author: FEINBERG, Circuit Judge:

text:
    Norman D. MacCAUD, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Norman D. MacCAUD, Plaintiff-Appellant, v. UNITED STATES of America, Defendant-Appellee.
    Nos. 1039, 609, Dockets 73-2421, 72-2336.
    United States Court of Appeals, Second Circuit.
    Argued May 28, 1974.
    Decided July 3, 1974.

      Daniel J. Weinstein, Buffalo, N. Y., for petitioner.
    Lydia E. Morgan, Special Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., for the S. D. N. Y., on the brief), for respondent.
    Norman Mueller, Law Student, New Haven, Conn. (Dennis E. Curtis, New Haven, Conn., on the brief), for plaintiff-appellant.
    Barry J. Cutler, Asst. U. S. Atty. (Stewart H. Jones, U. S. Atty., for the District of Connecticut, on the brief), for defendant-appellee.
    Before MOORE and FEINBERG, Circuit Judges, and WEINFELD, District Judge.

       Of tlie United States District Court for the Southern District of New York, sitting by designation.

   FEINBERG, Circuit Judge:

Norman D. MacCaud, an admittedly deportable alien, petitions this court for review of an order of the Board of Immigration Appeals (the Board) dismissing his appeal from a Special Inquiry Officer’s decision, which designated Canada as an alternate country of deportation, 8 U.S.C. § 1253(a), and denied his application for withholding of deportation to Canada pursuant to 8 U.S.C. § 1253(h). MacCaud also appeals from a judgment of the United States District Court for the District of Connecticut, Robert C. Zampano, J., 354 F.Supp. 872 (1972), denying his application for a writ of mandamus to compel the Attorney General to notify the Secretary of State that Ireland had refused to accept him as a deportee, in order that the Secretary might then invoke the sanctions against that country provided for by 8 U.S.C. § 1253(g). MacCaud’s appeal and his petition for review were heard together. We dispose of both in this opinion and, for purposes of convenience, will refer to MacCaud throughout as “appellant.”

I

The same facts underlie the appeal and the petition for review. MacCaud is an alien — a native and citizen of Canada • — -who was previously deported from this country for illegal entry in May 1963. In December 1971, according to the Government’s uncontradicted representations, appellant escaped from a Canadian prison and re-entered the United States illegally. Appellant had been serving a sentence in Canada for possession of counterfeit banknotes. After his arrest by the F.B.I. in January 1972, the Immigration and Naturalization Service (the Service) commenced deportation proceedings against him. At a hearing that same month, MacCaud exercised his statutory option to designate in the first instance the place of deportation. 8 U. S.C. § 1253(a). He chose the Republic of Ireland, from which he had obtained a passport in 1971 on the ground that his father had been born in Dublin. The Special Inquiry Officer honored his selection but provided that if Ireland did not accept him in accordance with the governing statute, the hearing would be reopened to allow for the naming of a different country of deportation.

In June 1972, claiming that Ireland had refused to permit MacCaud to enter as a deportee, the Service successfully moved, over appellant’s objections, to reopen the proceedings. After a further hearing the Special Inquiry Officer, in December 1972, ordered MacCaud’s deportation to Canada if, prior to the time that such deportation could be effected, “the Republic of Ireland has not advised the Attorney General it is willing to accept [appellant] into its territory .” The Officer’s decision also rejected MacCaud’s request for relief under 8 U.S.C. § 1253(h), which authorizes the Attorney General to withhold deportation to any country where the alien would meet with political persecution. In September 1973, the Board upheld the order, dismissing MacCaud’s appeal.

Meanwhile, in July 1972, MacCaud had filed an action in the United States District Court for the District of Connecticut, seeking an injunction against further deportation proceedings and a writ of mandamus to force the Attorney General to take action against the Irish Republic because of its refusal to accept him. In October, Judge Zampano denied relief to appellant in all respects.

II

In his petition for review of the Board’s ruling, MacCaud protests the designation of Canada as an alternative place of deportation. The governing statute, 8 U.S.C. § 1253(a), reads in pertinent part as follows:

The deportation of an alien in the United States . . . shall be directed by the Attorney General to a country promptly designated by the alien if that country is willing to accept him into its territory .... If the government of the country designated by the alien fails finally to advise the Attorney General within three months following original inquiry whether that government will or will not accept such alien into its territory, such designation may be disregarded. Thereupon deportation of such alien shall be directed to any country of which such alien is a subject national or citizen if such country is willing to accept him ....

On February 17, 1972, after appellant had exercised his option under the statute by naming Ireland as the country to which he wished to be sent, the Attorney General — -through the Service — fulfilled his duty of inquiry, United States ex rel. Man v. Murff, 264 F.2d 926 (2d Cir. 1959), by forwarding a letter to the Irish Government requesting the requisite travel document for MacCaud. Enclosed were his Irish Republic passport as well as certain pertinent documents, including a Form 1-217, Information-for Travel Document or Passport, and a Form I-215a affidavit, which MacCaud had completed in April 1963. On these forms appellant had written that his father’s place of birth was Scotland and not, as he later maintained, Ireland. (As previously indicated, MacCaud obtained an Irish passport in 1971 by claiming that his father was born in Dublin.) On May 9, 1972, the Consulate General of Ireland informed the United States authorities by letter that the Irish Government had refused to issue a travel document to enable MacCaud to enter as a deportee. The Service thereupon moved to reopen deportation proceedings and, pursuant to the statute, succeeded in having Canada, the country of MacCaud’s nationality, declared an alternative place of deportation.

In the face of Ireland’s failure to accept him appellant makes two arguments. First, he contends that the Service did not make a fair and adequate inquiry, United States ex rel. Scala di Felice v. Shaughnessy, 114 F.Supp. 791, 795 (S.D.N.Y.1953), and transmitted incorrect information. Cf. Bong v. Esperdy, 200 F.Supp. 273, 274 (S.D.N.Y.1961). But MacCaud has offered no evidence to show why the challenged data is unreliable. Lacking such proof, he cannot object to the Government’s sending of obviously relevant documents, such as the two 1963 forms, merely because they are prejudicial.

Second,' appellant urges that a later communication to him ' from the Irish Department of Justice, dated November 2, 1972, indicates that Ireland had changed its stance and decided to let him enter. But all that the letter — illegibly signed by an unidentified signer— says is “that if you are in a position to satisfy an immigration officer at a port of entry to this country that you are an Irish citizen you will be admitted whether you are travelling on foot of a deportation order or otherwise.” Even ignoring its untimeliness, this note appears to be no more than a restatement of Irish law to the effect that appellant will be admitted if he can prove his citizenship, the very fact put in issue by his prior sworn statement (in the Form I-215a affidavit) that his father was born in Scotland. It is scarcely the affirmative acceptance required by section 1253(a). United States ex rel. Wong v. Esperdy, 197 F.Supp. 914, 917 (S.D.N.Y.1961). As Judge Learned Hand remarked: “[I]t would be to the last degree cumbersome and oppressive to shuttle an alien back and forth on the chance of his acceptance . . . .” United States ex rel. Man v. Murff, supra, 264 F.2d at 928 (emphasis added).

