author: MURRAH, Circuit Judge.

text:
    Donald E. SPENCE, Plaintiff-Appellant, v. Patience LATTING et al., Defendants-Appellees.
    No. 74-1288.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 12, 1974.
    Decided Feb. 26, 1975.

      Stephen Jones, Oklahoma City, Okl., for plaintiff-appellant.
    Jerry R. Fent, Asst. Municipal Counselor, Oklahoma City, Okl. (Walter M. Powell, Municipal Counselor of The City of Oklahoma City, Oklahoma City, Okl., on the brief), for defendant-appellees.
    Before MURRAH, SETH and HOLLOWAY, Circuit Judges.
   MURRAH, Circuit Judge.

Following his dismissal as an Oklahoma City police officer, Spence brought four separate state court actions against the City and various City and state officials, each seeking some form of declaratory or mandamus relief. The first action was abandoned, and the last was dismissed on demurrer for lack of standing. The other two alleged, in essence, that he was denied an appeal hearing as provided by applicable Oklahoma statute. After suffering adverse judgments in all the litigated state court cases, he brought this action under § 1983 against the same City officials or their successors, alleging denial of procedural due process and seeking reinstatement and money damages. He appeals from a summary judgment dismissing the claim on the ground of non-suability, statute of limitations, and res judicata. We affirm.

The basic facts are presented in Spence’s verified complaint. They were stipulated in all the state court actions and have never been disputed. Spence was employed as a City police officer for five years and until his termination by the City personnel director. Pursuant to the City Charter, the City Manager established a Grievance Review Board to hear appeals from terminations of employment. Rather than appealing to the Grievance Review Board, Spence sought relief in the state court.

In Spence v. Ross, filed the month after his termination, he sued the members of the Grievance Review Board, alleging that its procedures “den[y] substantive and procedural due process” and seeking an order establishing new procedures. No summons was ever issued, and the action was apparently abandoned.

In Spence v. Oldland, filed one month later, he sued the City Manager, Mayor, and Councilmen, claiming that the Grievance Review Board’s procedure and composition does not comply with state statute 11 O.S. § 541s, which requires a specified “Board of Review” when pension and retirement rights are involved in the dismissal of a police officer. Spence sought a judgment declaring the applicability of the § 541 Board of Review and the inapplicability of the Grievance Review Board (created under municipal ordinance). An appeal was taken to the Oklahoma Supreme Court from a judgment granting the declaratory relief sought.

Before final decision in that case, he filed Spence v. Norick, suing the City, the Mayor, and Councilmen, to mandamus the establishment of the statutory Board of Review to hear and determine his appeal. The case was first submitted on the stipulation of the basic facts, including the fact that, during Spence’s employment, the City received state monies for a City police pension fund. This suit was dismissed for failure to state facts showing that Spence’s pension and retirement rights were involved as required by § 541. On a subsequent motion for a new trial, it was further stipulated that Spence had paid $1493 into the police pension fund during his employment and that, upon his termination, he had been tendered and had refused to accept his accrued benefits in the pension fund. Upon this additional stipulation, the motion for a new trial was denied, for the same failure to show that pension and retirement rights were involved. This judgment was also appealed to the Oklahoma Supreme Court.

About the same time, Spence filed suit against certain state officials for wrongful payment of state monies to a City not complying with § 541. The state district court sustained the demurrer to this complaint and, on final appeal, was affirmed for lack of standing.

Two and a half years later, the Oklahoma Supreme Court ruled against Spence in the appeals in the Oldland and Norick cases. Spence v. Oldland, No. 45490 (Okl. July, 1973); Spence v. Norick, 513 P.2d 1295 (Okl.1973). The separate judgments were rendered on the same day; and the court discussed the two cases together, since they involved “an amended petition and a stipulation of facts which were, in pertinent part, the same.” Spence v. Oldland, supra, at p. 1. The court noted that Spence did “not complain that he was prevented from offering any evidence.” Spence v. Norick, supra, 513 P.2d at p. 1297. In both cases, it held that the originally and supplementally stipulated facts did not establish that pension and retirement rights were involved; hence, no relief was grantable under § 541. No federal question was asserted in any of the amended pleadings.

Soon after the decision of the Oklahoma Supreme Court, Spence filed this action in federal district court. As in the state court cases, Norick and Oldland, he sued the City officials, alleging the same basic facts, and claiming rights under § 541. Additionally, he alleged for the first time that he “was not discharged by the City ... in accordance with rights guaranteed by the United States Constitution”; more specifically that his discharge “did not comply with due process requirements”, denied him confrontation, cross-examination, and assistance of counsel, and was arbitrarily “calculated to suppress his right to [engage in union] activities ... in violation of the First and Fourteenth Amendments.” As we read the pleadings and understand the basic facts, the gravamen of the complaint here is to the effect that he was denied procedural due process as provided by the state statute and guaranteed by the Fourteenth Amendment. His ultimate remedy sought is reinstatement with money damages.

At the threshold of this appeal, Spence challenges the propriety of the summary judgment on procedural grounds. On January 21, 1974, the case was set for pre-trial on February 5. On February 1, four days before pre-trial, the defendants filed a motion for continuance of pre-trial conference and a motion for summary judgment with supporting brief. On February 5, both parties appeared and orally argued the motion for summary judgment. Spence was granted ten days to respond to the motion by written brief and affidavits, and did so nine days later. Defendants duly filed supplemental materials. The court then granted the motion, dismissing Spence’s action.

Spence asserts that this procedure was not in compliance with the requirements of Federal Rules of Civil Procedure 56(c). He contends that the proceedings held on February 5 were merely a pretrial conference, not a hearing on the motion for summary judgment. And even if it were deemed to be such, it was held with less than the required ten-day notice. We have said that failure to comply with the ten-day notice requirement in Rule 56(c) “deprives the court of authority to enter a summary judgment order.” See Mustang Fuel Corp. v. Youngstown Sheet & Tube Co., 480 F.2d 607, 608 (10th Cir. 1973); Adams v. Campbell County School District, 483 F.2d 1351 (10th Cir. 1973). In Mustang, however, we indicated that, “Under proper circumstances, these [technical] requirements of the Rule may be waived.” 480 F.2d at 608. See also Reilly v. Doyle, 483 F.2d 123, 125 n. 2 (2d Cir. 1973); Ikerd v. Lapworth, 435 F.2d 197 (7th Cir. 1970); Oppenheimer v. Morton Hotel Corp., 324 F.2d 766 (6th Cir. 1963); Wright & Miller, Federal Practice and Procedure: Civil § 2719 at pp. 451— 452 (1973). Spence actively participated in the oral argument on the motion and was afforded and availed himself the ample opportunity to respond in writing thereafter. At the time of the ruling on the motion, Spence had made no objection to the procedure and had no pending request for discovery. And on this appeal, there is no specific allegation of prejudice to Spence as a result of the procedure followed. In these circumstances, we think the case was duly submitted on the motion in substantial compliance with the Rule, and Spence has waived his objection to the technical irregularity.

RES JUDICATA

Spence denies that this action is barred by the res judicata effect of the state court judgments, because those judgments were based solely on “defects in the pleadings.” We do not so read the judgments of the Oklahoma Supreme Court. As we have seen, the judgments were based on the freely stipulated facts, upon which the Oklahoma Supreme Court ruled that Spence was not entitled to a § 541 hearing. These judgments went to the very heart of his right to relief under § 541. As to this statutory claim, the judgments were on the merits, and the state question surely cannot be relitigated in the federal court.

This brings us to the question whether the state court judgments also bar Spence’s federal constitutional claim against the same parties or their successors on the same facts. Spence argues that the state court litigation was merely an exhaustion of remedies before asserting his § 1983 rights in a federal forum; and that the state court judgments cannot, therefore, bar his federal action.

It seems now settled that the doctrine of exhaustion of remedies, usually applicable in a habeas corpus proceeding, is usually inapplicable in a § 1983 action. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961); McNeese v. Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622 (1963); Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963). And the doctrine of res judicata, not usually applicable in habeas corpus, applies to suits under § 1983, as in most other civil suits. See Preiser v. Rodriguez, 411 U.S. 475, and cases cited at 497, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). But see Justice Brennan, dissenting, Id., at 509 n. 14, 93 S.Ct. 1827. And see also Ney v. California, 439 F.2d 1285 (9th Cir. 1971).

Where a second suit between the same parties or their privies is on the same cause of action, the final judgment in the prior action is conclusive as to all matters which were actually litigated as well as those which could have been litigated. Cromwell v. County of Sac, 94 U.S. 351, 24 L.Ed. 195 (1876); Providential Development Co. v. United States Steel Co., 236 F.2d 277 (10th Cir. 1956); Sea-Land Services, Inc. v. Gaudet, 414 U.S. 573, 579, 94 S.Ct. 806, 39 L.Ed.2d 9 (1974). Restatement of Judgments §§ 61-65 (1942). This long established doctrine is based upon the policy of preventing endless or repetitive litigation by effectively coercing the plaintiff to present all his grounds for recovery in the first proceeding. Id., at § 63, comment a.

