and from the record of the trial of the above-mentioned action in which the said Williams was the plaintiff that no adequate reason was submitted as to why the said Williams should not be held in civil contempt of this court- by reason of disorderly conduct, failure to obey the instructions of the court, volunteering answers, improperly attempting to question the court, it is hereby
      Ordered that the said R. Franklin Williams be and he is hereby held in civil contempt of this court and that he is fined the sum of Fifty ($50.00) Dollars to be paid to the cashier of this court in room 602, United States Court House, Foley Square, New York City, New York, and an application having been made by counsel for the said Williams to stay any enforcement proceedings herein pending.an appeal, the time of payment of the said fine is hereby deferred until the disposition of any appeal or the dismissal thereof or as otherwise ordered.”

      . Examples of these are the following:

        Direct examination of Williams

      (A) “Q. Were you raised in Monroe, North Carolina, also?
      A. Yes, I was raised in Monroe, North Carolina, and lived in the same house all my life.
      The Court: Nobody asked you that, Mr. Williams.
      Proceed. You understand what I mean, I hope. He volunteered some information.
      Mr. Wulf: Yes, your Honor.” [Tr. 82]
      $ ifc % * !)! 8(i
      (B) “Mr. Wulf: May I explain to your Honor?
      The Court: No. I have agreed to take your question. Now, go on. Let’s have more testimony and less argument.
      Mr. Wulf:
      Q. Would you describe the conditions of racial segregation that existed in Monroe, North Carolina, during your childhood?
      The Court: Just generally, sir.
      The Witness: Well, if you are going to tell me what to say—
      The Court: Yes', I am going to tell you what you may say. Let’s get straightened out right away. I am the judge in this court. I have a duty to determine what questions may be answered. I hope you understand that.
      The Witness: Yes.
      The Court: In any event, that is my ruling.
      The Witness: Yes. I hope you won’t be prejudiced in your ruling.
      The Court: I am not going to be prejudiced in my ruling. I resent that statement from you, sir.
      The Witness: I resent being discriminated against in this country.
      The Court: I haven’t discriminated against you. I don’t take any more except the question which was asked, which you are allowed to state, but I said to be brief and general about it. I am not going to take a book on this subject.” [Tr. 84-85]
      (C) “Q. Would you answer the question, please, Mr. Williams.
      A. Yes. I lived in a racist town that was—
      The Court: A what?
      The Witness: In a racist town that was—
      The Court: What do you mean by that, sir?
      The Witness: I mean they had signs on the water fountain that said, ‘White only.’ I meant that I was arrested for sitting on a lunch counter stool reserved for white people only in a public place. It was a place where they brutally beat black people in the Police Department where there was no Fourteenth Amendment to the United States Constitution. That’s what I mean by a racist town. I mean- that as a child I saw the Chief of Police who was over 6 feet tall drag a black woman up the street by her heels because he said that she was — •
      The Court: Are you through now?
      The Witness: If you want me to be through, I’m through.
      The Court: I think you have said enough on that subject. Counsel, I want to call this to your attention. The fact that this plaintiff was raised in a so-called racist town has nothing to do with what this defendant did.
      Go on with this case.” [Tr. 84-86]
      ******
      (D) “Mr. Wulf: I have been trying to explain for two days. You won’t listen to me.
      The Court: I am not going to listen to any such thing. I don’t think it’s relevant to this case.
      Ask your questions specifically and I will rule on them if they seem to be off the track or if an objection is made. I am merely saying that it seems to me in all fairness here that the proof should relate to the cause of any act on the part of TWA which is unauthorized and is not borne out by some history of several years ago in the Town .of Monroe.
      Mr. Wulf: That’s because, your Honor, if I—
      The Court: I will not listen to any more argument.
      Do you understand me?
      Mr. Wulf: I understand.
      The Court: When I rule on a question of evidence, that’s going to be it.” [Tr. 86-87]
      ******
      (E) “Mr. Wulf: Since there’s no motion to dismiss this and since we are here trying the case on the evidence, I will proceed and ask further questions along that line.
      The Court: Not on this general subject.
      Mr. Wulf: Are you ruling out questions about the condition—
      The Court: Ancient race, yes, of his boyhood or whatever it was.
      Mr. Wulf: How about adolescence, your Honor, can I proceed on that?
      The Court: No.
      Mr. Wulf: His adulthood?
      The Court: I am going to ask you and your adversary to come into the robing room.
      (In the robing room.)
      The Court: I want to say, Mr. Wulf, that I regret very much to have to do this. When I try cases, I believe I am competent after 17 years on. this bench to determine what is or what is not an issue, and I am going to tell you now, as I have told you before, that I don’t expect to have arguments over evidentiary questions, and if you go on in this manner, I shall have to consider asking you to show cause why you shouldn’t be held for contempt. That is all. We will go back to the courtroom.” [Tr. 87-88]
      (F) “The Court: You are not going to ask again about the issues which I have just decided.
      Mr. Wulf: Are you ruling out questions about anything relating to the background of the kidnapping charge which was what—
      The Court: You didn’t ask about that at all, counsellor, so far.” [Tr. 88]
      ******
      (G) “Q. What period of time was it that you carried those weapons in your car?
      A. During the time that many threats—
      The Court: No, strike that out. By year, date or month.
      Q. Just the period of time, month and year.
      A. From 1957 to 1961 when four attempts—
      The Court: Wait. I want to instruct you. You are not to volunteer answers. Simply answer the questions which your lawyer propounds to you.
      Do you understand me?
      The Witness: Yes.
      The Court: All right. Strike out anything except what he said about carrying weapons in his car in 1957 through 1961.” [Tr. 96]
      ******
      (H) “The Court: Did you have a permit?
      The Witness: It wasn’t necessary in the State of Carolina.
      The Court: Strike that out, it wasn’t necessary.
      The Witness: Because the law—
      The Court: I said strike it out. Counsellor, you understand what I mean. If this goes on, I shall have to resort to other efforts here, counsellor. I cannot conduct this case—
      Mr. Wulf: I—
      The Court: Wait a minute. I cannot conduct this case with this witness proceeding as he does and volunteering. Do you understand me? You must not volunteer. Do you know what that word means?
      The Witness: Your Honor—
      The Court: Don’t argue with me.
      The Witness: I’m asking you a question. ■
      The Court: You are not going to ask me questions. Your lawyer is going to ask you questions.
      The Witness: But you—
      The Court: Strike that out.” [Tr. 97]
      ******
      (I) “The Court: When did you first learn about the FBI warrant?
      The Witness: In September, your Hon- or, of 1961 I learned from the radio that the FBI had issued an all points bulletin. The Court: That was only a few days after you left Monroe?
      The Witness: Yes.
      The Court: All right.
      Q. Did there come a time, Mr. Williams, when you decided to return to the United States to surrender to the Federal Bureau of Investigation?
      A. Yes.
      Q. When was that? When did you decide to return? When did you make the decision to return?
      A. I actually tried to return in 1965 from Cuba, but I couldn’t get the necessary documents to enter this country from the State Department. So I went to China in 1966, and in 1967 I wrote from Peking—
      The Court: You did what?
      The Witness: I wrote a letter from Peking, China, in 1967 to the officials in North Carolina—
      The Court: What officials?
      The Witness: The court official, the clerk of court and the prosecutor of Union County Court asking what I had been indicted for, if they would inform me of the statute they had indicted me under and if they had any additional warrants for me other than the 1961 warrant.
      I received letters from them stating that there were no additional warrants in 1961 and I expressed the desire that I was coming back.
      The Court: You did what?
      The Witness: I expressed to them my determination to return.” [Tr. 108-109]
      ■c * * * * *
      (J) “Q. Did they issue passports for your wife and two sons?
      A. Not then. I requested because I was hoping—
      The Court: Never mind what you were hoping. The answer is no.
      A. (Continuing) No.
      The Court: All right.” [Tr. 113]
      ******
      (K) “The Court: Had you done anything with respect to your American citizenship while you were in Canada or in China or in Tanzania? Had you rejected, if you please, or had you given up your American citizenship at any time?
      The Witness: No, your Honor. I insisted that-—
      The Court: I didn’t ask you what you insisted about. The answer is no.” [115]
      ******
      (L) “The Court: Did you tell them you had some other place to go?
      The Witness: Yes.
      The Court: What did you tell them?
      The Witness: I told them that I had a ticket—
      The Court: No, some other place to stay, I should have said, in London that night.
      The Witness: No, I told them I had money, that I could go to a hotel.
      The Court: All right.
      The Witness: They said I couldn’t go to a hotel. They wanted to make sure that I would be on that plane the following morning.
      The Court: I see.
      Q. So you spent the night of September 5 in jail, right?
      A. Yes.
      Q. In prison?
      A. Yes.
      Q. And on the morning of September 6th, the day of your scheduled flight to Detroit, what happened?
      The Court: What date was this again?
      Mr. Wulf: The morning of September 6, your Honor.
      The Court: Yes. What happened?
      The Witness: They came to this dungeon and they said for me to get ready to go. I was going out into the reception area of the prison.
      I went out and the warden said, ‘Well, you are going to leave this morning.’ This was about 9 o’clock.
      He said, ‘You are going to leave.’
      I asked him if he was sure.
      He said, ‘Yes, they are coming to pick you up.’
      I was sitting around out there in this reception area. He offered me coffee and everything and checked me out, gave me back my belongings.
      Then at 10 o’clock I asked again, ‘How can I catch a plane at 10 o’clock when it’s already 10 o’clock?’
      He said, ‘Well, I don’t know, but I thought sure those fellows were coming for you.’
      I asked him if he would call.

