author: LEVIN H. CAMPBELL, Circuit Judge.

text:
    Anthony SOUZA et al., Plaintiffs-Appellees, v. Anthony P. TRAVISONO et al., Defendants-Appellants.
    No. 74-1243.
    United States Court of Appeals, First Circuit.
    Argued Dec. 2, 1974.
    Decided March 11, 1975.

      W. Slater Allen, Jr., Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., was on brief, for defendants-appellants.
    Ralph J. Gonnella, Providence, R. I., with whom Hodosh, Spinella, Hodosh & Angelone, Providence, R. I., was on brief, for plaintiffs-appellees.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

In Souza v. Travisono, 368 F.Supp. 959 (D.R.I.1973), the district court held that in refusing to let law students render legal aid to inmates at the Rhode Island, Adult Correctional Institutions (ACI), the warden deprived inmates of a constitutional right of meaningful access to the courts and also of a more general right to legal assistance with personal matters. Thereafter, the Supreme Court in Procunier v. Martinez, 416 U.S. 396, 419, 94 S.Ct. 1800, 1814, 40 L.Ed.2d 224 (1974), held that prisoners have a due process right of access to courts, including reasonable access to law student agents of attorneys, “to challenge unlawful convictions and to seek redress for violations of their constitutional rights.” We then affirmed the district court decision in Souza to the extent it was governed by Procunier, but left unanswered whether inmate access to law students must be granted for more mundane problems. 498 F.2d 1120 (1st Cir. 1974). On petition for recovery of costs and attorneys’ fees, the district court granted fixed costs of $464.85 to plaintiff inmates and attorneys’ fees of $11,340.00, $2,040.00, and $1,776.00 to plaintiffs’ three private counsel. Defendant state officials appeal from that part of the order allowing fees.

This case raises the difficult question of whether attorneys’ fees awards against a state are barred by the eleventh amendment. There is also a serious question, should the award be constitutional, whether it is excessive. But first we turn briefly to appellants’ general challenge to the court’s authority to make any award of attorneys’ fees in a case like this one. We hold that line of attack to be clearly foreclosed by recent decisions of this circuit. Hoitt v. Vitek, 495 F.2d 219 (1st Cir. 1974); see Knight v. Auceillo, 453 F.2d 852 (1st Cir. 1972); Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331, 1333 (1st Cir. 1973). •

As a predicate to its award the district court found that the litigation benefited the plaintiff class and that it furthered the significant public policy reflected in 42 U.S.C. § 1983. The court expressed the view that the protection of inmates’ constitutional rights depended on the efforts of skilled attorneys who “should be encouraged to undertake such difficult and time consuming litigation.” We upheld this “public benefit — private attorney general” rationale in Hoitt.

We can see no factual basis for distinguishing this case from Hoitt. It is immaterial whether appellants were, as they assert, in sincere doubt as to constitutional requirements prior to Procunier. The theory behind awarding attorneys’ fees in this instance was not to punish appellants for bad faith but to recompense those who by helping protect basic rights were thought to have served the public interest.

Nor do we see merit in the argument that the attorneys’ services were valueless because the Supreme Court’s decision in Procunier would have resolved matters in any event. The need for the attorneys’ services is not to be judged in hindsight but as it reasonably appeared at the time. Procunier vindicated, in important ways, the merits of the inmates’ original position, and their attorneys earlier prevailed in the district court. Having forced the inmates to sue in order to establish their rights, it does not lie in appellants’ mouths to disparage their having done so.

Thus, apart from the question of the eleventh amendment, which we did not consider in Hoitt, we find no error in the district court’s discretionary ruling to grant attorneys’ fees in this case.

We turn next to whether taxation of attorneys’ fees against defendant state officials is an award of money against an unconsenting state in violation of the eleventh amendment. The instant litigation was brought by Rhode Island inmates against Rhode Island officials. Notwithstanding its language, the eleventh amendment has been held also to embody a notion of sovereign immunity restricting federal judicial power over litigation against a state by its own citizens as well as by citizens of other states. E.g., Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974); Employees of the Dep’t v. Department of Pub. Health & Welfare, 411 U.S. 279, 93 S.Ct. 1614, 36 L.Ed.2d 251 (1973); Duhne v. New Jersey, 251 U.S. 311, 40 S.Ct. 154, 64 L.Ed. 280 (1920); Hans v. Louisiana, 134 U.S. 1, 10-15, 10 S.Ct. 504, 33 L.Ed. 842 (1890).

It was held in Edelman that a citizen may not recover “an accrued monetary” liability from a state. 415 U.S. 664, 94 S.Ct. 1347. A remedy in the form of a recovery of money was distinguished from an injunction or declaratory judgment. These latter “prospective” remedies are not barred by the eleventh amendment even though they may have the “ancillary effect” of a drain upon the state treasury. 415 U.S. at 666 n. 11, 668, 94 S.Ct. 1347; see Ford Motor Co. v. Dept. of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945); Ex parte New York, 256 U.S. 490, 500, 41 S.Ct. 588, 65 L.Ed. 1057 (1921); Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 52 L.Ed. 714 (1908).

Viewed in isolation, an award of attorneys’ fees in the present case might seem akin to a money judgment against Rhode Island. Since defendant officials were sued for acts done apparently in good faith and within their official authority, they will doubtless be reimbursed by the state for the award. Gf. Edelman, supra at 644-68, 94 S.Ct. 1347. Thus arguably the fees are an unconstitutional exaction upon Rhode Island. On the other hand, the fees are incidental to the main litigation, which, being for injunctive and declaratory relief, was permissible under the eleventh amendment. An award of attorneys’ fees is perhaps so “ancillary” as to be constitutional, even though there will be some drain on the state treasury. Which view is correct is presently unclear. Compare, e. g., Skehan v. Board of Trustees, 501 F.2d 31 (3d Cir. 1974), and Jordan v. Gilligan, 500 F.2d 701 (6th Cir. 1974), with Class v. Norton, 505 F.2d 123 (2d Cir. 1974), Gates v. Collier, 489 F.2d 298-(5th Cir. 1973), petition for rehearing en banc granted, 500 F.2d 1382 (5th Cir. 1974), and Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.1972), aff’d mem., 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1973).

The Rubicon was seemingly crossed in this circuit in Boston Chapter NAACP, Inc. v. Beecher, 504 F.2d 1017 (1st Cir. 1974), where we approved the assessment of the costs of an appeal in a civil rights action against Massachusetts officials. We relied upon Fairmont Creamery Co. v. Minnesota, 275 U.S. 70, 48 S.Ct. 97, 72 L.Ed. 168 (1928), in which the Supreme Court declared that sovereign immunity did not protect a state against judgment for costs in litigation before the Supreme Court. The Court viewed the costs as incident to its regular jurisdiction, the awarding of costs being “the invariable practice”. Id. at 77, 48 S.Ct. 97.

If, as we held in Boston Chapter NAACP, the eleventh amendment allows costs to be assessed against state officials, it is hard to see why it should bar attorneys’ fees. Both are in similar relationship to the main litigation and both should stand or fall together. It is true that there is less sanction in our law for attorneys’ fees; and the awarding of fees in these precise circumstances and upon the rationale we approved in Hoitt has yet to be considered by the Supreme Court. Conceivably costs, being more traditional than attorneys’ fees, are allowable, but attorneys’ fees are not. Conceivably attorneys’ fees based on certain rationales are allowable but others are not. Nonetheless whatever the situations ultimately deemed suitable for the award of the attorneys’ fees, such fees, to the extent allowable, seem to us generically to be the same as court costs. They are a part of the litigation expense deemed, for whatever reason, recoverable by the successful party or attorney. Any effort to distinguish for eleventh amendment purposes on the basis of theories of award would invite endless confusion. And to the extent states and state officials are, under our federal system, amenable to suit in federal courts, they should be responsible for costs and fees incidental to litigation to the same degree as others. To that extent, as the Supreme Court said in Fairmont, a state may lose “some of its sovereign character”. 275 U.S. at 77, 48 S.Ct. 97. Accordingly, for reasons set forth in Boston Chapter NAACP, we hold that attorneys’ fees, like costs, are not barred by the eleventh amendment.

Appellants argue that the amount of attorneys’ fees awarded was excessive. Without belittling the value of the services, we agree. The district court awarded fees at the rate of $60 per hour, based on affidavits of two prominent local attorneys citing returns of $60 and $70 per hour as reasonable. Noting that the specific amount to be awarded was within the court’s discretion, the court listed as relevant factors “the circumstances surrounding the case, its importance and complexity, and the skill, experience and professional standards of the attorney.” The court found plaintiffs’ attorneys to be “skilled, well prepared and obviously experienced in prison litigation”; their work was of “high caliber” and of “unquestioned assistance” to the court. Appellants have not contested the hours spent by plaintiffs’ counsel, but argue that a skilled and experienced counsel able to charge $60 per hour in the marketplace would not have required so many hours to prepare and conduct this case.