In this action, Spence sues the same City officials or their successors on the same facts, changing only his theory and remedy. Thus, in state court, he sought an order requiring a § 541 hearing; in federal court, reinstatement and money damages for failure to accord a due process hearing. Nonetheless, he alleges the same facts in all of these actions, and we think that the core of his cause of action remains the same — dismissal from employment without a due process hearing. In pursuit of this cause of action, he was perfectly free to plead and litigate his federal constitutional claims in any and all of the state court actions. Federal courts are not the exclusive forum for the redress of federal rights. “Upon the State courts, equally with the courts of the Union, rests the obligation to guard, enforce, and protect every right granted or secured by the constitution of the United States and the laws made in pursuance thereof, whenever those rights are involved in any suit or proceeding before them . . . Robb v. Connolly, 111 U.S. 624, 637, 4 S.Ct. 544, 551, 28 L.Ed. 542 (1884). See also Brown v. DeLayo, 498 F.2d 1173 (10th Cir. 1974). Only the Supreme Court is the final judge of the definition and effectuation of those rights. Indeed, Spence did assert federal constitutional claims in two of his original state court actions; but deliberately and voluntarily abandoned these claims for reasons not apparent on the record.

In Lavasek v. White, 339 F.2d 861 (10th Cir. 1965), we held that a state court judgment on a state law claim barred a subsequent action in federal court alleging a constitutional deprivation upon the same facts. In that case, a state court condemnation proceeding resulted in a final judgment that the defendant suffered no compensable injury. Thereafter, the defendant filed suit in federal district court alleging deprivation of property through procedures violative of the Fifth and Fourteenth Amendments. We affirmed the trial court’s dismissal of the federal claims for res judicata. Lavasek was not a § 1983 action, but we have applied collateral estoppel and res judicata to § 1983 actions, when the federal constitutional claim was adjudicated in the prior state court proceeding. See Brown v. DeLayo, supra; Hanley v. Four Corners Vacation Properties, Inc., 480 F.2d 536 (10th Cir. 1973). And other Circuits have applied res judicata to § 1983 actions, even when the federal constitutional claim was never pleaded or raised in the prior state court proceedings. See Lovely v. Laliberte, 498 F.2d 1261 (1st Cir. 1974); Taylor v. New York City Transit Authority, 433 F.2d 665 (2d Cir. 1970); Frazier v. East Baton Rouge Parish School Board, 363 F.2d 861 (5th Cir. 1966); Coogan v. Cincinnati Bar Association, 431 F.2d 1209 (6th Cir. 1970).

Spence argues that the total effect of res judicata, together with the Pullman abstention doctrine, is to deny him a federal forum for vindication of federal rights. He says that he is barred from bringing his federal and state claims in a federal forum by the abstention doctrine and that, after final judgment in state court, he is barred from the federal forum by res judicata. It may be that if this suit had been initially filed in the federal court, that court would, in its wise discretion, have remitted Spence to the appropriate administrative body for a post-termination hearing. A full and fair hearing there might very well have obviated or conditioned the adjudication of the federal question. But in any event, the question whether the hearing satisfied administrative due process requirements would ultimately come to rest with the federal court, unless Spence had unreservedly submitted the federal question for state court adjudication. See England v. Louisiana State Board of Medical Examiners, 375 U.S. 411, 84 S.Ct. 461, 11 L.Ed.2d 440 (1964); Harrison v. NAACP, 360 U.S. 167, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959). Cf., Judge Campbell’s observations in Lovely v. Laliberte, supra, 498 F.2d at 1263-1264. We do not reach this question, because Spence chose the state forum, which as we have seen, has jurisdiction to redress all his claims, federal and state. The federal court house doors were initially open to him; but he deliberately chose the state forum.

Allowing him now to bring claims in the federal court which were appurtenant to the core of his cause of action in prior state court suits would work a disservice to the salutary policies underlying res judicata. We conclude that Spence’s statutory and constitutional claims in this action are barred by res judicata. We thus have no need to decide his arguments regarding the statute of limitations or the amenability of these defendants to suit.

The judgment is affirmed.

      . The municipality has provided an elaborate Grievance Policy and Procedure for the review of all employee grievances, with special reference to police and fire personnel. The procedure requires the employee to approach, in sequence, his immediate supervisor, his department head, and the personnel director. Unless resolved in one of these three steps, the matter may be submitted to the Grievance Review Board, which consists of the following persons: the municipal counselor, the finance director, the personnel director, the City Manager’s representative, and four elected employee representatives. (Board members who are supervisors of the complaining employee are disqualified from voting.) The Board reviews the grievance, receiving testimony and evidence, and provides a report to the City Manager, who has ultimate power to discharge an employee. The Board’s decision, as approved by the City Manager, “shall have the power of affirmation, denial or modification” of the decision complained of. The employee may, after decision of the Board, take his complaint directly to the City Manager, who can “affirm, deny, or modify” the decision of the Board. His decision is final.

      . This is his amended complaint. In his original complaint, he asserted that the Grievance Review Board’s procedures violated “due process of law” but apparently abandoned the federal constitutional claim.

      . In pertinent part, the statute reads: “The governing board of every city or town having a Police Pension and Retirement System, . shall establish a board of review to hear appeals concerning the discharge of policemen and police officers. . . . ” The Board of Review under the statute is to consist of the following persons: the Mayor, two policemen, one attorney, and one physician, as appointed by the governing board of the city. 11 O.S. § 541s. The Oklahoma Supreme Court has held that this statute is applicable only when pension and retirement rights are involved. Morgan v. Wilson, 450 P.2d 902 (Okl.1969)

      . In pertinent part, the Rule 56(c) reads: “The motion shall be served at least 10 days before the time fixed for the hearing. The adverse party prior to the day of the hearing may serve opposing affidavits. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. . . . ”

      . Under 28 U.S.C. § 1343, federal courts have original jurisdiction over § 1983 actions; but this jurisdiction is not exclusive. See Grubb v. Public Utilities Commission of Ohio, 281 U.S. 470, 50 S.Ct. 374, 74 L.Ed. 972 (1930); Long v. District of Columbia, 152 U.S.App. D.C. 187, 469 F.2d 927, 937 (1972).

      . The Pullman doctrine says that if the state claim is uncertain and its resolution might obviate the need for federal constitutional litigation, it is then appropriate for a federal court to abstain from exercising its jurisdiction over such constitutional claims pending state court judgment. Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941); Kusper v. Pontikes, 414 U.S. 51, 54, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973).

      . See notes 1 and 3 supra.


source: Caselaw Access Project

author: CELEBREZZE, Circuit Judge. EDWARDS, Circuit Judge

license: Public Domain

text:
    Terry HOLLAND, Plaintiff-Appellant, v. E. P. PERINI, Superintendent of Marion Correctional Institution, Defendant-Appellee.
    No. 74-1610.
    United States Court of Appeals, Sixth Circuit.
    March 17, 1975.

      Terry Holland, Paul Mancino, Jr., Cleveland, Ohio (Court-appointed), for plaintiff-appellant.
    William J. Brown, Atty. Gen. of Ohio, Thomas D. Rooney, Columbus, Ohio, for defendant-appellee.
    Before EDWARDS, CELEBREZZE and LIVELY, Circuit Judges.
   CELEBREZZE, Circuit Judge.

This is an appeal from the District Court’s denial of Appellant’s petition for a writ of habeas corpus, which attacks his state court conviction for armed robbery on several grounds. His primary argument concerns certain one-on-one confrontations (showups) which the police arranged with three witnesses after his arrest.

Appellant was convicted by a jury on March 25, 1971 on one count of armed robbery. Having been on parole when he committed this offense, Appellant received an indeterminate sentence of from ten to twenty-five years in the Ohio Penitentiary.

His immediate conviction concerned the May 9, 1970 robbery of a McDonald’s Restaurant in Cleveland, Ohio. Viewing the evidence in the light most favorable to the Government, we find that Appellant and an accomplice entered the restaurant before its opening, having disguised themselves in loose-fitting stocking masks. At gunpoint they ordered the Manager, his son, and three employees to lie face-down on the floor after binding them with electricians’ tape. The robbers took approximately $3500 in cash and escaped out the back door. The pair parted company, Appellant traveling on foot.

Mr. Delbert Mohney, who was parked at a gas station across the street from the McDonald’s, observed Appellant fleeing the restaurant, drove his car parallel to the escape route, and observed Appellant (without a stocking mask) walking along the street for approximately 45 seconds at a distance of about eight feet. Mohney then lost sight of Appellant, returned to the gas station, and paid his bill. While at the station he saw Appellant a second time, as he was in police custody in the McDonald’s parking lot.

Several police cruisers converged on the restaurant within minutes of the robbery. The officers received a rough description of the two robbers — one tall, the other short, one in a dark blue sport coat and fishing hat. While searching the immediate area, Patrolmen Benik and Dunn observed a blue sport coat hanging on a fence and someone running through a neighboring yard. After firing a warning shot, Dunn arrested Appellant. A gun with five live shells was found several feet from the place of arrest.

The officers returned with Appellant to the McDonald’s parking lot. Without asking the McDonald’s employees to attempt to identify him, they transferred Appellant to another cruiser, which took him to a stationhouse. There he was booked and held under suspicion of the robbery.