        The Court: Did he say what fellows?
      The Witness: The CID, yes. I asked him if he would call to find out why. He called and he said, ‘Well, you’ve got another problem now. We are willing to let you go, but you can’t leave because TWA has cancelled your flight. TWA is refusing to take you.’
      Q. Who told you that?
      A. The warden.
      Q. All right.
      Continue.
      A. And I told him I had a ticket and a reservation.
      He said, ‘No, they are refusing to take you.’
      I asked him if he would see if I could go on another airline.
      He said, ‘No, you can’t go on another airline. They even asked our airline not to take you. TWA is not only refusing to take you, they are asking all other airlines to cooperate with them in this.’ So he said, ‘You are going to have to go back through this procedure.’
      So I had to go back through the procedure of confinement again. They had to search me again, they had to take away my — the papers that they had given me. They had to take back my money and my belongings, and then they put me back again. Instead of the dungeon, they just put me in a regular cell, in a regular prison.
      The Court: They gave you something to eat?
      The Witness: Yes, they brought food, but the food was in a dirty pan. I didn’t want the food and I didn’t accept it.” [Tr. 131-134]

        Cross-examination of Williams

      (M) “A. I owned two pistols and a rifle, and on some occasions I did. It wasn’t just a practice that I just carried it. There was a reason.
      The Court: At times at least you did that; is that so?
      The Witness: Yes, your Honor, and maybe now I can state why—
      The Court: No, nobody asked you that. You don’t answer questions unless they are asked. I have said that several times. I am not going to have to tell you that again.” [Tr. 163]
      ******
      (N) “Q. Did you receive national publicity? Was your position stated, printed in The New York Times?
      A. Yes, because I was—
      The Court: Never mind because. Did you hear me? I have said several times not to volunteer.
      The Witness: I was only answering the question.
      The Court: If this goes on again, I am going to stop and I will do something else.
      Counsellor, I must admonish the witness. Counsel has a right to cross-examine without arguments from a witness being cross-examined.” [Tr. 166]
      * * * * * *
      (O) “Mr. Warner: I am not putting it in for that reason.
      Mr. Wuif: You are putting it in for the libel.
      The Court: Address the Court, sir.
      Mr. Wulf: That is my only reason.
      The Court: Overruled.
      Q. Do you recall that?
      The Court: Answer the question.
      The Witness: I don’t know whether I should answer it or not.
      The Court: You have to answer it.
      The Witness: I don’t want to upset you. The Court: I am not upset. I am merely trying to keep this in an orderly fashion.
      Answer the question.
      The Witness: Is this TWA? You said you didn’t want me to go into the history of racism.
      The Court: Counsel, I shall have to advise this witness that if he continues along these lines, to repeatedly argue with Court and counsel, I shall consider before the close of this case holding him in contempt. You may advise him now if you want to privately up at the witness stand. I am not going to have this continue.” [Tr. 167-168]
      * * * * * *
      (P) “A. To the best of my knowledge, that is not exactly what I read. I suppose there is different editions of The New York Times. I didn’t have access to The New York Times at the time that these stories were being written.
      Another thing that I would like to ask—
      The Court: You don’t ask questions. Get that out of your head.” [Tr. 174]
      * * * * * • *
      (Q) “The Court: You say you don’t recall whether that piece was so published? What is your answer?
      A. The answer is — •
      The Court: Don’t make any speeches, just answer the question.
      The Witness: The answer is because of forgeries I have to identify each piece—
      The Court: That’s no answer.
      Go on, counsellor.
      The Witness: I can’t remember everything I said in my lifetime.
      The Court: Why don’t you say so instead of bringing in about forgeries or something.” [Tr. 196]

