author: SPRECHER, Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. OHIO VALLEY COMPANY, INC., in personam, and M/V JOHN FITZGERALD, her engines, tackle, appurtenances, etc., in rem, Defendants-Appellants.
    No. 74-1539.
    United States Court of Appeals, Seventh Circuit.
    Argued Jan. 8, 1975.
    Decided Feb. 10, 1975.
    William P. Fardaras, New York City, Richard C. O’Connor, New Albany, Ind., for defendants-appellants.
    Harry R. Silver, Atty., Appellate Section, Civ.. Div., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before SWYGERT, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.
   SPRECHER, Circuit Judge.

The primary issue on appeal is whether the defendant-vessel is strictly liable for all of the damage it caused to property of the United States pursuant to sections 14 and 16, Rivers and Harbors Act of 1899, 33 U.S.C. §§ 408, 412/ and is thereby precluded from limiting liability by showing that the damages were incurred “without the privity or knowledge of [the] owner . . Section 3, Limited Liability Act of 1851, 46 U.S.C. § 183(a).

I

It is uncontroverted that on October 28, 1970, the M/V John Fitzgerald, with two barges in tow, collided with the land leaf of the lower gate of Ohio River Lock No. 47 causing damage to the gate. Lock 47 is located near Evansville, Indiana and is a work built by the United States for the preservation and improvement of navigable waters. The collision occurred while the vessel was traversing the lock and was caused when her reverse gear failed to operate.

Subsequent to the collision, employees of the U.S. Army Corps of Engineers commenced repairs. These repairs consisted of the removal of the damaged gate and the substitution of a spare temporary gate. The damaged gate was transported to the Louisville, Kentucky district repair facility where it was repaired over the course of several months. On June 1, 1971, the repaired gate was transported back to Lock 47 and reinstalled.

The United States brought this action in two counts. Count I for negligence against the defendant-owner and the defendant-vessel and Count II against the vessel under the Rivers and Harbors Act, 33 U.S.C. §§ 408, 412 [sections 14 and 16]. The government in consideration for not actually seizing the defendant-vessel accepted a commitment from the Home Indemnity Company to pay and satisfy any judgment up to $80,623.27. The district court determined that the defendants were at fault and that plaintiff’s total damages were $70,358.90. In addition the M/Y John Fitzgerald was fined the additional sum of $500 pursuant to section 16, Rivers and Harbors Act of 1899, 33 U.S.C. § 411.

Defendants appeal from the awarding of damages. They contest the trial court’s finding of negligence on Count I and they rely on 46 U.S.C. § 183(a) to limit their liability to the value of the vessel and her freight at the time of the accident under both counts. Because of our disposition of Count II, it is unnecessary to decide whether the plaintiff sufficiently established its negligence case.

II

Section 14 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 408 provides that it is unlawful “for any person or persons to injure or in any manner whatever impair the usefulness of any . . . work built by the United States . . . for the preservation and improvement of any of its navigable waters . . ..” It is uncontested that the defendant-owner violated this provision. In addition, the relevant portion of section 16 of the same Act provides that any vessel used or employed in violating section 14 is liable for the civil fines of 33 U.S.C. § 411 and for the amount of damage done by the vessel. 33 U.S.C. § 412.

It has been consistently held that in actions brought by the United States pursuant to 33 U.S.C. §§ 408, 412 there is no requirement that negligence be shown and that a defendant-vessel is liable if it has been the cause of a violation of 33 U.S.C. § 408. United States v. The M/V Martin, 313 F.2d 851 (7th Cir. 1963); United States v. The Terry E. Buchanan, 138 F.Supp. 754 (S.D.N.Y. 1956); United States v. The Republic No. 2, 64 F.Supp. 373 (S.D.Tex.1946); The Gansfjord, 25 F.2d 736 (E.D.La. 1928), aff’d sub nom. Aktieselskabet Dampskib Gansfjord v. United States, 32 F.2d 236 (5th Cir.), cert. denied, 280 U.S. 578, 50 S.Ct. 32, 74 L.Ed. 629 (1929). Thus, the only question that remains is whether the Limited Liability Act of 1851, 46 U.S.C. § 183(a), may be asserted as a defense by the defendant-vessel. Section 183(a) provides that the liability of the owner of any vessel for damage caused by a collision incurred without the privity or knowledge of the owner shall not exceed the value of the vessel plus freight at the time of the collision. The government takes the position that section 183(a) is irrelevant to its claim under the Rivers and Harbors Act of 1899. We agree.

Although the question of the applicability of section 183(a) in actions by the United States pursuant to sections 14 and 16 of the Rivers and Harbors Act of 1899 has never been squarely answered, In re Midland Enterprises, Inc., 296 F.Supp. 1356, 1364-65 (S.D.Ohio 1968), we are guided to our result by somewhat analogous precedent and reason.

The cases insofar as they deal with the application of the limitation of liability provisions of section 183(a) to the liability provisions of the Rivers and Harbors Act of 1899 deal specifically with the liability of owners for removal of wrecked or sunken vessels.

In Wyandotte Transportation Co. v. United States, 389 U.S. 191, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967), the Supreme Court held that pursuant to section 15 of the Rivers and Harbors Act of 1899, 33 U.S.C. § 409 [wreck statute], when a ship is intentionally or negligently wrecked or sunk, the owner is responsible for either removing the obstruction or for the cost of removal. In rejecting the shipowner’s argument that the government’s remedy, if the government removed the vessel, was limited to the right to sell the vessel and retain the proceeds the Court stated:

The reading that petitioners [shipowners] would place on the Rivers and Harbors Act of 1899 would create an additional right of limitation, applicable in the special case of a sinking even though the owner is himself negligent. Yet Congress gave no indication, in passing the Rivers and Harbors Act, that it intended to alter or qualify the 1851 Act [section 183(a)], In the congressional failure to connect these two statutes, we find at least some evidence that petitioners’ discovery of a limitation of liability in the Rivers and Harbors Act is unwarranted.

Id. at 205-06, 88 S.Ct. at 388 (emphasis added).

The Court in a footnote, however, indicated that it was not passing judgment on whether the Limited Liability Act applied to an action under the Rivers and Harbors Act. Id. at 205 n. 17, 88 S.Ct. 379.

If Wyandotte seemingly left the question unresolved, there are other cases that have held the limitation of liability provisions of section 183(a) inapplicable to the wreck statute of the Rivers and Harbors Act. As early as 1931 the court in The Snug Harbor, 53 F.2d 407 (E.D.N.Y.1931), although not reaching the precise Wyandotte question, held that “liability arising irons [violation of the wreck statute, 33 U.S.C. § 409] does not come within the scope of the limitation of Liability Act.” Id. at 409. More recently and subsequent to the Wyandotte decision a number of courts have held that the limitation provisions of section 183(a) are inapplicable to the wreck statute. In re Chinese Maritime Trust, Ltd., 361 F.Supp. .1175 (S.D.N.Y.1972), aff’d, 478 F.2d 1357 (2d Cir. 1973), cert. denied, 414 U.S. 1143, 94 S.Ct. 894, 39 L.Ed.2d 98 (1974); In re Harbor Towing Corp., 335 F.Supp. 1150 (D.Md.1971) (dicta); In re Pacific Far East Line, Inc., 314 F.Supp. 1339 (N.D.Cal.1970), aff’d, 472 F.2d 1382 (9th Cir. 1973). While it is true that these decisions were premised in part on the reasoning that since the wreck statute imposed on the owner an affirmative duty to mark and then remove the vessel and that any failure to do so would per se be within the “knowledge and privity” of the owner and therefore the limitation provisions could not apply, there is considerable language in those cases finding the application of the Limited Liability Act to the Rivers and Harbors Act unwarranted. Thus, in Chinese Maritime Trust the district court said:

There is no indication in the Limitation of Liability Statute, first enacted in 1851, that the costs to the owner of removing the wreck of his vessel were to be limited. Nor does the background of the Rivers and Harbors Act, now construed to require shipowners to pay for removal, suggest an answer to this question.
Two policies expressed in recent court rulings, however, point in the direction of our conclusion. First is the renewed vigor which the Supreme Court has read into the Rivers and Harbors Act, one of whose aims is to insure the prompt elimination of obstructions to navigation. Second is the disfavor with which expansion of the limitation of liability statute is viewed.

361 F.Supp. at 1178 (citations omitted).

Our decision not to allow the application of section 183(a) limitations to actions brought by the United States pursuant to sections 14 and 16 of the Rivers and Harbors Act is in some respects easier than and in other respects is supported by similar considerations as the decision not to apply it to actions under the wreck statute. While the cases under the wreck statute do not specifically answer the question of whether section 183(a) applies to actions under 33 U.S.C. §§ 408, 412, we know of no cases which have applied it to actions under these particular provisions of the Rivers and Harbors Act, and the wreck statute cases do indicate the recent trend against applying the limitation of liability provisions to actions brought by the United States under the Rivers and Harbors Act.