We disagree with the assumption of the district court and both parties that the hourly rate is to be based on the reasonable marketplace rate for such services. This is not a case in which the attorneys sold their services to a private client willing to pay the market price for them. Cf. Natural Resources Defense Council, Inc. v. EPA, supra, 484 F.2d at 1338-39. Those who will ultimately pay the fees, the Rhode Island taxpayers — on a theory, in part, of public benefit — have had no opportunity to pass on either the extent of the services or on the fees.

Judge Theis of the District of Kansas, dealing also with an award of fees in civil rights litigation, put the matter in what we hold to be proper perspective:

“In determining the amount of an award of reasonable attorneys’ fees, the Court is mindful that the award is designed to effectuate public policy, encourage private litigation, and spread litigation expenses equitably among those benefiting from the institution of the action — not to punish the wrongdoer or to reward the successful plaintiffs or their attorneys. A member of the legal profession has the obligation to represent clients who are unable to pay for counsel and also to bring suits in the public interest. While embarking upon their duties, they should not be motivated by a desire for profit but by public spirit and sense of duty.”

Gilpin v. Kansas State High School Activities Ass’n, Inc., 377 F.Supp. 1233, 1253 (D.Kan.1974).

Here we have the further aspect that the litigation was only partially successful. While, as we have noted, the attorneys are not to be denied reasonable fees merely because Procunier settled favorably one of the main questions, it is appropriate, in establishing a reasonable fee, to take into account the net result of their efforts.

We conclude, as did Judge Theis and as did Chief Judge Johnson in Wyatt v. Stickney, that the Criminal Justice Act is a reasonable point of reference in establishing a fee. We recognize that inflation tends to render the fee schedule under the Act less adequate than formerly; on the other hand, it has yet to be modified legislatively, and it provides a benchmark. The alternative — leaving the matter to the total discretion of each judge — invites a wide disparity of fees and, we would suspect, the sort of public cynicism which can only undermine the ideals which the main litigation sought to promote. We add, however, that while the Criminal Justice Act rate of $30 per in-court hour and $20 per out-of-court hour should be the usual guideline in cases of this nature, we might sanction departures therefrom in cases of truly exceptional public importance. Moreover, should inflation continue to take its toll, we will keep an open mind to some general upward revision in the generality of cases.

We accordingly reverse the order of the district court as to the amount of attorneys’ fees, and remand for redetermination of the fees on the basis of a rate of $30 per in-court hour and $20 per out-of-court hour.

So ordered.

      . This court considered the record inadequate for deciding this further question and noted that controversy might not exist because, among other things, there was no showing that-a new group assuming the inmate legal assistance function needed or used law student assistants. 498 F.2d at 1124.

      . The eleventh amendment provides:
      “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”

      . We said in that case, in reference to the issue of attorneys’ fees to be imposed upon an agency of the federal government,
      “We will scrutinize carefully the requested costs and fees. Petitioners are not a public agency and are legally responsible to no one but themselves; we must satisfy ourselves that the taxpayers’ money will not be used to support needless or excessive legal items. We must also recognize that petitioners, as surrogate attorneys for the interest of the public and the EPA, have volunteered and ‘imposed’ their services on ‘clients’ that never contracted for them. As attorneys for involuntary clients, their fees may properly be less than those they could have received by entering the marketplace and selling their services to the private client who would make the highest bid for them.”

      . 344 F.Supp. 387 (N.D.Ala.1972).

      . We do not disturb the grant of $464.85 for fixed costs.


source: Caselaw Access Project

author: CUMMINGS, Circuit Judge.

license: Public Domain

text:
    PETER CONDAKES COMPANY, INC., Plaintiff-Appellee, v. SOUTHERN PACIFIC COMPANY et al., Defendants-Appellants.
    Nos. 74-1606, 74-1607.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 10, 1975.
    Decided March 27, 1975.

      Anna M. Kelly, Chicago, 111., for appellant.
    Melvin S. Cahan, Chicago, 111., for appellee.
    Before HASTINGS, Senior Circuit Judge, SWYGERT and CUMMINGS, Circuit Judges.
   CUMMINGS, Circuit Judge.

Plaintiff is a wholesale dealer in perishable produce and is located in Boston, Massachusetts. It sued the Penn Central Transportation Company, the delivering railroad, to recover the market loss it suffered on 21 separate carload shipments of perishable produce moving from various points in California, Arizona and Florida to plaintiff in the Boston area. The complaint was filed under Section 20(11) of the Interstate Commerce Act (49 U.S.C. § 20(11)). Plaintiff claims that it suffered a market loss on each shipment because defendant did not transport them “with reasonable dispatch and due diligence.” Some $9500 in damages were claimed on the ground that the going price on the Boston market on the day the goods were allegedly due was higher than on the day they were actually available for sale.

In March 1973, the Southern Pacific Company, the Seaboard Coast Line Railroad Company and the Florida East Coast Railroad Company were named additional defendants. However, the claims involving the latter two railroads were settled for some $1600. Therefore, those defendants and the eight shipments they handled were dismissed. The remaining thirteen shipments were of lettuce, carrots and grapefruit from California and Arizona to Boston and were accepted by defendant Southern Pacific Company as the initial carrier and delivered by Penn Central as the delivering carrier.

As to the thirteen shipments still in the case, plaintiff moved for summary judgment. In support of its motion, plaintiff relied on the admission of certain facts by Southern Pacific and Penn Central and an affidavit of Richard Watson, plaintiff’s traffic agent, which attached various price quotations from the United States Department of Agriculture’s Fresh Fruit and Vegetable Market News (Boston Report). According to a chart attached to Watson’s affidavit, the total loss due to delay was $5,703.16.

Penn Central filed an opposing affidavit of Donald R. Steinman, a senior claim account representative, asserting that the applicable tariff permitted carriers a 24-hour cushion for paying market claims. Steinman’s affidavit also stated that the applicable perishable freight schedules provided for a normal traveling time from California to Boston market of eight days from the date of shipment. Plaintiff does not contest the eight-day travel time. Consequently, according to Steinman, none of the shipments in question was unduly delayed except for one involving an alleged $351.51 loss on carrots shipped from Coachella, California, to Everett, Massachusetts. As to this shipment, Steinman asserted that the four-day delay was due to a strike on the originating carrier, Southern Pacific Company. He added that the contract terms of the bill of lading prohibit liability against a carrier where time is lost on account of a strike. In addition to the grounds contained in Steinman’s affidavit, the Penn Central opposed summary judgment on the ground that no proof of the market value of the goods involved had been presented.

In an unreported memorandum opinion and order, the district court entered summary judgment against defendants in the amount of $5,703.16, which was the amount claimed in the chart accompanying the affidavit supporting plaintiff’s motion for summary judgment. The district judge noted that plaintiff was complaining that defendants did not transport its commodities “with reasonable dispatch,” so that the plaintiff missed the benefit of the market upon the day when, according to defendants’ operating schedules, the commodities should have been available for sale. See Condakes v. Southern Pacific Co., 295 F.Supp. 121 (D.Mass.1969).

As to the carrier’s contention that eleven of the thirteen shipments were timely because of the one-day grace period allowed by Note 2 of the freight tariff (see note 1, supra), the district court invalidated this tariff provision because Section 20(11) of the Interstate Commerce Act provides in part “ * * * no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier, railroad, or transportation company from the liability imposed.” The opinion noted that subsequent to its 1970 approval of this tariff, the Interstate Commerce Commission now holds that such 24-hour grace periods are invalid as contrary to Section 20(11). See Provisions on Vegetables and Melons, Transcontinental, No. 35341, 340 I.C.C. 807, 813 (1972).

As to claim 2 for $351.51 involving a four-day carrier delay, which defendants assert was due to a strike on the Southern Pacific and therefore excusable under the bill of lading (see note 2, supra), the court ruled that the delay was not excusable because defendants had not shown that the “delay did not result from its [Southern Pacific] own negligence.”

As to defendants’ contention that since the record contained no origin inspection reports of the Department of Agriculture, plaintiff had not proved the market value of the goods involved, the district court agreed with plaintiff’s position that said Department’s auction sales reports adequately measured the damage plaintiff suffered because of a declining market where defendants have failed to transport with reasonable dispatch.

The liability issue in this case depends principally upon the validity of the 24-hour grace period contained in defendants’ tariffs. For the reasons given in Judge Parsons’ attached opinion, the pertinent portion of which we adopt as our own, we affirm the district court’s determination of defendants’ liability, except with respect to the shipment of carrots assertedly delayed by a strike. As to that shipment, the statement in Steinman’s affidavit that a strike on the Southern Pacific caused the delay was sufficient to put plaintiff on notice that defendants were blaming the delay on the strike, which, if proven, would constitute a defense (see note 2, supra). The parties, should they still desire it, are entitled to a trial of this defense.

