author: GIBBONS, Circuit Judge.

text:
    NEW JERSEY STATE LOTTERY COMMISSION, Petitioner, v. UNITED STATES of America and Federal Communications Commission, Respondents, Commonwealth of Pennsylvania and State of New Hampshire, Intervenors.
    No. 72-1878.
    United States Court of Appeals, Third Circuit.
    Argued May 15, 1973.
    Submitted en banc Nov. 15, 1973.
    Decided Jan. 2, 1974.

      George F. Kugler, Jr., Atty. Gen., of New Jersey, Stephen Skillman, Alfred L. Nardelli, Deputy Attys. Gen., Trenton, N. J., for petitioner.
    Thomas E. Kauper, Asst. Atty. Gen., Howard E. Shapiro, Dept. of Justice, Washington, D. C., for respondent, United States.
    John W. Pettit, Joseph A. Marino, R. Michael Senkowski, Federal Communications Commn., Washington, D. C., for respondent, Federal Communications Commn.
    Israel Paekel, Atty. Gen., Raymond Kleiman, Deputy Atty. Gen., Harrisburg, Pa., for intervenor, Commonwealth of Pennsylvania.
    David H. Souter, Deputy Atty. Gen., Concord, N. H., for intervenor, State of New Hampshire.
    Louis Schwartz, Robert A. Woods, Washington, D. C., for amicus curiae, The Maryland Broadcasting Commn.
    Argued May 15, 1973
    Before VAN DUSEN, GIBBONS and ROSENN, Circuit Judges.
    Submitted On Rehearing en banc Nov. 15, 1973.
    Before SEITZ, Chief Judge, and VAN DUSEN, ALDISERT, ADAMS, GIBBONS, ROSENN, HUNTER, WEIS and GARTH, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

This case is before us pursuant to 28 U.S.C. § 2342(1) and 47 U.S.C. § 402(a) on the petition of New Jersey State Lottery Commission to review a declaratory ruling of the Federal Communications Commission. Proceedings before the FCC commenced in February 1971 when Jersey Cape Broadcasting Corporation, a licensee of broadcast frequencies operating in Wildwood, New Jersey, filed a request for a declaratory ruling on the question whether its broadcast of the winning weekly number in the New Jersey State Lottery would violate 18 U.S. C. § 1304. Jersey Cape proposed to broadcast, during three consecutive regular news broadcasts on each Thursday, the day of the lottery drawing, and at no other time, a statement;

“The winning state lottery number drawn today is (and then recite the winning number).”

In its declaratory ruling issued July 14, 1971 the FCC ruled that the proposed statement would violate 18 U.S.C. § 1304 and the FCC’s rules interpreting that statute. 36 Fed.Reg. 13813 (1971). In a second ruling on July 27, 1971 the FCC made clear that its ruling prohibited the statement even as a news item in a regular news broadcast. 36 Fed.Reg. 14347 (1972). Thereafter petitioner New Jersey State Lottery Commission, pursuant to 47 U.S.C. § 405 filed with the FCC a timely petition for reconsideration. The FCC decision before us denied this petition for reconsideration. In re Jersey Cape Broadcasting Corp., FCC 72-702, filed July 27, 1972. The Lottery Commission filed a petition for review of the July 27, 1972 Memorandum and Order in this court within the time permitted by the statute. 47 U.S. C. §§ 402(c), 405.

Before the FCC the Lottery Commission established its status as a person aggrieved or whose interests would be adversely affected. The State Lottery is authorized by a 1969 amendment to the state constitution and by the State Lottery Law, N.J.Stat.Ann. §§ 5:9-1 to 5:9-25. The Lottery Commission commenced sale of lottery tickets in December 1970. The winning number is drawn every Thursday morning. The Lottery Commission claims that each Thursday it is confronted with a difficult problem in coping with the public demand for information of the winning number. Its telephone service was temporarily suspended on August 19, 1971, due to an overload of telephone calls. Records of the New Jersey Bell Telephone Company indicate that its twelve automatic answering and announcement machines in Newark, specially installed for the Lottery Commission to announce the winning numbers to callers in the northern half of New Jersey, receive an average of 5,500 calls between the hours of 9:30 a. m. and 2:30 p. m. on Thursdays. Five additional machinés have been installed in Newark. In addition to the calls completed, 32,000 and 63,000 “overflow” calls were attempted on August 12 and August 19, 1971, respectively. Many phone calls requesting the winning lottery number have also been made to newspapers throughout the state commencing at approximately 11:30 a. m. on Thursdays. On a typical Thursday, 2,750,000 ticketholders are interested in the winning number.

The FCC, in issuing the challenged ruling, acted pursuant to the Communications Act of 1934. See Act of June 19, 1934, ch. 652, 48 Stat. 1064, 1086, 1088, 1091. The provisions of that statute relevant to this ease are found at 18 U.S.C. § 1304, 47 U.S.C. § 312(a)(6) and 47 U.S.C. § 326. 18 U.S.C. § 1304 provides:

“Whoever broadcasts by means of any radio station for which a license is required by any law of the United States, or whoever, operating any such station, knowingly permits the broadcasting of, any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be fined not more than $1,000 or imprisoned not more than one year, or both.

The FCC can under 47 U.S.C. § 312(a)(6) revoke any station license for a violation of 18 U.S.C. § 1304. 47 U.S. C. § 326 provides:

“Nothing in this chapter shall be understood or construed to give the Commission the power of censorship over the radio communications or signals transmitted by any radio station, and no regulation or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free speech by means of radio communication.

In its ruling the FCC made no effort to reconcile the three statutory provisions. Relying entirely on 18 U.S.C. § 1304, on its Supplementary Declaratory Ruling, 21 F.C.C.2d 846 (1970), and on the decision of the Second Circuit in New York State Broadcasters Association v. United States, 414 F.2d 990 (2d Cir. 1969), cert. denied, 396 U.S. 1061, 90 S.Ct. 752, 24 L.Ed.2d 755 (1970) (which does not discuss 47 U.S.C. § 326), the FCC held that it had authority to prohibit a broadcast frequency licensee from announcing the winning lottery number as a news item in a regular news broadcast. We conclude that the FCC misconstrued the congressional mandate in the Communications Act of 1934. Nothing in that statute was intended to permit the exercise by the FCC of control over editorial decisions of broadcast journalists. On the contrary as 47 U.S. C. § 326 makes clear, Congress expected the FCC’s actions to be consistent with the first amendment.

The FCC ruling imposes a small prior restraint. It is, nonetheless, a prior restraint upon the dissemination of information of interest, on the day of the lottery, to perhaps 58% of New Jersey's adult population. There are three possible justifications for such a restraint. One is that the information is of such nature that it is not protected by the first amendment. E.g., Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973); United States v. Orito, 413 U.S. 139, 93 S.Ct. 2674, 37 L.Ed.2d 513 (1973); Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973); United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 93 S.Ct. 2665, 37 L.Ed.2d 500 (1973). The second is that although the information ordinarily is protected by the first amendment, the agency applying the restraint is exempt from its strictures. E. g., Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972). The third is that although the information is protected and the agency is not exempt from the first amendment, the restraint is only reasonably incidental to the achievement of another valid governmental purpose. E.g., Veterans and Reservists for Peace in Vietnam v. Regional Commissioner of Customs, 459 F.2d 676 (3d Cir.), cert. denied, 409 U.S. 933, 93 S.Ct. 232, 34 L.Ed.2d 188 (1972).

The FCC does not urge the third justification; indeed 18 U.S.C. § 1304, as interpreted in the proceeding under review has no purpose other than restraint upon the dissemination of information. The FCC does, however, urge both of the other justifications. In its initial decision on petitioner’s request for a ruling, it held that the winning lottery number was not “news” and therefore was not protected by the first amendment. When the Lottery Commission petitioned for reconsideration, it held that even if the winning number had some news value to some persons, its broadcast would directly promote a lottery, and could therefore be prohibited by the FCC. On both grounds the FCC is wrong.

The contention that on Thursday afternoon the winning number in the New Jersey lottery is not “news”, in a broadcast context, is simply frivolous. In Rosenbloom v. Metromedia, Inc., 415 F.2d 892 (3d Cir. 1969), aff’d, 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), we stressed the “hot news” value of broadcast news summaries given in hourly or half-hourly reports, and said:

The primary value of these items to the public is in conveying the latest news as promptly as possible so that it has the opportunity to be informed of news items of possible immediate public concern. Id. at 895.