One of the primary reasons for not applying the limitation of liability provisions to the wreck statute was because to do so would have been inconsistent with the purpose of the wreck statute, indeed inconsistent with the entire Rivers and Harbors Act — that is: to protect, preserve and make safe the nation’s navigable waterways. United States v. Pennsylvania Industrial Chemical Corp., 411 U.S. 655, 663, 93 S.Ct. 1804, 36 L.Ed.2d 567 (1973); Wyandotte Transportation Co. v. United States, 389 U.S. 191, 201, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967); Atlantic Refining Co. v. Moller, 320 U.S. 462, 466, 64 S.Ct. 225, 88 L.Ed. 168 (1943); United States v. The M/V Martin, 313 F.2d 851, 852 (7th Cir. 1963). On this point the rationale of the wreck cases are relevant. Indeed, the purpose of the combined effect of sections 14 and 16 is to provide funds for the replacement and maintenance of improvements built by the United States. This purpose is implemented through an absolute liability standard. Thus, it would be wholly inconsistent to apply the limitation of liability provisions of section 183(a) to the absolute liability provisions of section 14, while at the same time not applying them to section 15 (wreck statute) which speaks in terms of “voluntarily or carelessly” allowing a vessel to sink. Furthermore, section 183(a) speaks in terms of lack of “privity and knowledge.” That phrase implies that the owner be unaware of the fault in his vessel that caused an accident. Since the triggering mechanism for section 183(a) limitation of liability is tied to an awareness of negligence, and because negligence is not significant in actions under sections 14 and 16, it follows that the limitation of liability provisions are inapplicable to those sections.

In addition, the technical application of section 183(a) to sections 14 and 16 would be impossible. Sections 14 and 16 speak in terms of a vessel being liable for the damages caused to a United States work. Thus, the United States must proceed in rem under section 14 and the relevant part of section 16. Indeed, the government at oral argument admitted that there could be no in personam liability under its Count II. In an in rem proceeding where amounts claimed in excess of the value of the res seized cannot be levied upon, the judgment for all practical purposes will always be limited to the value of the res which will generally be the value of the ship plus cargo. The in rem liability of section 16 for an action brought pursuant to sections 14 and 16 is not amenable to section 183(a) limitation which refers only to limiting the in personam liability of an owner of a vessel.

Finally, sections 14 and 16, although originally enacted subsequently to the limitation of liability section, do not on their face provide for any exceptions. The provisions of sections 14 and 16 are specific, dealing with the precise situation that occurred here. It is a principle of statutory construction that if two pieces of legislation are inconsistent the later enacted specific statute, such as the Rivers and Harbors Act, will control over previously enacted statutes that speak only in general terms about a given situation. 2A J. Sutherland, Statutory Construction §§ 51.02, 51.05 (4th ed. 1973).

Ill

The defendant makes one last ar-' gument to limit its liability. At trial the government stipulated that H. R. Yeomans, an independent marine surveyor, would have testified that the fair market value of the vessel at the time of the accident was $35,000 and the freight pending at that time was $300. The defendant contends that since this amount was uncontested, the government’s in rem action was limited to a recovery of that amount. We disagree.

The vessel in this case was never attached. Instead, the government accepted from the Home Indemnity Company a document that provided that in consideration for not seizing the vessel the company agreed that:

In the event a final judgment or decree (after appeal if any) be entered in favor of the plaintiff against the Motor Vessel John Fitzgerald, then the undersigned company agrees to pay and satisfy (up to and including, but not exceeding $80,623.27) the said final decree or any lesser amount decreed by the Court, or settled between the parties without final decree being rendered.
Upon demand, vessels lost or not lost, to cause to be filed a bond in form and sufficiency of surety satisfactory to you or to the Court in the above amount securing your claim against the said vessel in said action mentioned above. In the event a bond as provided herein is filed of record, the undersigned shall have no further obligation herein and this undertaking shall be considered terminated and of no further effect.

Notwithstanding this provision the defendant asserts that another section of the agreement serves to allow it to limit its liability to the actual value of the vessel.

This letter is written entirely without prejudice to any claims, rights or defenses which the said vessel or vessels or her owners and/or operators or charterers may have under applicable law, including limitation of liability, none of which is to be regarded as waived, and the giving of this letter of undertaking is not to be construed as an admission of liability.

While it is true that this latter provision allows the defendant to argue that the limitation of section 183(a) applies to the government’s action in Count II [an argument rejected in part II], it does not allow the defendant to challenge the amount that the indemnity company agreed to be held responsible for in the event that final judgment was entered for the plaintiff. In effect, the indemnity company provided the government with a stipulation for value of a “bond in form . . . satisfactory to [it] . in the above amount [$80,623.27] securing [its] claim against the vessel . . . .” This agreement to pay the judgment of the court was a complete substitute for the res, and thereby represented the property against which the government had the right to seek to fulfill its judgment. J. K. Welding Co. v. Gotham Marine Corp., 47 F.2d 332 (S.D.N.Y.1931). The fact that the judgment may have been for more than the true value of the vessel is of no import, because it was clearly for less than the amount stated in the agreement from the indemnity company and that agreement represented a complete substitute for the res.

For the foregoing reasons the judgment of the district court is affirmed.

      . 33 U.S.C. § 408 provides:
      It shall not be lawful for any person or persons to take possession of or make use of for any purpose, or build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, or any piece of plant, floating or otherwise, used in the construction of such work under the control of the United States, in whole or in part, for the preservation and improvement of any of its navigable waters or to prevent floods, or as boundary marks, tide gauges, surveying stations, buoys, or other established marks, nor rémove for ballast or other purposes any stone or other material composing such works
      33 U.S.C. § 412 provides in relevant part:
      And any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407, 408, and 409 of this title shall be liable for the pecuniary penalties specified in section 411 of this title, and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, which latter sum shall be placed to the credit of the appropriation for the improvement of the harbor or waterway in which the damage occurred, and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof.

      . 46 U.S.C. § 183(a) provides:
      The liability of the owner of any vessel, whether American or foreign for any embezzlement, loss, or destruction by any person of any property, goods, or merchandise shipped or put on board of such vessel, or for any loss, damage, or injury by collision, or for any act, matter, or thing, loss, damage, or forfeiture, done, occasioned, or incurred, without the privity or knowledge of such owner or owners, shall not, except in the cases provided for in subsection (b) of this section, exceed the amount or value of the interest of such owner in such vessel, and her freight then pending.

      . The plaintiff originally claimed $78,123.27. The district judge disallowed $7,219.31 for general overhead and $545.06 for excessive overtime, leaving a balance of $70,358.90. Although the United States filed a notice of a cross-appeal, this appeal, pursuant to the government’s motion, was dismissed.

      . 33 U.S.C. § 411 provides:
      Every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize, or instigate a violation of the provisions of sections 407, 408, and 409 of this title shall be guilty of a misdemean- or, and on conviction thereof shall be punished by a fine not exceeding $2,500 nor less than $500, or by imprisonment (in the case of a natural person) for not less than thirty days nor more than one year, or by both such fine and imprisonment, in the discretion of the court, one-half of said fine to be paid to the person or persons giving information which shall lead to conviction.

      . 33 U.S.C. § 409 provides:
      It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such a manner as to prevent or obstruct the passage of other vessels or craft; or to voluntarily or carelessly sink, or permit or cause to be sunk, vessels or other craft in navigable channels . . .. And whenever a vessel, raft, or other craft is wrecked and sunk in a navigable channel, accidentally or otherwise, it shall be the duty of the owner of such sunken craft to immediately mark it with a buoy or beacon during the day and a lighted lantern at night, and to maintain such marks until the sunken craft is removed or abandoned, and the neglect or failure of the said owner so to do shall be unlawful; and it shall be the duty of the owner of such sunken craft to commence the immediate removal of the same, and prosecute such removal diligently, and failure to do so shall be considered as an abandonment of such craft, and subject the same to removal by the United States

      . Similarly, in Pacific Far East the court said:
      There is nothing in the Rivers and Harbors Act (33 U.S.C. § 401 et seq.) or any other statute of the United States known to the Court which restricts the liability created by 33 U.S.C. § 409 to wreck removals undertaken by and at the expense of the Corps of Engineers,
      314 F.Supp. at 1349 — 50.

      . This phrase has been interpreted to mean intentionally or negligently. Wyandotte Transportation Co. v. United States, 389 U.S. 191, 207, 88 S.Ct. 379, 19 L.Ed.2d 407 (1967).