As to the district court’s award of damages, we agree with defendants that such an award was premature. Nothing in the plaintiff’s affidavits or in the defendants’ admissions states either that plaintiff suffered actual damages in the amount claimed or that the produce was of sufficiently high quality so that the Agriculture Department’s quotations submitted by plaintiff would apply. Since defendants failed to put forth any reason why the well-recognized market differential measure of damages should not be employed, the district court was correct in holding it applicable. However, in order to rely upon the price quotations for “good” quality produce in the Department of Agriculture’s publication, Fresh Fruit and Vegetable Market News (Boston Market), plaintiff must show either (1) that its produce was “good” quality or (2) that, even if of inferior quality, the differential for “good” produce between the day expected and the actual day of arrival is the same for lesser quality produce. Plaintiff makes the latter argument in its brief, but nothing in the record supports this contention. Absent such a showing, a court might award damages that would be correct only for “good” produce, without any proof that plaintiff’s produce could be so qualified. See Great Atlantic & Pacific Tea Co. v. Atchison, Topeka and Santa Fe Railway Co., 333 F.2d 705, 708-710 (7th Cir. 1964).

Affirmed in part; reversed in part.

MEMORANDUM OPINION AND ORDER

This case is before me for ruling on plaintiff’s motion for summary judgment. Plaintiff, Peter Condakes Company, Inc., a wholesale dealer of perishable produce, shipped carloads of tomatoes, tangerines, lettuce, carrots and grapefruit for sale at the Boston Auction Market. The defendants, the originating carriers, contracted to transport plaintiff’s goods to the Market by rail. The plaintiff, in its claim for delay brought under 49 U.S.C. § 20(11), complains that the defendants or their connecting carriers did not transport its commodities with reasonable dispatch in that it missed the benefit of the Market upon the day when, according to the defendants’ operating schedules, the commodities should have been available for sale. Plaintiff further complains that the failure to promptly transport the commodities resulted in a lower market value at destination by which it has been damaged in the amount of $9,617.53.

Plaintiff, supporting its motion with an affidavit from its Traffic Agent, the United States Department of Agriculture market quotations, and its Request for Admissions under Rule 36, contends that (a) the defendants are common carriers by rail within the meaning of Section 20(11) of the Interstate Commerce Act, 49 U.S.C. § 20(11); (b) it is the lawful holder of the Bills of Lading; (c) written notice of its claim and suit were seasonably filed; (d) the commodities in question were delivered to the defendants for transportation by rail in interstate commerce; (e) the defendants carelessly failed to transport the goods with reasonable dispatch; and (f) the plaintiff suffered a pecuniary loss by reason thereof.

The defendants, supporting their response to the motion with an affidavit from one of their Senior Claim Account Representatives, argue that the plaintiff is not entitled to summary judgment because at the time the shipments in question moved there was in effect a tariff applicable to the bills of lading which governed delays for market decline purposes. That tariff, the defendants contend, allowed them a 24-hour grace period within which no liability for such delays could be claimed. All except two shipments would fall within this grace period. Of the remaining two, one shipment, they further maintain, was delayed for four days due to a strike. That delay, they conclude, is not chargeable to them under the contract terms of the bill of lading.

The most far-reaching issue raised by the defendants is whether the tariff, which allowed an extra 24-hour grace period before liability could be assessed for delays for market decline, is applicable to a claim charging the carrier with negligence under the Interstate Commerce Act, 49 U.S.C. § 20(11).

The tariff in effect at the time the shipments in question moved was Transcontinental Freight Bureau Tariff 44-P, Item 5210 — N, which in pertinent part reads:

“Note 2. —Shipments moving under rates subject to this note will be governed by the following policy for payment of claims for market decline. “Delay for market decline purposes shall be deemed to exist only if placement occurs more than 24 hours later than the time scheduled to elapse between origin tender and destination placement, unless carrier has evidence to establish that the delay in delivery of the shipment is attributable to causes other than carrier negligence.”

This tariff provision is an unequivocal limitation on the carrier’s liability for market declines attributable to delays. It allows the carrier, even in the most explicit cases of negligence, a 24-hour grace period for which there can be no recovery of damages. Seen in that light, the tariff provision is in derogation of both statutory and case law.

The Interstate Commerce Act, 49 U.S.C. § 20(11), prohibits such limitations of liability.

“Any common carrier, railroad, or transportation company . . . receiving property for transportation . shall issue a receipt or bill of lading therefor, and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it . . . and no contract, receipt, rule, regulation, or other limitation of any character whatsoever shall exempt such common carrier, railroad, or transportation company from the liability imposed;” (Emphasis added.)

The courts consistently have interpreted this Section to mean that a carrier may not, by agreement or otherwise, exonerate itself from losses negligently caused by it. See, Boston & Maine R.R. v. Piper, 246 U.S. 439, 38 S.Ct. 354, 62 L.Ed. 820 (1918); Cincinnati, N. O. & Texas Pacific R. Co. v. Rankin, 241 U.S. 319, 326, 36 S.Ct. 555, 60 L.Ed. 1022 (1916); Federated Department Stores v. Brinke, 450 F.2d 1223, 1227 (5th Cir. 1971); Lux Art Van Service, Inc. v. Pollard, 344 F.2d 883 (9th Cir. 1965).

Nor have the courts given weight to the argument that the limitation provision was embodied in a tariff filed with and approved by the Interstate Commerce Commission. Boston & Maine Railroad v. Piper, supra; Resolute Ins. Co. v. Morgan Drive-Away, Inc., 403 S.W.2d 913 (Mo.App.1966). In fact, since the tariff in this suit was approved in 1970 the Commission has changed its position on the very issue facing this Court.

“The proposed rule would significantly change the basis of carrier liability in two important ways. First, it is clear that the schedules relied on by the courts have been the actual operating schedules, which are deemed to reflect the time usually required for the transportation in question, not constructive schedules. Secondly, the courts have not allowed such a ‘grace period,’ and carriers have been found to be liable where the alleged delay was far less than 24 hours [T]he proposed 24-hour condition is inconsistent with the present law of carrier liability and that it is, therefore, contrary to section 20(11).” Provisions On Vegetables And Melons, Transcontinental, No. 35341 (340 I.C.C. 807, 813 Feb. 1972).

I find Note 2 of Trans-Continental Freight Bureau Tariff 44-P, Item 5210-N, to be in derogation of the public policy endorsed in 49 U.S.C. § 20(11) and therefore void, null and of no legal effect.

The defendants have argued that one of the shipments, Carrier Claim number S.P. 0315-636-1-2299, was delayed for four days due to a strike. This delay, they maintain, is not attributable to them under the Bill of Lading.

The Bill of Lading provides, inter alia: “Except in the case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be on the carrier or party in possession), the carrier or party in possession shall not be liable for . . . delay occurring from riots or strikes.”

Therefore, according to the terms of the contract the carrier must show not only that there was a strike at the time the shipment moved but also that the delay did not result from its own negligence. This principle is in accord with general case law. Missouri Pac. R. Co. v. King, 167 Ark. 335, 268 S.W. 595 (1925); A. F. Young & Co. v. Grand Rapids & I. R. Co., 201 Mich. 39, 167 N.W. 11 (1918).

Since the plaintiff has shown the unreasonable delay required by Section 2(a) of the Bill of Lading, it has made out a prima facie case of negligence which requires the defendants to come forward with contradictory facts lest summary judgment be granted against it. The defendants have produced an affiant who swears that there was a strike at the time but then goes on to state his legal conclusion: “. . the contract terms of the bill of lading prohibit liability against the carrier where time is lost on account of a strike; therefore, no damages are due the plaintiff.” (Affidavit of Donald R. Steinman). To defeat the plaintiff’s motion for summary judgment where it has otherwise sustained its burden the defendants must present contrary material facts. Legal conclusions have never sufficed when material facts are at issue. See generally 6 Moore’s Federal Practice ¶ 56.15[3], I therefore find that the defendants have not presented facts sufficient to sustain their affirmative defense in that they failed to show that the delay was not caused by their own negligence.

The defendants’ last contention is that since there is no origin inspection report by the United States Department of Agriculture the plaintiff has not proved the market value of the goods involved.

The plaintiff has argued that there is no need for such proof because this is not a “condition claim” where the plaintiff must establish a change in the condition of the commodity. This is a claim for delay where liability is established based upon failure to transport with reasonable dispatch. And the United States Department of Agriculture Auction Sales Reports, which it has submitted, are the best evidence by which to measure the damage it suffered because of a declining market.

I agree with the plaintiff’s position. This Circuit follows the general common law rule of damages in cases of unreasonable delay and damage to goods in shipment. The measure of damages is:

“. . . the difference in the market value of the goods at the date and in the condition they were contracted to arrive at their destination and the date on and the condition in which they actually arrived.” Great Atlantic & Pacific Tea Co. v. Atchison, T. & S. F. Ry. Co., 333 F.2d 705, at 707, 708 (7th Cir. 1964).

In the instant case there is no claim for damages due to a changed condition in the goods. Plaintiff bases its claim for damages solely on unreasonable delay in the transportation and delivery of the produce and the decline in wholesale market prices. Consequently the appropriate measure of damages for this case is the difference in the wholesale market value at the date they were contracted to arrive at their destination and the date on which they actually arrived. I therefore find that the United States Department of Agriculture Auction Sales Reports for the dates and markets in question are sufficient to establish the wholesale market prices for the contracted dates and the actual arrival dates.

Since the defendants Seaboard Coast Line Railroad Company and Florida East Coast Railway Company have consented to a settlement judgment which was the subject of Count II of the Second Amended Complaint, the plaintiff’s claim for damages is reduced in the amount of $3,914.37 and that Count is dismissed.