On Thursday afternoon and evening the winning lottery number is “hot news”. By Friday afternoon it is merely history, with which broadcast journalism is only peripherally concerned. The FCC reasons that because the winning number is of interest to only a limited class of persons (a mere 2,750,000 ticketholders on a typical Thursday), it is not an item of news, and hence is not protected information. Setting aside the question whether the first amendment recognizes a distinction between news and mere history, see, e. g., Winters v. New York, 333 U.S. 507, 68 S.Ct. 665, 92 L.Ed. 840 (1948), we reject the premise that the size of the class of persons interested determines what is news. If this were the determinant, stock market quotations would not be news and, hence, apparently could be censored, since on any given Thursday more persons in New Jersey are interested in the winning lottery number than in the closing price of any given security. If this were the determinant, most obituaries would not be news; the arrivals of out-of-town buyers in the clothing market would not be news; the expected time of arrival of a steamship would not be news. The first amendment makes clear that it is beyond the competency of any governmental agency to determine, a priori, that any item of information is, for any news medium, not news.

Broadcast news media, because of the immediate and highly transitory nature of their news coverage, present particular problems in this regard. They, above all news media, serve the public need to be informed on what is of immediate though of passing interest. They at least as much as the other news media should be left free to make their own editorial decisions as to what news will best serve their public. The only restraints on information by which, in the news context, the broadcast media may constitutionally be bound are those imposed by what little is left of the law of libel since New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its progeny, and by the law of obscenity, e.g. Miller v. California, supra; Paris Adult Theatre I v. Slaton, supra; United States v. Orito, supra; Kaplan v. California, supra; United States v. 12 200-Ft. Reels of Super 8mm. Film, supra; see 47 U.S.C. § 303(m)(1)(D). Clearly the winning lottery number is, on Thursday afternoon, press information protected by the first amendment.

Is the FCC, then, an exempt agency? To put the question conversely, does the circumstance that broadcasters are licensees of the federally owned broadcast frequencies make them, in the news context, subject to prior governmental restraints ?

We can set to one side those cases dealing with a broadcaster's commercial activities. We assume for present purposes that Congress may constitutionally condition the grant of a license to use the federally owned broadcast frequencies upon an agreement by the licensees that they will disclose payments for broadcast information, 47 U. S.C. § 317, and that they will not, by the use of those frequencies, derive revenue from promotion of products or activities deemed by Congress unworthy of such promotion. See Banzhaf v. FCC, 132 U.S.App.D.C. 14, 405 F.2d 1082, 1101-1103 (1968), cert. denied, 396 U.S. 842, 90 S.Ct. 50, 24 L.Ed.2d 93 (1969); 15 U.S.C. §§ 1331-1339; cf. Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 93 S.Ct. 2553, 35 L.Ed.2d 669 (1973). We assume, as well, that Congress may condition the grant of exclusive licenses to use the limited available number of broadcast frequencies upon reasonable agreements by the licensees designed to assure fair access of competing ideas to those frequencies. See 47 U.S.C. § 315; Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); National Broadcasting Co. v. United States, 319 U.S. 190, 63 S.Ct. 997, 87 L.Ed. 1344 (1943). Compare with Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973). This case, however, falls in neither category. Jersey Cape Broadcasting Corporation seeks no more than to include in its regular news broadcasts on Thursday a news item of immediate, though transitory, interest to 2,750,000 persons. If Congress may condition the grant of a license upon submission to prior restraint against broadcast of this news item, how would one distinguish a condition imposing a prior restraint on the broadcast of stock market or commodity future prices, or indeed of any subject matter? We think it clear from 47 U.S.C. § 326 that in enacting the Communications Act of 1934 Congress, while exercising its plenary power to license use of broadcast frequencies, did not claim, directly or by implication, any power to impose conditions on the grant of such licenses which would violate the first amendment. The FCC interpretation of 18 U.S.C. § 1304 gives that provision of the Communications Act of 1934 undue weight while giving too little weight to the Congressional expression in the same statute set out in 47 U.S.C. § 326. The latter provision negates any intention on the part of Congress to make 18 U.S.C. § 1304 applicable to news broadcasts. A logical reconciliation of the two sections, and one which avoids a serious constitutional difficulty, restricts the application of 18 U.S.C. § 1304 to promotion of lotteries for which the licensee receives compensation. But cf. New York State Broadcasters Association v. United States, supra. Possibly, as Judge Feinberg suggests in New York State Broadcasters, some uncompensated promotional announcements outside the context of broadcast journalism might be found by the FCC to be promotional, and not news, and hence prohibited by 18 U.S.C. § 1304. We need not decide that issue in this case. The announcements here involved are unadulterated broadcast journalism — news — and clearly are protected by 47 U.S.C. § 326 and the first amendment rather than prohibited by 18 U.S.C. § 1304.

The petition for review will be granted and the ruling of the FCC will be reversed.

      . 47 U.S.C. § 405 provides :
      “After an order ... or action has been made or taken in any proceeding by the Commission . . . any other person aggrieved or whose interests are adversely affected thereby, may petition for rehearing . . . . ”
      The FCC does not challenge the Lottery Commission’s standing.

      . By order dated November 3, 1972, we granted motions of the states of New Hampshire and Pennsylvania to intervene as petitioners. The Maryland Public Broadcasting Corporation has filed a brief as amicus curiae in support of the petition for review.

      . Compare this position with In re Broadcasting of Information Concerning Horse Races, FCC 73-355, filed April 3, 1973.

      . See New York Times weekly report.

      . See New York Times daily report.


source: Caselaw Access Project

author: CHAMBERS, Circuit Judge: HUFSTEDLER, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Ellen Mae DIX, Defendant-Appellant.
    No. 73-1264.
    United States Court of Appeals, Ninth Circuit.
    Jan. 29, 1974.
    Robert M. Talcott (argued), of Angus, Bothman & Talcott, Sherman Oaks, Cal., for defendant-appellant.
    William D. Keller, U. S. Atty. David P. Curnow, Asst. U. S. Atty. (argued), Los Angeles, Cal., for plaintiff-appellee.
    Before CHAMBERS and HUFSTEDLER, Circuit Judges, and TURRENTINE, District Judge.

       The Honorable Howard B. Turrentine, United States District Judge for the South-era District of California, sitting by designation.

   CHAMBERS, Circuit Judge:

Here we have an appeal from a judgment of conviction in federal court for stealing property that was “in the care, custody, control, management, or possession” of a national bank (18 U.S.C. § 2113(b)). The best point that the appellant, Mrs. Dix, has is that even if she did do something wrong it was not within the purview of the federal courts.

Mrs. Dix was a distant relative of A. B. Malouf, a wealthy man of advancing years who lived in Los Angeles. Mrs. Dix’s mother was both a relative and close friend of Mrs. Malouf. After a lifetime of business experience, primarily in the ladies’ ready-to-wear industry, Malouf had put considerable of his wealth into bonds, largely negotiable municipal bonds. Malouf kept his bonds in three safe deposit boxes at a branch of Bank of America in Los Angeles. Because of his failing eyesight, he required the assistance of a personal secretary to help him handle his bonds. Such a secretary had left his employ in late 1971 or early 1972. In early 1972, Mrs. Dix went to work for Malouf as his private secretary.

As private secretary to Malouf, Mrs. Dix was to help him with correspondence and his business affairs. Her particular responsibility with regard to the bonds was to accompany Malouf on his visits to the bank where the bonds were kept. At the bank, she would go into the bank’s conference room with Malouf and one or more of the safe deposit boxes. There, she would follow his instructions in clipping coupons and preparing them for transmission to the payor.

Giving the weight which we must to the jury verdict, Mrs. Dix seized an opportunity on April 3, 1972, to take $315,000 worth of negotiable bonds while she was helping him clip coupons at the bank. She gave them to her accomplice, Ronald Gregory Johnson, who attempted to sell the bonds. In attempting to sell the bonds, Johnson employed an elaborate scheme involving false names, forged identification, and disguises. The scheme was foiled when an officer of a bank where, Johnson had opened an account in a false name became suspicious and summoned FBI agents.