      . Since in the normal situation the government’s action for damages under section 16 will be limited to the value of the ship and cargo, this explains why Congress failed to connect the two statutes. See generally Note, Expenses Incurred in Removal of Wrecked Vessel in Panama Canal Not Subject to Shipowner’s Limitation of Liability Act, 5 J. Maritime L. & Commerce 671, 675 (1974).
      For an explanation of why in the present case an actual decision as to the applicability of section 183(a) to sections 14 and 16 is necessary see note 10, infra.

      . On this point our question is easier than the wreck statute cases. The wreck statute placed a duty on the owner to remove vessels that were obstructions and ever since the Wyandotte decision it has been clear that owners could be charged with removal expenses that exceeded the value of the vessel. Even under the wreck statute where an owner’s liability was at issue, the courts have refused to apply the Limitation of Liability Act, a fortiori under section 16 where only  the liability of the vessel is involved the limitation of liability provisions do not apply.

      . Given this holding it might seem that our decision in part II, supra, is unnecessary. Although it is possible that the stipulation for value could represent the amount recoverable even assuming that the section 183(a) limitation was applicable, this is a more difficult question and our resolution of the case avoids it. Under our disposition we merely hold, after denying the applicability of section 183(a), that the stipulation for value is a complete substitute for the res. If the section 183(a) limitation applied it would be necessary to decide whether the figure stated in that document, which concerns itself primarily with an in rem action, could be considered the “amount or value of the interest of [the] owner in [the] vessel, and . . . freight then pending” [language of section 183(a)] as that phrase is used in a section that is dealing with the limitation of in personam liability.

      . Apparently there is little legal distinction between the filing of a stipulation for value and a bond. G. Gilmore & C. Black, The Law of Admiralty 650 (1957).

      . In Gotham Marine the court said:
      A stipulation for value is an agreement with the court by the claimant involving the substitution by the claimant of a chose in action against himself ... as the res to take the place of the" vessel or other property sued in rem.
      * * * * * *
      The stipulation for value here given has taken the place of the New England for all the purposes of this libel.
      * 5k * * S(S *
      The stipulation for value is a complete substitute for the res, and the stipulation for value alone is sufficient to give jurisdiction to a court because its legal effect is the same as the presence of the res in the court’s custody.
      !}! * »fC !}! *
      A stipulation for value cannot, therefore, be lightly set aside. Fraud, which is not here involved, is, of course, a reason for so doing, but a unilateral mistake, such as a statement of the libelant’s claim at too small a figure, is not such a reason.
      47 F.2d at 334-35.

      . Our judgment is likewise supported by the . Supplemental Federal Rules for Admiralty and Maritime Claims. Rule E(5)(a) provides that process in rem which has been issued will be stayed on the giving of security which is approved by stipulation of the parties. The section goes on to provide that in the event the parties are unable to fix a sum the court should fix an amount, but in no event should that amount be greater than twice the amount of the plaintiff’s claim or the value of the property to be seized whichever is smaller. In our case we had an agreement between the parties in a form that had the amount been fixed by the court it could not have been greater than the value of the vessel. If in fact the $80,623.27 figure stated in the stipulation was greater than the true value of the ship, it appears that it was an error on the owner’s part for offering such a generous amount as security for its vessel.


source: Caselaw Access Project

author: WILLIAM E. MILLER, Circuit Judge. McCREE, Circuit Judge

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. William Earl Patrick O’DONNELL, Defendant-Appellant.
    No. 74-1949.
    United States Court of Appeals, Sixth Circuit.
    Feb. 17, 1975.
    Certiorari Denied June 2, 1975.
    See 95 S.Ct. 2400.

      Eugene C. Gaerig, Memphis, Tenn. (Court appointed), for defendant-appellant.
    Thomas F. Turley, U. S. Atty., Larry E. Parrish, Asst. U. S. Atty., Memphis, Tenn., for plaintiff-appellee.
    Before EDWARDS, McCREE and MILLER, Circuit Judges.
   WILLIAM E. MILLER, Circuit Judge.

This appeal raises the question of the proper venue for prosecution of the offense of endeavoring to obstruct justice as defined by 18 U.S.C. Sec. 1503. Upon a jury verdict of guilty of this offense, appellant was sentenced to five years imprisonment. Appellant was free on bond in a mail fraud case in the Western District of Tennessee where an indictment was returned against him in the same district on June 11, 1973, charging that appellant did “endeavor to obstruct and impede the due administration of justice . . . seeking to influence the person and testimony of Sherman Roy Dean an unindicted co-conspirator and government witness in the pending mail fraud case in order to eliminate the testimony of Dean at the trial” of the mail fraud case. The indictment stated that the offense occurred in the Western District of Tennessee and in other judicial districts. A subsequently filed Bill of Particulars stated that the only other district in which the offense occurred was the Northern District of Texas in the city of Dallas.

On the ground that there existed so great a prejudice that appellant could not obtain a fair trial in Tennessee, appellant filed a motion to transfer the case to the Northern District of Texas pursuant to Rule 21 of the Federal Rules of Criminal Procedure. Alternatively, it was alleged that proper venue was in the Northern District of Texas and that the indictment should be transferred to that district pursuant to Rule 21(b).

Appellant also filed a motion to dismiss the indictment. One ground of the motion was that the indictment did not allege the requisite facts to establish venue. Following a hearing, the district court overruled all defense motions.

The government produced testimony at trial that in April of 1973 Gene Victor Poteet, a pilot with Texas International Airlines, was approached by appellant in a bar near the Dallas airport and in the course of the ensuing conversation stated to Poteet “I need to kill Billy Wiseman and Sherman Dean.” Appellant explained that he could take care of Wise-man in the Dallas county jail but that he did not want to be in Memphis when Dean was killed there.

Appellant and Poteet had a number of other conversations regarding this subject. Poteet then contacted certain federal agents with whom he had a working relationship as an informer. As a result of Poteet’s tip, a meeting was arranged between appellant and Special Agent Lloyd Grafton of the Alcohol, Tobacco & Firearms Bureau. In this meeting, Grafton was to pose as a murderer for hire from Houston. O’Donnell did not appear for the arranged meeting. Grafton then contacted him by telephone, explaining that he had come from Houston for the meeting. A second meeting was then agreed upon. For this meeting Grafton arranged for electronic surveillance. The result was that the ensuing conversation between Grafton and O’Donnell was recorded and the tape of the conversation was introduced by the government at trial together with Grafton’s testimony.

During the conversations Grafton, in his undercover role, offered his services to O’Donnell as a hired killer of Dean. It was agreed that Grafton would go to Memphis and kill Dean to eliminate his testimony against O’Donnell in the pending mail fraud case. The fee for Grafton’s services was set at $2,500 plus $100 to purchase the gun to be used in the killing. In a subsequent telephone conversation, Grafton stated that he needed to return to Houston in a hurry but that he did want the job. O’Donnell’s response was “you’ve got it.” All of these events took place in' the Northern District of Texas.

The basic venue requirements for federal criminal prosecutions are found in Article III, Section 2, Clause 3 and in the Sixth Amendment to the Constitution. The guarantee is for a trial in the state and district where the offense was committed. These constitutional provisions are implemented by Rule 18 of the Federal Rules of Criminal Procedure:

Except as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed.

As the statute under which appellant was charged does not prescribe venue for the offense, it becomes necessary to determine from other sources the place where the statutory offense must be deemed to have been committed. The Supreme Court has held that “the locus delicti must be determined from the nature of the crime alleged and the location of the act or acts constituting it.” Travis v. United States, 364 U.S. 631, 81 S.Ct. 358, 5 L.Ed.2d 340 (1961), quoting from United States v. Anderson, 328 U.S. 699, 66 S.Ct. 1213, 90 L.Ed. 1529 (1945).

The statute under which the appellant was charged is unique in that the crime proscribed is “constructive” contempt of court. See United States v. Essex, 407 F.2d 214 (6th Cir. 1969). The evident purpose of the statute is to protect the administration of justice by the courts or other judicial agencies. To this end, it is made a crime for any person corruptly or by the means prescribed in the statute to obstruct or impede or to endeavor to obstruct or impede the “due administration of justice.” Viewed in this light, we are persuaded that the crime may be considered to have been committed under the statute in the district where the administration of justice was intended to be obstructed or impeded. Under this rationale, venue would lie in the Western District of Tennessee in the present case. Deeds or acts performed in Dallas to interfere with a pending criminal prosecution in the Western District of Tennessee may have as great an influence on the administration of justice as acts performed within the boundaries of that district.