As an additional ground for review, MacCaud contends that the Special Inquiry Officer erred in dismissing without a hearing his claim of persecution under 8 U.S.C. § 1253(h). That provision states:

The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion . . . for such period of time as he deems to be necessary for such reason.

(The implementing regulation, 8 C.F.R. § 242.17(c), is set forth in relevant part in the margin.) Appellant bases his assertion of political persecution on the fear that, if returned to Canada, he will be placed in the prison in which he claims to have been beaten by guards and “will be subjected to solitary confinement and . . . mistreatment on both physical and psychological levels,” as he allegedly was in the past. He also predicts that he will be charged with “ ‘being unlawfully at large in Canada’ ... as well as any other charge which Canada might decide to press for personal and political reasons of persecution.” He attributes his former problems in jail to official hostility engendered by his efforts on behalf of prison reform and his legal assistance to other inmates — particularly French Canadian separatists, whom he calls “political prisoners.”

Under the circumstances, we find that there was no abuse of discretion in the rejection of appellant’s contention that he would suffer political persecution if he were deported to Canada. The prospect of imprisonment for non-political crimes in the country of deportation does not warrant a stay under 8 U.S.C. § 1253(h), Sovich v. Esperdy, 319 F.2d 21, 28 (2d Cir. 1963); the charges pending against MacCaud in Canada involve escape from prison while serving a sentence involving counterfeiting. Moreover, harsh as the law may be in this area, the possibility that the alien will encounter physical abuse by prison guards on his return is not a basis for statutory relief since the Canadian government does not countenance such activity and since appellant must be regarded as having adequate safeguards under Canadian law. See Kalat-jis v. Rosenberg, 305 F.2d 249, 251-252 (9th Cir. 1962). Here, the record reveals that MacCaud’s alleged persecutors were prosecuted and acquitted after a jury trial. In addition, appellant admits that Canadian authorities transferred him in 1971 from one prison to another less rigorous institution because of his fear of “being subjected to disciplinary treatment by guards [in the former] he had charged with criminal assault.”

Appellant’s attack on the Special Inquiry Officer’s refusal to hold a hearing on his section 1253(h) application is also without merit. MacCaud submitted his written claim “setting forth the reasons in support of his request,” 8 C.F.R. § 242.17(c), at the reopened hearing on November 7, 1972. At that time, he was informed that his statement — even if factually correct— failed to make out a prima facie case of political persecution. (As we have already indicated, this conclusion was entirely correct.) But the Special Inquiry Officer granted MacCaud three weeks in which to forward additional facts that would warrant conducting a hearing. Despite this extension and ignoring the Officer’s specific instructions, appellant never specified the content of his proposed witnesses’ testimony. We hold that, on these facts, neither due process nor the applicable regulation, see note 7 supra, which calls for the alien to “be examined under oath on his application” and permits him to “present such pertinent evidence or information as he has readily available,” requires that a further hearing be held.

In sum: Since the Service correctly designated Canada as an alternate country of deportation, 8 U.S.C. § 1253(a), and properly refused to suspend deportation on grounds of political persecution, 8 U.S.C. § 1253(h), we deny MacCaud’s petition for review.

Ill

The appeal from Judge Zampano’s decision, 354 F.Supp. 872 (D.Conn.1972), requires little discussion. It involves a seldom used statute, 8 U.S.C. § 1253(g), which provides:

Upon the notification by the Attorney General that any country upon request denies or unduly delays acceptance of the return of any alien who is a national, citizen, subject, or resident thereof, the Secretary of State shall instruct consular officers performing their duties in the territory of such country to discontinue the issuance of immigrant visas to nationals, citizens, subjects, or residents of such country, until such time as the Attorney General shall inform the Secretary of State that such country has accepted such alien.

MacCaud disputes the district judge’s finding that mandamus will not lie to force the Attorney General to give notice under this section so that the Secretary of State may act against the offending country. We agree with the judge, however, and uphold his denial of the writ.

Section 1253(g) has apparently never been construed. It authorizes the Executive Branch to invoke powerful sanctions to dissuade foreign governments from unlawfully refusing to accept American deportees. In light of the potential impact of such penalties upon delicate aspects of international relations, it is hardly likely that Congress intended to make the stated notification a mere ministerial duty of the Attorney General. The administrative history of the section, which shows that it has rarely been applied and then only to a few Communist-bloc countries, Gordon & Rosenfield, supra note 10; 8 C.F.R. § 243.8, seems to support this view. Finally, since Ireland may well have acted properly in refusing to accept MacCaud because his status as an Irish citizen is doubtful at best, see discussion, Part II supra, this is hardly the occasion for an order requiring the Attorney General to initiate such drastic action.

Accordingly, we affirm the decision of the district court denying the petition for a writ of mandamus.

      . For purposes of this proceeding alone, MacCaud admits his liability to deportation, as well as the other allegations contained in the order issued against him to show cause why he should not be deported.

      . During tlie initial hearing, appellant had announced his intention to make such an application in the event that he were ever ordered sent to Canada. Thereafter, he pressed this claim at the reopened hearing,

      . MacCaud v. I. N. S., Dkt. No. 73-2421.

      . 8 U.S.C. § 1103(a) charges the Attorney General with the administration and enforcement of the immigration laws. 8 C.F.R. § 2.1 contains a delegation of authority to the Commissioner of Immigration and Naturalization.

      . This letter confirmed a telephone conversation of May 5 between the Deputy Consul General of Ireland and a Service deportation officer.

      . The designated country must express its willingness to take the alien within three months of the original inquiry. 8 U.S.C. § 1253(a). Here, more than eight months had elapsed since the Government sent its letter of February 17, 1972. See Lezos v. Landon, 235 F.2d 581, 583 (9th Cir. 1955).

      . . The respondent shall be advised that pursuant to section 243(h) of the Act he may apply for temporary withholding of deportation to the country or countries specified by the special inquiry officer and may be granted not more than ten days in which to submit his application. The application shall consist of respondent’s statement setting forth the reasons in support of his request. The respondent shall be examined under oath on his application and may present such pertinent evidence or information as he has readily available. The respondent has the burden of satisfying the special inquiry officer that he would be subject to persecution on account of race, religion, or political opinion as claimed. .
      8 C.F.R. § 242.17(c).

      . The applicant “has the burden of satisfying the special inquiry officer” that his claim is meritorious. See note 7 supra.

      . MacCaud v. United States, Dkt. No. 72-2336.

      . 1 Gordon & Rosenfield, Immigration Law and Procedure § 3.8a, at 3-57; § 5.19, at 5-146 & n. 7 (rev. ed. 1973).

      . The judge’s denial of injunctive relief, 354 F.Supp. at 873, is not before this court.

      . Appellant’s references to statements of opponents of this section at the legislative hearings fail to persuade us. Joint Hearings on S. 716, H.R. 2379 and H.R. 2816 Before the Subcomm. of the Comm, on the Judiciary, 82d Cong., 1st Sess. 449, 581, 628. Cf. Note, The Internal Security Act of 1950, 51 Colum.L.Rev. 606, 636 & n. 290 (1951). None of these persons were members of Congress or occupied any official status relative to the proposed bills. Generally, the meager legislative history of this provision sheds no light upon our issue. See, e. g., 1950 U.S.Code Cong.Serv. p. 3911, quoting Conf.Rep.No.3112, 81st Cong., 2d Sess. (1950).