Mrs. Dix does not deny that she had the bonds, nor does she deny knowing about the manner in which Johnson sought to dispose of them. She asserted at trial and continues to claim on appeal that Malouf gave her the bonds out of affection. The government's case was a web of circumstantial evidence tending to show theft rather than gift. The jury believed the government and rejected Mrs. Dix’s story. We find the evidence sufficient and accept the verdict.

Mrs. Dix makes several claims of error on the part of the trial judge. She attacks his instructions, his ruling on evidentiary matters, and his handling of witnesses. We have considered each point, and we find no prejudicial error.

The only problem we find in the case is deciding whether the theft of the bonds from Malouf while he had the bonds out of the vault in order to clip coupons in the conference room was a federal crime.

The language of the statute is broad. It covers thefts not only of property within the possession of the bank but also of property within the care, custody, control or management of the bank. We hold that when Malouf took his safe deposit boxes into the bank's conference room to examine or otherwise deal with the contents of the boxes, those contents were within the care of the bank, and the theft of some of those items was a crime within the contemplation of § 2113(b).

In Chapman v. United States, 346 F.2d 383 (9th Cir.), cert. den. 382 U.S. 909, 86 S.Ct. 249, 15 L.Ed.2d 161 (1965), a former bank employee used a key to the front door of the bank, which she had either kept or copied, to enter the bank after regular hours. She then stole books and papers from the desk of her successor. Some of the stolen items were property of the bank, and some were the property of Mrs. Chapman’s successor. In response to a claim very similar to that made in the present case, we said,

This property, including Miss Hall’s personal documents, were, while owned by her and used by her in the performance of her duties at the bank and left there when she left for the day (and even while she was there for the day), “within the care, custody or control of the bank,” and thus within the statute here involved. 346 F.2d at 387.

The Chapman opinion does not make altogether clear the basis for finding the property within the statute. However, reference to the law of negligence illuminates the meaning of the word “care.” The bank owes a duty of care to its customers, just as any business owes to its business invitees, to maintain its premises in a condition reasonably fit for the carrying on of the banking business. The duty extends to protection from unreasonable risk of harm by robbers or other potential assailants or thieves. See, e. g., Sinn v. Farmer’s Deposit Savings Bank, 300 Pa. 85, 150 A. 163 (1930); Murray v. Modoc State Bank, 181 Kan. 642, 313 P.2d 304 (1957); Boyd v. Racine Currency Exchange, Inc., 8 Ill.App.3d 140, 289 N.W.2d 218 (1972).

In addition, there is a duty to exercise reasonable care for the protection of property which the customer properly brings into the premises. Fuller v. I. Magnin & Co., 104 Cal.App.2d 517, 232 P.2d 36 (1st Dist., 1951).

We conclude, based on Chapman, supra, and on the duty of care which the bank owes to its customers, that the bonds stolen here were in the “care” of the bank, even though this duty did not extend to requiring or permitting the bank to follow Malouf into the conference room where the coupon clipping chore was performed.

In other words, the duties of care owed to Malouf and his property provide us with sufficient nexus to say the bonds at the time they were filched in the bank were in the bank’s care and Malouf’s care.

The judgment is affirmed.

HUFSTEDLER, Circuit Judge

(dissenting) :

I cannot agree that this case falls within the ambit of 18 U.S.C. § 2113(b). Once the bonds were delivered to Mr. Malouf, the bank had no legitimate interest in what he did with his property. The relationship of the bank to the bonds after it returned them to Mr. Malouf was no different from its relationship to cash delivered to a customer at a teller’s window and placed by the customer in his wallet. In neither instance is the property “in the care, custody,, control, management, or possession” of the bank within the meaning of section 2113(b). (See Lubin v. United States (9th Cir. 1963) 313 F.2d 419.)

Of course, the bank owed a duty of care to Mr. Malouf, “just as any business owes to its business invitees,” to protect the customer from unreasonable risk of harm to his person. But the “care” to which section 2113 is addressed is not the common law duty of care to the person, but rather care of property belonging to the bank or entrusted to it, as the words of the statute itself make plain: “Whoever takes and carries away, with intent to steal or purloin, any property or money or any other thing of value exceeding $100 belonging to, or in the care, custody, control, management, or possession of any bank [is subject to prescribed punishment]." (18 U.S.C. § 2113(b). See also Way v. United States (10th Cir. 1959) 268 F.2d 785, 786 (purpose of § 2113(b) is to protect the financial stability of the Federal Reserve Bank System).)

Chapman v. United States (9th Cir. 1965) 346 F.2d 383 is not in point. Chapman stole property of the bank, as well as personal property of an employee, used by the employee in the performance of bank duties, left in a desk drawer in the bank. Chapman argued that property not owned by the bank could not be taken in violation of section 2113(b). We held only that the fact that some of the items stolen “did not belong and had never ‘belonged’ to the bank, as appellant urges, is immaterial,” since the employee’s property was “ ‘within the care, custody or control of the bank’ and thus within the statute here involved.” (346 F.2d at 387.)

The majority’s unwarranted extension of criminal liability under section 2113(b) disregards a fundamental principle of statutory construction. The Supreme Court has noted that “Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States,” (United States v. Bass (1971) 404 U.S. 336, 349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488) and has recognized that broad construction of federal penal statutes could alter sensitive federal-state relationships and could overextend limited federal police resources. (Rewis v. United States (1971) 401 U.S. 808, 812, 91 S.Ct. 1056, 28 L.Ed.2d 493.) Consequently, the Court has held that an enlargement of federal criminal jurisdiction will not be approved “unless Congress conveys its purpose clearly.” (United States v. Bass, supra 404 U.S. at 349, 92 S.Ct. at 523, see LeMasters v. United States (9th Cir. 1967) 378 F.2d 262, 268.) The majority’s construction of “care” depends, at best on the ambiguity of that word as it is used in section 2113(b).

If the majority’s interpretation of section 2113(b) is correct, moreover, it suggests that banks will now be exposed to a new range of civil liability. If the bank’s duty to protect Mr. Malouf from an unreasonable risk of harm extends to protecting his property from potential theft by his employee, are not banks facing future civil damage suits of major proportions ? In this case, the exposure of Mr. Malouf’s bank would be $315,000.

I would reverse.

      . Both parties devote substantial portions of their briefs to a discussion of bailment. The government’s “joint possession” argument has appeal and authority. See Lamus v. Engwicht, 39 Cal.App. 523 (1919). However, we decline to discuss the law of bailment, since bailment depends on possession of the bailed article (Earhart v. Callan, 221 F.2d 160 (9th Cir., 1955)), and our statute speaks of broader concepts than possession alone.


author: BOREMAN, Senior Circuit Judge:

text:
    George GARRETT, Appellant, v. Enso GUTZEIT O/Y, Appellee.
    No. 73-1468.
    United States Court of Appeals, Fourth Circuit.
    Argued Nov. 6, 1973.
    Decided Feb. 8, 1974.

      Sidney H. Kelsey, Norfolk, Va. (Kelsey & Kelsey, Norfolk, Va., on brief), for appellant.
    Charles F. Tucker, Norfolk, Va. (Vandeventer, Black, Meredith & Martin, Norfolk, Va., on brief), for appellee.
    Before CLARK, Associate Justice, BOREMAN, Senior Circuit Judge, and BUTZNER, Circuit Judge.

       Supreme Court of the United States, retired, sitting by designation.

   BOREMAN, Senior Circuit Judge:

On January 7, 1971, the SS FINN-CLIPPER, a vessel owned and operated by Enso Gutzeit O/Y (shipowner), was berthed at Chesapeake & Ohio Railroad’s Pier B, Newport News, Virginia, preparing to discharge a cargo of bales of pulp paper. Tidewater Stevedoring Corporation (Tidewater) had been employed by shipowner as an expert stevedore to unload the cargo. The plaintiff, George Garrett, a longshoreman, was a member of the gang employed by Tidewater in connection with the discharge of the cargo of pulp paper.

At 8:00 A.M. the longshoremen began unloading the cargo. As is customary' in the stevedoring industry the gang was divided into functional work groups; some were ordered to work on the ship while various duties were assigned to others on the pier. Garrett and others were to stack the cargo as it was delivered to them by other members of the “dock gang” in a storage shed located on the pier.