In the present case both the court where the case was pending and the witness whose death was sought were located in the Western District of Tennessee. Conceding but not deciding that on the facts of this case venue would lie in the Northern District of Texas, such fact would not preclude venue in the district where the criminal case was pending— the only district in which the efforts of the defendant to obstruct justice could ultimately have been realized or fulfilled.

In Travis v. United States, supra, the Supreme Court pointed out that “the constitutional requirement is as to the locality of the offense, and not the personal presence of the offender.” Thus, proper venue for the offense of filing a false affidavit was held to be in Washington, D. C. where the affidavit was required to be on file and not in Colorado where the affidavit was executed and mailed. The Court reasoned that “venue should not be made to depend on the chance use of the mails . . .” 364 U.S. at 636, 81 S.Ct. at 361.

Similarly, it has been held, in a prosecution under the Hobbs Act, 18 U.S.C. Sec. 1951, for obstruction of interstate commerce by extortion, that “venue under the statute . . . may be laid in any jurisdiction where commerce is affected,” even if all of the conduct related to the extortion occurred outside that jurisdiction. United States v. Floyd, 228 F.2d 913 (7th Cir.) cert. denied 351 U.S. 938, 76 S.Ct. 835, 100 L.Ed. 1466 (1956).

Other cases have sustained venue despite the lack of a defendant’s physical presence in the district. For example, where a statute makes failure to do a certain act a crime, the place where the act was to have been performed has been found to be the place where venue lies. United States v. Johnston, 227 F.2d 745 (3rd Cir. 1955) aff’d 351 U.S. 215, 76 S.Ct. 739, 100 L.Ed. 1097, reh. den. 352 U.S. 860, 77 S.Ct. 23, 1 L.Ed.2d 69.

Appellant rélies on the case of United States v. Swann, 142 U.S.App.D.C. 363, 441 F.2d 1053 (1971). In that case the defendant assaulted a witness who had testified against him at a preliminary hearing and who was to testify against him at a forthcoming criminal trial. Although the criminal proceedings in which the witness testified and was to testify were in the District of Columbia, the court held that venue for a prosecution under the obstruction of justice statute could be laid only in Maryland where the witness was assaulted.

Efforts of the government to distinguish Swann appear to us to be futile since the operative facts are essentially analogous. Yet, despite the weight due a ruling by the District of Columbia Circuit, we are convinced that the result reached in Swann was not correctly reasoned. Of critical importance is the fact that the Swann court failed to recognize the distinction between Sec. 1503 and other types of crimes referred to in the court’s opinion.

For example, the Swann court’s reliance on cases determining that venue under the Public Corruption Act, 18' U.S.C. Sec. 201, is in the district where the bribe is passed or the attempt to bribe is made is, in our view, inapposite. An analysis of the bribery statute makes it clear that the essence of the offense is not the effect which the bribe may have or may be intended to have upon the conduct of the public official, but rather the actual giving or transfer of money or other thing of value, or the offer to transfer money or other thing of value to a public official. See Krogmann v. United States, 225 F.2d 220, 227 (6th Cir. 1955). The critical event in the commission of the crime is the actual giving or the offer to give or transfer money or other thing of value, absent which no offense is committed under the statute. In view of the focus of the statute upon these physical aspects, it is not unreasonable to conclude that venue must be laid in the district in which the events occurred. On the other hand, under Sec. 1503, any corrupt attempt, regardless of the means employed, whether by the offer of money or otherwise, to impede or obstruct the due administration of justice is made a punishable offense. It cannot be said that the focus of the statute is exclusively upon any possible means which may be employed. Rather, it is upon the intended effect of any corrupt conduct of whatever description upon the administration of justice by the courts. Under Sec. 1503, the effect of corrupt conduct is always intended to occur only at one place; viz., the place or district in which the court sits or in which the proceeding is pending. In contrast, under the bribery statute, the intent to influence the conduct of a public official in no way depends upon where the public official may be at the time. The place of the intended result is irrelevant and the statute does not focus upon it.

In support of its conclusion as to venue under Sec. 1503, the District of Columbia Circuit also referred to the crime of murder:

Likewise it would follow from the district court’s theory that a prosecution for murder might be maintained in the state or district where the fatal wound took effect and the victim died, although the wound was inflicted in another state or district. Here again the rule is otherwise, both at common law and by statute.

We find this analogy to be unconvincing, for murder, -unlike contempt of court, or obstruction of justice under Sec. 1503, is not a .crime in which there generally exists an intent to achieve a result in a particular place. As far as murder is concerned, it is of no significance where the intended result is actually accomplished, whether in one state or district or another.

The history of Sec. 1503 throws considerable light upon solution of our problem. As pointed out in United States v. Essex, supra, the section originated with the Act of March 2, 1831, 4 Stat. 487, an Act declaratory of the law concerning contempts of court. Before the adoption of the statute “Congress had directed its House Committee on the Judiciary ‘to inquire into the expendiency of defining by statute all offenses which may be punished as contempts of the courts of the United States, and also to limit the punishment for the same.’ ” (See United States v. Essex, supra, 407 F.2d at p. 216, n. 2.) Sec. 1 of the 1831 Act provided for the summary punishment of con-tempts committed “in the presence of said courts, or so near thereto as to obstruct the administration of justice.”

Sec. 2 of the Act, on the other hand, made provision for contempts which were not committed in the presence of the court. In such cases, it was provided that if contemptuous conduct “influencing or injuring officers, jurors or witnesses” occurred outside of or beyond the presence of the court, the offender could not be punished by the court summarily but could be dealt with only by indictment and prosecution in the usual manner of criminal proceedings. Sec. 2 of the 1831 Act, as pointed out, is presently codified at 18 U.S.C. Sec. 1503, the statute under which the defendant was indicted and convicted.

In subsequent years, the distinction made by the 1831 Act between direct contempts, punishable summarily, and contempts committed outside of the presence of the court, commonly described as constructive contempts punishable only by indictment accompanied by the safeguards of criminal prosecutions, became blurred or obfuscated.

The Supreme Court in Nye v. United States, 313 U.S. 33, 61 S.Ct. 810, 85 L.Ed. 1172 (1941), made it clear that the distinction was not to be disregarded. The “so near thereto” language in the first section providing for summary punishment, now 18 U.S.C. Sec. 401, refers, as the court emphasized, to geographical nearness to the court as opposed to a mere causal connection with the obstruction of justice. The similarity between the facts in Nye and those of the present case is noteworthy. The defendants in Nye exerted an improper influence upon an illiterate and feeble-minded plaintiff to obtain dismissal of a civil lawsuit which had been instituted against the defendants. As in the present case, all of the obstructive acts of the defendants occurred outside of the physical boundaries of the district in which the civil action was pending.

We read the Nye decision as implying that the criminal prosecution for a constructive contempt would lie in the district in which the civil action in that case was brought despite the fact that the contemptuous conduct occurred in another district. On the basis of this interpretation, we think that Nye is clear authority for the conclusion we have reached as to venue under Sec. 1503. It leaves intact the traditional idea that a court, within the limits of statutory modifications, should have the power to deal with contempts of its own authority.

Adverting to the Swann decision, we believe that the court there failed to recognize that Sec. 1503 is in reality a codification of the court’s power to punish contempts committed outside of its presence, albeit by criminal prosecution following indictment, and that the Supreme Court in Nye strongly implied, if it did not hold, that such contempts are punishable by the court whose authority is challenged regardless of where the contemptuous acts may have occurred.

Appellant also assigns three other grounds for reversal of his conviction. These assignments concern the refusal of the trial court to sustain motions for mistrial based upon the admission of allegedly improper evidence. We find, after careful consideration, that the trial court did not commit error in the rulings complained of, or in any event that any possible error was harmless and did not affect the substantial rights of defendant to a fair trial.

It follows that the judgment of conviction must be and it is hereby

Affirmed.

McCREE, Circuit Judge

(concurring).

I concur and append this separate statement not because I disagree with the opinion of the court, but because I want to record my concern about the practice of many prosecutors of deliberately injecting inadmissible prejudicial evidence into criminal trials and thereby unnecessarily jeopardizing an apparently strong case. In numerous other cases, we have condemned “prosecutorial overkill” and have felt obliged to reverse convictions based upon it. E. g., United States v. Smith, 500 F.2d 293 (6th Cir. 1974), United States v. Calvert, 498 F.2d 409 (6th Cir. 1974), and United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970).