        (R) “Q. Do you recall yourself having a telephone interview at that time with Station WBTV in Charlotte in which you told Station WBTV that you would not return on Saturday, August 30, 1969, but would, ‘Wait until things were a little more favorable’? Do you recall giving that interview?
      A. What was the date?
      Q. On or about August 27, 1969.
      A. I remember telling an executive that, but I didn’t have an interview with him.
      The Court: What executive?
      The Witness: Executive of the film department because I was bringing in—
      The Court: Executive of what?
      The Witness: Of the television station’s film department. I was bringing film out of China. I was negotiating with him to sell this film to the networks, but it wasn’t an interview.
      The Court: You told him that, whether you call it an interview or not; is that so?
      The Witness: Yes.” [Tr. 200-201]
      * * * Sj! * *
      (S) “Q. Did you have any discussion with anybody when you bought that ticket?
      A. No, only—
      The Court: Only what?
      The Witness: Nothing about the ticket. They just said that I should spend more time in Cairo to see their country.
      The Court: That’s a noble thought.” [Tr. 203]
      * * X! * * *
      (T) “The Court: You didn’t ask for a nonstop flight from Africa to Detroit, did you?
      The Witness: No, because they told me—
      The Court: ‘No’ is the answer.
      The Witness: No.
      The Court: You still insist on putting ‘because’ in every time. You are a fairly intelligent man, I would say, and yet you repeatedly do what I told you not to do.” [Tr. 204]
      * * * * * *

      (U) “The Court: . . .
      Did you notice this when you got the ticket, that it was R. Franklin?
      The Witness: No.
      The Court: You didn’t look at the ticket?
      The Witness: I looked—
      The Court: You didn’t look at the ticket?
      The Witness: No, because—
      The Court: Never mind the ‘because’ business, which is your repetitious statement in answer to every question. You attempt to throw ‘becauses’ all over the place.
      The Witness: Judge—
      The Court: Keep still until you are asked a question.” [Tr. 206-207]
      ******

        Redirect Examination

      (V) “The Court: You are still under oath, Mr. Williams. Do you understand?
      The Witness: Yes, sir.
      The Court: May I again remind you not to volunteer any information whatsoever in answer to questions. Just answer the question.” [Tr. 225]

      . “The Court: .
      Let me ask you a question. Did you understand me when I said from time to time that you are not to volunteer in your answer? Did you hear that?
      The Witness: I didn’t consider myself volunteering. Your Honor, I have never practiced in your court. You just say that I’m not a lawyer. I don’t know what your restrictions are. I can’t read your mind.
      The Court: You don’t have to read my mind. You can listen to my statements—
      The Witness: I tried to.
      The Court: — and instructions.
      Did your lawyer instruct you in the interval yesterday?
      The Witness: Yes.
      The Court: What did he tell you?
      The Witness: Yes, the same thing.
      The Court: Did he tell you not to volunteer?
      The Witness: Not to volunteer, yes. I understood that.
      The Court: You understood what he said, did you?
      The Witness: But we have—
      The Court: Don’t argue with me now. Did you understand what your lawyer told you yesterday about not volunteering? Yes or no.
      The Witness: But I didn’t understand your concept of what volunteering is.” [Tr. 242-243]

      . “Q. Were Mr. and Mrs. Stegall forced from their car at gunpoint?
      The Court: By you.
      The Witness: Not by me.
      The Court: By somebody else?
      The Witness: By three or four hundred black people who were enraged because blacks were being attacked.

        The Court: Were you there?
      The Witness: No, I was not there. I was in my house.
      The Court: How do you know what was done then?
      The Witness: This is what they said. That is their—
      The Court: All right. I think this is immaterial.
      The Witness: Judge, may I ask you a question?
      The Court: No, you may not. You will answer questions.
      The Witness: May I make a statement to the Court?
      The Court: No, you may not. I told you that several times.
      Q. Mr. Williams, this article says, ‘that local officials and Mrs. Stegall said the capture of her and her husband had been part of an attempt by the Negroes to force the police to release the Freedom Riders and other members of their faction.’
      Is that true?
      A. As far as I’m concerned, no, because I don’t know what the Negroes did with Mrs. Stegall. I wasn’t there. It was a racial conflict brought about because of tyrannical oppression—
      The Court: You are volunteering again. I want it to stop. This is the last warning I am going to give you.
      The Witness: Judge, do you want me to answer?
      The Court: I want you to answer the question, but only to answer the question. I don’t want you to make a speech.
      The Witness: Why don’t you restrict them?
      The Court: That’s my business.
      The Witness: This is white supremacy.
      The Court: It’s not white supremacy at all.
      The Witness: It’s a white supremacy court just like in Mississippi.
      The Court: We are going to stop right now, counsellor.” [Tr. 230-231]

      . See note 5, supra: (I), (L) and (R).


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    UNITED STATES of America v. Eugene CUNNINGHAM, Appellant.
    No. 74-1416.
    United States Court of Appeals, District of Columbia Circuit.
    March 19, 1975.

      Louis A. Kleiman, Washington, D. C. (appointed by this court), was on the brief for appellant.
    Earl J. Silbert, U. S. Atty., John A. Terry, John O’B. Clarke, Jr., and Mary-Elizabeth Medaglia, Asst. U. S. Attys., were on the brief for appellee.
    Before McGOWAN and WILKEY, Circuit Judges, and VAN PELT, Senior District Judge for the District of Nebraska.

       Sitting by designation pursuant to Title 28 U.S.C. § 294(d).

   PER CURIAM:

In this appeal from a conviction, by a jury, for forcible resistance to federal officers engaged in the conduct of their duties, the only issue raised is whether the trial court erred in denying appellant’s motion for acquittal at the close of all the evidence.

The evidence, taken in the light most favorable to the Government, tended to establish the following. Pursuant to an order of the District Court, United States Marshals conducted appellant and three other inmates of the cell block in the Superior Court’s Building B to the central cell block at Metropolitan Police Headquarters for a line-up in connection with crimes for which they were being held. (The prisoners had allegedly participated in an attempted jailbreak and riot at the District of Columbia jail.) A supplemental court order had instructed the marshals as follows:

the United States Marshals escorting prisoners to this line-up and the Metropolitan Police Department Officers conducting this line-up may-take all actions deemed necessary to assure the safety of the law enforcement officers participating in the lineup and to assure the defendants [sic] presence in the line.