The cargo consisted of bales of pulp paper measuring approximately feet by 2½ feet by 1½ feet and weighing approximately three to five hundred pounds. Each bale was compressed and held together by four wire bands, “two of which were wound in each direction” as found by the district court, Garrett v. Gutzeit O/Y, 352 F.Supp. 1257, 1259 (E.D.Va.1973). The cargo was removed from the ship in the customary manner. Once the cargo was removed from the ship’s hold and placed on the dock the bales would be disconnected from the ship’s gear. Members of the “dock gang” then moved the bales one at a time via hand trucks into a shed on the pier some twenty-five or more feet from the side of the ship. Garrett’s work gang was instructed to stack the bales four high as they arrived in the shed. The cargo was transferred from the pier apron and stacked in the shed to facilitate the removal of more bales from the hold.

Tidewater’s superintendent Powell ordered Garrett and the others on the dock to use longshore hand hooks to handle the bales. They were instructed to place the hooks under the junction of two bands and thus lift the bales. Garrett and others in his work gang were attempting to jump a bale up to the fourth tier of a stack. At least one (two as found by the court) of the four bands on this particular bale was missing. The men inserted their hooks under the remaining bands and lifted the bale from the floor. Under stress one of the remaining bands broke, causing the bale to fall on Garrett who thus sustained a severe back injury.

The accident occurred at approximately 11:30 A.M., some 3% hours after work started. During the 3% hours of unloading, bands on the cargo had been breaking. Some bands were breaking before the bales could be lifted from the hold while others broke during discharge, permitting several bales to fall to the pier. Superintendent Powell testified that bands broke because of the way the bales had been wedged in the hold of the ship; that shifting weight during the voyage and the strain of removing the wedged bales had caused breakage; that the ship’s crew was on duty during the unloading and had observed the defective condition of many of the bands.

Garrett brought this action against the shipowner, claiming that his injuries were caused by both the unseaworthiness of the vessel and the negligence of the ship’s crew. The shipowner denied these allegations and impleaded Tidewater, claiming indemnity. The issue of unseaworthiness was submitted to the jury; the judge did not submit the negligence issue, stating that the shipowner owed no duty to Garrett. The jury returned a verdict of $45,000 for Garrett. The shipowner then moved to set aside the verdict and enter judgment in its favor.

In ruling on the shipowner’s motion, the judge relied upon the basic premise that, in order to recover on an unseaworthiness theory, Garrett had to establish that he was engaged in work traditionally performed by a seaman. He refused to rule as a matter of law under the facts of the case that Garrett was engaged in such traditional work and concluded that this question should not have been submitted to the jury since the record was devoid of sufficient evidence upon which reasonable men could evaluate the nature of Garrett’s work. Therefore, the court granted the shipowner’s motion, set aside the verdict and entered judgment for shipowner. On appeal Garrett contends that the court erred in setting aside the verdict and in refusing to submit the negligence issue to the jury.

I

The district judge denominated jurisdiction as the threshold issue, analyzed the subject in some detail, and concluded that, under the facts here, admiralty jurisdiction did exist. Although we agree with his conclusion on this point and most of his analysis we think it appropriate to further re-examine and review the subject of admiralty jurisdiction. There appears to be no little confusion concerning restrictions upon the right to recover under maritime law. This confusion is attributable, in great measure, to the fact that the scope of admiralty jurisdiction is not always equal to the breadth of the seaworthiness warranty. Thus careful consideration of the limits of admiralty jurisdiction is essential and these limits must be applied solely to the jurisdictional issue; any attempt to apply analogous restrictions upon the scope of warranty coverage could easily lead to error.

Admiralty jurisdiction may exist where a shore-based injury is involved, but, if so, it must be predicated on the Admiralty Extension Act. 46 U. S.C. § 740. In pertinent part the Act provides that:

“The admiralty and maritime jurisdiction of the United States shall extend to and include all eases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.”

Clearly the Act extends admiralty jurisdiction to shore-based injuries. We find that a close reading of Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), and Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), is more than helpful in our efforts to determine the limits of admiralty jurisdiction under the Act.

In Gutierrez the Court held that admiralty jurisdiction exists when a shipowner commits a tort while or before the ship is being unloaded and the impact is felt ashore at a time and place not remote from the wrongful act. Gutierrez, a longshoreman working on the dock, was injured when he slipped on loose beans that had leaked from defective cargo container bags. The shipowner had allowed the cargo to be discharged in defective bagging and should have realized the danger. The Court concluded that an unseaworthiness claim could be predicated upon the use of defective cargo containers.

Naturally Gutierrez had an expansive effect on the scope of jurisdiction in admiralty eases. In Victory Carriers the Court clarified the scope of this jurisdiction as broadened by Gutierrez in its application of the Act. Bill Law, a longshoreman working on the docks, was injured by a defective forklift truck while loading a ship. The forklift was owned by the stevedoring company and was not a part of the ship’s gear. In denying recovery against the shipowner the Court stressed that the plaintiff was not injured by an appurtenance of the ship, an essential element if admiralty jurisdiction is to be invoked under the Act. The Court approved its holding in Gutierrez, noting that the jurisdictional question posed in Gutierrez turned, not on the function the longshoreman was performing at the time of his injury (i. e., whether engaged in the traditional work of a seaman) but, rather, upon the fact that his injury was caused by an appurtenance of the ship, the defective cargo containers. The Court stated that reliance upon the “gangplank line” as the presumptive boundary of admiralty jurisdiction is best, except for cases where a ship’s appurtenance causes damage ashore. Thus, Victory Carriers and Gutierrez, read and considered together, combine to formulate the following rule: Admiralty jurisdiction extends to shore-based workers who are injured by an appurtenance of the ship at a time and place not remote from the wrongful act of the shipowner. It must be remembered, however, that the Court in Victory Carriers addressed itself only to jurisdiction. We do not interpret Victory Carriers to affect in any way the limits of warranty coverage.

Apparently the district court had little difficulty in finding the existence of admiralty jurisdiction under the facts here. We, too, find jurisdiction established. The instrumentality of the injury was a ship’s cargo container (the wire bands around the bales). Cargo containers coming from a vessel’s hold satisfy the appurtenance requirement of Victory Carriers. Once cargo is accepted the shipowner becomes responsible for any injury caused by a defective condition of the cargo containers whether the injury occurs aboard the vessel or on the dock. From the record it is clear that the ship’s crew observed cargo containers leaving the ship in a defective condition for over three hours. The accident occurred between twenty-five and fifty feet from the side of the ship, during a discharge operation that was continuous. We agree with the district court that the requirement of Gutierrez that “the injury not be remote in time and place from the wrongful act” has been satisfied. For these reasons we hold that admiralty jurisdiction does exist and we now turn our attention to the theories and limits pertinent and unique to warranty coverage.

II

The principle that a shipowner is “liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply and keep in order the proper appliances appurtenant to the ship” has long been recognized as a part of American admiralty law. The Osceola, 189 U.S. 158, 175, 23 S.Ct. 483, 487, 47 L.Ed. 760 (1903) (emphasis added). This principle has evolved with the historical development of maritime law. We must, therefore, turn to case law to determine whether, on the facts before us, Garrett falls within the definition of “seamen”—those individuals traditionally entitled to recover for injuries under the warranty of seaworthiness.

The definition of the word “seamen” has long been the subject of litigation, but it is clear that the term includes anyone who, in the course of his work about a ship, exposes himself to the risks traditionally associated with the maritime duties of a member of the ship’s crew. International Stevedoring Co. v. Haverty, 272 U.S. 50, 52, 47 S.Ct. 19, 71 L.Ed. 157 (1926). Thus, a# longshoreman, injured while engaged in such maritime duties, may recover from the shipowner where his injury is caused by the unseaworthy condition of the ship or its equipment.

Often the question of whether a longshoreman is engaged in work traditionally done by a seaman will be a question of fact for the jury. Bodden v. Coordinated Caribbean Transport, Inc., 369 F.2d 273 (5 Cir. 1966). Yet there are instances where the court should find as a matter of law that the longshoreman’s duties were those of a seaman. See Usiak v. New York Tank Barge Co., 299 F.2d 808, 811 (2 Cir. 1962). As early as 1914, the United States Supreme Court held that one engaged in loading and stowing a ship’s cargo was engaged in “the performance of a maritime service” which was “absolutely necessary to enable the ship to discharge its maritime duty,” and was, therefore, entitled as a matter of law to maintain a libel on the theory of unseaworthiness. Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 61-62, 34 S.Ct. 733, 735, 58 L.Ed. 1208 (1914). Thus, one engaged in the process of loading or unloading a ship is engaged in the work of a seaman and is entitled to the benefits of the warranty of seaworthiness conferred upon all seamen in the ship’s service. Gutierrez v. Waterman Steamship Corp., 373 U.S. 206, 214-215, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963); Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 413, 74 S.Ct. 202, 98 L.Ed. 143 (1953).