The following morning the Manager (William Borkenhagen) and an employee (Brian Farland) were asked to come to the stationhouse to identify a “suspect.” Borkenhagen testified that he was “taken into a room to confront a suspect the officer told us they found in the neighborhood, and they asked us if we could identify him.” The confrontation occurred in a small room on an upper floor of the stationhouse. The only persons present were Borkenhagen, Appellant, and two policemen. Borkenhagen identified Appellant as one of the robbers, on the basis of a scar over his right eye which had shown through the loose-fitting stocking mask worn during the robbery. Farland recounted a similar story, except that only one policeman and Appellant were present in the room. Far-land recognized Appellant not only by the scar, but also by his voice and size. Farland testified that the stocking had not hidden Appellant’s identity since the sear “stood out real well” and the stocking was “like if you take a piece of cloth and lay it over your head, it hung real loose.”

Two weeks later, on May 24, Mohney was called to the stationhouse for a similar showup. “I recognized him immediately,” stated Mohney.

The trial court overruled motions to exclude the three witnesses’ identification testimony, holding that “the State has established beyond any reasonable doubt that [Mohney’s] in-court identification is not in any way tainted by any confrontation.” After the State produced the stocking used in the robbery, which the trial court described as “a very thin piece of nylon mesh, . holding it up to the light even you can see right through it,” the trial court overruled motions to exclude Borkenhagen’s and Farland’s testimony.

Appellant argues that his conviction was constitutionally invalid because the stationhouse showups were conducted in the absence of defense counsel and because they were impermissibly suggestive. There are two distinct claims presented.

The first is that he was deprived of his Sixth Amendment right to the assistance of counsel during the showups. If he is correct, the trial court should not have admitted testimony concerning the show-ups. The second claim is that he was deprived of his Fourteenth Amendment right to due process because the showups were “unnecessarily suggestive and conducive to irreparable mistaken identification.” Kirby v. Illinois, 406 U.S. 682, 691, 92 S.Ct. 1877, 1883, 32 L.Ed.2d 411 (1972), quoting Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). If he is correct on this ground, the trial court should not have admitted testimony of the participants in the showups concerning Appellant’s identity.

We turn first to Appellant’s Sixth Amendment claim. The rule established in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), and Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), is that the Sixth Amendment guarantees the right to counsel at any “critical confrontation” occurring after the initiation of adversary criminal proceedings. If such a confrontation occurs in the absence of defense counsel, unless the right to counsel is waived, the Government may introduce in-court identification testimony of a witness who participated in the improper confrontation only if it can “establish by clear and convincing evidence that the in-court identifications were based upon observations of the suspect other than the lineup identification.” Wade, 388 U.S. at 240, 87 S.Ct. at 1939. The Government may not introduce testimony concerning the improper confrontation itself. If it does so, a conviction may not stand unless it is clear beyond a reasonable doubt that the admission of the testimony was harmless error.

It is clear that Appellant did not have the assistance of counsel at either the May 10 showups with Borkenhagen and Farland or the May 24 showup with Mohney. Appellee does not dispute Appellant’s contention that he requested the presence of counsel at both times. The showups were clearly “critical confrontations.”

The District Court held that counsel was not required at the May 10 showups because “adversary judicial proceedings” had not been initiated against him at the time of the May 10 showups. Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). See also Hastings v. Cardwell, 480 F.2d 1202, 1204 (6th Cir. 1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1425, 39 L.Ed.2d 478 (1974). Appellant was arrested on the morning of May 9, the showups occurred before 10:00 a. m. on May 10, and an affidavit and arrest warrant were filed against him at an unspecified hour of May 10. It appears that the formal filing of charges was withheld until after the robbery victims had identified Appellant as the robber. Appellant personally stated that this was the case in his pro se “Traverse and Brief” filed in the District Court. We accept this as the fact. Arraignment occurred on May 11, and indictment followed on May 25.

We read Kirby as governing this case. Kirby speaks of the time at which Sixth Amendment rights attach as that point where “the government ha[s] committed itself to prosecute.” 406 U.S. at 689, 92 S.Ct. at 1882. Here the showups did not occur until almost 24 hours after the initial arrest but before formal charges had been filed. Had Borkenhagen and Far-land not been able to identify Appellant, he might well have been released, since the case against him at that point would have been weak. Before formal charges were filed and the machinery of the judicial process was set into motion, Appellant’s Sixth Amendment right to counsel had not attached. Accordingly, the absence of counsel at the May 10 showups did not infringe Appellant’s Sixth Amendment right to counsel.

The absence of counsel at the May 24 showup with Mohney, on the other hand, falls within the protection of the Wade-Gilbert rule. Appellant had been arraigned, and adversary criminal proceedings had begun. Thus, it was constitutional error for the trial court to have admitted testimony concerning Mohney’s May 24 stationhouse identification of Appellant.

This conclusion does not mean that Mohney’s entire testimony was improperly admitted. His in-court identification of Appellant was proper if the trial court and District Court were correct in concluding that his in-court identification was “based upon observations of the suspect other than the [showup] identification.” Wade, 388 U.S. at 240, 87 S.Ct. at 1939.

We agree with the District Court that Mohney’s 45-second observation of Appellant at a distance of eight feet after Appellant had left the McDonald’s Restaurant was an independent basis for the in-eourt identification. Any suggestion that the showup was the sole basis for Mohney’s identification of Appellant is refuted by Mohney’s testimony that he recognized Appellant immediately at the showup. The sole constitutional error concerning Mohney’s testimony, therefore, was the admission of his statements concerning the May 24 showup itself.

Before considering whether the introduction of Mohney’s testimony concerning the May 24 identification was harmless error, we turn to Appellant’s second claim concerning the showups— that his due process rights were infringed by the admission of testimony based on showups which were “unnecessarily suggestive and conducive to irreparable mistaken identification.” Kirby v. Illinois, 406 U.S. at 691, 92 S.Ct. at 1883. Whether due process was violated by the admission of testimony partly based upon a questionable confrontation “depends on the totality of the circumstances surrounding it.” Stovall v. Denno, 388 U.S. 293, 302, 87 S.Ct. 1967, 1972, 18 L.Ed.2d 1199 (1967). See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).

The District Court held that under the totality of the circumstances surrounding the May 10 and May 24 confrontations, the trial court had correctly concluded that there was no substantial likelihood of misidentification imposed by the use of the showups. We agree. As the District Court stated,

The police officers conducting the pretrial confrontations made no suggestive statements or comments or movements prior to or during the viewings at the police station. Furthermore, the ample opportunity provided the . witnesses to observe the robber at the scene of the crime and to formulate independent recollections of his description and appearance, the short period of time intervening between the crime and the pretrial confrontations, and the positive identifications by each witness from the lasting impressions resulting from their individual independent observations of the robber at the scene of the crime are all persuasive factors for defeating petitioner’s claim of “substantial likelihood of misidentification.”

The record fully supports these findings, which constitute precisely the elements that refute a due process claim under the Supreme Court’s decision in Neil v. Biggers, 409 U.S. 188, 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). Thus, although the showups may have been “unnecessarily suggestive” and although the showups may have been poor substitutes for lineups or other more acceptable confrontations, Biggers requires rejection of Appellant’s claim. As the Biggers Court stated, “[T]he central question [is] whether under the ‘totality of the circumstances’ the identification was reliable even though the confrontation procedure was suggestive.” 409 U.S. at 199, 93 S.Ct. at 382. Borkenhagen’s, Far-land’s, and Mohney’s in-court identifications were reliable. The admission of their testimony did not violate due process. See Sewell v. Cardwell, 454 F.2d 177 (6th Cir. 1972); Johnson v. Salisbury, 448 F.2d 374 (6th Cir. 1971), cert. denied, 405 U.S. 928, 92 S.Ct. 979, 30 L.Ed.2d 801 (1972); Hancock v. Tollett, 447 F.2d 1323 (6th Cir. 1971).

Given the properly admitted identifications of Appellant by Borkenhagen and Farland, the in-court identification by Mohney, and the arresting officers’ testimony, it is clear that the District Court was correct in holding that the admission of Mohney’s testimony concerning the May 24 showup was harmless error. The situation here parallels that in Schneble v. Florida, where the Supreme Court held,

Not only is the independent evidence of guilt here overwhelming . . ., but the allegedly inadmissible statements ... at most tended to corroborate certain details . . . .

Here Mohney’s testimony concerning the May 24 showup merely corroborated his testimony that he was certain Appellant was the person he observed at a distance of eight feet for a period of 45 seconds immediately after the robbery. The admission of his testimony concerning the May 24 showup was, therefore, harmless error under Chapman v. California, 386 U.S. 18, 23-24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The writ was properly denied on this ground.

We have examined Appellant’s remaining contentions concerning the lack of a speedy trial and the introduction of certain evidence and find them to be without merit for the reasons stated by the District Court.

Accordingly, the Order of the District Court denying Appellant’s petition for a writ of habeas corpus is affirmed.

EDWARDS, Circuit Judge

(dissenting).

Although I recognize, as do my colleagues in the opinion for the court, that Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), and Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), have seriously eroded the thrust of the Wade, Gilbert, Stovall trilogy, these cases have not been overruled. I do not see how an identification procedure could be more “unnecessarily suggestive and conducive to irreparable mistaken identification” than the two one-on-one show-ups conducted for witnesses Borkenhagen and Farland. Nor do I believe that erroneous admission of their testimony can appropriately be held to be harmless.