Discontent over the line-up apparently broke out among the prisoners even before their destination was reached. Appellant in particular demanded that he be allowed to confer with his lawyer before standing in the line. He later testified that his purpose was to maneuver himself “back into the court and talk to the judge about what had transpired and what was getting ready to transpire.” When he did mount the stage, he immediately turned and faced the wall. The marshals forcibly turned him around. His next ploy was to lower his chin to his chest so that his face could not be seen. The marshals forcibly raised his head. He began kicking and thrashing and was removed from the stage. After being permitted to confer with his attorney, appellant was carried back onto the stage, where again he had to be forcibly restrained. In addition to his continued kicking and thrashing, appellant tried to bite one of the marshals (he was by this time shackled as well as handcuffed), shouted profanities and threats, spat on a police officer helping in the marshals’ effort, and urged his fellow prisoners to resist also. At one point appellant had to be restrained by the use of a “come along” hold by which pain was inflicted by bending appellant’s little finger back until he complied with the marshals’ directions.

Appellant’s challenge to the legality of his conviction is based on his claim that in forcing him to stand in the line-up the marshals were acting outside the scope of their authority. There are really two parts to this claim. The first is that the marshals were only authorized to escort appellant to the line-up and from that point were to leave its conduct to the Metropolitan Police. The second is that, whoever was properly conducting the line-up, they had no authority to force appellant to participate in it against his will. They could not resort, in his terms, to “self help”, but should instead have sought a court order directing appellant’s participation.

The first of these claims presents a question of fact that the trial judge could, as he did, validly resolve against appellant. The order under which the marshals were acting directed them to “assure the defendants’ presence in the line.” In light of the fact that they would have far better knowledge than the police as to whether and in what way appellant and his fellow prisoners might be dangerous, an interpretation of the order which authorized the marshals to handle the prisoners in the line-up as well as en route to it seems completely reasonable, if not required.

The second claim has even less merit. Legal detention by government agents obviously implies a subjection to their moment-to-moment directions, and we are not about to hold that they must enforce those directions by obtaining in each case a court order. The obvious next question would be how they were then to enforce such a court order, if not by physical force when necessary. Indeed, they were in this case already enforcing the broad court order that the appellant take part in the line-up in question.

In any event, the legality of appellant’s conviction does not turn on a nice judgment as to whether the marshals in fact exceeded their authority, even if that were a question open to serious doubt. Federal officers engaged in good faith and colorable performance of their duty may not be forcibly resisted, even if the resistor turns out to be correct that the resisted actions should not in fact have been taken. The statute requires him to submit peaceably, seeking legal redress thereafter. See United States v. Martinez, 465 F.2d 79 (2d Cir. 1972) (statute protects officer from interference with arrest even if made without probable cause, provided an officer not off on “frolic of his own”); United States v. Heliczer, 373 F.2d 241, 245 (2d Cir.), cert. denied, 388 U.S. 917, 87 S.Ct. 2133, 18 L.Ed.2d 1359 (1967) (“ ‘Engaged in performance of official duties’ is simply acting within the scope of what the agent is employed to do. . It cannot be said that an agent who has made an arrest loses his official capacity if the arrest is subsequently adjudged to be unlawful.”) Cf. United States v. Simon, 409 F.2d 474, 477 (7th Cir.) (dictum), cert. denied, 396 U.S. 829, 90 S.Ct. 79, 24 L.Ed.2d 79 (1969).

A more substantial question is that raised, and we believe, correctly answered, in the Government’s brief, namely, whether appellant’s conduct at the line-up constituted the kind of forcible assault, resistance, or interference that the statute makes punishable. It is clear that not all failures to cooperate with federal agents are within the statute’s prohibition, and that some measure of presently applied force is required. Threats of the future use of force are not enough, United States v. Glover, 321 F.Supp. 591 (E.D.Ark.1970), nor is mere deception of a federal agent, Long v. United States, 199 F.2d 717 (4th Cir. 1952), nor, presumably, would be the mere refusal to unlock a door through which federal agents sought entrance. Cf. District of Columbia v. Little, 339 U.S. 1, 70 S.Ct. 468, 94 L.Ed. 599 (1950) (construing District of Columbia regulation outlawing the “interfering with or preventing [of] any inspection” by a health officer).

Whether a person has opposed the efforts of federal agents with sufficient force to engage the statute can thus be a troublesome question of degree. It does not seem at all a troubling one in this ease, however. Appellant appears to have resisted with all the force at his command,, enough to require the help of half a dozen officers to overcome and enough to delay the line-up considerably. The combination of his thrashing, kicking, biting, and attempting to exhort others to violence make him a substantially more “forcible” resistor than those whose convictions under the statute have been upheld in a number of other cases. See United States v. Frizzi, 491 F.2d 1231 (1st Cir. 1974) (spitting on federal marshal held “forcible” assault) (alternative holding); United States v. Bamber-' ger, 452 F.2d 696 (2d Cir. 1971), cert. denied, 405 U.S. 1043, 92 S.Ct. 1326, 31 L.Ed.2d 585 (1972) (physical restraining of prison guard and removal of keys from his pocket held “forcible” interference); United States v. Goodwin, 440 F.2d 1152 (3d Cir. 1971) (kicking and flailing while being dragged from car by federal officers held “forcible” resistance); Carter v. United States, 231 F.2d 232 (5th Cir.), cert. denied, 351 U.S. 984, 76 S.Ct. 1052, 100 L.Ed. 1498 (1956) (accelerating car while federal officer was attempting to enter and search it held “forcible” resistance). Cf. United States v. Johnson, 462 F.2d 423 (3d Cir. 1972), cert. denied, 410 U.S. 937, 93 S.Ct. 1396, 35 L.Ed.2d 602 (1973).

Affirmed.

      . 18 U.S.C. § 111 (1970) provides as follows:
      Whoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section 1114 of this title [among them United States Marshals] while engaged in or on account of the performance of his official duties, shall be fined not more than $5,000 or imprisoned not more than three years, or both.


author: LUMBARD, Senior Circuit Judge:

text:
    AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Petitioner, v. CIVIL AERONAUTICS BOARD, Respondent, Trans World Airlines, Inc., United Air Lines, Inc., and American Airlines, Inc., Intervenors.
    Nos. 73-1828, 73-1874.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Dec. 11, 1974.
    Decided March 17, 1975.