The district court noted this proposition but held that Garrett’s duties did not constitute unloading as that word was understood and applied in the case law; therefore, it refused to rule as a matter of law that Garrett was doing work traditionally done by a seaman. Since Garrett had relied on the broad definition of that term and presented no evidence to the jury respecting the traditional duties of a seaman, the court held that Garrett failed to prove his case. The court apparently concluded that “unloading” ceases when the cargo is no longer in contact with the ship, i. e., when the bales were deposited on the pier and discharged from the ship’s gear. Although we find this theory appealing because of its ease of application, we believe that the case law rejects such a narrow definition of “unloading.”

At the outset we observe that the remedy provided by the warranty of seaworthiness is to be liberally applied to carry out its humanitarian purpose. Thus, the cases have broadly defined the word “seaman,” have extended the list of devices considered a part of the ship’s gear, and have expanded the definition of unseaworthiness. A member of the crew is no longer denied recovery for injuries sustained in the ship’s service merely because he is ashore at the time the injury is suffered; likewise a longshoreman when engaged in the duties of a seaman is entitled to maritime remedies if jurisdiction resides in an admiralty court. In view of this obvious trend to fully develop the humanitarian purposes of the warranty of seaworthiness we find no reason to apply a hyper-technical definition to the terms loading and unloading.

In Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563 (3 Cir. 1963), the court upheld a recovery by the clainjant-longshoreman for injuries sustained while stacking cargo at a pier building after the cargo was discharged from the ship’s hold and carried by trucks to the building. The court found the work was “an integral part of the unloading of the vessel” since the pier apron could not accommodate the cargo. 318 F.2d at 571. Thus, the court concluded that “as a matter of law he was in the ship’s service” and entitled thereby to the “protection of the doctrine of unseaworthiness.” 318 F.2d at 571; see also Huff v. Matson Navigation Co., 338 F.2d 205 (9 Cir. 1964), and Spann v. Lauritzen, 344 F.2d 204 (3 Cir. 1965). Chagois v. Lykes Brothers Steamship Co., 432 F.2d 388 (5 Cir. 1970), upheld an award of damages to a longshoreman injured on the pier adjacent to a ship while transferring grain from a boxcar to the ship; Chagois was engaged in “an essential part of an unbroken sequence of moving the . . . [cargo] from the pier to the ship.” 432 F.2d at 391 (footnote omitted).

In the case at bar the district court distinguished the cases discussed above by noting that they were decided immediately after Gutierrez and prior to “the limitations imposed by Victory Carriers.” We believe the court incorrectly interpreted Victory Carriers; it has ex-’ tended Victory Carriers’ limitations upon jurisdiction by analogy to justify rigid limitations upon the scope of protection afforded by the warranty of seaworthiness. Constitutional limitations upon federal jurisdiction and the absence of specific statutory authorization weighed heavily in limiting admiralty jurisdiction in Victory Carriers. However, where, as in the instant case, jurisdiction clearly exists those factors do not compel limitations upon the warranty of seaworthiness. The Supreme Court has historically limited the scope of admiralty jurisdiction, but, as noted above, there has also been a trend to expand the scope of protection afforded by the warranty of seaworthiness where admiralty jurisdiction is found to exist.

In defining the term unloading in this case the district court referred to its prior decision in Drumgold v. Plovba, 260 F.Supp. 983 (E.D.Va.1966). In an effort to limit the shoreward encroach-ment of law peculiarly adapted to maritime situations, the court in Drumgold chose to restrict the definitions of loading and unloading, excluding many shore-based workers from the warranty of seaworthiness. We, however, are guided by the historical development of the warranty rather than arbitrary definitions of admittedly amorphous terms. Without comment as to the correctness of the decision in Drumgold, we take note that the question of jurisdiction was not there considered. Since neither of the two shore-based plaintiffs in that case was injured by a ship or its appurtenance, it would appear that no admiralty jurisdiction existed and that the shoreward encroachment of maritime law could have been halted by application of the limits on jurisdiction.

The record in the instant case demonstrates that it was necessary to move the bales away from the side of the ship as they were discharged from the ship’s gear so that, additional bales could be unloaded. It was, therefore, a “necessary step in the unloading operation.” Additionally, the shipowner was obligated by contract with the consignee of the cargo to place the bales in the shed; prior to the advent of longshoremen, this obligation of the shipowner would necessarily have been performed by members of the ship’s crew. Logic compels the conclusion that Garrett was, as a matter of law, engaged in the work of a seaman; he is thus entitled to the protection afforded by the warranty of seaworthiness. This result is fully supported by the decision of the Third Circuit in Hagans v. Ellerman & Bucknall Steamship Co., 318 F.2d 563 (3 Cir. 1963), the facts there being indistinguishable from those before us.

III

We conclude that the trial judge erred in setting aside the jury award of damages to Garrett and entering judgment for shipowner. Therefore, we reverse the judgment and remand with instructions that the jury’s verdict be reinstated. When judgment was entered for shipowner its claim of indemnity against Tidewater was rendered moot; upon remand further proceedings consistent with this opinion will be necessary with respect to that issue.

Reversed and remanded with instructions.

      . Under the terms of a standing contract between Tidewater and the shipowner Tidewater was to remove the cargo from the ship and stack it in a shed on the pier.

      . The normal method employed in Newport News for the removal of such cargo was described by stevedore superintendent Powell. A stationary winch on the ship lowered sixteen to twenty hooks on rope halyards into the hold. Longshoremen connected two hooks to each bale. The hooks would be inserted under the wire at the junction of two bands. The winch then lifted eight to ten bales from the hold and lowered them over the side, onto the dock.

      . It is shown by the record that the cargo had to be removed from the side of the ship so that more bales could be deposited on the dock. This necessitated a continuous unloading process from the ship’s hold to the stacking area.

      . We express no opinion as to the merits of Garrett’s contention that the court erred in refusing to submit the negligence issue to the jury. Consideration thereof is unnecessary in view of our ultimate decision.

      . For example, an individual plaintiff may come within admiralty jurisdiction but without the protective scope of the seaworthiness warranty. See United Pilots Ass’n v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959). The reverse can also be true. See Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), as cited and discussed, infra.

      . Wire bands binding cargo have been considered cargo containers. See Gutierrez v. Waterman S. S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963) ; Atlantic & Gulf Stevedores, Inc., v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962).

      . Victory Carriers, Inc. v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971), gives us a clear indication that cargo containers are considered appurtenances of a ship. “The decision in Gutierrez turned upon the fact that his injury was caused by an appurtenance of a ship, the defective cargo containers . . . .’’Id. at 210-211, 92 S.Ct. at 424. (Emphasis added.)

      . The Admiralty Extension Act, 46 U.S.C. § 740, initially extended admiralty jurisdiction shoreward. Gutierrez v. Waterman S. S. Corp., 378 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), established that jurisdiction existed on the dock if the shipowner discharged defective cargo containers.

      . A fact crucial to establishing a maritime cause of action under the Admiralty Extension Act is that the cargo containers were defective when they left the ship. Green v. Pope & Talbott, Inc., 459 F.2d 365, 368 (4 Cir. 1972).

      . Diversity jurisdiction under 28 U.S.C. § 1332 was specifically asserted in the complaint. The complaint on its face, however, does clearly allege facts upon which admiralty jurisdiction can be supported. Therefore, we think it unnecessary to determine whether diversity jurisdiction did exist. This approach eliminates the need to consider the extent to which maritime law is applicable in a diversity action. See generally McNeil v. A/S Havbor, 339 F.Supp. 1264 (E.D.Pa. 1972).

      . An excellent discussion of the historical development of the warranty of seaworthiness appears in G. Gilmore and O. Black, Jr., The Law of Admiralty 315-32 (1957).