      . In view of our disposition of the case, we do not reach the question whether MacCaud has standing to prosecute a mandamus action. See Brief for Appellant at 12-15.


source: Caselaw Access Project

author: JAMES M. CARTER, Circuit Judge:

license: Public Domain

text:
    GRACE LINE, INC., Plaintiff-Appellee, v. TODD SHIPYARDS CORPORATION, Defendant-Appellant. HOME INSURANCE COMPANY et al., Plaintiffs-Appellants, v. S. S. SANTA ANA, etc., et al., Defendants-Appellees. GRACE LINE, INC. (PRUDENTIAL-GRACE LINES, INC.), Plaintiff-Appellant, v. TODD SHIPYARDS CORPORATION et al., Defendant-Appellee. GRACE LINE, INC., et al., Plaintiffs-Appellees, v. TODD SHIPYARDS CORPORATION, Defendant-Appellant.
    Nos. 72-1296, 72-1336, 72-1298 and 72-1297.
    United States Court of Appeals, Ninth Circuit.
    May 20, 1974.

      George L. Waddell (argued), James D. Boughey, of Dorr, Cooper & Hays, San Francisco, Cal., George L. Varían, of Crowell, Rouse & Varían, New York City, for appellant Todd Shipyards Corp.
    John R. Pascoe (argued), of Cushing, Cullinan, Hancock & Rothert, San Francisco, Cal., for Grace Line Inc.
    James D. Boughey (argued), of Dorr, Cooper & Hays, San Francisco, Cal., George L. Varían, of Crowell, Rouse & Varían, New York City, for appellees Todd Shipyards Corp. and others.
    Robert W. Wyckoff (argued), of Wyckoff & Cunningham, Frederick G. Harris (argued), of Patmont & Myers, San Francisco, Cal., for appellants Home Ins. Co. and others.
    Carter Quinby (appeared), of Derby, Cook, Quinby & Tweedt, James D. Boughey, of Dorr, Cooper & Hays, John R. Pascoe, Cushing, Cullinan, Hancock & Rothert, San Francisco, Cal., George L. Varían, of Crowell, Rouse § Varían, New York City, for appellees S. S. Santa Ana and others.
    OPINION
    Before KOELSCH, CARTER and WALLACE, Circuit Judges.
   JAMES M. CARTER, Circuit Judge:

This case arises out of a collision between a steamship and a drydock. We are presented with issues of negligence, the propriety of prejudgment interest, the scope of the United States Carriage of Goods by Sea Act, the interpretation and validity of so-called “Himalaya” clauses in bills of lading, and laches. Notwithstanding the number and corn-plexity of the legal issues and the number of parties involved, the facts are rather simple.

Facts

The Santa Ana is a 10,000-ton cargo steamship owned and operated by Grace Lines, Inc. (hereafter Grace). On December 8, 1967, the steamship arrived in San Francisco Bay laden with cargo of coffee, lumber, corned beef and que-bracho. These goods were insured, respectively, by Home Insurance Company (hereafter Home), Atlantic Mutual Insurance Company (hereafter Atlantic Mutual), Royal Globe Insurance Co. (hereafter Royal Globe), and Commercial Insurance Company of Newark (hereafter Commercial).

During a voyage by a cargo steamship, it is customary for the vessel to enter a drydock for inspection and repair. With this purpose, the Santa Ana steamed into the Oakland Estuary where its intended drydock was located. This was Drydock No. 2, operated by Todd Shipyards Corporation (hereafter Todd).

Ordinarily, Captain Fillipow commanded the Santa Ana, but a special pilot named Carlier took the helm in order to perform the delicate operation of entering the drydock. Pilot Carlier was an employee of Shipowners & Merchants Towboat Company, Ltd. (hereafter S & M Towboat), which also supplied tugboats to assist in the maneuvers.

The Oakland Estuary runs generally east to west, and Drydock No. 2 is on the south shore. After heading east up the estuary until reaching the drydock, the steamship made a 90° turn to the south and aimed towards the drydock’s entry.

To picture the accident, it is necessary to understand the design of Drydock No. 2. Known as a Harris self-docking dry-dock, it resembles a long miter box having a bottom and two side walls, but no top or end walls. The structure is 528 feet long and 90 feet wide, and points into the estuary. When a vessel approaches for entry, the drydock is submerged by filling water tanks within the walls. After the vessel is floated into position over the drydock, the water tanks are pumped out and the drydock, rising from its own buoyancy, lifts the vessel high and dry.

The drydocking of the Santa Ana might have gone all right except for a special feature of Drydock No. 2. As we mentioned above, Drydock No. 2 is “self-docking,” meaning that it can dry-dock itself whenever it needs maintenance. Without going into the mechanics of this feat, we need only observe that a special recess in the ends of the side walls makes it possible. These walls, for the most part, are flat on top, forming a long narrow deck. At the outmost ends, however, the deck takes a step-like recess. The top of the recessed portion is eleven feet lower than the rest of the wall. Thus, when the drydock is submerged, the side walls stick above the water except at the ends, where the recessed portion of the wall lies under the water, unseen.

At the time Pilot Carlier proceeded to navigate the steamship into the submerged drydock, an eastward breeze and a flowing tide pushed against the vessel on the starboard (i. e., right hand) side. No finding was made, and nobody can say for certain, whether this starboard pressure was what made the steamship enter the drydock as it did, off-center, towards the port (i. e., left hand) side. The port side hull rammed into the unseen recessed wall, ripping a hole in the vessel beneath the water line. Besides damaging the steamship, the collision caused injury to the drydock and allowed flooding water to injure the cargo. The steamship, however, was ultimately dry-docked and repaired by Todd.

Out of this accident arose four law suits. (1) Grace, the owner of the steamship sued Todd, the operator of the drydock, for the damages to the vessel and resultant damages. Todd filed a counterclaim against Grace for the damages to the drydock and for the money Todd had spent in repairing the ripped hull. Todd also filed a third-party complaint for the dock damage against S & M Towboat, which employed Pilot Car-lier and the tugboats. (2) Two cargo insurers, Home and Atlantic Mutual, joined in suit against Grace, the Santa Ana itself, Todd and S & M Towboat for damage to the coffee and lumber. (3) Commercial brought a separate suit against the same defendants for damage to the quebracho. (4) Royal Globe likewise brought a separate suit against the same defendants for damage to the corned beef.

The suits were consolidated and tried to the district court. In its findings and conclusions, the court held that Todd was negligent and hence liable to Grace in the net amount of $17,265.03; that Todd, though negligent, was entitled to immunity against the cargo insurers ; and that neither Grace nor S & M Towboat were negligent or liable- to any party.

In the two appeals (by Todd and the cargo insurers) and the two cross-appeals (by Grace and Todd), we face the following questions:

(1) Did the trial court err in finding Todd negligent?

(2) Did the trial court err in finding that there was no negligence on the part of the Santa Ana, Grace or S & M Towboat?

(3) Did the trial court err in refusing to grant pre-judgment interest to Grace ?

(4) Did the trial court err in holding that Todd is entitled to the same exemptions and immunities from and limitations of liability which Grace has against the cargo interests (these exemptions, immunities and limitations primarily being those that the United States Carriage of Goods by Sea Act provides specifically for carriers) ?