      Gary Green, Washington, D. C., with whom Daniel M. Katz, Washington, D. C., was on the brief, for petitioner. Barbara Thorson, Washington, D. C., also entered an appearance for petitioner.
    Robert L. Toomey, Atty., C. A. B., with whom Richard Littell, Gen.- Counsel, 0. D. Ozment, Deputy Gen. Counsel and Glen M. Bendixsen, Associate Gen. Counsel, C. A. B., were on the brief, for respondent.
    Edmund E. Harvey, Washington, D. C., was on the brief for intervenors.
    Before J. EDWARD LUMBARD, Senior Circuit Judge for the Second Circuit, and MeGOWAN and ROBINSON, Circuit Judges.
    Opinion for the Court filed by Senior Circuit Judge LUMBARD.

       Sitting by designation pursuant. to Title 28 U.S. Code Section 294(d).

   LUMBARD, Senior Circuit Judge:

The Air Lines Pilots Association, International, [ALPA] petitions this court for review of Civil Aeronautics Board [CAB] Order 73-7-147, dated July 27, 1973, in which the Board gave interim approval to a capacity reduction agreement between American Airlines, Inc., Trans World Airlines, Inc., and United Air Lines, Inc., intervenors herein, which decreased the number of flights operated by those airlines between New YorkLos Angeles, New York-San Francisco, Washington-Los Angeles,. and Chicago-San Francisco.

The order also provided that a hearing be held by an Administrative Law Judge of the CAB to determine whether the CAB should grant final approval to the capacity reduction agreement. The interim approval was to expire on the earlier of March 25, 1974, or the date of fjnal Board action upon conclusion of the above described hearing. The interim approval expired on March 15, 1974, as the Administrative Law Judge had not issued a decision by that date. The agreement has remained in effect with only minor changes under the authority of CAB Order 74-7-105, dated July 24, 1974. The Board’s grounds for approval of this later order were different than those it relied upon to justify the order under review here.

In its petition for review ALPA argues that the CAB should not have granted interim approval of the capacity reduction agreement without holding an evidentiary hearing to determine whether or not the antitrust implications of the agreement were outweighed by public interest considerations. ALPA also attacks the reasons that the Board gave in support of its decision. In addition, ALPA claims that the CAB should have required labor protective arrangements as a condition for interim approval of the agreement. ALPA also raises other issues, but we feel that only the above issues merit extended discussion. We affirm the decision of the Board.

Since the order appealed from has expired, it could be argued that this case is moot. We feel, however, that since the reductions in service authorized by the order are still in effect, there is still a live controversy over whether the Board should have required labor protective arrangements as a prerequisite to approval of the order. We have previously considered CAB actions where the original order has expired when the reductions in service authorized by that order have remained in effect. ALPA v. CAB, 154 U.S.App.D.C. 316, 475 F.2d 900, 906 (1973) [ALPA I].

I

ALPA argues that since capacity reduction agreements have antitrust implications, the CAB should have held an evidentiary hearing to obtain the facts necessary to decide if the agreements should be approved, even for an interim period. We disagree. We have previously outlined what the Board must do in cases such as this. In ALPA I we dealt with capacity reduction agreements between the same airlines that covered the same markets here involved. We noted in that case that “there' is no statutory requirement for a hearing,” and that “the Board should have a degree of latitude in determining whether a full evidentiary hearing will be necessary in a particular case.” ALPA I, 475 F.2d at 903, 904. See also National Air Carriers Assn. v. CAB, 141 U.S.App.D.C. 31, 436 F.2d 185, 191-94 (1970) (NACA I); National Air Carriers Assn. v. CAB, 143 U.S.App. 140, 442 F.2d 862, 864-68 (1971) (NACA II). A hearing is needed only ■^yhen there exist substantial and material disputed issues of fact or where the lack of a hearing will deprive the Board of the materials requisite for a rational decision. ALPA I, 475 F.2d at 904; NACA II, 442 F.2d at 868.

Here no evidentiary hearing was needed. In essence the Board was simply permitting the capacity reduction agreements that were the subject of ALPA I to continue in effect.

The Board found that its action was justified because of the substantial fuel and cost savings that would flow from approval of the agreement. In its brief in this court, ALPA suggests that there will be no fuel savings because the carriers will expand their service in other markets. However, there was no showing that this had happened under the prior agreements. In any event the Board was aware of the potential problem and concluded that it could be adequately dealt with if it arose because the Board was retaining jurisdiction over the agreements. We have previously upheld the CAB’s rejection of such an argument. ALPA I, 475 F.2d at 904. Here we see no reason to reach a different result.

ALPA also claims that the cost savings are not in the public interest because they expand airline profits. While it is probably true that cost savings that allowed airlines to reap excessive profits would be against the public interest, cost savings that enable airlines to make a reasonable rate of return on their investments are not. Here the CAB concluded that the cost savings would be desirable. ALPA does not attempt to argue that the CAB had inadequate data or that there are substantial factual disputes involved in this case. It basically argues that the CAB reached the wrong decision.

The CAB concluded that interim approval of the agreements would be in the public interest because the benefits •from cost and fuel savings would outweigh any adverse impact the agreements might have, at least over the brief period covered by its interim approval. We do not think that the CAB abused its discretion in approving these agreements without holding an evidentiary hearing. Its interim'approval of the agreement is sufficiently supported by the evidence that it had before it.

II

ALPA’s major concern, of course, is the Board’s refusal to impose labor protective conditions as a prerequisite for approval of the capacity reduction agreement. It claims that it made a strong showing that some 84 pilots would be affected by the agreement and that, as a result, the CAB should have imposed labor protective conditions, or at the very least, that it should have held a hearing to determine the correctness of ALPA’s claim.

We have previously reviewed the CAB’s policies with respect to labor protective conditions. See ALPA v. CAB, 161 U.S.App.D.C. 199, 494 F.2d 1118, 1127-32 (1974) [ALPA II]; ALPA I, 475 F.2d at 904-06. Our decisions require the CAB to give ALPA an opportunity to make an affirmative showing that a need for labor protective conditions exist. They also require us to determine whether the CAB rationally concluded that such conditions were not necessary. ALPA II, 494 F.2d at 1130; ALPA I, 475 F.2d at 906.

In the past it has been the CAB’s policy to limit imposition of labor protective conditions to agreements involving substantial employee dislocations, e. g., mergers. See ALPA II, 494 F.2d at 1129-30. When capacity reduction agreements similar to this one were approved, the CAB did not impose labor protective conditions. See ALPA I; note 7 infra. Here the Board concluded that there would only be a “very limited” effect on employees because of the relatively short period for which interim approval was given. We cannot say that this finding is not rational or not consistent with the Board’s policy of providing labor protective conditions only in cases where a substantial effect on employees is likely. We think that the Board gave adequate consideration to the need for the imposition of labor protective conditions.