      . As early as 1848 the United States Supreme Court found it necessary to determine whether “seamen’’ as the term appeared in 5 Statutes at Large 153, included marines. Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 12 L.Ed. 618 (1848). Since enactment of the Jones Act, 46 U.S.C. § 688, litigation of that word has increased dramatically. See cases collected in Annot., 75 A.L.R.2d 1312 (1961).

      . Seas Shipping Co. v. Sieracki, 328 U.S. 85, 99, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).
      On appeal no challenge has been made to the premise that defective cargo bands constitute an unseaworthy condition. That question was fully considered in Atlantic & Gulf Stevedores, Inc. v. Bllerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962), which is controlling on the issue. There, a longshoreman was injured when a bale of burlap fell on him because a defective metal band wrapped around the bale broke. The Court upheld an award of damages, noting that unseaworthiness could be predicated upon the defectiveness of the metal bands.

      . Although it is clear that a plaintiff must establish that he was injured while doing work traditionally done by a seaman to recover under the warranty of seaworthiness, see Seas Shipping Co. v. Sieracki, 328 U.S. 85, 95, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), that aspect has often been treated sub silentio where the plaintiff was engaged in the loading or unloading process and no issue of coverage was raised. E. g., Gutierrez v. Waterman S. S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963), and Tucker v. Calmar S. S. Corp., 457 F.2d 440 (4 Cir. 1972).

      . Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960) ; Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946).

      . International Stevedoring Co. v. Haverty, 272 U.S. 50, 47 S.Ct. 19, 71 L.Ed. 157 (1926) ; Offshore Co. v. Robison, 266 F.2d 769, 780 (5 Cir. 1959) ; Baltimore & Ohio R. R. v. Zahrobsky, 68 F.2d 454, 455 (4 Cir. 1934).

      . Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962) ; Alaska S. S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954).

      . Valerio v. Am. President Lines, Ltd., 112 F.Supp. 202 (S.D.N.Y.1952) ; Robillard v. A. L. Burbank & Co., 186 F.Supp. 193 (S.D.N.Y.1960), and cases cited therein; see The Doctrine of Unseaworthiness in the Lower Federal Courts, 76 Harv.L.Rev. 819 (1963) ; see also Annot., 77 A.L.R.2d 829 (1961).

      . Strika v. Netherlands Ministry of Traffic, 185 F.2d 555 (2 Cir. 1950) ; cf. O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 63 S.Ct. 488, 87 L.Ed. 596 (1943) (allowing recovery by a seaman injured ashore while doing maritime work under the Jones Act, 46 U.S.C. § 688).

      . “We . . . hold that the duty to provide a seaworthy ship and gear, including cargo containers, applies to longshoremen unloading the ship whether they are standing aboard ship or on the pier.” Gutierrez v. Waterman S. S. Corp., 373 U.S. 206, 215, 83 S.Ct. 1185, 1191 (1963).

      . “The obvious trend of the Supreme Court decisions is toward providing ever increasing protection for crewmen, longshoremen and even others employed by independent contractors who may be called upon to work aboard vessels.” Scott v. Isbrandtsen Co., 327 F.2d 113, 124 (4 Cir. 1964). That observation remains true and has been enhanced by subsequent decisions of the Supreme Court which have further extended that protection to shore-based workers.

      . E. g., Washington v. W. C. Dawson & Co., 264 U.S. 219, 44 S.Ct. 302, 68 L.Ed. 646 (1924).

      . See Swanson v. Marra Bros., 328 U.S. 1, 66 S.Ct. 869, 90 L.Ed. 1045 (1946) ; cf. Healy v. Ratta, 292 U.S. 263, 54 S.Ct. 700, 78 L.Ed. 1248 (1934).

      . Romero v. International Terminal Operating Co., 358 U.S. 354, 379-380, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959). See cases collected in Victory Carriers v. Law, 404 U.S. 202 at 205-207 nn. 2, 3 and 5, 92 S.Ct. 418 (1971).

      . E. g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960).
      As this circuit has noted in Scott v. Isbrandtsen Co., 327 F.2d 113 (4 Cir. 1964), where jurisdiction exists the trend is to liberally construe the scope of protection. See note 21, supra.

      . “Reliance upon the gangplank line as the presumptive boundary of admiralty jurisdiction, except for cases in which a ship’s appurtenance causes damage ashore, recognizes the traditional limitations of admiralty jurisdiction . . . and decreases the arbitrariness and uncertainties surrounding amorphous definitions of ‘loading.’ ” Victory Carriers, Inc. v. Law, 404 U.S. 202, 214 n. 14, 92 S.Ct. 418, 426 (1971) (emphasis added).
      However, in determining whether Garrett is entitled to the protection afforded by the warranty of seaworthiness (i. e., was doing work traditionally done by a seaman) we, like the district court, find it necessary to consider the meaning of the terms loading and unloading.

      . See Victory Carriers v. Law, 404 U.S. 202, 92 S.Ct. 418, 30 L.Ed.2d 383 (1971).

      . “Historically the work of loading and unloading is the work of the ship’s service, performed until recent times by members of the crew. . . . That the owner seeks to have it done with the advantages of more modern divisions of labor does not minimize the worker’s hazard and should not nullify his protection.” Seas Shipping Co. v. Sieracki, 328 U.S. 85, 96, 66 S.Ct. 872, 878, 90 L.Ed. 1099 (1946).


author: JAMESON, District Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Charles Bernard WALKER, Defendant-Appellant.
    No. 73-2243.
    United States Court of Appeals, Ninth Circuit.
    Jan. 16, 1974.
    Certiorari Denied May 13, 1974.
    See 94 S.Ct. 2399.

      James F. Hewitt, Federal Public Defender, William A. Brockett, Jr., Asst. Federal Public Defender (argued), San Francisco, Cal., for defendant-appellant.
    James L. Browning, Jr., U. S. Atty., Lawrence Callaghan, Asst. U. S. Atty. (argued), San Francisco, Cal., for plaintiff-appellee.
    Before ELY and WRIGHT, Circuit Judges, and JAMESON, District Judge.

       Honorable W. J. Jameson, United States Senior District Judge for the District of Montana, sitting by designation.

   JAMESON, District Judge:

Appellant was convicted of uttering a forged United States Treasury check in violation of 18 U.S.C. § 495. His conviction was based in large part upon the testimony of Charles Griffin, a twice convicted felon, who had entered a plea of guilty to uttering the same check. Appellant contends that (1) the district court erroneously denied his request for discovery of Griffin’s probation report, which might contain statements by Griffin inconsistent with his trial testimony; (2) the preliminary hearing was a sham due to limitations placed upon defense counsel’s cross-examination; and (3) the court failed to voir dire prospective jurors for possible prejudice against a black defendant.

Failure to Produce Probation Report of Co-Defendant

Through a subpoena duces tecum served upon the probation officer, appellant sought production of Griffin’s probation records, contending that discovery was required under Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215 (1963), where the Court held that “the. suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”

The court ordered the probation officer to review Griffin’s “entire records” to determine whether there was any material which might exonerate or tend to exonerate appellant. The parties agree that the probation officer reported informally to the court that there was no exonerating evidence. The court denied appellant’s request that the records be examined also for potential impeachment material as an overbroad interpretation of Brady v. Maryland.

Brady v. Maryland involved evidence withheld by the prosecution. Here appellant sought discovery of a presentence report prepared by the probation officer for the court’s use in sentencing a co-defendant and witness for the Government. A probation officer is not subject to the control of the prosecutor; nor are his reports to the court public records. It is well settled that “the right to examine a presentence report is not one of constitutional magnitude and that the trial judge, in his discretion, may deny an accused an opportunity to inspect the report”. Fernandez v. Meier, 432 F.2d 426, 427 (9 Cir. 1970); Federal Rules of Criminal Procedure, Rule 32(c)(2). In oral argument counsel for appellant recognized the confidential nature of probation reports, but argued that this could have been preserved by an in camera inspection by the court. While the trial judge might properly have made the inspection himself, it was not an abuse of discretion to rely upon an examination by the probation officer.

Preliminary Hearing

“The return of an indictment establishes probable cause, and eliminates the need for a preliminary examination.” Austin v. United States, 408 F.2d 808, 810 (9 Cir. 1969). Subsequent to appellant’s preliminary hearing he was indicted for the same offenses for which the hearing was held. He was not entitled to a second preliminary examination. Any alleged defects in the initial hearing were cured by the subsequent indictment.