I respectfully dissent.

      . We need not decide whether Sixth Amendment rights attach automatically upon the filing of an affidavit under Section 2935.05, Ohio Rev.Code, or whether arraignment is necessary under Kirby to trigger the Wade-Gilbert rule.

      . “The factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation.” 409 U.S. at 199-200, 93 S.Ct. at 382.

      . 405 U.S. at 431, 92 S.Ct. at 1059.

      . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967); Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).

      . Kirby v. Illinois, supra at 691, 92 S.Ct. at 1883.


author: PER CURIAM.

text:
    UNITED STATES of America, Appellant, v. Larry Craig RICHARDSON.
    No. 74-1985.
    United States Court of Appeals, Third Circuit.
    Argued Feb. 6, 1975.
    Decided Feb. 27, 1975.
    Richard L. Thornburgh, U. S. Atty., David M. Curry, Asst. U. S. Atty., Pittsburgh, Pa., for appellant.
    Samuel A. Vitaro, Pittsburgh, Pa., for appellee.
    Before ADAMS, ROSENN and WEIS, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM.

Larry Craig Richardson celebrated his eighteenth birthday on September 7, 1968, and under the Selective Service Act of 1967, 50 U.S.C. App. § 453 (1970), as amended, 50 U.S.C. App. § 453 (Supp. I, 1971), was required to register with the Selective Service System within five days of that date. He failed to register until April 30, 1973.

On March 7, 1974, Richardson was indicted for failure to register timely for the draft. The district court dismissed the indictment on September 3, 1974, on the ground that the statute of limitations had run. We affirm on the basis of Judge McCune’s well-reasoned opinion.

Until September 28, 1971, the applicable statute of limitations for draft offenses, 18 U.S.C. § 3282, provided that an indictment must be found within five years after the offense had been committed. In Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970), the Court held that the offense of failing to register for the draft was complete “when dawn breaks on the unregistered male, six days after his 18th birthday,” id. at 133, 90 S.Ct. at 869 (White, J., dissenting), and that the statute of limitations began to run at that time.

Congress, disturbed by the decision in Toussie, responded on September 28, 1971, with a new statute of limitations, 50 U.S.C. App. § 462(d) (Supp. I, 1971), which provides:

No person shall be prosecuted, tried, or punished for evading, neglecting, or refusing to perform the duty of registering imposed by [section 453] unless the indictment is found within five years next after the last day before such person attains the age of twenty-six, or within five years next after the last day before such person does perform his duty to register, whichever shall first occur.

The indictment of Richardson is time-barred by 18 U.S.C. § 3282 as interpreted in Toussie; the indictment is not time-barred by 50 U.S.C. App. § 462(d). The question remains which statute applies to the instant situation in which the offense was committed before, but the indictment was found after, the enactment of section 462(d).

The question is one of ascertaining congressional intent. Congress, of course, has the power to extend the period of limitations without running afoul of the ex post facto clause, provided the period has not already run. Falter v. United States, 23 F.2d 420, 425-26 (2d Cir. 1928). Criminal statutes of limitations, however, are to be interpreted in favor of repose. Toussie v. United States, 397 U.S. at 115, 90 S.Ct. 858. Moreover, a law is presumed to operate prospectively in the absence of a clear expression to the contrary. Hassett v. Welch, 303 U.S. 303, 314, 58 S.Ct. 559, 82 L.Ed. 858 (1938). Therefore, we must decline to hold that Congress in fact has exercised its power to extend the limitations period in the instant case, unless we discern a clear intention on the part of Congress that section 462(d) should apply to offenses committed before September 28, 1971.

The language of section 462(d) is silent on this point. Although the legislative history of the statute indicates that Congress wished to overcome the decision in Toussie, it does not indicate, contrary to the Government’s contention, whether the new statute of limitations is to apply to offenses occurring before the statute’s enactment. We therefore hold that section 462(d) applies only to offenses committed after September 28, 1971.

Since Richardson’s offense is gov-, erned by section 3282, his indictment was time-barred, and properly was dismissed. The judgment of the district court will be affirmed.

      . See H.R.Rep.No. 92-82, 92d Cong., 1st Sess. 17 (1971); S.Rep.No. 92-93, 92d Cong., 1st Sess. (1971), in 1971 U.S.Code Cong. & Admin. News 1455-1456; 117 Cong.Rec. 8638 (1971) (remarks of Representative Arends).


author: COFFIN, Chief Judge.

text:
    WOMEN’S LIBERATION UNION OF RHODE ISLAND et al., Appellees, v. Richard J. ISRAEL et al., Appellants.
    No. 74-1297.
    United States Court of Appeals, First Circuit.
    Argued Dec. 4, 1974.
    Decided March 4, 1975.

      W. Slater Allen, Jr., Asst. Atty. Gen., with whom Richard J. Israel, Atty. Gen., Providence, R. I., was on brief for appellants.
    Stephen J. Fortunato, Jr., Pawtucket, R. I., with whom McKinnon & Fortunato, Pawtucket, R. I., was on brief for appellees.
    Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

Rhode Island law prohibits any establishment holding a class C liquor license from serving beverages to women. § 3— 8 — 5 R.I.G.L. 1956 (1969 Reenactment). Appellees on several occasions ordered drinks at Doorley’s Bar, a class C establishment, and were refused service because of their sex. They then filed this suit seeking declaratory relief under 42 U.S.C. § 1983, alleging violation of their rights under the First and Fourteenth Amendments to the Constitution. The district court, without reaching appellees’ First Amendment claims, found the discrimination mandated by § 3 — 8 — 5 not rationally related to any legitimate state purpose, and thus violative of the Equal Protection Clause of the Fourteenth Amendment. Women’s Liberation Union of Rhode Island v. Israel, 379 F.Supp. 44 (D.R.I.1974). We affirm.

The Supreme Court’s approach in recent years to gender-based classifications has established that such classifications must at least “ . . . ‘be reasonable, nor arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.’ Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 40 S.Ct. 560, 561, 64 L.Ed. 989 (1920).” Reed v. Reed, 404 U.S. 71, 76, 92 S.Ct. 251, 254, 30 L.Ed.2d 225 (1971); Schlesinger v. Ballard, 419 U.S. 498, 95 S.Ct. 572, 42 L.Ed.2d 610 (1975). Where a state in furtherance of a legitimate purpose creates a gender-based classification, Reed requires that there be a factually demonstrable distinction between the positions of the men and women affected by the classification which is substantially related to its objective. Wark v. Robbins, 458 F.2d 1295 (1st Cir. 1972).

Appellants contend that the district court, in finding the classification established by § 3-8-5 not rationally related to a legitimate state purpose, too narrowly construed the regulatory powers reserved to the states by the Twenty-first Amendment to the Constitution. The Supreme Court in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), approved a regulation prohibiting the presentation in bars of sexually explicit entertainment, some aspects of which the Court conceded would have been protected by the First Amendment in another context. The Court reviewed the cases in which it had recognized the Twenty-first Amendment as “ . . . conferring something more than the normal state authority over public health, welfare, and morals”, 409 U.S. at 114, 93 S.Ct. at 395 and noted that “[tjhese decisions did not go so far as to hold or say that the Twenty-first Amendment supersedes all other provisions of the United States Constitution in the area of liquor regulations.” Id. at 115, 93 S.Ct. at 395. The Court concluded that in the light of powerful evidence that prostitution, rape, and assault on police officers proliferated in and around bars presenting sexually explicit entertainment, the state’s determination that such entertainment should be prohibited in establishments licensed to serve intoxicating beverages was not “irrational”. Id. at 116, 93 S.Ct. 390. La-Rue, while it reiterates the proposition long embraced by the Court that the states have broad powers to regulate the sale of liquor, does not release the states from the requirement that the objective of the regulation be permissible, and that the means selected be rationally related to the end to be achieved.

Appellants suggest that the purpose of § 3 — 8 — 5 is to protect women because “bars are rough places”. They offer no evidence whatever to establish that violence is specially prevalent in bars with class C licenses (as compared, for example, to bar-restaurants or beer and wine taverns); or that women, more than men, need protection when violence erupts in their presence; or that prohibiting the service of beverages to women, while allowing their presence, preserves them from harm. Appellants place their major reliance on stare decisis, i. e., on cases in which the Court did indeed content itself with stereotypes. Bradwell v. Illinois, 83 U.S. 130, 21 L.Ed. 442 (1873); Cronin v. Adams, 192 U.S. 108, 24 S.Ct. 219, 48 L.Ed. 365 (1903); Goesaert v. Cleary, 335 U.S. 464, 69 S.Ct. 198, 93 L.Ed. 163 (1948). But the authority of those precedents, as the district court amply demonstrated in its comprehensive opinion, has waned with the metamorphosis of the attitudes which fed them. What then was gallantry now appears Victorian condescension or even misogyny, and this cultural evolution is now reflected in the Constitution. Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975).

The decision of the District Court is affirmed.

      . Class C licenses are issued to bars on the premises of which no food is prepared. 146 of the 1799 businesses licensed to sell alcoholic beverages in Rhode Island hold class C licenses.