In this case, there were at least three instances in which the prosecutor brought to the attention of the jury improper prejudicial evidence. In one, the government attorney elicited from an informer the statement that he wanted his identity to remain confidential because he feared that if it were disclosed, his life and the lives of other government informers would be endangered because someone might place bombs in their automobiles. The district court refused to grant a mistrial or to direct the jury to disregard the statement, observing that the informer had not said that he feared that appellant would place bombs in the automobiles. In another, the prosecutor asked an attorney who had represented appellant’s former wife in a divorce proceeding against him whether anyone had ever threatened to kill him if he continued to represent her in the matter. Again the court refused to grant a mistrial but did instruct the jury to disregard the question to which no answer had been given. In the third instance, after eliciting from appellant’s former accomplice the admission that he had firebombed a house. at appellant’s request, the prosecutor adduced the witness’ further testimony that he had been honorably discharged from the Marines and had never been in trouble until appellant met and corrupted him. Once more, the court denied the motion for a mistrial.

Although these errors are egregious, appellee did not deign in its brief to answer appellant’s arguments asserting them as reasons for reversal, possibly because it regarded them as unworthy of response. I believe, however, that they have substance, and were I not persuaded, like my colleagues, that the lawful evidence of appellant’s guilt is overwhelming, I would vote to reverse and require a new trial. In another appeal the proof of guilt may not be so compelling and the practice I deplore may snatch defeat from the jaws of victory.

      . 18 U.S.C. Sec. 1503 reads as follows:

        § 1503. Influencing or injuring officer, jur- or or witness generally

      Whoever corruptly, or by threats or force, or by any threatening letter or communication, endeavors to influence, intimidate, or impede any witness, in any court of the United States or before any United States magistrate or other committing magistrate, or any grand or petit juror, or officer in or of any court of the United States, or officer who may be serving at any examination or other proceeding before any United States magistrate or other committing magistrate, in the discharge of his duty, or injures any party or witness in his person or property on account of his attending or having attended such court or examination before such officer, commissioner, or other committing magistrate, or on account of his testiying or having testified to any matter pending therein, or injures any such grand or petit juror in his person or property on account of any verdict or indictment assented to by him, or on account of his being or having been such juror, or injures any such officer, magistrate, or other committing magistrate in his person or property on account of the performance of his official duties, or corruptly or by threats or force, or by any threatening letter or communication, influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due administration of justice, shall be fined not more than $5,000 or imprisoned not more than five years, or both.
      As amended Oct. 17, 1968, Pub.L. 90-578, Title III, § 301(a)(1), (3), 82 Stat. 1115.

      . Following the jury verdict of guilty appellant filed a Motion in Arrest of Judgment pursuant to Rule 34 of the Federal Rules of Criminal Procedure. This motion was based on an alleged lack of venue in the Western District of Tennessee and was overruled by the district court.

      . Wiseman and James Maurice Wiley were indicted with O’Donnell in the mail fraud case in Tennessee.

      . For a fuller treatment of the history of the codification of the contempt power, see United States v. Essex, 407 F.2d 214, 216-17 (6th Cir. 1969), Proceedings of the Judicial Conference of the Fifth Judicial Circuit of the United States, 55 F.R.D. 93, 102-112 (1970), Nye v. United States, 313 U.S. 33, 44-48, 61 S.Ct. 810, 85 L.Ed. 1172 (1941).

      . Sec. 1 is the predecessor of 18 U.S.C. Sec. 401.


author: GEE, Circuit Judge: DYER, Circuit Judge

text:
    JOHNS-MANVILLE PRODUCTS CORPORATION, Plaintiff-Appellant-Cross-Appellee, v. F. C. DOYAL, Jr., Administrator, Louisiana Department of Employment Security, et al., Defendants-Appellees-Cross-Appellants, Louisiana AFL-CIO, Intervenor-Appellee.
    No. 74-1620.
    United States Court of Appeals, Fifth Circuit.
    April 4, 1975.

      David L. McComb, G. Phillip Shuler, III, New Orleans, La., John D. O’Brien, Washington, D. C., for plaintiff-appellant-cross-appellee.
    Marion Weimer, James A. Piler, La. Dept, of Employment Security, Baton Rouge, La., for F. C. Doyal, Jr.
    Victor H. Hess, Jr., Leonard A. Washofsky, New Orleans, La., for Oil, Chemical.
    C. Paul Barker, New Orleans, La., for La. AFL-CIO.
    Before TUTTLE, DYER and GEE, Circuit Judges.
   GEE, Circuit Judge:

Despite negotiation, Johns-Manville Products Corporation, Oil, Chemical and Atomic Workers International and its Local 4 — 390 were unable to agree on a new collective bargaining contract covering workers at a New Orleans, Louisiana, plant after the October 12, 1973, expiration of the previous agreement. Nevertheless, the workers continued on the job after expiration of the contract until Johns-Manville closed the plant on October 31, 1973, having notified their employees that the plant would not be reopened until a new collective bargaining agreement was reached. The plant was closed due to equipment failures posing, management said, dangers to safety. Management contends that the failures were the work of union saboteurs seeking to enhance the union’s bargaining position in the contract negotiations. After the plant closing, some employees applied for and were awarded unemployment compensation by the State of Louisiana, despite Johns-Man-ville’s charge that the employees were unemployed due to a labor dispute and thus disqualified from receiving benefits under Louisiana law. Johns-Manville filed suit in federal court, claiming that the Louisiana administrative orders awarding their employees unemployment compensation were preempted by federal labor law, violative of the Fourteenth Amendment and contrary to the Louisiana Employment Security Law. The court below abstained for Pullman reasons.

To the contrary, Pullman does not mandate abstention in this case, one of its prerequisites being absent. The Supreme Court has made it clear that invocation of Pullman is proper only when an issue of state law is uncertain. Reetz v. Bozanich, 397 U.S. 82, 86, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970); Harman v. Forssenius, 380 U.S. 528, 534, 85 S.Ct. 1177, 14 L.Ed.2d 50 (1965); Gray Line Motor Tours, Inc. v. City of New Orleans, 498 F.2d 293, 298 (5th Cir. 1974); Moore’s Federal Practice, 10.203 (2d ed.); C. Wright, Federal Courts § 52 (2d ed.). The statute in question is not one unconstrued by the state courts nor one which the state courts have left bare of policy guidelines. See Leiter Minerals, Inc. v. United States, 352 U.S. 220, 229, 77 S.Ct. 287, 1 L.Ed.2d 267 (1957). As to whether unemployment is the result of a labor dispute, the Louisiana courts have applied the law to other than simple strike situations. Singleton v. Brown, 153 So.2d 902 (La.App.1963) (wildcat strike followed by company lockout due to lack of agreement on a no-strike clause); Elmer Candy Corp. v. Administrator of Employment Security, 286 So.2d 423 (La.App.1973) (use of permanent replacements for strikers, court reliance on federal labor law). Further, it has been applied in a situation where management’s action could have been construed as the result of a labor dispute or the result of independent economic factors. Singleton v. Brown, supra. In addition, on remand the trial court will have the benefit of a more recent case, National Gypsum Co. v. Administrator, La. Dep’t of Employment Security, 300 So.2d 527 (La.App.1974). That case adopted a broad definition of labor dispute, covering a lockout resulting from a negotiation impasse.

The question of interest in and participation in a labor dispute has been subjected to state judicial scrutiny several times. Senegal v. Lake Charles Stevedores, Inc., 197 So.2d 648 (La.1967); Elmer Candy Corp. v. Administrator of Employment Security, supra; Hanndyman Homes, Inc. v. Administrator, Div. of Employment Security of Dep’t of Labor, 192 So.2d 827 (La.App.1966), writ ref’d, 250 La. 251, 195 So.2d 141 (1967); Brown v. Brown, 158 So.2d 305 (La.App.1963), writ ref’d, 245 La. 639, 160 So.2d 227 (1964), cert. denied, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747 (1964).

As for policy, the state supreme court has given one reason for the legislation:

The Louisiana Employment Security Law requires the employer to pay substantial sums into a fund from which unemployment compensation benefits are paid. The employee contributes nothing to this fund. Avoiding placing an employer in a position of being compelled by statute to subsidize a strike undoubtedly was one of the reasons which prompted the Legislature to disqualify those who are participating in or interested in the labor dispute, and we consider that a broad disqualification was intended by those categories.

Senegal v. Lake Charles Stevedores, Inc., supra, 197 So.2d at 650-51. Additionally, a lower state court has said: “[I]n cases coming under R.S. 23:1601(4), we are confronted with an equally important policy of this state, that is, that the state should maintain a fair and neutral position in regard to labor disputes.” National Gypsum Co. v. Administrator, La. Dep’t of Employment Security, supra, 300 So.2d at 534. In short, the statute is not so ill-defined that the federal court should delay decision.

On cross-appeal, the defendants seek to support dismissal of the suit. First, they argue that California Dep’t of Human Resources Development v. Java, 402 U.S. 121, 91 S.Ct. 1347, 28 L.Ed.2d 666 (1971), precludes the state’s suspending payment of benefits without hearing once eligibility has been determined. That ease does so hold; however, there is here no question of suspension of benefits pending hearing in court. At oral argument counsel revealed that the employees were no longer receiving benefits.