Voir Dire of Prospective Jurors

Relying upon Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054 (1931) and Ham v. South Carolina, 409 U.S. 524, 93 S.Ct. 848, 35 L.Ed.2d 46 (1973), appellant complains of the court’s failure to submit on voir dire two questions requested by appellant and designed to ascertain whether any of the jurors might be prejudiced against appellant because he was black. Aldridge and Ham are distinguishable. In Aldridge a black man was charged with the murder of a white policeman. All the jurors were white. Recognizing that the trial court has “a broad discretion as to the questions to be asked”, the Court held that the exercise of this discretion is “subject to the essential demands of fairness” and that under the circumstances of that case the court erred in failing to permit counsel to ask questions relative to “racial prejudice”. 283 U.S. at 310-311, 51 S.Ct. at 471. Ham involved the prosecution of a black civil rights leader for possession of drugs. “His basic defense at the trial was that law enforcement officers were ‘out to get him’ because of his civil rights activities, and that he had been framed on the drug charge.” 409 U.S. at 525, 93 S.Ct. at 849. Following Aldridge the Court again recognized “the traditionally broad discretion accorded to the trial judge in conducting voir dire”, 409 U.S. at 528, 93 S.Ct. at 851, but held that under the facts shown by the record the jurors should have been interrogated on “the issue of racial bias”. Id. at 527, 93 S.Ct. 848.

In this case there were no racial overtones or any showing of prejudice. The Government’s two chief witnesses and three of the jurors were black. While it would have been the better practice to submit the requested questions, we cannot say that there was an abuse of discretion in failing to do so under the circumstances of this case, particularly in view of the fact that no objection was made to the court’s failure to ask the questions.

Affirmed.

      . Appellant’s counsel stated that he would “trust” the probation officer’s judgment “as to whether anything exonerates or not”.

      . Appellant here “does not claim that the prosecutio'n has deliberately suppressed exculpatory evidence”.

      . Probation officers are appointed by the district courts and serve under the direction of the courts and the Administrative Office of the United States Courts. 18 U.S.C. §§ 3654 and 3656.

      . The court stated that if the probation officer found any exonerating material, the court would review the record himself.

      . See also Bayless v. United States, 381 F.2d 67, 71 (9 Cir. 1967).

      . We recognize that it was held in Ross v. Sirica, 127 U.S.App.D.C. 10, 380 F.2d 557 (1967) that an intervening indictment did not bar a defendant’s right to a second preliminary hearing, where there had been undue restrictions of defendant’s right to subpoena witnesses at the first hearing. As was noted in Sciortino v. Zampano, 385 F.2d 132, 134 (2 Cir. 1967), cert. denied, 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872 (1968), “the views of the District of Columbia [in Ross liave] not found favor in any other circuit * * * See also statements of Judges Danaher, Burger and Tamm on petition to grant rehearing en banc in Ross, 380 F.2d at 566-569.

      . The limited application of Aldridge and Ham to special circumstances involving racial prejudice was recognized in Commonwealth v. Ross, 282 N.E.2d 70 (Mass.1972), remanded for reconsideration in light of Ham v. South Carolina; Ross v. Commonwealth, 410 U.S. 901, 93 S.Ct. 968, 35 L.Ed.2d 265 (1973), aff’d, 296 N.E.2d 810 (Mass. 1973), cert. denied with three Justices dissenting, 414 U.S. 1080, 94 S.Ct. 599, 38 L.Ed.2d 486 (1973). Ross involved black defendants and a white victim. On remand the sole question was whether “defendant’s conviction should be reversed on the ground that the trial judge refused to ask the veniremen whether they were racially prejudiced.” 296 N.E.2d at 811. Distinguishing Ham, the court affirmed the conviction, holding that “there was nothing that pointed to Boss as a special target for racial prejudice.” Id. at 816.


author: BRUCE R. THOMPSON, District Judge:

text:
    UNITED STATES of America, and United States District Court for the Central District of California, Piaintiffs-Appellees, v. Curtis Howe SPRINGER, aka Curtis H. Springer, et al., Defendants-Appellants.
    No. 73-1876.
    United States Court of Appeals, Ninth Circuit.
    Jan. 17, 1974.
    Rehearing Denied Feb. 26, 1974.

      George W. Nilsson, Los Angeles, Cal. (argued), for defendants-appellants.
    William D. Keller, U. S. Atty., Los Angeles, Cal., Wallace H. Johnson, Asst. U. S. Atty., Gen., Carl Strass (argued), Edmund B. Clark, U. S. Dept. of Justice, Washington, D. C., for plaintiffs-appellees.
    Before TRASK and GOODWIN, Circuit Judges, and THOMPSON, District Judge.

       Honorable Bruce R. Thompson, United states District Judge, District of Nevada, sitting by designation.

   BRUCE R. THOMPSON, District Judge:

The early history of this case is related in an opinion of the District Court granting a partial summary judgment, United States v. Springer, 321 F.Supp. 625 (C.D.Cal.1970), followed by issuance of a preliminary injunction, and in an opinion of this Court affirming, United States v. Springer, 478 F.2d 43 (9th Cir. 1972). The facts as related in those opinions have not been materially controverted or changed in subsequent proceedings.

The prime thrust of the original complaint was that defendants be completely ejected from the premises in question. The effect of the preliminary injunction issued June 18, 1971, which was the subject of the earlier appeal, was to prohibit any use or occupation of the mining claims by defendants other than for legitimate mining purposes. The instant appeal is from a summary judgment entered March 6, 1973, which, in substance, decrees that defendants have no right, title or interest in the public lands in question and orders their immediate ejectment therefrom.

The summary judgment was entered upon review of an administrative record produced in the Department of Interior after the United States had initiated proceedings in the Department contesting the validity of the ten mining claims (nine placer claims and one lode claim) relied upon by defendants to support their right to possession of several hundred acres of public domain.

The final decision of the Interior Board of Land Appeals was made on November 14, 1972. Thereafter, the District Court permitted the United States to file a supplemental complaint in the pending ejectment action which alleged the invalidity of the mining claims based upon the final agency action by the Interior Board of Land Appeals. The entire administrative record was lodged with the Court and the action became one to review final agency action under the Administrative Procedure Act. The District Court sustained the administrative decision declaring the invalidity of defendants’ mining claim locations.

On this appeal, defendants make several contentions, none of which have merit.

The defendants contend that the United States has no power under the mining laws to initiate a contest of the validity of unpatented mining locations. This is not the law. United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968); Best v. Humboldt Placer Mining Co., 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963); Cameron v. United States, 252 U.S. 450, 40 S.Ct. 410, 64 L.Ed. 659 (1920).

The defendant assigns as error the action of the District Court permitting the filing of a supplemental complaint and also the whole procedure of holding the principal action in abeyance pending an administrative determination of the validity of the mining claims by the Department of the Interior. This, however, is the very procedure which was approved by the Supreme Court in Best v. Humboldt Placer Mining Co., 371 U.S. 334, 83 S.Ct. 379, 9 L.Ed.2d 350 (1963). In the ejectment action as originally commenced, defendants’ right to possession-depended upon the validity of the mining claims. After final agency action was obtained, a supplemental pleading “setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented” is plainly authorized by the rules. Rule 15(d), Federal Rules of Civil Procedure.

Defendants further contend that the Interior Board of Land Appeals and the District Court erred in holding that after the Government has presented a prima facie case of the invalidity of the mining locations, the burden of proof is on the locator to establish all the requirements for a valid location. Defendants rely on 5 U.S.C. § 556(d): “Except as otherwise provided by statute, the proponent of a rule or order has the burden of proof.”

While, on the face of it, it may appear that the United States, when it initiates a contest of the validity of a mining location, is “the proponent of a rule or order,” this is not the law. Many public land laws, including the mining laws, give a person a right to initiate a claim to the public lands by his ex parte act of entry. If he thereafter complies with all requirements of the law, his initial entry may ripen into an enforceable claim to title as against the United States. The entryman is the true proponent of the rule or order within the meaning of the quoted section of the Administrative Procedure Act. Foster v. Seaton, 106 U.S.App.D.C. 253, 271 F.2d 836 (1959); United States v. Toole, 224 F.Supp. 440 (D.C.Mont.1963); Stewart v. Penny, 238 F.Supp. 821 (D.C.Nev.1965); Converse v. Udall, 262 F.Supp. 583 (D.C.Or.1966); Unruh v. Udall, 269 F.Supp. 97 (D.C.Nev.1967).