As elaborated below, we answer questions (1), (2) and (3) in the negative, affirming the district court on those points. We conclude, however, that question (4) should be answered in the affirmative; we therefore reverse the district court’s holding that Todd is entitled to immunity from liability to the cargo insurers.

I. Todd’s Negligence

The district court found that Drydoek No. 2 was negligently constructed and maintained in that it had a concealed and dangerous projection when submerged for drydocking a vessel, and that the damage to the steamship was caused by Todd’s negligent maintenance of the drydoek in such a dangerous condition. The court further found that Grace and S & M Towboat were unaware of the existence of said concealed, underwater danger on the day of the collision.

Todd does not dispute the finding that it failed to exercise due care. Todd contends, however, that the evidence clearly shows that the pilot of the steamship was aware of the dangerous condition and that his awareness extinguished Todd’s duty of due care towards the vessel.

The leading case regarding the duty of care incumbent upon those operating wharfs, drydocks, and so forth, is Smith v. Burnett, 173 U.S. 430, 19 S.Ct. 442, 43 L.Ed. 756 (1898). There the Court stated (at p. 433):

“Although a wharfinger does not guarantee the safety of vessels coming to his wharves, he is bound to exercise reasonable diligence in ascertaining the condition' of the berths thereat, and if there is any dangerous obstruction to remove it, or to give due notice of its existence to vessels about to use the berths.” (Emphasis supplied)

Todd contends that, since its duty is fulfilled by giving notice to the vessel of the danger, necessarily there is no duty to fulfill if the vessel already knows of the danger. We accept this principle, as have other courts. See, for example, General Construction Co. v. Isthmian Lines, Inc. (D.Ore.1966) 259 F.Supp. 336, 338-339, where it was accurately observed that “The general concept of a formal notice which seemed to originate in Smith v. Burnett . is not applied where the alleged construction or condition is open and obvious to those in charge of the vessel’s management. Here, the absence of constructive notice, must give way to the finding of actual notice.” (Emphasis added)

Todd further contends that the evidence clearly established that the pilot of the steamship had sufficient awareness of the danger to invoke this principle. Here we disagree. It must be kept in mind that on this issue we are concerned with the existence of a duty of care on Todd’s part, and not with the question of the pilot’s negligence, considered hereafter. Regardless of whether the pilot should have been aware of the danger, Todd had a duty to remove it or to give notice unless the pilot was actually aware of it.

The testimony of the pilot indicates indisputably that he had knowledge of prior accidents caused by the hidden recess in the drydoek. This being so, perhaps he should have anticipated the collision to the Santa Ana. But his knowledge of a prior dangerous condition does not necessarily establish his actual awareness at the time of his collision. He may have forgotten about the hazard or have believed it eliminated. In any case, we see nothing unreasonable in the district court’s finding that on the date of the accident Grace and S & M Towboat were unaware of the dangerous condition. Todd therefore had a duty to remove the danger or give notice of it, and this duty it breached.

II. The Vessel’s Lack of Negligence

The district court found that Grace, S & M Towboat, and all their employees, were not negligent in any respect. We see no clear error in this finding.

Todd contends that the rule in admiralty is that when a moving vessel strikes a fixed structure the vessel is at fault unless the moving vessel can exonerate herself by proving that the collision was caused by uncontrollable forces, and cites The Virginia Ehrman and The Agnese, 97 U.S. 309, 315, 24 L.Ed. 890 (1877), and other cases. We question whether the burden of proof rests on the vessel even when, as here, the fixed structure lies hidden below the water. But assuming that the vessel had the burden in this case, we believe the district court could reasonably find that the burden was carried.

Three theories might be argued to demonstrate the vessel’s negligence. (A) It might be argued that the vessel was carelessly maneuvered into the dry-dock. (B) It might be argued that the vessel should have stayed entirely away from a drydock known to be hazardous. (C) Or it might be argued that even if those in control of the vessel did not know of the hazard, they should have. (Above we observed that the vessel’s actual awareness of the hazard was required to obviate Todd’s duty to remove the hazard or give notice of it; but granting that Todd had a duty in the absence of actual awareness, the vessel also may have been negligent if it should have had awareness.)

(A) The evidence showed that the drydock’s entry was narrow, and that the breeze and the tidal current pushed against the side of the vessel. It may have been virtually impossible to avoid the collision under the circumstances.

(B) Of course, the vessel could have stayed away from the dry-dock altogether if the dangerous condition was known, but the court reasonably found that it was not. (C) And the court did not err in failing to hold the pilot negligent for not knowing of the condition despite the prior collision. The pilot may reasonably have forgotten about the danger or believed it eliminated.

III. Prejudgment Interest

The district court declined to award Grace prejudgment interest on the damages it sustained, but we find no abuse of discretion.

In admiralty, prejudgment interest must be granted unless peculiar circumstances justify its denial. President Madison (9 Cir. 1937) 91 F.2d 835. Whether or not the circumstances are sufficient to justify the denial is left to the discretion of the court. President Madison, supra; 3 Benedict, On Admiralty 191 (6th ed. 1940).

In this case, the circumstances clearly justify the district court’s determination. Prior to trial, Grace had stipulated that the “damages of the respective parties to be entered in the event of the judgment for such party shall be [f]or Grace against Todd, the sum of $17,265.03 . . . . ” The court awarded Grace this amount in damages, without interest. It is not absolutely clear from the stipulation whether the parties agreed that no interest should be added to the stipulated amount, but the court, in its discretion, could reasonably so hold.

IV. The “Himalaya” Clause and COGSA

The district court held that Todd was entitled to the same exemptions and immunities from and limitations of liability which Grace had against the cargo insurers. We disagree, holding that Todd was entitled to some but not all, of the exemptions and immunities and limitations which Grace had, as detailed below.

A. The Provisions of the “Himalaya” Clause

The bills of lading constituting the contract of carriage between Grace and the cargo interests contain a so-called “Himalaya” clause, which reads in pertinent part as follows:

“The Carrier shall be discharged from all liability in respect of loss, damage and every claim whatsoever with respect to the goods unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered [I]t is expressly agreed between the parties [the Carrier and the cargo owners] hereto that the master, officers, crew members, contractors, stevedores, longshoremen, agents, representatives, employees or others used, engaged or employed by the carrier in the performance of such work or services [undertaken in this contract], shall each be the beneficiaries of and shall be entitled to the same, but no further exemptions and immunities from and limitations of liability which the carrier has under this bill of lading, whether printed, written, stamped thereon or incorporated by reference. . . . Without limitation or restriction of the exemptions and immunities from and limitations of liability provided for [above], the persons and companies mentioned therein shall be entitled to the same, but no further, benefits which the carrier has under the U.S. Carriage of Goods by Sea Act, including but not limited to Sections 3(6), 4(1), 4(2) (a), 4(2)(q) and 4(5) of said Act.” (Emphasis added)