Our approval of the Board’s action does not, however, in any way limit the Board if it should decide to reconsider its approval of the agreements and impose labor protective conditions as a prerequisite for continued approval of the agreements. The Board’s practice of retaining jurisdiction over agreements such as these is a wise one and the Board should not hesitate to reconsider its decision in a case where there may be a substantial change in circumstances.

Affirmed.

      . The initial decision of E. Robert Seaver, Administrative Law Judge, was dated November 6, 1974, and concluded that the agreement in question was adverse to the public interest and should not be approved. The Board has. not taken final action with respect to this decision.

      . This order is currently undergoing review by another panel of this court. United States v. CAB, No. 74-1900 (submitted on the briefs for consolidation and simultaneous decision with A.L.P.A. v. CAB, No. 73-2181, and United States v. CAB, No. 73-2276, both dealing with a 20-market fuel-justified capacity reduction and which were argued before this court November 25, 1974).

      . This later order approved a capacity reduction agreement on the basis of the need to conserve scarce supplies of aviation fuel. Although the agreements authorized by this order expired on December 14, 1974, the Board has authorized the carriers to submit proposals renewing the agreement. CAB Order 74-11-35 (Nov. 7, 1974). The carriers submitted, on November 22, 1974, a joint application for approval of agreement, similar to the current agreement, covering the period from Feb. 1 through June 14, 1975. The Board, in its Order 75-1-140, dated January 31, 1975, granted such approval.

      . ALPA also advances a somewhat strained procedural argument that we find unpersuasive. The argument is based on the following facts: On July 26, 1973, the CAB directed its staff to inform the parties that it intended to grant interim approval of the agreement. The staff notified the carriers on that date. On July 27, the CAB officially adopted Order 73-7-147, its staff informed ALPA of the action, and ALPA filed its petition for review. The clerk of this court docketed the petition and transmitted a copy to the Board on July 30; it was received on August 7. The Board’s order was published on August 1; it was officially adopted at a Board meeting held on September 5, 1973.
      ALPA argues that the July 26 telephone calls constituted an order of the CAB and that since they were made before any official Board action, they were “lawless individual action." ALPA apparently feels that the order is somehow fatally tainted by this procedure. We disagree. It appears that the airlines were only told that the Board would issue an order granting interim approval, not that it had done so. Such an action does not constitute official action by the Board and the Board could have changed its mind. See Eastern Air Lines, Inc. v. CAB, 271 F.2d 752 (2d Cir. 1959), cert., denied, 362 U.S. 970, 80 S.Ct. 954, 4 L.Ed.2d 901 (1960).
      ALPA next contends that the Board was deprived of jurisdiction over this case when ALPA’s petition for review was docketed on July 30, 1973. See 49 U.S.C. 1486(d). It argues that as a result the Board had no jurisdiction to adopt its order on September 5 and that the order is defective for that reason. We reject this argument also.
      All that the Board did on September 5, was to ratify actions taken earlier by its notation procedure. Under that procedure the members of the Board send tally sheets to the Minutes Section which indicate how they vote on a proposed action. The action is treated as adopted once all of the votes are received and a majority has concurred. Brief for Respondent at 44-45 n. 35. The Board’s adoption of the order under review here by notation on July 27 was sufficient to constitute official action by the Board. See Saturn Airways, Inc. v. CAB, 155 U.S.App.D.C. 151, 476 F.2d 907, 909 (1973). There is no question that the Board had jurisdiction of this matter at that time. While the transmittal of a petition for review to the CAB may deprive the Board of jurisdiction to take substantive action in a matter, it does not deprive it of the power to adopt formally orders that it has previously adopted by the notation procedure.

      . There were minor differences in the two sets of agreements. For example, the instant agreement allowed somewhat more extensive cutbacks in service.

      . In the comments that ALPA submitted to the Board on the proposed capacity reduction agreement, ALPA only discussed the need for labor protective conditions. See Joint Appendix at 37-47.

      . Even if ALPA’s predictions were accurate it is arguable that the impact of the agreements on employees would not be substantial. Moreover, although the Board did not say so in its order, it may have been influenced by the fact that ALPA’s submission to it, which explained how ALPA calculated the number of layoffs, included a section dealing with the predecessor agreements. ALPA at one time claimed that several hundred employees would be affected by those agreements. Yet at a hearing held pursuant to ALPA I, it conceded that the agreements had not resulted in any pilot layoffs. The Board did advance this reason as one ground for refusing to stay its order pending this appeal. CAB Order 73-9-61 (Sept. 14, 1973) in Joint Appendix at 149, 152-53.


author: GOLDBERG, Circuit Judge:

text:
    GLOBE SEAWAYS, INC., as owner of S/T REBECCA, and as bailee of the cargo laden thereon, Plaintiff-Appellee, v. PANAMA CANAL COMPANY, Defendant-Appellant.
    No. 74-1654.
    United States Court of Appeals, Fifth Circuit.
    March 17, 1975.
    Earl R. McMillin, Dwight A. McKabney, Balboa Heights, Canal Zone, for defendant-appellant.
    Woodrow de Castro, Balboa, Canal Zone, Max Taylor, New York City, for plaintiff-appellee.
    Before TUTTLE, WISDOM and GOLDBERG, Circuit Judges.
   GOLDBERG, Circuit Judge:

On May 14, 1967, plaintiff-appellee Globe Seaways’ [Globe’s] 50,000-ton tanker REBECCA was damaged while negotiating the Miraflores Locks on the Panama Canal. The district court found that neither Globe nor defendant-appellant Panama Canal Company [Canal .Company], the United States Government agency which operates the Canal, was negligent. In those circumstances the court concluded that § 291 of Title 2 of the Canal Zone Code imposed liability without fault upon the Canal Company. The Canal-' Company protests this locked-in liability and appeals this interlocutory order pursuant to 28 U.S.C. § 1292(a)(3). We believe that the district court properly interpreted the provisions of 2 Canal Zone Code § 291; we affirm.

The only question presented to us is whether, in a case where neither the shipowner nor the Canal Company is negligent in a particular accident occurring in a Canal lock, Congress has made the Canal Company liable for any resulting damage to the vessel, its cargo, crew or passengers. Section 291 provides:

Injuries in locks of Canal.
The Panama Canal Company shall promptly adjust and pay damages for injuries to vessels or to the cargo, crew, or passengers of vessels, which may arise by reason of their passage through the locks of the Panama Canal under the control of officers or employees of the company. Damages may not be paid where the injury was proximately caused by the negligence or fault of the vessel, master, crew or passengers. If the negligence or fault of the master, crew, or passengers proximately contributed to the injury, the award of damages shall be diminished in proportion to the negligence or fault attributable to the vessel, master, crew or passengers. A vessel is considered to be passing through the locks of the Canal, under the control of officers or employees of the Company, from the time the first towing line is made fast on board before entrance into the locks and until the towing lines are cast off upon, or immediately prior to, departure from the lock chamber. 76A Stat. 23.