Defendants’ most strongly asserted contention is that the decision invalidating the mining locations is contrary to law. The undisputed proof is that these mining claims located in 1944 have been continuously occupied and used by defendants since that time. Defendants rely on 30 U.S.C. § 38:

“Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or Territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter and sections 71 to 76 of this title, in the absence of any adverse claim; but nothing in this chapter and sections 71 to 76 of this title shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent.” 30 U.S.C. § 38.

This statute does not, however, give defendants any rights against the United States which they would not have had in the absence of the statute. United States v. Consolidated Mines & Smelting Co., Ltd., 455 F.2d 432 (9th Cir. 1971). The statute “was not enacted as a statute of limitation, and has no application in the case of a trespasser on land, title to which cannot be acquired under the laws of the United States.” Chanslor-Canfield Midway Oil Co. v. United States, 266 F. 145, 151 (9th Cir. 1920). In other words, the statute does not dispense with the requirement that a discovery of valuable mineral shall have been made. Cole v. Ralph, 252 U.S. 286, 40 S.Ct. 321, 64 L.Ed. 567 (1920).

The determination by the Interior Board of Land Appeals that there never has been a discovery of valuable minerals to validate the instant mining locations is supported by substantial evidence. Without detailing the evidence adduced at the administrative hearings, it is sufficient to state that defendants’ long use of the land has been primarily for purposes of a health spa. Incidentally, defendants have gathered, packaged and distributed certain mud and salt compounds and have bottled and distributed medicinal waters from the area. But even defendants do not pretend that this was an important part of their resources. The products were not sold. They were distributed gratis to persons asking for them. Support came in the form of voluntary donations resulting from Dr. Springer’s radio appeals. These activities cannot by any stretch of the imagination be considered the mining of valuable minerals within the tests established by law. United States v. Coleman, 390 U.S. 599, 88 S.Ct. 1327, 20 L.Ed.2d 170 (1968). It is not enough to prove that the mining claims have been occupied and used and that material gathered therefrom has been exploited. The evidence must show that the minerals taken intrinsically satisfy the prudent man test and the marketability test established by the cases. In this case, the evidence shows beyond cavil that whatever success was experienced in the distribution of products from the mining claims was not because of their intrinsic worth on the market.

The judgment is affirmed.

      . The then pendency of these contest proceedings was noted by this Court in the earlier opinion. 478 F.2d 45, fn. 2.

      . “The Secretary’s determination that the quartzite deposits did not qualify as valuable mineral deposits because the stone could not be marketed at a profit does no violence to the statute. Indeed, the marketability test is an admirable effort to identify with greater precision and objectivity the factors relevant to a determination that a mineral deposit is ‘valuable.’ It is a logical complement to the ‘prudent-man test’ which the Secretary has been using to interpret the mining laws since 1894. Under this ‘prudent-man test’ in order to qualify as ‘valuable mineral deposits,’ the discovered deposits must be of such a character that ‘a person of ordinary prudence would be justified in the further expenditure of his labor and means, with a reasonable prospect of success, in developing a valuable mine . . . .’ Castle v. Womble, 19 L.D. 455, 457 (1894). This Court has approved the prudent-man formulation and interpretation on numerous occasions. See, for example, Chrisman v. Miller, 197 U.S. 313, 322 [25 S.Ct. 468, 49 L.Ed. 770] ; Cameron v. United States, 252 U.S. 450, 459 [40 S.Ct. 410, 64 L.Ed. 659] ; Best v. Humboldt Placer Mining Co., 371 U.S. 334, 335-336 [83 S.Ct. 379, 9 L.Ed.2d 350]. Under the mining laws Congress has made public lands available to people for the purpose of mining valuable mineral deposits and not for other purposes.
      The obvious intent was to reward and encourage the discovery of minerals that are valuable in an economic sense. Minerals which no prudent man will extract because there is no demand for them at a price higher than the cost of extraction and transportation are hardly economically valuable. Thus, profitability is an important consideration in applying the prudent-man test, and the marketability test which the Secretary has used here merely recognizes this fact. “The marketability test also has the advantage of throwing light on a claimant’s intention, a matter which is inextricably bound together with valuableness. For evidence that a mineral deposit is not of economic value and cannot in all likelihood be operated at a profit may well suggest that a claimant seeks the land for other purposes. Indeed, as the Government points out, the facts of this case—the thousands of dollars and hours spent building a home on 720 acres in a highly scenic national forest located two hours from Los Angeles, the lack of an economically feasible market for the stone, and the immense quantities of identical stone found in the area outside the claims—might well be thought to raise a substantial question as to respondent Coleman’s real intention.” United States v. Coleman, 390 U.S. 599, at 602-603, 88 S.Ct. 1327, at 1330, 20 L.Ed.2d 170 (1968).


author: PER CURIAM.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. R. C. FRAZIER, Defendant-Appellant.
    No. 73-1566.
    United States Court of Appeals, Sixth Circuit.
    Argued Nov. 26, 1973.
    Decided Jan. 23, 1974.

      Ben W. Hooper, II, Newport, Tenn. (Court Appointed), for defendant-appellant.
    W. Thomas Dillard, Asst. U. S. Atty., for plaintiff-appellee; John L. Bowers, Jr., U. S. Atty., Carl P. McDonald, Asst. U. S. Atty., Knoxville, Tenn., on brief.
    Before WBICK, EDWARDS and LIVELY, Circuit Judges.
   PER CURIAM.

Appellant appeals from conviction after jury trial on two counts charging violations of the Federal Alcohol Tax Laws, 26 U.S.C. §§ 5173, 5601(a)(4), 5180(a) and 5681(c) (1970), and aiding and abetting in such violations, 18 U.S.C. § 2 (1970).

The only appellate issues in the case pertain to appellant’s claim that a federal agent’s search of a barn wherein an illegal distillery was found was conducted under a defective search warrant in that said search warrant did not with sufficient definiteness identify the property to be searched.

The description of the premises to be searched, as set forth in the search warrant, follows:

That he (has reason to believe) that (on the premises known as) the Jack Hall residence property located in the Basinger Hollow section of Cocke County, Tennessee, and reached by travelling westwardly from the intersection of State Route 160 with U.S. Highway 411, just north of Newport ; travel westwardly on State Route 160 about 3.6 miles to intersection of Clay Creek Road; turn right on Clay Creek Road and travel for about 1.8 miles to intersection of Basinger Hollow Road; turn right on Basinger Hollow Road and travel for about .3 miles to the Jack Hall residence on the left, consisting of a one-story frame dwelling with front porch, painted white and trimmed in green, together with four outbuildings, all frame with metal roofs, flat sloped roofs, including any barns located on the premises, ....

The factual dispute concerning this description arises from the undisputed evidence that there were two residences in this vicinity, both of them located on the property of a codefendant, Frazier. It is appellant’s contention that although the barn where the distillery was found was closer to Hall’s residence than it was to Frazier’s, it was separated from Hall’s residence by a fence, and that therefore it was not on the “Jack Hall residence property.”

The hearing on the motion to suppress produced evidence that the surveilling agents had seen Hall going from his house to the barn in question, that the fence referred to was trampled down so that it could easily be walked over, and that as noted earlier, the barn in question was closer to Hall’s residence than Frazier’s, In addition, we note that the search warrant did not refer to “a barn” but “to any barns located on the premises.”

Further, the directions as to just how to reach these premises, located in the Basinger Hollow section of Cocke County, were detailed and specific. In United States v. Hassell, 427 F.2d 348 (6th Cir. 1970), this court said:

The description was in our opinion ample to allow the officers to “ascertain and identify the place intended.” Steele v. United States, 267 U.S. 498, 503, 45 S.Ct. 414, 416, 69 L.Ed. 757 (1925). See also United States v. Bowling, 351 F.2d 236 (6th Cir. 1965), cert. denied, 383 U.S. 908, 86 S.Ct. 888, 15 L.Ed.2d 663 (1966). Id. at 349.

We believe the language quoted above governs disposition of this ease. We have also inspected the photographic exhibits in this case and feel that they serve to strengthen the conclusions stated above.

The judgment of the District Court is affirmed.