As will be further discussed below, the United States Carriage of Goods by Sea Act (hereafter COGSA), 49 Stat. 1207 (1936), 46 U.S.C. §§ 1300-1315, grants certain immunities, exemptions, and limitations to carriers of cargo by sea. Although the Act does not itself extend these protections to non-carriers, the bills of lading purport to incorporate certain of COGSA’s provisions into the contract and thereby protect certain non-carriers as well. As we discuss below, Todd was a contractor engaged in the performance of work undertaken in the bills of lading, and hence the following of COGSA’s protections are purportedly extended to Todd contractually:

The one-year period of limitations for instituting suit and a notice-of-damage requirement [see COGSA, § 3(6), 46 U.S.C. § 1303(6)];
The immunity from liability for unseaworthiness of the vessel unless caused by want of due diligence [see COGSA, § 4(1), 46 U.S.C. § 1304 (D 1;
The immunity from liability for negligent acts in the navigation or management of the ship [see COGSA, § 4(2) (a), 46 U.S.C. § 1304(2) (a) ];
The immunity from liability for damage caused by fire, unless caused' by the actual fault or privity of the carrier [see COGSA, § 4(2) (b), 46 U. S.C. § 1304(2) (b) ];
The immunity from liability for damage arising from any cause without actual fault or privity [see COGSA, § 4(2)(q), 46 U.S.C. § 1304 (2) (q) ]; and
The limited liability of $500 per package or freight unit unless the nature and value of the goods have been declared by the shipper before shipment and inserted in the bill of lading [see COGSA, § 4(5), 46 U.S.C. § 1304(5) ].

The exemptions, immunities and limitations which are pertinent to the instant case are the complete exemption from liability [see COGSA, § 4(2) (a), 46 U.S.C. § 1304(2) (a)]; the $500 limitation on liability [see COGSA, § 4(5), 46 U.S.C. § 1304(5)]; and the one-year period of limitations for instituting suit [see COGSA, § 3(6), 46 U.S.C. § 1303(6)].

B. The $500 Limitation on Amount of Liability

In Tessler Brothers (B.C.) Ltd. v. Italpacific Line and Matson Terminals, Inc. (9 Cir. 1974) 494 F.2d 438, this court squarely faced the issue of whether a “Himalaya” clause was valid which purported clearly and expressly to extend to a non-carrier the $500 limitation on liability which COGSA, § 4(5), 46 U.S.C. § 1304(5), provides for carriers. That clause was held valid, and Tessler Brothers is binding authority as regards the inclusion in bills of lading of limitations on amount of non-carrier’s liability.

C. The Complete Immunity from Liability for Negligence in Navigation and Management

1. The historic background of COG-SA. In order adequately to understand the nature of the immunity under COG-SA, § 4(2) (a), 46 U.S.C. § 1304(2) (a), one should keep in mind the history of the Act and of its predecessor, the Hart-er Act, 27 Stat. 445 (1893), 46 U.S.C. §§ 190-196.

These two acts, especially COGSA, are by far the most important bodies of law for dealing with the question of who bears the loss when cargo is damaged in ocean commerce. Prior to their enactment, the general law of maritime carriage made the public carrier of goods by sea absolutely responsible for their safe arrival unless loss or damage was caused by Act of God or of the public enemy, or by the inherent vice of the goods or the fault of the shipper. Thus the carrier’s liability was determined without regard to his negligence or lack of it. The carrier was therefore subject to stringent liability before the matter was regulated by statute.

Even before Congress came to their aid, carriers strove to diminish their liability under the general maritime law by inserting in the bills of lading various “exceptions” to liability. During the nineteenth century, the aggregate of such clauses, including the common law exceptions (such as Act of God, public enemy, and so forth), was large and more or less standardized.

But courts construed these exceptions narrowly when either of the two fundamental obligations of the carrier — to exercise due care with respect to cargo and to furnish a seaworthy ship — was apparently eliminated in the bills of lading. These obligations were held to remain unless clearly and expressly eliminated.

Draftsmen of the bills of lading began after a time to stipulate that the carrier was not to be held liable even for his own negligence or the negligence of the ship’s people. British courts generally upheld these negligence exceptions, see In re Missouri S. S. Co., 42 Ch.D. 321 (1889), while United States federal courts usually held them void as against public policy, see Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 129 U.S. 397, 9 S.Ct. 469, 32 L.Ed. 788 (1889).

Apparently the courts in this country were unable to manipulate the principles of the common law in a way that would establish the desired delicate compromise between the interest of carriers, who sought full immunity from liability for all kinds of negligence, and the interest of cargo shippers, who sought to hold the carriers responsible for every sort of negligence.

This problem was dealt with by Congress in the Harter Act of 1893, supra. The statute, recognizing the common law obligations of the carrier to prove a seaworthy vessel and to exercise due care with respect to cargo, made it unlawful for a bill of lading to diminish these obligations. Thus shippers got some protection against the negligence of the carriers. On the other hand, the statute provided that a carrier who has used due diligence to provide a seaworthy-vessel should not be liable for damage or loss resulting from faults or errors in navigation or in the management of the vessel.

The net position of the Harter Act was this: the carrier could not contract out of the duty to use care to put his vessel in seaworthy condition or to use care with respect to cargo, but once he had fulfilled these duties, he could not be held liable for the negligence of those who navigated and managed the vessel. [It will be noted that negligent management of the vessel, from which the statute exonerates the carrier, could simultaneously constitute lack of care with respect to cargo, for which the statute holds the carrier liable; this apparent contradiction, the subject of many law suits, is relevant to this case and will be discussed below.]

The compromise of the Harter Act was so well received that it was embodied in main outline by a worldwide conference of maritime nations proposing the “Hague Rules” as a universal guide to treatment of the shipper-carrier relation. In 1936, in order to update the Harter Act to conform more closely with the world conference proposals, the Congress passed COGSA. The Harter Act was thus largely supplanted by COGSA, and the former, although it still retains some importance, is not relevant to the instant suit other than in its case law interpreting provisions now also included in COGSA.

2. The relation between bills of lading and COGSA. Section 3(1) of COG-SA, 46 U.S.C. § 1303(1), and section 3(2), 46 U.S.C. § 1303(2), set forth broadly the affirmative grounds upon which a shipper may recover from the carrier-, and sections 4(1), 46 U.S.C. § 1304(1), and 4(2), 46 U.S.C. § 1304(2), set out the specific exceptions from liability enjoyed by the carrier. The enacting clause in COGSA, 46 U.S.C. § 1300, provides that every bill of lading shall have effect subject to the provisions of the Act; hence a bill of lading is read as if COGSA were incorporated by reference.

It will be noted that COGSA’s provisions regulate the liability of carriers, but not non-carriers. Since the Act, in balance, is more protective than the common law, it is not surprising that non-carriers have nonetheless sought to place themselves under COGSA’s shelter. This has been attempted by arguing in the courts that COGSA should be construed to protect parties other than carriers, despite the Act’s language to the contrary; and since this argument has failed, the extension of COGSA has been attempted contractually, by providing in bills of lading that certain non-carriers would be subject to COGSA’s protections.

In Robert C. Herd & Co. v. Krawill Machinery Corp., 359 U.S. 297, 79 S.Ct. 766, 3 L.Ed.2d 820 (1959), the Supreme Court considered whether the provisions of COGSA should apply to a stevedore, either by virtue of the Act itself or by contractual extension in the bills of lading.