We decline to accept the invitation to dismiss for nonjusticiability. There are standards to determine whether federal labor law is preemptive. See Cox, Labor Law Preemption Revisited, 85 Harv.L.Rev. 1337 (1972). To the extent that the court is also required to consider national and state unemployment compensation statutes, the task is not an unfamiliar one. Courts are often called upon to resolve statutory differences. See, e. g., FPC v. Memphis Light, Gas & Water Div., 411 U.S. 458, 93 S.Ct. 1723, 36 L.Ed.2d 426 (1973). Also, fashioning a remedy is not without the competence of the court.

Finally, we decline to pass on preemption at this time. The trial court did not reach the issue on the merits; indeed, that was the reason for abstention. Feeling we could benefit from development of the record and the lower court’s analysis on both the possibility of mootness and, if necessary, the merits, we reverse and remand for consideration in accordance with this opinion.

Reversed and remanded.

DYER, Circuit Judge

(dissenting):

I respectfully dissent. In the circumstances of this case the district court exercised sound discretion in abstaining, and I would thus affirm.

The majority rests its decision on the clarity of state law. Finding the Louisiana law in question to be relatively clear, it holds that abstention is improper. I agree that the state law is settled, but we do not stop there; we must go on to ask whether a conflict then exists between state and federal law.

As the majority points out, the Louisiana statute, LSA — R.S. 23:1601, denies unemployment compensation benefits to those unemployed due to a labor dispute in active progress. The referee found in this case that the company shut down the plant because of “breaks in production and fear of possible further damage to equipment and injury to workers.” Noting that the employer testified at the hearing that there was no lockout, the referee found that the unemployment was due not to a labor dispute, but to a “layoff when the employer decided to close the plant.” Johns-Manville asserts, perhaps correctly, that the referee and subsequently the Board of Review simply refuse to recognize what is obviously a lockout, and that this refusal undermines federal labor law. Johns-Manville claims that the state administrative agency has not followed the law of its own state. Accepting Johns-Manville’s characterization of the facts, the majority and I agree that the agency has not followed Louisiana law. Our disagreement centers on the proper respective roles of the federal and state courts.

The Louisiana courts have spoken frequently and decisively on the statute in question. In addition to the obvious intent of the statute that strikers be disqualified from receiving benefits, Louisiana appellate courts have held that the following are disqualified: those who refuse to cross picket lines, Hanndyman Homes, Inc. v. Administrator, Div. of Employment Security, La.App.1966, 192 So.2d 827; non-union members who will benefit from the union’s representation, Brown v. Brown, La.App.1963, 158 So.2d 305, writ ref’d, 1964, 245 La. 639, 160 So.2d 227, cert. denied, 1964, 377 U.S. 979, 84 S.Ct. 1885, 12 L.Ed.2d 747; and even strikers who have been permanently replaced because a vestigial employer-employee relationship still exists. Elmer Candy Corp. v. Administrator of Employment Security, La.App.1973, 286 So.2d 423. They have also held that employees who went on a wildcat strike and then were locked out were disqualified, Singleton v. Brown, La.App.1963, 153 So.2d 902, and that a lockout is a “labor dispute” within the meaning of the statute. National Gypsum Co. v. Administrator, La. Dept. of Employment Security, La.App.1974, 300 So.2d 527.

The Louisiana Supreme Court on November 22, 1974, issued a writ of review in the National Gypsum case. 303 So.2d 175. There is every reason to assume that the court will interpret the Louisiana law in a manner completely consistent with the federal law as here urged by Johns-Manville, that is, that a lockout is a labor dispute within the meaning of the statute. The Louisiana courts have consistently and for several years been construing the statute and the disqualification for “labor disputes” broadly. They have not hesitated to apply federal labor law. Elmer Candy Corp., supra. The Louisiana Supreme Court, alluded to in the majority opinion, has recognized the unfairness of compelling an employer to subsidize a strike. Senegal v. Lake Charles Stevedores, Inc., La.1967, 197 So.2d 648; see also Brown v. Brown, supra, 158 So.2d at 309. Once the law is clear, we merely have a factual question as to whether a particular set of facts constitutes a lockout.

Hence, I agree with the majority that the state law is relatively clear, and that it has been construed by the state courts and fleshed out with policy guidelines. But I most emphatically disagree that this precludes the federal court from abstaining.

In the leading abstention case, the United States Supreme Court ordered the district court to abstain from exercising its jurisdiction in a situation where the state law was unsettled, and where resolution of that state law would avoid the constitutional question. Railroad Commission of Texas v. Pullman Co., 1941, 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971. The majority here has extracted from Pullman and its progeny a rule that abstention is not proper if the state law is clear. I view this rule when applied to the circumstances of this case as antithetical to the basic rationale behind the abstention doctrine.

The majority relies on the post-Pullman cases of Harman v. Forssenius, 1965, 380 U.S. 528, 85 S.Ct. 1177, 14 L.Ed.2d 50, and Reetz v. Bozanich, 1970, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68, for the proposition that abstention is proper only when the state law issue is uncertain. However, closer analysis is necessary to avoid distortion in the abstention doctrine. The Supreme Court ordered abstention in Pullman because a definitive ruling by the state courts on the state law issue might altogether avoid the constitutional adjudication. The justifications for abstention are the avoidance of unnecessary or premature constitutional adjudication, a “scrupulous regard for the rightful independence of the state governments” and the “smooth working of the federal judiciary,” and the furtherance of “harmonious relations between state and federal authority.” Railroad Commission of Texas v. Pullman Co., supra, 312 U.S. at 501, 61 S.Ct. at 645.

In Reetz, the Court likewise ordered abstention in a case where a state court decision “could conceivably avoid any decision under the Fourteenth Amendment and would avoid any possible irritant in the federal-state relationship.” Reetz v. Bozanich, supra, 397 U.S. at 87, 90 S.Ct. at 790. In Harman v. Forssenius, where the Court also upheld abstention, it expanded upon the reasons for abstaining only where the issue of state law is uncertain. Abstention is appropriate.

[wjhere resolution of the federal constitutional question is dependent upon, or may be materially altered by, the determination of an uncertain issue of state law.

Id. 380 U.S. at 534, 85 S.Ct. at 1182.

The statutes in question in Harman were “clear and unambiguous in all material respects.” The Harman Court stated that if the state statute

is not fairly subject to an interpretation which will render unnecessary the federal constitutional question, it is the duty of the federal court to exercise its properly invoked jurisdiction. (Emphasis supplied).

Id. at 535, 85 S.Ct. at 1182.

The obverse is that if the state statute is fairly subject to such an interpretation, the federal court should abstain. A fortiori, if the only reasonable interpretation of the state statute is one which will avoid the federal question, as is the case here, the federal court should abstain.

Thus, a fair reading of Pullman, Beetz, and Harman reveals that abstention is proper if the state law is unclear, and if it is subject to an interpretation which would render adjudication of the federal question unnecessary. If the state law is clear and in conflict with federal law, abstention is improper because the constitutional question cannot be avoided in state litigation. But if the state law is clear and there is no conflict with federal law, abstention is entirely proper.

Here, as the majority acknowledges, the state law is settled. Furthermore, it is settled in the manner urged by the plaintiff, Johns-Manville. Absolutely nothing in the record suggests that the Louisiana courts will not enforce Louisiana law in a manner entirely consistent with prior interpretations of the Louisiana courts and thus avoid the federal question raised by Johns-Manville. The important question is not whether the state law is clear, but whether by deferring to state court adjudication, the federal question might altogether be avoided.

The First Circuit has upheld abstention when it appeared likely that the state courts would support the plaintiff’s claims. A dismissed school teacher, successful in his bid for reinstatement in the initial stages of the arbitral process, feared reversal on appeal because of pri- or state court decisions, so he took his constitutional claim to federal court. The First Circuit approved abstention because, “[wjhile it is surely an open question, we think that there is a substantial possibility that the arbitrator’s award will be upheld.” Steele v. Haley, 1 Cir. 1971, 451 F.2d 1105, 1106. See also Huffman v. Pursue, Ltd., 1975, - U.S. -, -, 95 S.Ct. 1200, 1211, 48 L.Ed.2d 482. State law in this case is even clearer on the plaintiff’s side, and therefore the reasons for abstention are even more compelling.