      . The Court continues divided as to whether more should be required than a “substantial relation” between the objective of the challenged classification and the difference in situation between the sexes upon which it is based. See Frontiero v. Richardson, 411 U.S. 677, 93 S.Ct. 1764, 36 L.Ed.2d 583 (1973); Kahn v. Shevin, 416 U.S. 351, 94 S.Ct. 1734, 40 L.Ed.2d 189 (1974); Schlesinger v. Ballard, supra.

      It is also unclear whether the test announced in Reed is distinct from, or merged with, the Court’s approach in recent cases to other classifications not deemed to be invidious or to involve fundamental rights. See Cleveland Board of Education v. LaFleur, 414 U.S. 632, 652-54, 94 S.Ct. 791, 39 L.Ed.2d 52 (Powell, J. concurring) (19741.

      . In each instance since Reed where the Supreme Court has approved a sex-based classification, it has done so after a meticulous examination of detailed evidence showing the men and women affected not to be similarly situated. Kahn v. Shevin, supra; Schlesinger v. Ballard, supra.


author: DUNIWAY, Circuit Judge:

text:
    Morris J. STARSKY, Plaintiff-Appellee, v. Jack R. WILLIAMS et al., Defendants-Appellants.
    No. 73-1520.
    United States Court of Appeals, Ninth Circuit.
    Feb. 26, 1975.

      Alan M. Kyman, Phoenix, Ariz., for plaintiff-appellee.
    Howard P. Leibow, Sp. Asst. Atty. Gen. (argued) Phoenix, Ariz., Nicholas Udall, and Robert O. Lesher, Tucson, Ariz., for defendants-appellants.
    Before BROWNING and DUNIWAY, Circuit Judges, and WOLLENBERG, District Judge.

       The Honorable Albert C. Wollenberg, United States District Judge for the Northern District of California, sitting by designation.

   OPINION

DUNIWAY, Circuit Judge:

The Arizona Board of Regents and its members appeal from a judgment ordering the regents to reinstate Morris J. Starsky as an assistant professor of philosophy at Arizona State University. Starsky brought this action for an injunction and damages under the Civil Rights Act, 42 U.S.C. §§ 1981-1985, alleging that the Board’s decision not to renew his yearly contract violated his first amendment rights. The trial court held that the regents improperly, predicated the decision not to renew on constitutionally protected speech. Starsky v. Williams, D.Ariz., 1972, 353 F.Supp. 900. We affirm in part, reverse in part, and remand on a limited issue.

In January 1970, Professor Starsky cancelled a regularly scheduled class at Arizona State to attend a rally at the University of Arizona, where he was one of several speakers protesting the arrest of certain University of Arizona students. Shortly thereafter, the regents instituted disciplinary proceedings against Starsky for his participation in this and seven other incidents involving allegedly unprofessional conduct. These incidents are described in the opinion of the district court and need not be rehearsed here. Although Arizona State University does not have a formal tenure system, Starsky had attained “stability of employment,” which entitled him to a hearing before a decision not to renew his contract of employment. This he received before the faculty Committee on Academic Freedom and Tenure.

After taking extensive testimony, totalling nearly 1200 pages of transcript, the faculty Committee made detailed findings regarding the eight specific incidents and concluded that, although the Committee did not condone all of Star-sky’s conduct, the incidents did not warrant dismissal. The university president forwarded these conclusions to the Board of Regents and recommended sanctions short of dismissal. Nonetheless, on June 10, 1970, the Board, as it had power to do, decided not to renew Starsky’s yearly contract and thus terminated his employment. In making this decision, the regents relied on all eight incidents without assigning particular significance to any of them.

In this action, after both parties had moved for summary judgment on Star-sky’s claim for reinstatement, the trial judge proceeded to decide the merits of the claim on the basis of a written record. On the merits, the judge found that the evidence did not support some of the factual findings of the Board and held that, of the eight incidents for which Starsky was discharged, six involved constitutionally protected speech under applicable Supreme Court precedents, one involved unprotected speech, and one involved conduct other than speech (cancelling a class) and was therefore unprotected. Applying the clearly erroneous rule, for reasons hereafter stated, we sustain the district judge’s findings of fact, which were based on his exhaustive review of the evidence. Furthermore, we agree with his careful application of the law to each of the eight incidents.

Faced with a melange of reasons for the discharge, several based on constitutionally protected activity and therefore not valid grounds for dismissal under Perry v. Sindermann, 1972, 408 U.S. 593, 596-98, 92 S.Ct. 2694, 33 L.Ed.2d 570, the judge concluded that Starsky’s termination was predicated primarily or substantially on protected activity. Accordingly, the judge entered judgment for Starsky, ordering him reinstated, but reserving all issues relating to damages. We affirm Judge Muecke’s decision on this issue for the reasons stated in his careful opinion. We need not decide whether Judge Muecke might have applied a less stringent test that would invalidate a discharge if based in part, even though not primarily or substantially, upon protected activity. On that question we express no opinion. But for a procedural anomaly, we would affirm the judgment in its entirety.

This appeal raises two procedural issues, one of which requires further proceedings in the district court. ■ They are: (1) whether it was proper for the district judge to enter judgment for Starsky on what the parties characterized as cross-motions for summary judgment, and (2) whether Starsky’s claims are foreclosed by a contractual settlement.

1. Judgment on cross-motions for summary judgment.

The regents attack the judgment on the merits by arguing that summary judgment is improper because the trial court resolved genuinely disputed issues of material fact. Although we do not agree with the regents that some issues that they identify were genuinely disputed, we assume arguendo that the judge did resolve at least one disputed material issue, namely, what was the regents’ primary reason for discharging Starsky. Nonetheless, we do not reverse the judgment, for we agree with the trial judge that, under circumstances unique to this case, the parties had in effect submitted this case to the court for trial on an agreed statement of facts embodied in a limited written record. The judge therefore was free to decide all issues relating to Starsky’s right to reinstatement and, in so deciding, to resolve factual issues. See Southwest Forest Industries, Inc. v. Westinghouse Electric Corp., 9 Cir., 1970, 422 F.2d 1013, 1015-18, cert. denied, 400 U.S. 902, 91 S.Ct. 138, 27 L.Ed.2d 138. This is why we apply the “clearly erroneous” rule, Fed.R.Civ.P. 52(a) in reviewing the judge’s findings.

The' judge made every effort to maneuver this case into a posture that would permit expeditious resolution of the threshold constitutional issues determinative of Starsky’s claim to reinstatement. To that end, during a hearing on defendants’ motion to dismiss in the early stages of the litigation, the judge entreated the parties to take advantage of discovery and encouraged them to expedite a decision of the merits of the reinstatement claim without a full trial, suggesting by way of example that summary judgment might be appropriate. Several months later the regents moved for summary judgment, relying. on the pleadings, various affidavits, minutes of the meetings of the Board of Regents, and the transcript and exhibits from the hearing before the faculty Committee on Academic Freedom and Tenure.

As required by Local Rule 11(h) of the District of Arizona, the regents submitted a statement of material facts on which they relied for their motion. After one faltering attempt to rely on a mere series of citations to the administrative transcript, Starsky also submitted his statement of material facts. His principal ground for opposing summary judgment was that he alleged a conspiracy among the regents to punish him for his unpopular views and that questions of motive ought not to be resolved on summary judgment. The regents nonetheless maintained that the summary judgment procedure was proper.

At the hearing on the motion, upon persistent inquiry from the court, both parties made it clear that they relied on the written record before the court and that all the relevant facts on the issue of reinstatement were contained in that written record. Once again the judge urged the parties to make use of discovery to ensure that the record before the court was complete. Starsky followed the judge’s suggestion by propounding interrogatories to each of the individual defendants, who included the regents and the university president. The answers to the interrogatories revealed no additional documents or information with which Starsky desired to supplement the record.

The judge then ordered a preliminary pretrial conference, suggesting that the case could be adjudicated either by cross-motions for summary judgment or by trial to the court. Although there is no record of the pretrial conference before us, a later order reveals that Starsky agreed to file a cross-motion for summary judgment and that the parties considered the case ripe for adjudication on the merits.

Starsky then moved for summary judgment on the theory that his first amendment rights had been infringed. In response, the regents made no objection to Starsky’s assertion that there were no factual disputes. Rather, the regents argued the merits of their legal theory that the presence of one valid ground for dismissal, notwithstanding the regents’ concomitant consideration of constitutionally invalid grounds, validated their action, and further argued that the court should grant their own motion for summary judgment. The regents never suggested that there were material factual disputes which precluded granting Starsky’s motion. There was no oral argument on Starsky’s motion.

Even after taking the cross-motions under submission, the judge made two specific requests for additional documents to shed light on the deliberations of, and materials considered by, the regents. The regents produced the requested documents.