The Court held that nothing in the language, history, or environment of the Act showed a congressional intent to regulate by statute the liability of stevedores or other agents of the carrier.

The Court further noted that the bills of lading in that case did not expressly extend the provisions of COGSA to the stevedore.

In language of significance here, the Court stated a£ follows:

“This Court has several times held that an agent’s only shield from liability ‘for conduct harmful to the plaintiff . . . is a constitutional rule of law that exonerates him.’ . Any such rule of law, being in derogation of the common law, must be strictly construed, for ‘[n]o statute is to be construed as altering the common law, farther than its words import. It is not to be construed as making any innovation upon the common law which it does not fairly express.’ . . . Similarly, contracts purporting to grant immunity from, or limitation of, liability must be strictly construed and limited to intended benefiearies, for they ‘are not to be applied to alter familiar rules visiting liability upon a tortfeasor for the consequences of his negligence, unless the clarity of the language used expresses such to be the understanding of the contracting parties.’ ” (at 304-305; citations omitted; emphasis supplied).

The above quotation from the Herd opinion is of special import here. It suggests that the sole reason the Court refused to allow the contractual extension of COGSA’s protections to stevedores was that the bill of lading in that case was not clear and express in its intent to make this extension; the Herd opinion might be interpreted to mean that a bill of lading, if it clearly and expressly extends a COGSA exemption, immunity or limitation to a non-carrier who is an agent of the carrier, is a valid derogation of the common law and will be given effect.

Thus the Court of Appeals for the Ninth Circuit in Tessler Brothers, supra, held on the basis of Herd that a bill of lading, if clear and express, was effective to extend the $500 limitation on the amount of liability, as provided in COGSA, § 4(5), 46 U.S.C. § 1304(5), to stevedores.

Our concern, however, is not with the contractual extension of the Act’s limitation on amount of liability, but rather with an extension to non-carriers of the complete exemption from negligence in navigation and management as provided in COGSA, § 4(2) (a), 46 U.S.C. § 1304(2)(a).

3. Does the bill of lading clearly extend COGSA, § 4(2) (a), 46 U.S.C. § 1804(2) (a), to Todd? The bills of lading in our case expressly extended COG-SA, § 4(2) (a), 46 U.S.C. § 1304(2) (a), to the master, officers, crewmembers, contractors,. stevedores, longshoremen, agents, representatives, employees or others used, engaged or employed by the carrier in the performance of such work or services undertaken in the bills of lading. Although drydock operators were not expressly listed as persons covered, Todd would seem to be a “contrac-' tor,” as the district court so held.

Less clear is whether Todd’s services were part of the work or services undertaken in the bills of lading. The district court held that they were, and we are disposed to agree. The primary work undertaken in the bills of lading is the transporting of cargo. But implicit in the undertaking is the agreement to take reasonable steps to ensure the safety of the cargo in transport. Thus it is customary- for cargo vessels to drydock in transit for routine inspections and repairs. The work performed by the drydock operator, although directly affecting the ship only, aids the carrier in safely transporting the cargo. We therefore hold that Todd was a contractor employed by Grace in performing the work undertaken in the bills of lading and hence was clearly intended by the parties thereto to be entitled to the immunities of COGSA, § 4(2)(a), 46 U. S.C. § 1304(2)(a).

4. Was the “Himalaya” clause an adhesion contract unenforceable against the cargo insurers? There is a general rule of contract law that when there is a gross disparity of bargaining power between two parties to a contract such that one party has no choice but to adhere to unfavorable and unfair terms, those terms will not be enforced against him unless he has given his understanding consent to be bound. See Henningsen v. Bloomfield Motors, 32 N.J. 358, 161 A.2d 69 (1960). The cargo insurers contend that the bills of lading are contracts of adhesion, see Cabot Corp. v. S. S. Mormacscan, (2 Cir. 1971) 441 F.2d 476, 478, and that since they gave no “understanding consent,” they are not bound.

We recognize, as said in Tessler Brothers, supra, p. 445, “that the content of ocean bills of lading is for all practical purposes completely within the carrier’s power, subject to the provisions of COGSA, and that contracts purporting to limit liability must be strictly construed.” But we are not persuaded that we should refuse to enforce the bills of lading simply because they are in this respect contracts of adhesion. The cases refusing to enforce contracts because they were contracts of adhesion have generally involved special circumstances, such as a grossly unfair bargain foisted by a noncompetitive industry upon the ordinary consumer on a “take-it-or-leave-it” basis, with the terms often buried in fine print unlikely to be understood or even read by the consumer. See, e. g., Henningsen, supra. There is no binding authority for likewise refusing to enforce bills of lading. The shipper or insurer of cargo, while not equal in bargaining power to the carrier, is not in the position of the ordinary man facing an enormous, impersonal industry. Surely the cargo insurers were aware of the “Himalaya” clauses. As a group they perhaps could muster the bargaining power necessary to alter the terms in the bills of lading. Therefore, although we might find the bills of lading sufficiently adhesive to warrant a strict construction against the carrier and his agents, we are not moved by their adhesive character to interfere with the freedom of contract to the extent of refusing entirely to give effect to the “Himalaya” clause. Cf. Tessler Brothers, supra, p. 445.

5. Does COGSA, § 6, 46 U.S.C. § 1306, prohibit the extension of the Act to non-carriers? Section 6, 46 U.S.C. § 1306, provides that a carrier and a shipper may enter into any agreement in any terms as to the liability of the carrier’s agents for negligence in respect to cargo, but may do so only if no bill of lading has been or shall be issued and the shipments are not ordinary commercial shipments made in the ordinary course of trade. Since in our case there is a bill of lading and the shipment is in ordinary commerce, § 6, 46 U.S.C. § 1306, does not apply.

But the cargo interests argue that § 6, 46 U.S.C. § 1306, prohibits by implication any agreement to which the Section does not apply. This argument was presented in Tessler Brothers, supra, p. 444, and found wanting. Although § 6, 46 U.S.C. § 1306, describes certain situations, none of which is present here, in which any exculpatory agreement is permissible, we see no implication in the Section that in all other situations, such as ours, no exculpatory agreement is permissible.

6. Does an extension of COG-SA, § 4(2)(a), 46 U.S.C. § 1304(2)(a), to non-carriers im/permissibly derogate a common law principle against exculpation? There is a controlling rule of the common law, stated in perhaps its clearest form in United States v. Atlantic Mutual Insurance Co., 343 U.S. 236, 72 S.Ct. 666, 96 L.Ed. 907 (1952), that “without congressional authority [carriers] cannot stipulate against their own negligence or that of their agents or servants.” Atlantic Mutual, supra, at p. 242.

In COGSA, § 4(2) (a), 46 U.S.C. § 1304(2)(a), Congress has immunized carriers from liability for negligence in navigation or management. It has not, however, altered the common law rule as regards agents or servants. We must therefore inquire whether Todd was an “agent” or “servant” of the carrier. We have already held Todd to be a “contractor” but that of course does not necessarily make Todd an “agent.” Restatement (Second) of Agency § 14N, Comment b (1957). If Todd is an agent, we must further inquire whether cases such as Herd and Tessler Brothers, both decided after Atlantic Mutual, indicate a development in the common law such that it no longer forbids carriers from contractually exculpating their agents and servants from negligence.