I enter summary judgment for the plaintiff and against the remaining defendants in the amount of $5,703.16 and the same hereby is so ordered, adjudged and decreed.

      . The pertinent provision, Note 2 of this tariff, provides as follows:
      “Delay for market decline purposes shall be deemed to exist only if placement occurs more than 24 hours later than the time scheduled to elapse between origin tender and destination placement, unless carrier has evidence to establish that the delay in delivery of the shipment is attributable to causes other than carrier negligence.”

      . Section 1(b) of the bill of lading provision relied on by Steinman provides:
      “Except in the case of negligence of the carrier or party in possession (and the burden to prove freedom from such negligence shall be for the carrier or party in possession), the carrier or party in possession shall not be liable for * * * delay occurring * * * from riots or strikes.”

      . Steinman’s affidavit does not explain the two-day carrier delay resulting from an August 5, 1968, shipment of grapefruit from Somis, California, to Chelsea, Massachusetts, originating on the Southern Pacific and involving a claimed loss of $1,084.65. In its reply brief in support of its motion for summary judgment, plaintiff noted that the Penn Central did not resist summary judgment with respect to this shipment. However, if valid, the second ground of Penn Central’s reply to the plaintiff’s motion for summary judgment, viz., that no proof of the market value of plaintiff’s goods had been presented, would apply to this shipment.

      ' Section 2(a) of the Uniform Bill of Lading provides:
      “No carrier is bound to transport said property by any particular schedule, train, vehicle or vessel, or in time for any particular market or otherwise than with reasonable dispatch.”

      . At the oral argument, defendants’ counsel attempted to justify the validity of the 24-hour rule by reference to the statutory three-judge court opinions in Ad Hoc Committee on Consumer Protection v. United States, 313 F.Supp. 119 (D.D.C.1970), and 317 F.Supp. 370 (D.D.C.1970). However, neither decision validated the 24-hour period of grace. In fact, in the latter case, the court stated:
      “By making the rule public and explicit the Commission and the courts can begin by knowing exactly what is offered, and then determining whether it is legal and, just as important, whether it is being evenly applied.” 317 F.Supp. at 373.

      . This holding should not be construed to preelude further proceedings under Fed.R.Civ.P. 56 as to this issue upon remand, if the requisite facts are established by plaintiff. Neither should it be regarded as an adoption of defendants’ apparent contention that plaintiff must produce a U. S. Department of Agriculture inspection report to prove the condition of the produce when shipped,


text:
    CAPE AND VINEYARD DIVISION OF the NEW BEDFORD GAS and Edison Light Company, Petitioners, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION, Respondent.
    No. 74-1223.
    United States Court of Appeals, First Circuit.
    Argued Nov. 5, 1974.
    Decided March 3, 1975.

      Lawrence M. Kearns, Boston, Mass., with whom Morgan, Brown, Kearns & Joy, Boston, Mass., was on brief, for petitioners.

      Morton A. Hollander, Atty., Dept, of Justice, with whom Carla A. Hills, Asst. Atty. Gen., New York City, and Stephen F. Eilperin, Atty., Dept, of Justice, Washington, D. C., were on brief, for respondent.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

The employer, a public utility company, petitions this court to review a decision of the Occupational. Safety and Health Review Commission that the employer committed a serious violation of section 5(a)(2) of the Occupational Safety and Health Act, 29 U.S.C. § 654(a)(2), by failing to comply with a safety standard promulgated in a regulation under the Act. Because we are unable to discover substantial evidence in the record to support the Commission’s finding of the violation, we reverse.

The Act’s goal is to eliminate dangerous conditions in the workplace. Id. § 651. Without affecting workmen’s compensation remedies, id. § 653(b)(4), it imposes fines upon employers engaged in interstate commerce who fail to eliminate avoidable hazards to the health and safety of workers. Employer duties under the Act are of two kinds. The employer has a general duty to provide employees a work environment “free from recognized hazards that are causing or are likely to cause death or serious physical harm”. Id. § 654(a)(1). In addition the employer must conform to specific health and safety standards promulgated by the Secretary of Labor. Id. §§ 654(a)(2), 655. Dereliction of either duty is a violation of the Act quite apart from whether injury to an employee results. And while the occurrence of injury may be relevant to proving a violation, it is not conclusive. But the Act does provide for more severe penalties for a violation when, as here, death results. Id. § 666(b).

The case before us developed from an investigation by the Occupational Safety and Health Administration (OSHA) following the death by electrical shock of an employee of the company. OSHA issued a citation against the company for a serious violation of the Act for failing to require employees to use necessary protective equipment as required by a promulgated safety standard. The Secretary also issued a proposed penalty of $600 and ordered the company to abate the unsafe condition immediately. The company contested the citation and proposed penalty and order, and the case was heard before a Commission administrative law judge.

At the hearing it was shown that the fatal accident occurred while a company crew was working on a 40-foot utility pole next to a public road in South Orleans, Massachusetts. The pole was one of a series carrying electric wires in a north-south direction along the west side of the road. Immediately to the west of the pole was a tree-lined field, and to the east was the street. On the pole were two sets of parallel crossarms ten feet across, fastened with v-braces, and perpendicular to the road. Three energized wires were connected to the lower crossarm from the north: a primary wire six inches from the crossarm’s street-side end, a primary wire at its center, and a primary wire six inches from its field-side end. These wires, as well as their securing clamps, were each charged with 2,400 volts. The upper set of crossarms had the same arrangement of wires from the south, and electricity flowed from the upper wires through three insulated wires to the three wires extending north from the lower set of crossarms seven feet below. Three secondary wires charged with 120 to 240 volts ran two feet below the lower cross-arm’s center primary wire.

The crew had completed installing one field-side transformer and one street-side transformer between the upper and lower crossarms on the south side of the pole before the accident. The transformers were grounded and were later to be connected to reduce the voltage flowing north. The bottom outside corner of the field-side transformer was seven-and-a-half inches above the lower crossarm and twelve inches from, the live field-side wire and clamp.

First-class lineman Thayer went up to the north side of the pole to measure and cut a tap wire which was later to be connected to the field-side clamp. Since the tap came from the transformer’s outside corner (four feet from the pole) and was coiled rather than hanging within easy reach, it was necessary for Thayer to stretch awkwardly, reach over the crossarms and through the 12-inch gap between the transformer and primary field-side wire to grab the tap, and pull the tap to within six inches of that live wire before cutting off the excess and bending the tap out of the way.

Thayer belted himself slightly to the north on the field side of the pole, between the pole’s lower set of crossarms and the crossarm brace. He was wearing a hard hat and fourteen-and-a-half inch insulated rubber gloves which protected his lower forearms. Protective rubber line hose and hoods had been placed over the center primary wire on the lower crossarm and over the secondary wires extending south, but not over the outside primary wires and clamps and the secondary wires extending north. According to testimony, first-class lineman- Fulcher, who was working with Thayer under the “buddy system” and located in a truck bucket hoisted on the opposite side of the crossarm and slightly above Thayer, asked Thayer if more rubber protective equipment was needed. When Thayer replied that he did not need more rubber and began to pivot and stretch towards the tap, Fulcher turned to a short task of trimming overhanging limbs on the field side. Fulcher was not watching when, a few seconds later, Thayer was electrocuted. Second-class lineman Estabrook and foreman Wittman, who had been observing the operations generally, also testified that they were not watching Thayer at the moment of contact.

The medical examiner found a number of burns on the upper left arm of Thayer’s body and a similar large burn on the upper right arm. To be electrocuted, an unprotected part of Thayer had to touch both a live contact and a neutral ground. It was stipulated that he probably contacted the 2,400 volt field-side primary wire or its clamp with one arm and the grounded transformer with the other.

The administrative judge affirmed the citation and proposed penalty, finding that the foreman knew or should have known that there was substantial probability that death or serious injury could result from the failure to require Thayer to use protective equipment for the field-side primary wire and its clamp. The judge found that by letting Thayer decide not to use more protective rubber, the foreman violated the company’s own safety rules as well as the safety standard under the Act. Observing that Thayer had only 12 days experience as a first-class lineman, the judge stated even in the case of an experienced first-class lineman the “safe course” would have been to cover the field-side primary wire and clamp because of the possibility of errors or slips that could, occur to a lineman in an awkward and changing position on the pole.

After reviewing the record, the Commission affirmed the administrative judge’s decision and order by a 2-1 vote. In dissent Commissioner Moran argued that the broad and obscure language in the relevant standard under the Act could be fairly interpreted only as requiring those safety precautions recognized as necessary by industry custom and practice as utilities understood it. In his view the evidence indicated that the company complied with these.