We are mindful that the mere fact that the parties make cross-motions for summary judgment does not necessarily mean that there are no disputed issues of material fact and does not necessarily permit the judge to render judgment in favor of one side or the other.-6 J. Moore, Federal Practice 156.13 (1965). However, in this case, the parties had in fact agreed that all of the underlying material facts were those reflected by the written record before the court. Given the unique procedural history of the litigation, which was drawn out over two and one-half years, the court was justified in concluding that the parties had in effect and in substance agreed to a trial of the reinstatement claim on the written record. In the words of the district judge:

This Court issued an order on July 18, 1972 stating that this case is ready for final judgment on the merits on the issue of liability. The parties were given additional time to file any further pertinent documents. Additional documents were filed, and neither party took issue with this Court’s characterization of the posture of the case. This Court, therefore, can now decide this case on the issue of liability. Should the plaintiff prevail, the issues of damages would be tried later.
Throughout the proceedings to date, neither side has suggested the existence of any additional evidence pertinent to the issue of liability. Although we are dealing with cross-motions for summary judgment, the case in view of the foregoing is now in the posture of an agreed statement of facts.

353 F.Supp. at 904 (emphasis added). The comments of the judge, and of defendants’ counsel, at a hearing on a proposed form of judgment, reveal that the parties understood the foregoing to be a fair statement of the posture of the case. We agree that it is.

That the parties and the court referred to the case as being submitted on cross-motions for summary judgment is therefore not controlling. We have on other occasions, in cases nominally submitted on motions for summary judgment, held that the parties had stipulated to what was in effect a trial to the court on an agreed written record. Southwest Forest Industries, Inc. v. Westinghouse Electric Corp., 9 Cir., 1970, 422 F.2d 1013, 1017-18; Gillespie v. Norris, 9 Cir., 1956, 231 F.2d 881. In Gillespie we said:

Now, while summary judgment cannot be granted where there are questions of fact to be disposed of, even by consent of all concerned, there is no reason why parties cannot agree to try a case upon affidavits, admissions and agreed documents. In effect, that is what was done here. No objection whatever was made at the time of submission that there were questions of fact which could not be decided upon the evidence before the trial court.

231 F.2d at 883-84. We drew the same conclusion in Southwest Forest Industries. We draw the same conclusion here. The court properly decided the merits of the reinstatement claim.

2. The purported contractual settlement.

Somewhat belatedly, the regents have raised the argument that Starsky and the university entered a contractual settlement, or an accord and satisfaction, which bars this action. The regents base this argument on a terminal sabbatical agreement offered by the regents and accepted by Starsky not long after the inception of the lawsuit.

When the Board of Regents decided on June 10, 1970, not to renew Starsky’s contract, they adopted the following resolution to effect the termination:

It is therefore the judgment of the Board that the interests of education in the State of Arizona require that Dr. Starsky no longer be permitted to teach on the campuses under the jurisdiction of this Board. The decision of this Board shall be carried out in the following manner:
1. That Doctor Starsky, having applied for sabbatical leave, be given the opportunity to take a terminal sabbatical leave for the full academic year, 1970 — 71, for which he is qualified in terms of years of service, and for which he will be paid the usual rate of 60% of his regular salary, with the full understanding that (a) he will absent himself from the Arizona State University campus during this period of sabbatical leave; and (b) his contract will not be renewed at the close of the 1970-71 academic year, and neither will he be required to return to Arizona State University for a period of time following such leave.
2. That if Doctor Starsky does not choose to accept the foregoing arrangement, his contractual relationship with Arizona State University be terminated as of the end of the 1969 — 70 academic year, and he be tendered no new contract for further services at Arizona State University.

On July 28, 1970, Starsky, who had filed his first complaint in this lawsuit before the regents formally decided not to renew his contract, signed and submitted an application for sabbatical leave. As part of the standard form, that application contains the following statement: “I have read and will comply with the provisions of the Sabbatical Leave Policy of the Board of Regents.” Typed in immediately after this statement, and immediately above Starsky’s signature, is the following additional statement: “It is also understood that this leave, if granted, will be subject to action taken by the Board of Regents, June 10, 1970.” This application was approved by various university officials on July 29 and 30.

On July 27, 1970, Starsky had filed his first amended complaint in this action. The striking proximity of events and the ambiguous language of the sabbatical application make us wonder why the parties did not mention the pending lawsuit in the agreement. The regents now urge us to hold, as a matter of law, that Starsky’s claim is barred by the putative settlement reflected by the sabbatical agreement. This we decline to do because the record indicates that the court below did not rule on the issue and because there appear to be material issues of fact. Although the sabbatical agreement seems to us to establish, prima facie, a contractual settlement that would bar this action, we cannot ignore the fact that the regents did not present this issue as effectively as they should have to the trial judge and therefore failed to secure a ruling on it. Moreover, the fact that this action was pending, but is not mentioned in the papers relied on by the regents, raises doubt as to the parties’ intentions.

To explain how the seemingly critical issue of the purported contractual settlement languished in the proceedings below requires a brief recapitulation of the events revealed by the record. The regents first raised the alleged settlement as an affirmative defense to this action in a motion to dismiss, to which they attached certified copies of the June 10 minutes and the terminal sabbatical agreement executed by Starsky. The motion was filed October 19, 1970, in response to Starsky’s amended complaint, which had been filed July 27, 1970. The judge did not rule on this aspect of the motion, apparently because Starsky elected to file a second amended complaint on May 10, 1971. A third amended complaint was filed on June 17, 1971. As required by Fed.R.Civ.P. 8(c), the regents’ answer, filed on July 28, 1971, clearly pleaded the agreement as an affirmative ■ defense of accord and satisfaction.

However, when the regents moved for summary judgment, they failed to raise the settlement issue specifically as a ground for summary judgment. Neither their motion, the attached affidavits, nor the supporting memorandum made any reference to the putative contractual settlement. In fact, the way in which the regents submitted their motion for summary judgment may have misled the judge. Even though the regents had already submitted a certified copy of the minutes of June 10, 1970, meeting of the Board of Regents with the earlier motion to dismiss of October 19, 1970, the regents attached another certified copy of those minutes, along with the minutes of two other meetings, to their motion for summary judgment. But the regents did not provide another copy of the sabbatical agreement, or refer to it in any way. The only copy of that agreement in the entire record before us, which we understand to be the entire record of the proceedings below, is the one attached to the October 19, 1970, motion to dismiss. Because the subsequent motion for summary judgment made no explicit reference to affidavits not attached thereto, we would not expect the parties or the court to have referred back to the motion to dismiss, which had been filed months earlier, and which had fallen into limbo because the complaint had been twice amended thereafter.

Arguably, therefore, the regents might be deemed to have abandoned the issue. Indeed, we think they came perilously close to doing so. At the oral argument on the regents’ motion for summary judgment, their counsel stated only as a factual matter, in passing, that Starsky had been granted a terminal sabbatical leave, and gave no hint that the regents relied on it in any way as a contractual settlement barring the lawsuit.

At the same oral argument, Starsky’s counsel raised a question about missing minutes of certain Board meetings that were held before the decision to terminate Starsky. To allay any potential claims that the record did not contain all the relevant facts, the judge instructed Starsky to discover by conventional means whether there were any additional records of pertinent Board meetings. Starsky then submitted interrogatories to each of the regents and to the university president asking whether they had discussed Starsky’s case at meetings other than those summarized by the minutes then in the record. The regents responded with sworn written answers which revealed no other pertinent meetings before the June 10, 1970, decision to terminate Starsky.

However, the answers of four regents made reference to a meeting on July 11, 1970, at which the regents considered Starsky’s terminal sabbatical. The answer of one of the regents, Dunseath, reveals that the Board expressly considered the effect on the pending lawsuit of Starsky’s acceptance of the terminal leave. If that answer completely and accurately reports the negotiations between the parties, it seems very likely that, by accepting the terminal sabbatical leave, Starsky relinquished his claims against the university, both for damages and for reinstatement. Furthermore, the answer refers to highly relevant writings, a letter from Starsky’s attorney to the president of the university and the minutes of the July 11, 1970, Board meeting, which we suspect still exist but were not placed in the record before the district court. There may also be further correspondence between the university president and Starsky’s attorney.

We note that, although regent Dunseath’s answer is illuminating on the settlement question, it was figuratively buried in nearly two hundred pages of repetitive interrogatories. Neither party directed the court’s attention to these answers, for the apparent purpose of the interrogatories was to uncover other pertinent documents supporting plaintiff’s claim on its merits. Neither party thereafter moved to supplement the record with additional material. However, twice the judge did direct the regents to supply specific documents to which the moving papers made reference. None related to the purported settlement of the lawsuit.

Suffice it to say that from the filing of the regents’ motion to dismiss on October 19, 1970, until after the judge first filed his opinion on December 26, 1972, except for the answer of July 28, 1971, the record reveals no instance where any party raised the so-called accord and satisfaction or contractual settlement issue. Like the answers to interrogatories, the pertinent papers, filed with the motion to dismiss, were buried in several hundred pages of papers in the clerk’s files.

The judge’s thorough 70-page opinion granting Starsky reinstatement alludes neither to Starsky’s acceptance of the terminal sabbatical nor to the contractual settlement argument. After the initial filing of the opinion, the judge withheld entry of judgment for a short time to permit emendation of any clerical errors in the opinion and judgment and to allow the Board to meet to consider its response to the adverse judgment.