It is of course also important that federal rights not be prejudiced should the federal court abstain. The case is currently on appeal in state court where statutory preference is given to these appeals. LSA-R.S. 23:1684. Johns-Man-ville argues that the state remedies are inadequate to protect its federal right to free collective bargaining, largely because of the delays inherent in the state courts. Much of that argument fails when it is recognized that benefits are no longer being paid to the employees in question. Hence, even if adjudication in state court is more laborious than in federal court, as asserted by counsel, no further injury will be done to the employer should he have to proceed solely in state court. The damage allegedly done to the company’s bargaining position more than a year ago cannot be rectified by either state or federal court. Furthermore, the fact that vindication of those rights will be delayed is not usually enough to prevent the federal court from abstaining. The Supreme Court has often ordered abstention in the face of such an argument. Harris County Commissioner Court v. Moore, 1975, 420 U.S. 77, 95 S.Ct. 870, 43 L.Ed.2d 32; Reetz v. Bozanich, supra. Finally, although the company asserts that it cannot obtain full relief in state court, we see nothing in Louisiana law to warrant that assertion. If the company were to prevail on the merits in state court, the charges made against its “experience-rating record” would be cancelled. LSA-R.S. 28:1532 et seq. Injunctive and declaratory relief were both available in Louisiana. Art. 3601 and Arts. 1871— 1883, La.C.C.P. In short, the state remedies would seem to be entirely adequate to protect the federal right asserted.

In sum, this case presents a question similar to that faced by this Court in Simmons v. Jones, 5 Cir. 1973, 478 F.2d 321. There, it was alleged that one county in Georgia had failed in compiling its juror’s list to comply with Georgia statutes. The plaintiff invoked the jurisdiction of the federal court to “police the manner in which the defendants, officials of the State of Georgia, performed their duties to insure compliance with state law.” Id. at 327. This Court held that the district court should have abstained “in order to avoid unnecessary-friction between a state and the federal government.” Id. We relied on Alabama Public Service Commission v. Southern Railway Co., 1951, 341 U.S. 341, 71 S.Ct. 762, 95 L.Ed. 1002, in which the Supreme Court held that the railroad should have pursued its clearly delineated state remedies rather than bringing suit in federal court:

As adequate state court review of an administrative order based upon predominantly local factors is available to appellee, intervention of a federal court is not necessary for the protection of federal rights.

Id. at 349, 71 S.Ct. at 768.

Judge Simpson, speaking for this Court in Simmons, noted that Simmons’ complaint was “an effort to enlist a federal court in a campaign to achieve a more faithful application” of the Georgia statute in a single county. Johns-Manville has attempted exactly the same thing here. The remedy should be that adopted in Simmons:

We must assume that the Georgia court system is capable of enforcing Section 59 — 106 of the Georgia Code. As a matter of comity, the district court should have afforded the Georgia courts the opportunity to rectify alleged deviations from the requirements of Georgia law regarding the selection of traverse jurors in Long County. Sound principles of federalism dictate this result.

Simmons v. Jones, supra, 478 F.2d at 328.

We have spoken with disfavor in the past about a plaintiff attempting to

bring about that unseemly conflict between two sovereignties which the doctrines of comity and abstention are designed to avoid.

Glen Oaks Util., Inc. v. City of Houston, 5 Cir. 1960, 280 F.2d 330, 334. In such a situation, we have not hesitated to order abstention. Id. See Huffman v. Pursue Ltd., supra, - U.S. at -, 95 S.Ct. 1200; Romero v. Coldwell, 5 Cir. 1972, 455 F.2d 1163; Barrett v. Atlantic Richfield Co., 5 Cir. 1971, 444 F.2d 38.

The same principles should operate here. The district court abstained on the ground that if the company’s contention is correct that the administrative decision was erroneous under Louisiana law, then “a decision on the constitutional question will be rendered unnecessary.” I am firmly convinced that the district court is correct. If we are to emphasize rather than to undermine the concept of federalism this is a classic case for the application of the abstention doctrine. I would affirm.

      . “An individual shall be disqualified for benefits: . . For any week with respect to which the administrator finds that his unemployment is due to a labor dispute which is in active progress at the factory, establishment, or other premises at which he is or was last employed; but such disqualification shall not apply if it is shown to the satisfaction of the administrator that he is not participating in or interested in the labor dispute which caused his unemployment."
      LSA-R.S. 23:1601(4).

       Railroad Comm’n of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941).

      . Our opinion is focused on clarity of state law; however, Johns-Manville contended that abstention was improper since the second Pullman prerequisite — a federal constitutional question — was missing. The court below did rely only on the Supremacy Clause; however, we will not speak to this point since JohnsManville did charge due process and equal protection violations in the complaint.

      . See Super Tire Eng’ring Co. v. McCorkle, 416 U.S. 115, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974).


author: McWILLIAMS, Circuit Judge.

text:
    Owen W. MARKEL, Executor of the Estates of Raymond E. King and Yvonne King, Deceased, Plaintiff-Appellee, v. The TRAVELERS INSURANCE COMPANY, Defendant-Appellant.
    No. 74-1211.
    United States Court of Appeals, Tenth Circuit.
    Argued Nov. 15, 1974.
    Decided Feb. 24, 1975.

      Lawrence McDonough, Wichita, Kan. (Leonard A. Levand, and Jochems, Sargent & Blaes, Wichita, Kan., on the brief), for plaintiff-appellee.
    John T. Conlee, Wichita, Kan. (Donald R. Newkirk, and Fleeson, Gooing, Coulson & Kitch, Wichita, Kan., of counsel, on the brief), for defendant-appellant.
    Before LEWIS, Chief Judge, and BREITEN STEIN and McWILLIAMS, Circuit Judges.
   McWILLIAMS, Circuit Judge.

This is a contract action brought by the executor of the estate of a deceased insured against an insurance company to recover the death benefits provided by a special travel accident policy. Jurisdiction is based on diversity of citizenship. The insurance company defended on two grounds: (1) There was no valid renewal of the policy in question; and (2) assuming that the policy was effectively renewed, the policy had been cancelled pri- or to the death of the insured.

The trial court, sitting without a jury, found that the policy had been renewed, and that cancellation, though initiated, had not been completed prior to the death of the insured. Accordingly, the trial court entered judgment in favor of the executor and against the insurance company for the face amount of the policy, namely $60,000. The insurance company now appeals. The facts as developed upon trial are in our view all important, and hence will be summarized in some detail. The root of the present problem arises from the intransigent nature of computers and the time lag which resulted therefrom.

In January 1962, Despard & Company, Inc., an insurance broker and a general agent for Travelers Insurance Company, made arrangements with American Express to make travel accident insurance coverage available to holders of American Express credit cards. Under the arrangement the cardholder could purchase a Travelex Special policy from Travelers through American Express with the yearly premium payments billed on his American Express charge account. Pursuant to such arrangement, early in 1962 American Express notified its cardholders of the availability of such insurance, and in response thereto Raymond E. King, an American Express cardholder, made application. Thereafter, on June 11, 1962, King was issued a Travelex Special policy in the face amount of $60,-000 insuring against various accidental injuries and loss of life while traveling. The policy was for a term of one year and provided that it could be renewed by payment of the annual premium, subject to the consent of Travelers. King renewed his policy annually through June 11, 1969, the latter renewal placing into effect a policy expiring on Juné 11, 1970. The present controversy concerns the events occurring immediately before and after the June 11, 1970, renewal date.

The agreement between Travelers and American Express provided that all applications and payments of premiums would be channeled by American Express through Despard to Travelers. The agreement further provided that American Express would give Travelers advance written notice of the date of, and the reason for, any discontinuance by American Express of its responsibility for payment to Travelers of the premium due on any policy. Notwithstanding this provision, American Express never did contact an insured prior to the renewal date to determine if the insured desired to renew. Consistent with such practice, American Express did not contact King prior to June 11, 1970, to ascertain whether King wanted to renew his policy with Travelers.

The renewal procedure in the instant case was initiated by Travelers on or about May 1, 1970, when it notified Despard of a number of policies which would be coming up for renewal in June 1970, including the policy issued King. It was not until June 30, 1970, however, that Despard billed American Express for the premiums due on policies expiring in June 1970. Despard did this by preparing and forwarding to American Express a “record of charge” card on each premium due, including that due on the King policy. When this “record of charge” card was received by American Express, the premium charges and other information contained therein were fed into its computer and the cardholders then received the “record of charge” as notice the premium had been billed for another year. The evidence disclosed that the actual billing of a cardholder for a renewal premium charge occurred anytime from one week in advance of the anniversary date of the policy to as much as thirty to forty days after the anniversary date, depending upon the cardholder’s place in the billing cycle of the American Express computer.