We agree with the dissenting commissioner that the language of the standard alleged to be violated affords little if any concrete guidance: protective equipment is to be required “wherever it is necessary by reason of hazards . encountered in a manner capable of causing injury . . through physical contact.” See note 3 supra. A regulation without ascertainable standards, like this one, does not provide constitutionally adequate warning to an employer unless read to penalize only conduct unacceptable in light of the common understanding and experience of those working in the industry. Ryder Truck Lines, Inc. v. Brennan, 497 F.2d 230, 233 (5th Cir. 1974). Cf. United States v. National Dairy Corp., 372 U.S. 29, 36, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); United States v. Petrillo, 332 U.S. 1, 4-8, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). Of course if an employer is shown to have actual knowledge that a practice is hazardous, the problem of fair notice does not exist. But in the absence of actual knowledge, an objective test may satisfy due process. In this case, an appropriate test is whether a reasonably prudent man familiar with the circumstances of the industry would have protected against the hazard. See generally National Realty & Construction Co. v. OSHRC, 160 U.S.App.D.C. 133, 489 F.2d 1257, 1265 & n. 32 (1973). We would expect, most often, that reference to industry custom and practice will establish the standard of conduct. There may, however, be instances where industry practice fails to take reasonable precautions against hazards generally known in the industry; in such event it may not be unfair to hold the employer to a standard higher than that of actual practice. But in any event OSHA had to establish here that a prudent man familiar with linework would have understood that more protective equipment was “necessary” in the situation at issue.

Thus it was not enough for the administrative judge to point out that the accident could have been prevented by covering the live wire and clamp with protective rubber; that fact alone does not establish that the need for further protection would have been recognized in the industry. An employer cannot be held to guard against hazards created by employee conduct which is not reasonably foreseeable. At the hearing there was uncontroverted testimony by a safety expert in the industry that a lineman performing Thayer’s task does not have to move into a dangerous position requiring more protection than was present in Thayer’s case. Thayer’s fellow crew members testified that Thayer had been belted below the cross-arms with his feet four to six feet below the crossarms before he began his task. The expert testified that this position would be normal for one performing the task and a higher position unnecessary. Although no witness could explain Thayer’s probable higher position at the time of contact, the higher position is not necessarily inconsistent with the witnesses’ observation of the lower position seconds earlier. It is theorized that Thayer made a sudden lunge and perhaps moved higher on the pole. While this theory is wholly speculative, no contradictory evidence explains how Thayer might otherwise have reached the position at contact in the normal or foreseeable course of his work. Without such evidence, the occurrence of the electrocution does not establish its likelihood.

The administrative judge reasoned that a lineman’s work on the pole inherently involved the possibility of error, slips, and unusual occurrences. While this statement seems sensible — indeed, on first impression it might even seem to a layman that Thayer’s hazardous conduct might have been predictable — the judge’s position is not supported in the record. No witness familiar with linework testified as to the likelihood of such error in Thayer’s circumstances, and the judge did not allow the expert to express his opinion as to whether contact such as Thayer’s was reasonably foreseeable. In the absence of such testimony, the judge’s determination as to the foreseeability of the hazard was speculation rather than a conclusion derived from record evidence. We do not say that some gross deficiencies in protective gear could not be so glaring as to permit the administrative law judge and Commission to rule without the benefit of any testimony from safety experts familiar with, or those skilled in, the particular industry or activity. Here, however, the victim wore gloves and used other basic protective equipment. Without any support whatever from knowledgeable witnesses experienced in this technical activity, we do not see how the agency can be satisfied that the hazard was “reasonably foreseeable”, or that skilled men of ordinary prudence would have thought it “necessary” for the company to impose additional protective equipment requirements upon Thayer. Moreover, we observe that the finding of a violation of the broadly worded regulation in this one situation will in effect establish an across-the-board requirement for similar activity in the industry; as a matter of sound policy, OSHA should not accept a nonobvious interpretation of the regulation without the guidance of knowledgeable sources as to the practicality and utility of the safety requirements as so interpreted.

We conclude that OSHA failed to sustain the burden, set forth in its regulations, of proving the violation. 29 C.F.R. § 220.73(a). The Act itself provides that the Commission’s factual findings are conclusive “if supported by substantial evidence on the record considered as a whole”. 29 U.S.C. § 660(a). We quote the Supreme Court’s familiar description of this formula:

“ ‘Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ . . . Accordingly, it ‘must do more than create a suspicion of the existence of the fact to be established. . . . ’ ”

Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951).

The record here does not support the Commission’s decision under such a standard of review. None of1 the OSHA witnesses were qualified as experts capable of testifying as to safety precautions within industry knowledge. The OSHA regional director had some experience in electrical safety, but was no expert on lineman’s work in the utility industry. Nor do we give much weight to the OSHA investigator’s somewhat hedged testimony that a company official with much experience had said that the field-side wire should have been covered. The company official denied the hearsay statement, and another OSHA official could not recall any such statement while he was present.

The company’s own safety rules certainly may be treated as evidence of its awareness of the hazard which caused Thayer’s death. As the administrative law judge found, it was the foreman’s responsibility to insist on safety requirements, and a company rule states quite strongly that the “workman” shall protect himself:

“A sufficient amount of protective equipment must be used to prevent accidental contact of any part of the body with the conductors or parts .. In cases where work is actually being done close to live wires or live apparatus, where the voltage is greater than 600, rubber gloves must be worn and, in addition, other live parts must be covered with rubber blankets, hose or hoods, so that parts of the body other than the hands cannot come into contact with the live parts.”

For the following reasons, however, we do not consider the company’s rule evidence enough to establish a failure on the company’s part to follow reasonably prudent practices.

The rule is not specific. Other than requiring the use of gloves, which Thayer was wearing, it sets up a general requirement that “sufficient” protective covering be used “where work is actually being done close to live wires”. The fact that Thayer must reach within six inches of the uncovered wire did not in itself establish that he was “close” since, according to expert testimony, the lineman is “close” to the uncovered wire only in the sense that his outstretched hand with a fourteen-inch protective glove is that near. Since the accident did occur, the protective equipment used must not have been “sufficient”. But we are unwilling to uphold the Commission’s decision solely on the basis of the apparent violation of a rule phrased so broadly that if it were followed literally by the company’s employees, all chance of electrocution would be eliminated. We also fear that turning a very general rule of this sort against the company would needlessly discourage an employer from exhorting employees to take every possible safety precaution.

That Thayer had only 12 days experience as a first-class lineman provides little support for the conclusion that more protective equipment should have been provided by the company in his case. The company’s linemen go through a training process and must have experience before they are eligible to be first-, class linemen. Thayer had in fact been an acting first-class lineman during the three months before his promotion. There is no evidence that he or any other company lineman lacked sufficient training, dexterity, or judgment to have done the work safely or to be left with the decision whether to cover the side primary wires. The expert’s testimony, again undisputed, was that in some circumstances the man on the pole might more appropriately make the decision than could a foreman from his angle on the ground.

While neither the foreman nor Thayer’s buddy was watching at the time of contact, the testimony of all on the scene was that both men were present and generally following Thayer’s actions. There is nothing in the record indicating that prudence would require a supervisor or buddy constantly to watch the employee on the pole, or that any such practice would be feasible. Further, the company was not charged with negligent lack of supervision or of any other violation of the general duty clause, but rather with failure to comply with the protective equipment standard.

In the absence of evidence from those qualified to express such an opinion that further protective equipment was necessary and should have been required on the field-side primary wires and clamps, we hold that the Commission’s finding of a violation of the safety standard was not supported by substantial evidence.

We recognize that those most familiar with electrical line work are likely to be actively employed by private companies. But OSHA is surely not without access to qualified witnesses. It is also possible that the level of industrial safety practices may be so inadequate as to fall below desirable standards. But we do not require reference solely to company-sponsored practices. We refer rather to the standard of safety that could be expected from a reasonably prudent man familiar with the circumstances of the industry. And in the unlikely event that the Commission should be stymied in making out cases of this nature because of difficulties of proof or for other reasons, the Secretary of Labor may exercise the option of promulgating specific standards of his own governing electrical line workers.

The decision and order of the Occupational Safety and Health Review Commission are reversed.

      . This court has jurisdiction to review the Commission order under 29 U.S.C. § 660.

      . An employer in compliance with a promulgated standard is deemed to be in compliance with the general duty to the extent of that standard’s coverage. 29 C.F.R. § 1910.5(f).

      . A serious violation is one which creates
      “a substantial probability that death or serious physical harm could result from a condition which exists, or from one or more practices, means, methods, operations, or processes which have been adopted or are in use, in such place of employment, unless the employer did not, and could not with the exercise of reasonable diligence, know of the presence of the violation.”
      29 U.S.C. § 6660).

      . The standard provides:
      “Protective equipment, including personal protective equipment for eyes, face, head, and extremities, protective clothing, respiratory devices, and protective shields and barriers, shall be provided, used, and maintained in a sanitary and reliable condition wherever it is necessary by reason of hazards of processes or environment, chemical hazards, radiological hazards, or mechanical irritants encountered in a manner capable of causing injury or impairment in the function of any part of the body through absorption, inhalation or physical contact.”
      29 C.F.R. § 1910.132(a).

      . The use of an objective, reasonable man test for determining compliance with the protective equipment standard has been held to be in accord with the congressional purpose as reflected in the general duty clause. McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974). See generally, Morey, The General Duty Clause of the Occupational Safety and Health Act of 1970, 86 Harv.L. Rev. 988, 995, 1001-03 (1973), where it is argued that the proper test for a recognized hazard under the general duty clause is whether a hazard is “known” to the industry as a whole. See 116 Cong.Rec. 38377 (1970).