On January 22, 1973, the regents submitted a memorandum addressing the proposed form of judgment and attempting to resuscitate the dormant contractual settlement issue. In his response, Starsky argued that the matter raised was immaterial. At the January 26, 1973, hearing on the proposed form of judgment, the judge prefaced the argument with a brief explanation of his opinion. In his view, the terminal sabbatical agreement was relevant only to the question of whether Starsky would be entitled to money damages, a question the parties and court had agreed to reserve for a subsequent trial. Therefore the judge felt it unnecessary to rule on the purported settlement at that time. Counsel for the regents then made another attempt to argue that the sabbatical agreement barred even the injunctive action for reinstatement. To this argument, the judge responded by asking whether there was a disputed issue as to whether Starsky was improperly coerced into signing the sabbatical agreement. It is clear that the trial court never ruled on the question of the alleged settlement.

The judge might have taken the position that the regents’ reliance on the alleged contractual settlement came too late, and that therefore this defense was waived. But he did not do that. As we read the transcript, the judge felt that the circumstances surrounding the execution of the agreement could not properly be presented or adjudicated on the basis of the written record then before him, and that the sabbatical agreement bore only on the damages question. We agree with the first proposition but disagree with the second.

If the objective intention of the regents, as communicated by them to Starsky in the negotiations which apparently took place, was that the terminal sabbatical was offered in full satisfaction of Starsky’s claims, and conditioned on their release, and if Starsky, knowing this, signed the agreement and thus accepted the regents’ offer, then the agreement would bar the entire action, both the injunctive claim for reinstatement and the claim for damages. Although in light of the minimal efforts of counsel to present the issue for adjudication we think that the court’s failure to rule on it was understandable, we also think that, absent a waiver, it was error. In the interests of proper adjudication, we think it best to resolve the confusion by remanding the case to the district court for a decision on the limited questions (1) whether the regents waived the defense based on the terminal sabbatical agreement, and (2) if they did not, whether, by accepting the terminal sabbatical agreement, Starsky relinquished his claims against the university arising from his termination. Cf. Mudrick’s Inc. v. National Surety Corp., 1971, 143 U.S. App.D.C. 39, 442 F.2d 761, 762.

In remanding, we intímate no opinion on the merits of the question of waiver or of the question of the contractual settlement issue. As to the latter, the parties should be free to adduce before the trial court any evidence pertinent to the objective intention of the parties as to the effect of the terminal sabbatical agreement. If there is written evidence of communications by Starsky’s attorney to the regents, of the deliberations of the regents on the matter, and of communication by or for them to Starsky or his attorney, we would expect the parties to provide that illuminating evidence. If testimony on the subject is available, that, too, would be material. See Mudrick’s, supra. In referring to the evidence that might be produced, we express no opinion as to whether any or all of it must be excluded under the parol evidence rule. That question, too, is one for the trial court in the first instance.

We remand this case to the district court with instructions to determine the questions outlined above. If the court finds that there was no waiver and that the agreement was in fact a binding settlement, the court should vacate the injunction, deny all relief requested by Starsky, and enter judgment for the defendants. If the court finds that the defense was waived or that there was no contractual settlement, and because we affirm the court’s decision that the discharge was invalid, the court should continue the injunction in effect and should proceed to an appropriate determination of the issue of damages. We decline to reach the damages questions. In the interest of avoiding repeated appeals, we suggest that the court consider deciding both the questions outlined above, even though the court may find that there was a waiver of the defense.

If there is a later appeal, the appealing party may, on motion, incorporate the present record and briefs on this appeal as part of the record and briefs on that new appeal. Only the new record developed on remand need be fowarded to this court, and the parties need file only limited briefs, addressing the remaining issues relating to the settlement and its effect.

Affirmed in part, reversed in part, and remanded.

      . Starsky raised no due process challenge to the fairness or adequacy of this hearing; rather he based his constitutional claims solely on his first amendment rights. This appeal thus presents issues different from those in our recent decision in Burdeau v. Trustees of the California State Colleges, 9 Cir., 1974, 507 F.2d 770.

      . On July 18, 1972, the court issued the following Order as a preface to a request for additional documents:
      Both parties having moved for summary judgment and having submitted statements of fact under Local Rule 11(h), and no party having in any way contradicted the material evidentiary facts as recited in the opposing party’s 11(h) statement, or recitec any materially factual matter which woulc preclude summary judgment to the other side, and all parties appearing to rely upon the transcript of the hearing before the committee of academic freedom and tenure, and the other exhibits on file in this matter, it appears to this Court that the posture of the case at this point would permit a final adjudication on the merits on the issue of liability only [footnote omitted] based upon all of the documentary evidence on the file, there being no further evidence to be presented by the parties.

      . The parties have variously denominated this legal theory as an “accord and satisfaction” or as a “contractual settlement” of a claim. For purposes of this appeal, we perceive no distinction between the terms and adopt the latter for convenience.

      . Messrs. Singer, Dunseath, Paris, and Sharber.

      . Question 8 of the interrogatory directed to each regent asked:
      Was the subject of the non-renewal of Professor Starsky’s employment contract and the granting of a terminal sabbatical leave ever discussed at any meeting of the Board which you attended?
      For each occasion give the date, time and place of meeting and other participants, whether Regents or not.
      Regent Dunseath answered in part:
      I did not attend or take part in the meeting of the Board of Regents on June 10, 1970, at which meeting the Board decided that the interests of education in the State of Arizona require that Dr. Starsky no longer be permitted to teach on the campuses under the jurisdiction of the Board.
      The Board of Regents, at the same meeting, gave Dr. Starsky a choice: [reciting the two choices set out in the regents’ resolution quoted above].
      I attended a meeting of the Board of Regents on July 11, 1970, at which meeting President Newburn reported that he had received a letter from Mr. Alan M. Kyman as attorney for Dr. Starsky wherein Mr. Kyman stated that Professor Starsky would not accept the Regents’ conditional offer of a sabbatical and was willing to accept an unconditional sabbatical designated “terminal” with the understanding it was not in full or partial settlement of any claim he may have arising out of the termination of his employment and did not constitute a waiver or settlement of any of his legal rights. The Board, after discussion, decided not to change the choices given Dr. Starsky on June 10, 1970, and instructed President Newburn to advise Dr. Starsky that it maintained and had reaffirmed its position as to such choices.

      . The regents [defendants’] memorandum argued as follows:
      The Defendants at the earliest outset of litigation submitted for the determination of the Court a position of nonliability based upon Plaintiff’s acceptance of a terminal sabbatical leave and his written statement that it was accepted subject to the Order of the Board of Regents terminating his employment June 10, 1970. The Court’s Opinion and Order dated December 26, 1972, does not discuss or determine this issue, and it is urged that the Court now rule on this issue for guidance of counsel.

      . Starsky argued:
      5. The Court does not have to make findings of fact and conclusions of law on immaterial issues.

      The Court did not have to make any discussion regarding the issues of alleged nonliability based upon the acceptance of a terminal sabbatical leave, because this is immaterial. The fact that a party has raised an issue, be he a Plaintiff or Defendant, is no guarantee or assurance of materiality to the ultimate decision of the Court. If immaterial, it need not enter into the Court’s findings or opinion or judgment. Sonken-Galamba Corp. v. Atchison, T. & S. F. Ry. Co., 34 F.Supp. 15 (D.C., W.D. Missouri, W.D.), 1940, at Page 16. Gulf King Shrimp Company v. Wirtz, 5 Cir. 1969, 407 F.2d 508, at pages 515 & 516.

      . On the contractual settlement issue the judge said:
      The other aspect of this matter having to do with the sabbatical leave issue and his taking money for part of his salary, or half of it, whatever it was, seems to me to go to the issue of damages and the question of mitigation and the question of how much he received and the question if, in fact, he is entitled to any damages or whatever may be argued, and I don’t see how it applies at all to the case here, since I have found as a fact, and I have concluded as a matter of law, as is made pretty clear in my 70-page opinion, that he was fired in violation of his right of free speech and in violation of his due-process rights, so I think that it is^ — I think the other aspect may have to do with whether or not — what kind of damages should be given to him, and so forth and so on, and I don’t know that I have to rule on every possible issue that is presented in the case, if — so long as I rule on the basic issue of the matter of his discharge.

      . Mr. Leibow, for the regents, apparently admitting that it was the first time since the motion to dismiss (or actually the answer) that he had raised the point, argued as follows:
      With respect to the issue of the sabbatical leave which was mentioned in the — and urged in the initial motion to dismiss, it was the position of defendants at that time, and still is, that there is an element, a legal element in the position taken that does not give rise to damages and that defendant [sic: plaintiff] had an election to accept sabbatical leave on the terms stated that this would be a terminal leave, he did so, and that by reason of his action he may now not [sic] complain that the actions of the regents were wrongful, in that he has accepted compensation.