American Express first sent King a monthly statement showing a charge of $63 for renewal of the Travelers policy on July 24, 1970. On July 27, 1970, American Express paid Despard’s earlier billing, which included the premium due on the King policy, although American Express itself had at that time received no remittance from King. American Express, incidentally, deducted a 15% “service charge” from all premium payments thus remitted to Despard. On August 3, 1970, Despard made a remittance to Travelers, which included the premium due on the King policy. Despard itself deducted 5% of the total premium before remitting to Travelers as its commission. At this point in time, then, Travelers had received the premium due on the King policy even though King had not himself paid American Express the charge made on his account for the renewal premium, and had actually given no indication as to whether he in fact desired to renew the policy for another year.

On August 13, 1970, American Express received back King’s account statement with the notation: “Do not renew, R. E. King.” This was forwarded by American Express to Despard, who received it on September 8, 1970. That same day Despard prepared a credit for the amount of the $63 previously paid by American Express and sent such to American Express to apply to King’s account. Despard also returned King’s notation not to renew to American Express, and the latter eventually forwarded it to Travelers. In the meantime, American Express in its August billing continued to bill King for the $63 representing the renewal premium on the policy. King did not pay this billing. American Express in its September billing again charged King for the $63. This was not paid either.

On October 2, 1970, King and his wife, who was the beneficiary under the policy, were killed in an airplane crash in the Colorado mountains. On October 7, 1970, American Express sent King a statement stamped “final notice,” which statement included the $63 charge for the renewal premium, and warned King as follows:

“Your account is dangerously overdue and may be cancelled. Send us your check immediately to avoid cancellation and the addition of delinquency charges on your account.”

On the same day, October 7, 1970, American Express also prepared and sent a letter to King concerning his account which contained the following statement:

“According to our files, your payment of $111.21 covering the balance due on your account as of October 2, 1970, is now more than two months overdue, despite several reminders from us.”

On October 9, 1970, the King Construction Company, Inc., with which King had been associated, issued its check to American Express in the amount of $111.21, which sum included the $63 premium charge. This check was later negotiated by American Express.

On October 29, 1970, American Express forwarded to King a statement of account, showing a credit balance of $48, which reflected a credit of $63 for the annual premium due on the policy.

The records of Travelers did not disclose when Travelers itself first received notice from American Express that King did not desire to renew his policy. However, it is agreed that there was nothing in Travelers’ file as of October 2, 1970, to indicate a cancellation of King’s policy. And the records affirmatively disclosed that it was not until December 23, 1970, that Travelers finally allowed Despard credit for the $63 which Travelers had previously received from Despard to cover the premium due on the King policy-

As mentioned at the outset, the trial court found that under the rather peculiar facts and circumstances of the instant case the policy had been effectively renewed prior to the time when King first indicated that he did not want to renew. King’s later declaration that he did not want the policy renewed was viewed by the trial court as only a request for cancellation which had not been acted on by Travelers prior to King’s death. It was on this basis that the trial court concluded that the policy was in force and effect on October 2, 1970, the date when King was killed in the plane crash.

We are in general accord with the trial court’s resolution of the matter. The trial court’s findings of fact are supported by the record and by no stretch of the imagination could such findings be characterized as clearly erroneous. It was agreed by the parties that the instant dispute was governed by Kansas law, and we are not inclined to disturb the trial court’s conclusions as to the applicable Kansas law on the issues of renewal and cancellation of an insurance policy. Let us look more closely at these related issues of renewal and cancellation.

Travelers argues that though it made an “offer to renew,” there was no “acceptance” of that offer by King, and that under hornbook law a contract for the year in question never came into being. In our view the facts of this case do not permit such a simplistic resolution of the matter.

The Travelers policy provides that the policy is renewable at the option of the company only, and that subject to such consent of the company, the policy may be renewed “by the payment, prior to the expiration of the grace period * * of the premium.” We would parenthetically note that there is no contention here that the policy lapsed because there was no payment of premium prior to the expiration of the grace period.

So, under the terms of the policy, if Travelers consents to a renewal, the renewal is effected by a payment of the premium. It is conceded that Travelers consented to a renewal of the King policy. Such was manifested in early May 1970 when Travelers sent its agent, Despard, renewal notices of a group of policies, including King’s, having June 1970 expiration dates. Such consent was reaffirmed when on June 30, 1970, Despard billed American Express for policies expiring in June, which billing included the premium due on King’s policy. There was testimony that Travelers itself regarded the policy as in effect beyond the expiration date, even though American Express had not itself made payment to Despard. The obligation to pay incurred by American Express was itself sufficient to prevent the policy from lapsing.

In any event, when American Express paid Despard on July 27, 1970, the renewal premium due on the King policy, Travelers, as of that date, at least, most certainly deemed the King policy to have been renewed. And no doubt this belief on the part of Travelers was strengthened when Travelers itself received the King renewal premium from Despard on August 3, 1970. By that date, King had been billed by American Express in the July billing for the renewal premium, although it was not until August 13, 1970, or thereabouts, that King first advised American Express of his desire not to renew.

As indicated, the trial court found that Travelers had consented to the renewal, and that such renewal was accomplished when American Express paid Travelers, through Despard, the renewal premium. We agree with this finding. Indeed, Travelers’ own employees agreed not only that there was no lapse in the King policy, but that under the circumstances the policy had in fact been renewed.

The fact that King himself had not paid American Express when the latter made its remittance to Despard on July 27, 1970, is not significant. Fidelity & Casualty Co. v. Willey, 80 F. 497 (3d Cir. 1897). American Express had made the premium payment on behalf of its cardholder, and had extended credit to its cardholder. The general rule would appear to be that when an insurance agent pays the insurance company the premium due on a policy, and such payment is accepted by the insurance company, the latter will be bound. Western Casualty & Surety Company v. Lund, 234 F.2d 916 (10th Cir. 1956); Stuyvesant Ins. Co. v. Sussex Fire Ins. Co., 90 F.2d 281 (3d Cir. 1937); and American Nat. Ins. Co. v. Gregg, 123 Colo. 476, 231 P.2d 467 (1951).

Having concluded that the trial court’s finding of renewal finds support in the record, there remains the question of cancellation. The trial court regarded King’s statement of August 13, 1970, that he did not desire to renew as only an attempt to cancel, requiring affirmative action by Travelers before cancellation could become effective. Travelers not having agreed to such cancellation prior to King’s death, the trial court concluded that the policy was in force and effect as of the insured’s death. Indeed, as of the date of King’s death Travelers had not even received notice of King’s intent, let alone acted on it.

The policy itself does not have a provision relating to cancellation and how it can be effected. Some policies of this type have a clause which permits the insured to cancel the policy at any time, with or without the consent of the insurance company. This, however, is not the instant case. Where, as here, the policy is silent as to cancellation, the trial court concluded that neither party to the contract could withdraw therefrom or cancel it without the consent, be it express or implied, of the other. This would appear to be the general rule, i.e., there must be a mutual agreement to cancel. Penn. Mut. Life Ins. Co. v. Ashton, 93 F.2d 565 (10th Cir. 1937); Riddle v. Rankin, 146 Kan. 316, 69 P.2d 722 (1937). And in relying upon cancellation, the insurance company of course has the burden of proving such. Blomquist v. Grays Harbor County Medical Serv. Corp., 48 Wash.2d 718, 296 P.2d 319 (1956). In the instant case the trial court found that Travelers had failed to establish cancellation, and that there was no manifestation of assent from Travelers till sometime subsequent to King’s death. We agree. The record is quite clear that King’s desire not to renew was not acted on in any way by Travelers till after October 2, 1970.

Travelers argues that Despard, however, did receive notice of King’s desire not to renew prior to October 2, 1970, and that Despard, acting as agent for Travelers, had manifested an assent to cancellation of the renewed policy. Despard was a general agent for Travelers, though under the terms of the policy here involved it had “no authority to change this policy or to waive any of its provisions.” In this connection, however, the trial court concluded that the applicable Kansas law was that the authority of a general agent to sell insurance did not carry with it the authority to cancel an existing policy. We are disinclined to disturb the trial court’s conclusion as to Kansas law on this particular matter, which would appear to be in accord with the general rule. In this regard see, for example, American Ins. Co. v. Jamison Agency, Inc., 501 F.2d 1125 (8th Cir. 1974); Dupeck v. Union Insurance Company of America, 329 F.2d 548 (8th Cir. 1964); Western Casualty & Surety Company v. Lund, 234 F.2d 916 (10th Cir. 1956); and Equity Mut. Ins. Co. v. General Casualty Co. of America, 139 F.2d 723 (10th Cir. 1944).

There is some suggestion here that as a matter of fact D'espard had express authority to cancel insurance. In this regard, however, an admission was made by a Travelers’ representative in pre-trial discovery that Despard had no such authority. This admission was made a part of the record in the trial of the matter. On such state of the record, we find no error in the trial court’s specific finding that “Despard had no authority to cancel insurance policies issued by Travelers Insurance Company.”

Judgment affirmed.