      . “Hazardous conduct is not preventable if it is so idiosyncratic and implausible in motive or means that conscientious experts, familiar with the industry, would not take it into account in prescribing a safety program.”
      National Realty & Construction Co. v. OSHRC, 160 U.S.App.D.C. 133, 489 F.2d 1257, 1266 (1973).
      Liability under the Act is preventive in purpose and therefore is not justified if imposed when the accident is a freak and unlikely to be repeated (though caused in fact on the occasion at issue). See Morey, supra note 5 at 1001.

      . If Thayer had been proceeding to his task from a position above the crossarms and primary wires, protective equipment would have been necessary. According to the expert, the covering of live wires below the lineman is a normal precaution — it protects against slipping or backing into a contact.

      . Over OSHA’s objections, lineman Fulcher testified that he did not observe anything dangerous for Thayer to do, and that Fulcher himself from the bucket “felt I could work clear and safe without covering”.

      . There was undisputed testimony that ample additional protective rubber was available in the crew’s truck, and so the possibility does not arise that the crew members were trying to explain away the absence of such equipment on the field-side primary wire by saying it was not needed.

      . See Morey, supra note 5, at 1002: “Recognizing the disincentive [in holding an employer to a higher standard than the rest of the industry] toward the obviously commendable development of a superior industrial safety program, I hasten to add that specific, confirmed knowledge should be required, not a mere suspicion or theory that there is a hazard. And the allowance of adequate time to correct the hazard is of particular importance in this situation.”


text:
    Israel LOPEZ LOPEZ, Plaintiff-Appellee, v. SECRETARY OF HEALTH, EDUCATION AND WELFARE, Defendant-Appellant.
    No. 74-1085.
    United States Court of Appeals, First Circuit.
    Argued Feb. 3, 1975.
    Decided March 13, 1975.

      Morton Hollander, Atty., Dept, of Justice, with whom Carla A. Hills, Asst. Atty. Gen., New York City, Julio Morales Sanchez, U. S. Atty., San Juan, P. R. , Stephen F. Eilperin, and Stanton R. Koppel, Attys., Dept, of Justice, Washington, D. C., were on brief, for defendant-appellant.
    Hector Reichard, Aguadilla, P. R., for plaintiff-appellee.
    Before COFFIN, Chief Judge, ALD-RICH and CAMPBELL, Circuit Judges.
   LEVIN H. CAMPBELL, Circuit Judge.

The Secretary of Health, Education and Welfare has filed an appeal from the district court’s remand order in an action brought by a Social Security claimant to review the Secretary’s denial of Social Security disability benefits. 42 U.S.C. §§ 405(g), 423(d)(1). We have noted a threshold question of appealability, but upon further consideration are persuaded the matter is properly before us either on appeal, see, e.g., Cohen v. Perales, 412 F.2d 44, 48-49 (5th Cir. 1969), rev’d on other grounds sub nom., Richardson v. Perales, 402 U.S. 389, 91 S. Ct. 1420, 28 L.Ed.2d 842 (1971), or under authority of the All Writs Act, 28 U.S.C. § 1651. See Schlagenhauf v. Holder, 379 U.S. 104, 85 S.Ct. 234, 13 L.Ed.2d 152 (1964); La Buy v. Howes Leather Co., 352 U.S. 249, 77 S.Ct. 309, 1 L.Ed.2d 290 (1957); 9 Moore’s Federal Practice 312 — 13. We accordingly proceed to the merits.

Lopez filed a claim for Social Security Disability Insurance Benefits in 1971, stating that he could no longer work as his left kidney had been removed and his right was damaged and caused him constant pain. The Social Security Administration, after interviewing and examining him and reviewing his medical records, denied his claim initially and on reconsideration. Lopez then requested and was granted a hearing, at which time a hearing examiner considered all the evidence de novo. The hearing examiner, after examining the medical evidence and hearing the testimony of Lopez and a vocational expert, ruled that while he could no longer work as a cement mason, he could still do jobs of a light and sedentary nature. Finding that such jobs existed in significant numbers in the Puerto Rico economy, the hearing examiner ruled that Lopez had not shown himself to be disabled within the meaning of the Act. 42 U.S.C. § 423(d). Upon Lopez’ request for review, the Appeals Council of the Social Security Administration upheld the hearing examiner’s decision, the decision then becoming the final decision of the Secretary.

In overruling the decision of the Secretary, the district court apparently accepted the hearing examiner’s finding that Lopez could perform light and sedentary tasks but nevertheless held that “the Secretary failed to sustain the burden of showing that there is employment available which plaintiff is able to perform . . . .” The court made plain its belief that it was incumbent upon the Secretary to establish that claimants such as Lopez, poorly skilled and residing in an area of high unemployment, have a realistic opportunity of being hired for those positions the Social Security Administration finds them competent to perform. Otherwise they are to be deemed disabled for purposes of the Act. In reaching this conclusion the district court erroneously relied upon a line of cases, interpreting “disability” before Congress added statutory language restricting the definition of that term. With the Social Security Amendments of 1967 Congress clearly foreclosed such prior interpretations. Pub.L.No. 90 — 248 § 158(b), 81 Stat. 821 (1968). The current law requires that

“an individual . . . shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.”

42 U.S.C. § 423(d)(2) [emphasis supplied]. Nothing could be more clear. Considerations derived from local hiring practices, employer preferences for physically superior workers, and the claimant’s actual chances of being hired are irrelevant in determining disability, and must be disregarded. Cf. H.R.Rep. No. 544, 90th Cong., 1st Sess., 29-30 (1967); S.Rep. No. 744, 90th Cong., 1st Sess., 48-49 (1967), U.S.Code Cong. & Admin.News 1967, p. 2834. As this court has previously stated, the statutory scheme is not an “ancillary unemployment compensation device”. Reyes-Robles v. Finch, 409 F.2d 84, 86 (1st Cir. 1969). It is not necessary that the Secretary demonstrate that a particular claimant would actually be hired, or even that there is a realistic chance of his being so. It is sufficient that he show that there are specific jobs in the national economy which a claimant is capable of performing. “Disability” as provided in the Act, although defined by reference to concepts similar to employability, is actually a term of art looking to the physical and mental capacity to engage in certain activities, regardless of whether the opportunity for any such activity actually exists.

Every Circuit considering the question has reached the same result as that reiterated here, and we are doing no more than amplify principles we discussed as recently as last year. Hernandez v. Weinberger, 493 F.2d 1120, 1122 (1st Cir. 1974).

Since the district court’s order remanding to the Secretary was premised upon an incorrect legal standard, it is hereby vacated. We cannot determine whether the district court found the Secretary’s decision, considered apart from questions of actual employability, supported by substantial evidence. We therefore direct the district court, applying now the appropriate statutory standard, to determine whether or not the Secretary’s decision that Lopez was not disabled is supported by substantial evidence.

So ordered.

      . The Act requires that to be disabled claimants must be unable to engage in “substantial gainful work . . . which exists in significant numbers either in the region where such individual lives or in several regions of the country.” 42 U.S.C. § 423(d)(2)(A) [emphasis supplied].

      . Torske v. Richardson, 484 F.2d 59 (9th Cir. 1973), cert. denied, 417 U.S. 933, 94 S.Ct. 2646, 41 L.Ed.2d 237 (1974); Chavies v. Finch, 443 F.2d 356 (9th Cir. 1971); Whiten v. Finch, 437 F.2d 73 (4th Cir. 1971); Gentile v. Finch, 423 F.2d 244 (3d Cir. 1970); Martin v. Finch, 415 F.2d 793 (5th Cir. 1969); Wright v. Gardner, 403 F.2d 646 (7th Cir. 1968); Mullins v. Gardner, 396 F.2d 139 (6th Cir. 1968).


author: PER CURIAM.

text:
    PETER ECKRICH AND SONS, INC., Plaintiff-Appellant, v. The SELECTED MEAT COMPANY et al., Defendants-Appellees.
    No. 74-1045.
    United States Court of Appeals, Seventh Circuit.
    Argued Nov. 19, 1974.
    Decided March 27, 1975.

      Hamilton Smith, Chicago, 111., for plaintiff-appellant.
    Barry L. Kroll, Chicago, 111., for defendants-appellees.
    Before SWYGERT and CUMMINGS, Circuit Judges, and WYZANSKI, Senior District Judge.

       Senior District Judge Charles Edward Wyzanski, Jr. of the District of Massachusetts is sitting by designation.

   PER CURIAM.

In March 1973, plaintiff, a meat processor with its principal place of business in Fort Wayne, Indiana, filed its second amended complaint, consisting of seven counts, against four corporate defendants. One of the defendants, Waldock Packing Company, was subsequently dismissed on motion of plaintiff. The lawsuit was predicated on the delivery to plaintiff of allegedly rancid pork cheeks sold by defendant Selected Meat Company to defendant Beacon Food Products Corporation and, in turn, sold by Beacon through its agent, defendant Great Lakes Brokerage Company, to plaintiff. $226,782.51 in damages were sought because plaintiff assertedly had to destroy other meat with which the defective pork cheeks were mixed in processing luncheon meats and frankfurters at its plants in Fort Wayne, Indiana, Fremont, Ohio, and Kalamazoo, Michigan.