      . The following discussion ensued:
      THE COURT: Do you think, at the very least, there is an issue of his signing or agreeing to a contract with a gun to his head, so to speak, coercion?
      MR. LEIBOW: Absolutely there is an issue as to that. It has not been explored, however.
      THE COURT: Really, by anybody.
      MR. LEIBOW: No.
      THE COURT: Until the judgment appeared to be one that — which is what always happens in summary judgment. When you think you have the parties agree there are no remaining issues as to fact and then the party that loses always discovers an issue.
      MR. LEIBOW: We are not claiming, Your Honor, that there are any additional facts. We are maintaining and submitting to the Court that the document, which is self-explanatory, plaintiffs own statement which was added to the form, that he would accept this as his terminal leave, has not been refuted by the plaintiff.
      THE COURT: Well, obviously, as to why he signed that document is not an agreed statement of fact. If it is, tell it to me. We will make it — I will consider whether it should be part of the record or not.
      MR. LEIBOW: I should think there would certainly not be an agreed statement of fact.
      THE COURT: You just said there was no fact issue.
      MR. LEIBOW: There is no issue that this document was not, in fact, signed and—
      THE COURT: It doesn’t cover the problem, though, we were just discussing.
      MR. LEIBOW: It does not, that is true, Your Honor, it does not cover the problem.

      . By “objective intention” we mean the intention of each party that was communicated to the other. A subjective intention of one party, never communicated to the other, either orally or in writing, would be of no significance. What counts is the intention or interpretation of the agreement that each party communicated to the other.


author: BUTZNER, Circuit Judge:

text:
    Marjorie J. ABBOTT, Administratrix of the Estate of Joseph A. Abbott, Deceased, Appellant, v. UNITED STATES LINES, INC., Appellee.
    No. 74-1319.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 5, 1974.
    Decided March 11, 1975.

      C. Arthur Rutter, Jr., Norfolk, Va. (Breit, Rutter, Montagna & Carter, Norfolk, Va., on brief), for appellant.
    John B. King, Jr., Norfolk, Va. (Walter B. Martin, Jr., and Vandeventer, Black, Meredith & Martin, Norfolk Va., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, BUTZNER, Circuit Judge, and THOMSEN, District Judge.
   BUTZNER, Circuit Judge:

The primary issue of this appeal is whether the maritime duty of rescue arises only after a ship’s officers know with certainty that a member of the crew is missing. The district court ruled that until the officers actually ascertain that a man is missing, there is no duty to search the ship for him. Because the rescue doctrine is not so severely circumscribed, we reverse and remand for a new trial. We hold that if there is a reasonable possibility of rescue, a ship is under a duty to search and attempt a rescue when its officers know or in the exercise of reasonable care should have known that a crewman is missing.

Marjorie J. Abbott, Administratrix of the estate of her husband, Joseph A. Abbott, brought this action against United States Lines under the Jones Act and the Death on the High Seas Act to recover damages for his death. Abbott, a capable, experienced officer, was the chief engineer on the SS PIONEER CONTENDER, which was bound for Vietnam loaded with ammunition.

While the ship was on the high seas with no other vessel within forty miles, a broken pump caused the second assistant engineer, then on watch, to shut down all engines at approximately 5:00 a. m. He immediately called the bridge, and the duty officer notified the master, who promptly left his quarters and came to the bridge. The second assistant engineer also sent an oiler to tell chief engineer Abbott and the first assistant engineer of the trouble. The messenger woke up Abbott, who responded, “I will be right down” or “I will be down.” In a few minutes, the first assistant engineer arrived in the engine room and quickly repaired the pump. The engines, which had been stopped for ten minutes, were started and gradually brought to full speed over the next thirty-five minutes. The master then left the bridge and returned to his quarters.

Although Abbott had acknowledged the oiler’s call, he never appeared in the engine room. He was not called again, and no effort was made to determine his whereabouts or to report to him that repairs had been accomplished. When he did not come to breakfast at approximately 8:00 a. m., the chief mate commented that, aroused by noise in the engine room, he had looked in Abbott’s cabin about 5:15 a. m. and had not seen him. Notified of this, the master immediately ordered a search of the ship. When it was apparent that Abbott was not aboard, the master reversed course at 8:30 a. m., placed lookouts, broadcast a “man overboard” message, and returned the vessel to the area where it had been located at approximately 5:00 a. m. The water temperature in this vicinity was above 80°. However, Abbott was not sighted, so the vessel resumed its voyage to Vietnam at 1:00 p. m.

Mrs. Abbott presented the testimony of an experienced master to support her claim that the ship’s officers, exercising due diligence, should have discovered that Abbott was missing shortly after five o’clock. This witness expressed the opinion that Abbott’s absence from the engine room should have been noticed, that he should have been called again, that the master should have gotten in touch with him, and that if the ship had undertaken search and rescue efforts shortly after 5:00 a. m., there would have been a greater possibility of his survival. This expert was corroborated in part by the second assistant engineer, who stated that it was customary to get the chief engineer in any emergency that necessitated stopping the engines. He acknolwedged that he wondered why Abbott did not come to the engine room but simply assumed he had gone back to sleep.

The material facts about the broken pump, stopping the engines, notifying Abbott, his response and his failure to appear are not disputed. However, the shipowner introduced evidence about the significance of these facts in sharp conflict with the testimony of Mrs. Abbott’s expert. The ship’s master testified that it was not unusual for a chief engineer to stay in bed after being notified that the engines had been stopped on the high seas. He also said that he saw no reason to discuss the problem with the chief until a more convenient hour later in the day. He was corroborated by another experienced master, who testified that had he been captain of the ship, he would not have gotten up for such slight trouble.

At the conclusion of all the evidence, the district court in effect granted partial summary judgment and ruled that the events occurring before 8:00 a. m. disclosed no actionable negligence. Accordingly, the judge instructed the jury that in reaching their verdict they could consider only the conduct of the master and crew after they discovered Abbott’s disappearance when he did not come to breakfast.

The humanitarian doctrine of maritime rescue was recognized in Harris v. Pennsylvania R.R. Co., 50 F.2d 866 (4th Cir. 1931), and in Cortes v. Baltimore Insular Line, 287 U.S. 367, 377, 53 S.Ct. 173, 176, 77 L.Ed. 368 (1932), where the Supreme Court said:

“There is little doubt that rescue is a duty when a sailor falls into the sea and that a liability to respond in damages is cast upon the shipowners if he is abandoned to his fate.”

The principles governing the doctrine have been stated authoritatively in Gardner v. National Bulk Carriers, Inc., 310 F.2d 284 (4th Cir. 1962). In that case the court held that the duty of search arises when there is a reasonable possibility of rescue, and if the duty is breached, the seaman’s survivors need not show that he could have been saved.

The district judge believed that Gardner imposes a duty of rescue only when “the fact of the non-presence [of a seaman is] discovered.” Gardner, however, does not expressly discuss this issue. In that case, a seaman was called to stand watch and could not be found. This, the decision implies, was sufficient under the circumstances to alert the master that the man might be missing and imposed a duty to search the ship and attempt a rescue.

The rule of maritime rescue is not based on absolutes. In Gardner we noted that the doctrine does not require “that in every case immediately upon word of a seaman’s absence from his watch all progress of the ship must be halted and the ship reversed for rescue operations while a search is made aboard. . . . ” 310 F.2d at 288. On the other hand, Gardner does not suggest that the absence of a crew member from his station can be disregarded with impunity. Certain knowledge that a seaman is missing is not a prerequisite to the duty of search and rescue. The doctrine of maritime rescue is based on the law of negligence, and like other aspects of this law, responsibility is tested by the standard of reasonable care. See Prosser, The Law of Torts § 37 at 206 (4th ed. 1971); 2 Norris, The Law of Seamen § 690 (3rd ed. 1970). Applying this controlling principle, we hold that if there is a reasonable possibility of rescue, the ship is under a duty to search and attempt a rescue when its officers know or in the exercise of reasonable care should have known a crewman is missing.

Of course, we express no opinion about the outcome of this controversy. That is for the trier of fact, because fair-minded people may draw different inferences from the evidence. Schulz v. Pennsylvania R.R. Co., 350 U.S. 523, 527, 76 S.Ct. 608, 100 L.Ed. 668 (1956); Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740, 90 L.Ed. 916 (1946). If the jury believes the shipowner’s testimony that Abbott’s absence from the engine room was insufficient to alert a person of reasonable prudence to search for him, a verdict for the defendant would be justified. On the other hand, if the jury believes the testimony presented by Mrs. Abbott, they could decide that his absence was so unusual that due diligence dictated a search shortly after he failed to appear in the engine room. In this event, the ship breached its duty to Abbott and, as we ruled in Gardner v. National Bulk Carriers, Inc., 310 F.2d 284 (4th Cir. 1962), his representative can recover without proving that he was then alive and could have been saved by a reasonable rescue effort. See 2 Norris, The Law of Seamen § 693 (3rd ed. 1970); Kelsey, Shipowner’s Duty to Rescue Crewmen — The Gardner Case, 49 Va.L. Rev. 492 (1963).

We hold, therefore, that the district court should have submitted to the jury whether the failure to discover until after 8:00 a. m. that Abbott was missing was due to any negligence on the part of the shipowner’s employees. We find no cause for reversal in the other assignments of error. The judgment of the district court is reversed, and this case is remanded for a new trial.

      . The district judge also relied on Miller v. Farrell Lines, Inc., 247 F.2d 503 (2d Cir. 1957). However, in that case, the district judge did precisely what the district judge in the case now before us declined to do. He submitted to the jury the question of whether Miller’s conduct before the discovery of his absence could reasonably have led the master or his officers to believe that he was in danger. The jury answered in the negative but paradoxically returned a verdict for Miller’s representatives, which the court then set aside.