The Canal Company admits that the REBECCA was in the Miraflores Locks for the purposes of the statute, but disputes the district court’s conclusion that section 291 makes it liable for the damage to Globe’s ship in a case where no Canal Company employee was negligent. Defendant argues that the statute simply applies the doctrine of res ipsa loquitur to all cases involving injuries to vessels within the locks, and that since the Canal Company was not negligent, it has •discharged its burden of proof and the loss must lie where it fell, upon Globe. The Canal Company accompanies this argument with a careful and detailed legislative history of the predecessor legislation to section 291, section 5 of the Panama Canal Act of August 24, 1912, 37 Stat. 560, and urges that a study of Congressional committee hearings, speeches on the floor of Congress and the common law pertaining to sovereign immunity and the general maritime law extant in 1912 compels the conclusion that Congress intended to place liability upon the Canal authorities only when they were negligent. Moreover, the Canal Company believes that this Court, in the cases of Victorias Milling Co. v. Panama Canal Co., 5 Cir. 1959, 272 F.2d 716, and Andros Shipping Co. v. Panama Canal Co., 5 Cir. 1962, 298 F.2d 720, has already adopted its interpretation of section 291. Globe, on the other hand, argues that section 291 plainly and unambiguously means what the district court said it means — that the Canal Company is liable without fault in this case — and that the legislative history of the Panama Canal Act is neither as clear nor so clearly unfavorable to Globe as the Canal Company contends.

We are rescued from immersion in the sea of legislative history by the general principle that we must not refer to legislative history if the statutory language is clear. Gemsco, Inc. v. Walling, 1945, 324 U.S. 244, 65 S.Ct. 605, 89 L.Ed. 921; United States v. Second National Bank, 5 Cir. 1974, 502 F.2d 535. This salutary doctrine is predicated upon the notion that since Congress is presumed to have meant what it said, we must look first to the literal meaning of the words of the statute in order to determine how best to effectuate the Congressional intent. Perry v. Commerce Loan Co., 1966, 383 U.S. 392, 86 S.Ct. 852, 15 L.Ed.2d 827; Flora v. United States, 1958, 357 U.S. 63, 78 S.Ct. 1079, 2 L.Ed.2d 1165; Mumford v. Glover, 5 Cir. 1974, 503 F.2d 878; United States v. Second National Bank, supra. Of course, we must not allow such literal-mindedness to lead us to absurd or unreasonable conclusions at war with the very policy that Congress intended to implement in the statute in question. See Church of the Holy Trinity v. United States, 1892, 143 U.S. 457, 12 S.Ct. 511, 36 L.Ed. 226.

The plain meaning of the words of section 291 is that whenever a vessel or individual is damaged while passing through a Canal lock, the Canal Company must bear the cost unless it can be shown that “the injury was proximately caused by the negligence” of the injured party, in which case “the award of damages shall be diminished in proportion to” the contributory negligence of the injured party. There would be good reason for holding the Canal Company to such strict liability, for while a large vessel such as the REBECCA is negotiating the locks, its engines are shut off and the vessel is towed through the locks by the Canal Company’s locomotives, under the sole direction of the Company’s pilots. 35 C.F.R. §§ 109.4 and 109.7. ' If the crew and passengers are playing the passive role assigned to them in the scheme of Canal operations, there is nothing those people could do to cause or to avoid an accident. In the rare case, such as this one, where an accident occurs in the absence of negligence on the part of anyone, Congress could easily have determined, in view of the character of the Canal as a great international waterway, that the ends of good foreign relations and the smooth adjustment of claims for injuries suffered by Canal users while passing through locks would best be served by imposing liability on the Canal Company. See Gulf Oil Corp. v. Panama Canal Co., 5 Cir. 1973, 481 F.2d 561.

Our conclusion as to the plain meaning of section 291 is fortified by a comparison of that provision with its companion statute, section 292 of Title 2 of the Canal Zone Code, which governs liability in case of accidents occurring within the Canal but outside of the locks. Section 292 provides:

Injuries outside loeks.
The Panama Canal Company shall promptly adjust and pay damages for injuries to vessels, or to the cargo, crew, or passengers of vessels which may arise by reason of their presence in the waters of the Canal Zone, other than the locks, when the injury was proximately caused by negligence or fault on part of an officer or employee of the Company acting within the scope of his employment and in the line of his duties in connection with the operation of the canal. If the negligence or fault of the vessel, master, crew, or passengers proximately contributed to the injury, the award of damages shall be diminished in proportion to the negligence of fault attributable to the vessel, master, crew or passengers. 76 Stat. 23.

Section 292 clearly provides a rather different standard of liability for the Canal Company than does section 291. Whereas if a vessel or individual is injured while the vessel is in the locks, section 291 says that the Canal Company shall pay damages unless it can be shown that the vessel or individual was contributorily negligent, section 292 imposes liability upon the Canal Company only if the injured party can demonstrate that the injury was caused by a Canal Company employee. The differing standards of liability set out in sections 291 and 292 indicate that Congress made a conscious decision to impose strict liability on the Canal Company for accidents in its locks, but to impose only that measure of liability faced by other business enterprises, that is, the negligence standard, for accidents outside the locks. Cf. Gulf Oil Corp. v. Panama Canal Co., 5 Cir. 1973, 481 F.2d 561.

The Canal Company argues, however, that section 291 commands the use of the venerable evidentiary doctrine of res ipsa loquitur, so as to create a presumption that an accident inside the locks is the result of the Canal Company’s. negligence, but to allow the Company to rebut that presumption by demonstrating that it was not at fault. In this case, of course, the district court found that the Canal Company was not negligent, so that the Company would be exonerated from liability under its res ipsa loquitur theory. The Canal Company further asserts that this Court adopted this very interpretation of the statute in Victorias Milling Co. v. Panama Canal Co., supra, and ratified our decision there in Andros Shipping Co. v. Panama Canal Co., supra. We believe that the Canal Company has incorrectly interpreted both the statute and our decisions.