At the close of plaintiff’s case, the court granted defendants’ motion's for a directed verdict. On appeal, plaintiff complains of evidentiary rulings of the trial court that “improperly excluded the guts of the plaintiff’s case” (Plaintiff’s Br. 18). We reverse.

Exclusion of Batching Records

Plaintiff sought to introduce batching records from its Fort Wayne, Indiana, Fremont, Ohio, and Kalamazoo, Michigan, plants to show that its Chicago preblend, allegedly containing defendants’ meat, was mixed into plaintiff’s finished product at those three plants. As the trial judge noted, their absence from evidence would “short-circuit” plaintiff’s case, for without them plaintiff could not show that its finished product had been contaminated by the incorporation of defendants’ allegedly rancid pork cheeks.

These batching exhibits were excluded under the Business Records Act (28 U.S.C. § 1732) for lack of foundation. This was an over-narrow construction of the Act.

The records were identified by witness Walter E. Suever, corporate manager of technical standards and procedures for plaintiff in Fort Wayne at the time of the transactions in question. He testified that his department prepared these forms which were filled in by batching operators in the regular course of plaintiff’s business. They were routinely kept as regular business records and were completed at batching time. Suever set up the procedure for maintaining those records and obtained them and kept them in his possession since September 1971. The district judge ruled that this was insufficient foundation under the Business Records Act. We disagree.

Suever’s testimony was sufficient to attest to the authenticity of the records. As we held in United States v. Teague, 445 F.2d 114, 119 (7th Cir. 1971), the person who makes the records need not testify. The Act “was intended to eliminate the technical requirement of proving the authenticity of records and memoranda by the testimony of the maker.” United States v. Olivo, 278 F.2d 415, 417 (3d Cir. 1960). In accord with the liberal interpretation required for this statute (Palmer v. Hoffman, 318 U.S. 109, 115, 63 S.Ct. 477, 87 L.Ed. 645), it is apparent that these records were made pursuant to established company procedures, so that adequate hallmarks of their authenticity are present. They should have been received in evidence.

If the batching records had been in evidence, defendants have not denied that the documentary results of the rancidity tests conducted by plaintiff should have been admitted, nor have they denied the admissibility of plaintiff’s exhibits purportedly showing that pork cheeks emanating from defendants were mixed at plaintiff’s Chicago Plant 3 to produce 2XL preblend on September 7, 8 and 9, 1971. Indeed with the tie-in shown by the batching records, defendants concede the relevancy of the rancidity and preblend records, so that their exclusion need not be discussed herein.

Exclusion of Plaintiff’s Expert Witnesses

On the fourth day of the trial, the court sustained an objection to the testimony of plaintiff’s expert, Professor Sinnhuber of Oregon State University. Similar rulings were made with respect to proffered testimony of George Nischan, an instructor at the United States Army Medical Division Veterinarian School at Fort Sheridan, Illinois, and of George E. Brissey, a Californian who had been in charge of quality assurance for Swift & Company Meat Packers. The reason for excluding their testimony was plaintiff’s failure to comply with the May 17, 1973, pretrial order requiring counsel for the parties to file with the clerk ten days before the scheduled trial datera list of names and addresses of all expected witnesses. When the case was finally called for trial on October 1, 1973, none of the parties had filed a list of witnesses.

Defendants argue in this Court that “if the [district] court ruled correctly with regard to the exclusion of the experts’ testimony for the reason that plaintiff failed to comply with the pretrial order, an independent reason exists for the direction of a verdict in defendants’ favor at the close of plaintiff’s evidence.” (Appellee’s brief at 5.) In order to establish causation, plaintiff was required to prove that the product which it received from defendants was tainted at the time that defendants delivered it to plaintiff’s control. Plaintiff intended to prove that the meat was defective when it left defendants’ control through expert testimony. Since our review of the record confirms that there was no evidence actually received that tended to prove this essential point, it is necessary to decide if the district court’s enforcement of the pretrial order was an abuse of discretion.

The May 17th pretrial order instructed the parties to supply the court with a:

“List of names and addresses of all witnesses expected to testify for each party, indicating their capacity (occurrence, expert, etc.) and background qualifications. No foundation evidence other than appearing on the list will be permitted. Objection to calling or qualifications of any witnesses should be made in advance. No witnesses will be allowed to testify who are not listed, except for good cause shown.” (Emphasis added.)

We cannot acquiesce in the exclusion of Eckrich’s expert witnesses under the guise of enforcing this pretrial order. In our view the short-circuiting of plaintiff’s case in this manner was manifestly unjust and an abuse of discretion. To elucidate our reasoning, it is appropriate to present a statement of the facts we consider relevant.

This case was originally filed on December 1, 1971. Plaintiff, a meat processor, sought recovery against five corporations for damages occasioned by the delivery of rancid meat to plaintiff’s plant in Chicago, Illinois. This complaint was twice amended, and in March 1973 four defendants remained: Selected Meat Company, Waldoek Packing Company, Beacon Food Products Corporation, and Great Lakes Brokerage Company. The complaint alleged that Waldoek had slaughtered certain hogs in 1971 and had obtained therefrom 80,000 pounds of pork cheeks which it sold to Selected, who in turn sold to Beacon, who in turn sold, through Great Lakes Brokerage, to plaintiff. The complaint further alleged that the meat in question was either fully rancid or in the preliminary stages of rancidity at the time it left the control of each of the defendants, and was therefore unreasonably dangerous at all relevant times. Finally, it was alleged that this rancid meat was combined with other meat after its receipt by plaintiff, and that as a consequence an entire batch of blended meats was contaminated and destroyed.

On May 17, 1973, a pretrial conference was held and the cause set for a jury trial on Wednesday, June 20, 1973. The record does not indicate the length of this conference. On the same day, a final pretrial order was entered. This order was in fact a form order apparently devised to eliminate the necessity of drafting an order for each particular case. It broadly required counsel in the case to file with the courtroom clerk: 1) stipulations as to all uncontested material facts; 2) stipulations as to the authenticity of all uncontested documents and a list of all documents to be introduced, together with objections of either party as to admissability; 3) a list of all witnesses to be called, with addresses, nature of expected testimony, and qualifications, if any; 4) a list of any depositions to be used, with any objections thereto by the opposing party; 5) a list of all contested issues of fact and law; 6) memoranda of authorities on all contested issues of law; 7) a memorandum “in the form used by the Circuit Court of Cook County, Illinois” on liquidated damages, if claimed; and 8) proposed jury instructions with authorities noted thereon. All of this information was to be filed with the clerk ten days before trial, according to the form order.

After the pretrial order was entered, discovery continued until June 8, 1973, when Eckrich moved to have the trial reset to a later date. The trial was reset to July 16, 1973. On July 6, 1973, Eckrich again appeared to request confirmation of the July 16th setting. Eckrich’s counsel informed the court that he intended to call several out-of-town witnesses and that he was therefore interested in nailing down the trial date, if possible. Counsel for the defendants indicated that he had not had time to read the file in the case and was therefore unable to predict whether settlement might be achievable. The trial judge responded by stating that if the case could not be settled, it would have to be tried as scheduled. He noted that the case was second on the call for the 16th and that as far as he knew, no continuance had been requested in the first case. He suggested that the parties check with counsel in the first case to determine whether that case would go ahead.

On July 11, 1973, counsel for defendants filed a motion for continuance. An affidavit accompanying the motion indicated that certain of defendants’ witnesses, including two experts never before disclosed to plaintiffs, would be unavailable on the 16th. Counsel for plaintiff informed the court that the first case on the trial call for the 16th was set to go ahead, according to counsel for the plaintiffs in that case. The trial judge then stated that he was reluctant to let this case “go over” and suggested that it be held on status call. Counsel for plaintiff pointed out he had several out-of-town witnesses, including two on the West Coast, and indicated problems might crop up unless he had some notice prior to the commencement of trial. The situation was finally resolved by making the 16th a status call with the assurance that there would be at least a “couple of days” advance notice before any evidence would be taken so that witnesses could be lined up and brought in from various parts of the country. No mention was made at this hearing about the pretrial order.

On July 16, 1973, the parties again appeared by counsel and were informed by the trial judge that the first case appeared to be going ahead although the situation was not entirely clear. When counsel for plaintiff again raised the problem with witnesses, the trial judge responded, “I realize that you have a problem of out of state and vacationing witnesses and various other problems * * * . I will take those into consideration.” Further discussion ensued and at the conclusion of the status call the judge again returned to the subject of witnesses: “I am not going to put you in a position where you can’t get your witnesses in. I am going to give you consideration on that.” The case was retained on the status call and again no mention was made concerning the pretrial order.

On the following day counsel again appeared before the judge. Plaintiff’s problem in scheduling out-of-town expert witnesses was once more discussed. At this juncture defendants’ counsel also mentioned misgivings due to expert witness problems. After some discussion it was agreed that if the trial then in progress was not concluded in another day, the Eckrich case would be put over until fall.