“Agency” has been commonly defined as “the fiduciary relation which results from the manifestation of consent by one person to another that the other shall act on his behalf and subject to his control, and consent by the other so to act.” Restatement (Second) of Agency § 1 (1957). The agent is the one who is to act. Restatement, supra.

From the facts of this case it is apparent that Todd was the carrier’s agent within the meaning of the above definition. There was an agreement between the two that Todd should act on the carrier’s behalf in maintaining the vessel in a seaworthy condition. Upon taking control of the vessel, Todd assuredly had a fiduciary duty to exercise skill and care in its work. This work, of course, would be subject to the ultimate control of the carrier as owner of the vessel.

As an “agent,” Todd could not contractually be exculpated from its negligence, unless ease law has modified the old common law rule. We do not.think it has. Herd stands for the proposition that clear and express language in the contract is the sine qua non for altering the common law; but when that requirement is met, it is still left open for the courts to decide whether a particular alteration is repugnant to public policy. Herd did not imply that a contract, if clear and express in its intent, would be adequate to alter any familiar rule of tort liability whatsoever.

It is the holding of this court that a contract, no matter how clear and express, which purports wholly to immunize a non-carrier from liability for its negligence, is repugnant to traditional law and to sound policy. Tessler Brothers, which upheld the contractual monetary limitation of a non-carrier’s (stevedore’s) liability, is not inconsistent with our holding here, for as said in that case (at p. 443), “This distinction between a limitation on liability and an exemption from liability is crucial. A limitation, unlike an exemption, does not induce negligence.”

Tessler Brothers, while stating that Atlantic Mutual was inapposite to a discussion of a “Himalaya” clause that merely limits the amount of recovery for negligence, recognized that Atlantic Mutual “[invalidates] clauses that exempt carriers or their agents from liability for their negligence.” (p. 443; emphasis in original). This language, of course, was not essential to the holding in Tessler Brothers and is therefore dictum; yet we believe it accurately states the law of Atlantic Mutual. Since the “Himalaya” clause in this case purports to exempt non-carriers completely from any liability for negligence, and thereby strongly tends to induce negligence, the bill of lading is to that extent void.

7. Assuming that COGSA, § 4(2) (a), 46 U.S.C. § 1304(2) (a), could validly be extended to Todd, does the language of that provision apply to Todd’s conduct? There is an alternate ground for holding that Todd is not immunized from liability — even if § 4(2) (a), 46 U.S.C. § 1304(2) (a), could validly be extended to protect non-carriers, its protection does not cover the sort of negligence of which Todd was culpable.

for “Act, neglect, or default in the navigation or in the management of the ship . . . .” A reading of the many cases giving content to the words “navigation” and “management” makes it evident" that. Todd was doing something else.

None of the cases actually gives a precise definition of the words, for the courts, eschewing abstractions, have been satisfied with determining on a case-to-case basis whether a particular act was or was not in “navigation” or “management.” Most of the cases have involved drawing the line between negligence in care of the cargo, for which there is liability, and negligence in navigation or management of the vessel, for which no liability attaches. Obviously, carelessness in navigating or managing a cargo-laden ship would simultaneously create a foreseeable danger to the cargo; hence, it is not easy to draw a distinct line. Yet read as a whole, the cases would seem to support this test: If the act in question has the primary purpose of affecting the ship, it is “in navigation or in management”; but if the primary purpose is to affect the cargo, it is not “in navigation or in management.” This test can be applied to our case by rough analogy only, for Todd’s negligence — a failure to maintain a safe dry-dock — was in omission, not commission, and hence had no primary purpose. But the omission-commission distinction presents no difficulty if we assume hypothetically that Todd, instead of omitting to make the drydock safe, had undertaken to repair it, and had performed the job negligently. If Todd had thereby caused damage to a ship that later used the facilities, then we would hold that such act of negligence would have the primary purpose of affecting the drydock, not of affecting the ship.

True, acts affecting the dry-dock would ultimately affect the ship, just as acts affecting a ship would indirectly affect the cargo inside, But we are not looking for ultimate and indirect effects when trying to determine whether an act is in navigation or management of the ship. What we are looking for is whether the act which is negligently done, or not done, is primarily directed at the ship itself, or at something else. It seems apparent that Todd’s negligence was not primarily directed at the Santa Ana, for Todd had been negligent as regards the drydock long before the Santa Ana contracted to enter it. We therefore hold that Todd’s negligent maintenance of the drydock was not “in navigation or management” of the vessel and that § 4(2) (a), 46 U.S.C. § 1304(2) (a), has no relevance to this case.

D. The Time Limitation Under COGSA, § 3(6J, 46 U.S.C. § 1303(6)

Tessler Brothers, supra, p. 443, stated that Atlantic Mutual while invalidating clauses that completely exempt the agents of carriers, is inapposite to clauses that merely limit the amount of liability. In a similar vein, we believe that Atlantic Mutual is inapposite to clauses merely limiting the time limit in which suit must be brought. We might hold differently if the time limit provided were so short that it created an unreasonable risk to the plaintiff that he would lose his cause of action. But such is not the case. COGSA indicates the congressional determination that one year is a reasonable time limit for instituting suit against a carrier, and we see no factors necessitating more time for suit against the carrier’s agents.

Since the extension of § 3(6), 46 U.S.C. § 1303(6), to agents of the carriers is clear and express, and since it creates a reasonable limitation on the common law liability of agents, and since there is no binding authority for holding such clauses void, we uphold the validity of this portion of the bills of lading.

This necessarily moots the holding of the district court that Royal Globe’s suit was barred by laches. Since Royal Globe commenced its suit well after the one-year limit of § 3(6), 46 U.S.C. § 1303(6), had passed, and was thus barred by that fixed period of limitations, there is no need to decide if laches provides an additional time-bar. We leave it for the district court to determine on remand whether any other plaintiffs are affected by § 3(6), 46 U. S.C. § 1303(6).

Affirmed in part, and reversed in part and remanded for further proceedings not inconsistent with this opinion.

      . The district court similarly held that S & M Towboat was entitled to these defenses, but since S & M Towboat was found not negligent to the cargo, we are concerned only with these defenses as they apply to Todd.

      . COGSA, § 3(6), 46 U.S.C. § 1303(6), provides :
      “Unless notice of loss or damage and the general nature of such loss or damage be given in writing to the carrier or his agent at the port of discharge before or at the time of the removal of the goods into the custody of the person entitled to delivery thereof under the contract of carriage, such removal shall be prima facie evidence of the delivery by the carrier of the goods as described in the bill of lading. If the loss or damage is not apparent, the notice must be given within three days of the delivery.
      “Said notice of loss or damage may be endorsed upon the receipt for the goods given by the person taking delivery thereof.
      “The notice in writing need not be given if the state of the goods has at the time of their receipt been the subject of joint survey or inspection.
      “In any event the carrier and the ship shall be discharged from all liability in respect to loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered: Provided, That if a notice of loss or damage, either apparent or concealed, is not given as provided for in this section, that fact shall not affect or prejudice the right of the shipper to bring suit within one year after the delivery of the goods or the date when the goods should have been delivered.
      “In the case of any actual or apprehended loss or damage the carrier and the receiver shall give all reasonable facilities to each other for inspecting and tallying the goods.”