First, the plain language of section 291 refutes the Company’s assertions. Although the doctrine of res ipsa loquitur might be particularly apt for use in circumstances such as those existing when a vessel negotiates a lock, Congress has certainly not chosen to invoke it in this statute. Res ipsa loquitur implies negligence on the part of the party against whom it is employed; section 291, however, nowhere requires that the Canal Company be negligent in order for it to be liable. We simply cannot ignore the unambiguous language of the statute in order to read a res ipsa loquitur corollary into section 291. Second, there is nothing in our Victorias Milling and Andros Shipping cases to indicate that we have already adopted the Canal Company’s position in this matter. Section 291 was in no way involved in either of those cases, and we certainly did not intend to explore the mysteries of the extent of Canal Company liability hidden therein. Neither case set a standard that is different from the one we apply today.

In section 291, Congress has explicitly rendered the Canal Company liable for the damage suffered by ships, and the cargo, crew and passengers of ships, which pass through the locks of the Panama Canal. The clear language of the statute provides a reasonable means to achieve the swift and fair resolution of claims resulting from accidents covered thereby. We cannot discard this certain index of Congressional purpose in order to pursue what the Canal Company, in the light of its own interests and responsibilities, believes to be a more equitable rule of liability.

Affirmed.

      . For a short history of the legislation creating and delineating the powers and duties of the Canal Company, see Gulf Oil Corp. v. Panama Canal Co., 5 Cir. 1969, 407 F.2d 24, 29-30 n. 6.

      . Neither party seriously contends that the district court erred in its determination that neither Globe nor the Canal Company was at fault in the accident. After a careful reading of the rather meager record available to us, we cannot say that the court below erred in refusing to charge either party with negligence.

      . For example, the Canal Company places great emphasis upon the testimony of Colonel George W. Goethals, the Chief Engineer of the Canal construction project, before the Senate Committee on Interoceanic Canals, 62d Cong., 2d Sess. at 76 (1911):
      In the first place, I think that the Government — and I will say that the regulations for the canal which will be promulgated when the canal is ready for operation — should provide that every vessel going through the canal should, when it reaches the locks, tie up to the approach piers which we have constructed, or are constructing above and below each of the locks, and that after they have tied up, that we take entire charge of the ship, with a man on the bridge and another in the engine room, and tow those ships through the locks and release them after the passage of the locks; that during the period of passage when we are in control of the ship we should pay all damages resulting to the ship through any carelessness on the part of the employees of the Government here.

      . As is the case with many general principles of ancient origin, this one must be used with care, see United States v. Second National Bank, supra, for it is not impossible tor a statute or regulation to be clear, unambiguous and neutral on its face, and yet to have an unconstitutional purpose and effect. See, e. g., United States v. Mississippi, 5 Cir. 1964, 339 F.2d 679; United States v. Louisiana, E.D.La.1963, 225 F.Supp. 353, aff'd, 1965, 380 U.S. 145, 85 S.Ct. 817, 13 L.Ed.2d 709. When a statute conflicts with the Constitution, of course, no degree of pellucidity can save it.

      . In view of the extensive federal regulation of shipping in the Canal, see 35 C.F.R. parts 103, 105, 107, 109, 111 and 113, it is unlikely that the Canal Company, non-negligent though it might be, would be only an innocent bystander in such a case.

      . A brief history of the doctrine may be found in Victorias Milling Co. v. Panama Canal Co., supra, 272 F.2d 716, 719-21.


text:
    Moses SLAUGHTER, Jr., Plaintiff-Appellant, v. S. S. RONDE FYFFES GROUP, LTD., Defendant-Appellee, American Mutual Liability Insurance Company, Intervenor-Appellee.
    No. 74-3649
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    March 14, 1975.

      James Edward McAleer, Savannah, Ga., for plaintiff-appellant.
    David F. Sipple, Gustave R. Dubus, III, Savannah, Ga., for S. S. Ronde.
    Edward T. Brennan, Savannah, Ga., for intervenor.
    Before WISDOM, BELL 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, Part I.

   PER CURIAM:

Appellant Moses Slaughter' suffered personal injuries while employed as a longshoreman by Strachan Shipping Company. His complaint, brought in admiralty, alleged negligence and unseaworthiness and requested a damage award for injuries he suffered when a roll of liner board pinned him to a stanchion during loading operations.

Since appellant’s accident occurred on January 23, 1973, after the effective date of the Longshoremen’s and Harbor-workers’ Compensation Act Amendments of 1972, 33 U.S.C. § 905(b), on motion by appellees the allegations of unseaworthiness were stricken from the complaint. The case proceeded to trial on the issue of whether appellee failed to provide Slaughter with a safe place to work. After hearing extensive testimony from workers and supervisors on board the day of the accident, the court issued its findings of fact, concluding that appellee was not negligent. On appeal, Slaughter contends that the court was clearly erroneous in concluding that the ship did not have a sharp list and that the gratings in the hold where Slaughter was loading were not defective.

Our task on review is to determine whether the trial court, sitting without a jury, based its decision on findings of fact which are clearly erroneous. Unless we are left with a definite and firm conviction that a mistake has been made, the decision below should be affirmed. Chaney v. City of Galveston, 5 Cir., 1966, 368 F.2d 774, 776. With this principle in mind, we conclude the court was correct and therefore affirm.

Slaughter contends that the ship was listing so badly to the offshore side that the roll of liner board could not be safely loaded. However, the district court was persuaded by the testimony of the chief officer of the ship and the stevedore foreman that the list of the ship was not beyond the normal range. Although Slaughter and several of the other longshoremen working on the ship that day testified the list was severe, the court was wary of their reliability given prior inconsistent statements about the list contained in depositions as well as often confusing and unclear testimony of some of the witnesses. The court’s finding that the list was not abnormal is clearly supported by the record; we cannot reverse that finding merely because the court credited some witnesses and disbelieved others.

Neither do we find error in the court’s finding that none of the longshoremen complained to any of the officers concerning unsafe working conditions. Although Slaughter contends the court used this factor incorrectly to burden Slaughter with assumption of the risk, we agree with appellee that the court merely considered this evidence as one factor supporting its finding that the list did not cause an unsafe working condition.

Finally, we are in agreement with the court’s conclusion that any defective grating which might have been present was not responsible for the longshoremen’s inability to maneuver properly the roll of the liner board. The testimony was unclear and indefinite and no one could state with certainty that the condition of the grates or the slight slope on the grating near the hatch coaming caused the roll to twist.

Finding ample evidence in the record to support the court’s conclusion that appellee was not negligent, we affirm.

Affirmed.

      . Pursuant to 33 U.S.C. § 905(b), tort liability of a vessel to a person covered by the Longshoremen’s and Harborworkers’ Compensation Act, 33 U.S.C. § 901 et seq., cannot be based upon the warranty of seaworthiness or a breach thereof.

      . 390 F.Supp. 637 (S.D.Ga.1974).