On July 26 another status call was had at which the trial judge confirmed that the case could not be tried until fall. Counsel for plaintiff inquired as to a possible date, indicating once again that he had two “West Coast experts” who would be testifying. The trial judge responded that the case could not be tried until “late October or November * *. You will be lucky if this goes to trial by Christmas time.”

On September 17, 1973, counsel for plaintiff appeared with a motion to “quash” notices of deposition filed by defendants or to set a date certain for cutting off further discovery. The trial judge denied this motion. He stated that he did not know when the matter would go to trial but that he was not in the practice of limiting discovery prior to trial in any event:

THE COURT: I do let discovery continue right up to trial- — in fact, it sometimes continues even during trial —because, for one reason, people think of things after they get into a file clearly enough for trial. I cannot see any reason from the face of your motion to preclude discovery or to enter an order cutting it off.

The court also indicated at this hearing that “the chances of trying this case before late this year are, very small.”

On September 25, 1973, a minute order was entered setting the trial for October 1, 1973, just six days subsequent. Until this order, none of the parties had any reason to expect the case to go to trial until some weeks later.

On October 1 the trial was called. Counsel for plaintiff requested a conference:

MR. SMITH: [counsel for plaintiff] I wonder if I could request a conference, Your Honor.
THE COURT: What is the problem? MR. SMITH: Well, I would like to inquire about stipulations and a couple of matters and I would like to get some idea if I can, who their witnesses are going to be.
THE COURT: Well have you gentlemen complied with the pretrial order?
MR. MONTGOMERY [counsel for defendants]: There is no pretrial order, Your Honor.
MR. SMITH: There is none.
THE COURT: A pretrial order was entered but I have not found any compliance with it. That was entered on —well, it is in the file here. Here it is. That was entered on May 17. ******
These pretrial orders are very carefully prepared by me, at least, and I expect the attorneys to do the same thing. When I get no pretrial compliance I am not going to be very sympathetic with delays or requests for pretrial conferences or anything else, frankly.
Bring in the venire.
MR. SMITH: I was not making a request for a pretrial conference, at least I did not think I was. I am prepared. We have a witness list.

At this point Mr. Montgomery indicated that he did not know of any witnesses of plaintiff other than occurrence witnesses and that defendants would object to witnesses not disclosed in previous interrogatories. He also represented that defendants had disclosed all of their witnesses in answer to interrogatories of plaintiff. This was not true. Plaintiff had never even asked for a witness list in previous interrogatories. At no time did defendants identify any witnesses except in an affidavit submitted with the July 11 motion for a continuance. In that affidavit defendants referred to two specific experts, but did not indicate that this was an exclusive list of expert witnesses.

After this colloquy, the trial began. On the fourth day of trial plaintiff called Professor Russell O. Sinnhuber of Oregon State University. Professor Sinnhuber was prepared to testify as to the rancidity tests used on the meat in question and their meaning relative to the rancidity of the meat when received by Eckrich. Counsel for defendants, Mr. Montgomery, objected to the admission of this testimony on the ground that Sinnhuber’s name did not appear in plaintiff’s response to defendants’ interrogatories on the subject of occurrence witnesses. The district judge overruled this objection, stating that the interrogatories referred to by the defense did not cover expert witnesses. Mr. Montgomery then objected on the basis that other interrogatories, which did ask for a list of expert witnesses, were answered late. The exchange which followed erroneously assumed that Mr. Montgomery was correct and that these answers had been filed two days beyond the deadline. In fact, they were timely filed since the calendar date for return fell on a Saturday and the answers were filed on the following Monday, the first day of trial. In his final ruling the district judge indicated that regardless of any misunderstanding on the due date for the interrogatories, the pretrial order was not complied with, and the objection was therefore sustained.

An offer of proof was made as to Sinnhuber’s testimony as well as that of two other experts who were excluded for failure to comply with the pretrial order.

A review of these facts convinces us that the exclusion of Eckrich’s expert witnesses was an abuse of the discretion of the trial judge. Rule 16 was never intended to be a trap for unwary counsel and their litigants. The rule itself indicates that these conferences are held in order to produce agreement among the parties and the trial judge as to the scope of the issues in the particular case and the admission of uncontested items of evidence. The order which follows such conferences is intended to be tailored to the particular case and to reflect “agreements made by the parties.” Here the pretrial order was little more than boilerplate, and a reading of the transcript indicates that none of the parties to this suit was even aware of the order at the time the trial began.

The pretrial order was never mentioned by the trial judge or the parties until the first day of trial. In the numerous status calls and motion hearings the parties and the trial judge recognized and discussed the necessity for expert witnesses and plaintiff’s counsel specifically mentioned his two “West Coast experts.” The judge assured the parties that he would give them “consideration” in this regard. These assurances were made in July when the trial was being held on a day to day status call. No pretrial witness list was on file at that time.

Finally, until September 25, 1973, the parties and the trial judge assumed the trial would not begin until late in October or beyond. Compliance with the order’s ten-day time provision was simply impossible when notice of the trial date came only six days in advance, and as far as the record shows, as a complete surprise. Defendants seemingly rely on the fact that the pretrial order was violated in July when no information was on file within ten days of the July 16th trial setting. But whether or not failure to comply within the month of July would have justified action at that time to exclude all expert witnesses or to dismiss plaintiff’s case, a proposition we find doubtful, reliance on that period of technical noncompliance in the present circumstances is unreasonable and unfair. Since July the litigants in this case have shouldered the expense of additional discovery, trial preparation, and four days of trial. In addition the plaintiff has suffered the expense and embarrassment of flying its “West Coast experts” to Chicago only to have them excluded on the basis of a pretrial order never complied with by defendants. We believe that litigants in a federal court deserve better than this.

It is often said that a trial is not a game of tactics, but a proceedings designed to achieve substantial justice among the parties. Here the trial was a game, and thus resulted in a denial of substantial justice to the plaintiff because it was essential to its case to have expert testimony.

Reversed and remanded for a new trial.

      . Jurisdiction was based on diversity of citizenship. Violations of Illinois and Ohio statutes were claimed.

      . Plaintiff’s preblend is a mixture of meats which is further mixed with other ingredients to make various finished products, such as frankfurters and luncheon meat.

      . The offer of proof of plaintiffs expert Sinnhuber contained a statement that, given both the storage conditions which plaintiff allegedly maintained for the product after it was delivered to its control and the level of rancidity allegedly revealed in plaintiffs test results, “it would be his opinion that the meat had been rancid before it was delivered to Peter Eckrich on September 2, and that the length of time which the meat had been rancid before it was delivered to Peter Eckrich was at least several months, if it had been previously stored under adverse conditions, or many months, if it had been previously stored under normal conditions.”

      . In directing the verdict in defendants’ favor, the district court did not rely upon plaintiff’s supposed failure to introduce sufficient evidence that the meat was rancid, nor upon any hole in plaintiff’s case created by the exclusion of the business records. Rather, the district court specifically based its action upon the total absence of proof that the alleged rancidity was present in the meat when control over it passed from defendants to plaintiff.

      . In addition to this form order, a “Stipulated Protective Order on Dissemination of Confidential Material” was also entered on May 17th. Significantly, this protective order was signed by counsel for the parties whereas the form pretrial order was not so acknowledged,

      . No information whatever was filed by either of the parties pursuant to this order.

      . In their brief defendants rely on answers to certain interrogatories filed by defendants on April 4, 1973. These interrogatories had nothing to do with disclosure of witnesses. They were instead directed to previous testing of plaintiff’s meat samples by defendants. Certain persons involved in these testing procedures were identified in the answers, but no indication was given that any of the persons identified would or might be witnesses at trial, and of course there was no hint that this would be an exclusive list of witnesses.

      . Although counsel for plaintiff did state that he believed that preparations were underway to comply with the order in June or July, we are convinced that none of the parties was in a position to comply with the order in June or at any other time. As of July 6, 1973, counsel for the defendants had not even read his file on the case. Since the order directed the parties to coordinate the submission of the mass of materials and agreements required therein “without court participation”, counsel for plaintiff, even if fully prepared, would have been hard pressed to achieve even token compliance with the order at that time.

      . We cannot refrain from pointing out that defendants are in a rather peculiar position to be relying on this period of non-compliance since the record is clear that on the 6th of July, ten days prior to the setting on the 16th, defendants’ counsel had not yet read the discovery papers on file in the case. Aside from the apparent inequity in enforcing the order against the plaintiff under these circumstances, there would be a real danger that in future cases defendants will be encouraged to promote non-compliance since mutual failure can only accrue to their benefit: If the order is enforced, then plaintiff never makes his case and defendant wins; if the order is not enforced, then defendant proceeds with his case as if there had never been a pretrial order.

      . The cases cited by the defendants are distinguishable from this case. In Napolitano v. Compañía Sud American de Vapores, 421 F.2d 382, 385-86 (2d Cir. 1970), lists were exchanged by the parties and one of the parties attempted at the last minute to add seven witnesses to a list which had previously disclosed the identity of only one witness. In Heilig v. Studebaker Corp., 347 F.2d 686, 690 (10th Cir. 1965) plaintiff attempted to introduce a previously undisclosed witness in the face of a pretrial order signed by the parties and after plaintiff had rested his case.