      . COGSA, § 4(1), 46 U.S.C. § 1304(1), provides:
      “Neither the carrier nor the ship shall be liable for loss or damage arising or resulting from unseaworthiness unless caused by want of due diligence on the part of the carrier to make the ship seaworthy, and to secure that the ship is properly manned, equipped, and supplied, and to make the holds, refrigerating and cool chambers, and all other parts of the ship in which goods are carried fit and safe for their reception, carriage, and preservation in accordance with the provisions of paragraph (1) of section 1303 of this title. Whenever loss or damage has resulted from the unseaworthiness, the burden of proving the exercise of due diligence shall be on the carrier or other persons claiming exemption under this section.”

      . COGSA, § 4(2) (a), 46 U.S.C. § 1304(2) (a) , provides:
      “Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—
      Act, neglect, or default of the master, mariner, pilot, or the servants of the carrier in the navigation or in the management of the ship . . . .”

      . COGSA, § 4(2) (b), 46 U.S.C. § 1304(2) (b) , provides:
      “Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from' — •
      Fire, unless caused by the actual fault or privity of the carrier . . . .”

      . COGSA, § 4(2) (q), 46 U.S.C. § 1304(2) (q), provides:
      “Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from—
      Any other cause arising without the actual fault and privity of the carrier and without the fault or neglect of the agents or servants of the carrier, but the burden of proof shall be on the person claiming the benefit of this exception to show that neither the actual fault or privity of the carrier nor the fault or neglect of the agents or servants of the carrier contributed to the loss or damage.”

      . COGSA, § 4(5), 46 U.S.C. § 1304(5), provides :
      “Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package lawful money of the United States, or in case of goods not shipped in packages, per customary freight unit, or the equivalent of that sum in other currency, unless the nature and value of such goods have been declared by the shipper before shipment and inserted in the bill of lading. This declaration, if embodied in the bill of lading, shall be prima facie evidence, but shall not be conclusive ■ on the carrier.
      “By agreement between the carrier, master, or agent of the carrier, and the shipper another maximum amount than that mention in this paragraph may be fixed: Provided, That such maximum shall not be less than the figure above named. In no event shall the carrier be liable for more than the amount of damage actually sustained.
      “Neither the carrier nor the ship shall be responsible in any event for loss or damage to ■ or in connection with the transportation of the goods if the nature or value thereof has been knowingly and fraudulently misstated by the shipper in the bill of lading.”

      . In our historical account of COGSA, we have borrowed extensively from Gilmore and Black, The Law of Admiralty, pp. 119-129 (1957), both in content and in language. Because of the absence of quotation marks and citations in our account, we would like to make note of our indebtedness to this source.

      . COGSA, § 46 U.S.C. § 1300, provides:
      “Every bill of lading or similar document of title which is evidence of a contract for the carriage of goods by sea to or from ports of the United States, in foreign trade, shall have effect subject to the provisions of this chapter.”

      . COGSA, § 6, 46 U.S.C. § 1306, provides:
      “Notwithstanding the provisions of sections 1303 to 1305 of this title, a carrier, master or agent of the carrier, and a shipper shall, in regard to any particular-goods be at liberty to enter into any agreement in any terms as to the responsibility and liability of the carrier for such goods, and as to the rights and immunities of the carrier in respect of such goods, or his obligation as to seaworthiness (so far as the stipulation regarding seaworthiness is not contrary to public policy), or the care or diligence of his servants or agents in regard to the loading, handling, stowage, carriage, custody, care, and discharge of the goods carried by sea: Provided, That in this case no bill of lading has been or shall be issued and that the terms agreed shall be embodied in a receipt which shall be a nonnegotiable document and shall be marked as such.
      “Any agreement so entered into shall have full legal effect: Provided, That this section shall not apply to ordinary commercial shipments made in the ordinary course of trade but only to other shipments where the character or condition of the property to be carried or the circumstances, terms, and conditions under which the carriage is to be performed are such as reasonably to justify a special agreement.”

      . We take some examples cited in Gilmore and Black, The Law of Admiralty, p. 137 (1957) :
      “The following have been held errors in ‘navigation’ or ‘management’: Failure to remove water from bilges, resulting in moistening and spoilage of hides, The Merida, 107 F. 146 (2d Cir. 1901); change of course and failure to put in for repairs, Corsair [Corsar] v. J. D. Spreckels & Bros. Co., 141 F. 260 (9th Cir. 1905); leaving port in disregard of weather warning, Hanson v. Haywood Bros. & Wakefield Co., 152 F. 401 (7th Cir. 1907); tipping ship to examine propeller, The Indrani, 177 F. 914 (2d Cir. 1910); washing down of leaking sulfuric acid drums with water, increasing corrosive power of acid and damaging flour in hold below, The Milwaukee Bridge, 26 F.2d 327, 1928 A.M.C. 1063 (2d Cir. 1928), certiorari denied 278 U.S. 632, 49 S.Ct. 31, [73 L.Ed. 550] (1928); selecting an unsafe anchorage and failing to give signals of distress, Luria Bros. & Co. v. Eastern Transp. Co., 89 F.2d 900, 1937 A.M.C. 778 (2d Cir. 1937); failure to make frequent inspection of brass caps on sounding pipes, with result that water entered, The Newport News, 199 F. 968 (S.D.N.Y.1912). (Often, these are holdings in the alterna-five, the other possibility being that there is no negligence of any kind.)
      “The following have been held errors in the duties owed to cargo: Use of an improper refrigerant, Barr v. International Mercantile Marine Co., 29 F.2d 26, 1929 A.M.C. 53 (2d Cir. 1928); so directing discharge from after hold as to bring about depression of bow and wetting of cargo there. The Joseph J. Hock, 70 F.2d 259, 1934 A.M.C. 507 (2d Cir. 1934); stowage of leaky acetic acid drums near iron plates, Armco International Corp. v. Rederi A/B Disa, 151 F.2d 5, 1945 A.M.C. 1064 (2d Cir. 1945); failure to observe condition of thermometers in refrigerating compartments, The Samland, 7 F.2d 155, 1925 A.M.C. 1198 (S.D.N.Y.1925); failure to close lid of ventilator before running hose over it, Lockett Co. v. Cunard S. S. Co., 21 F.2d 191, 1927 A.M.C. 1057 (E.D.N.Y.1927); improper ventilation of hold, The Rita Sister, 69 F.Supp. 480, 1946 A.M.C. 910 (E.D.Pa.1946). For an example of the technical problems of stowage, see The Norte, 69 F.Supp. 881, 1947 A.M.C. 381 (E.D.Pa.1947).”
      In addition, The Germanic, 196 U.S. 589, 25 S.Ct. 317, 49 L.Ed. 610 (1905), is a leading case finding negligence to cargo; there, the cargo was unloaded in a manner causing the vessel to list and sink.


author: WINTER, Circuit Judge: HAYNSWORTH, Chief Judge

text:
    UNITED STATES of America, Appellee, v. Robert Nathaniel BROWN, Appellant.
    No. 73-2046.
    United States Court of Appeals, Fourth Circuit.
    Argued April 4, 1974.
    Decided July 18, 1974.
    Haynsworth, Chief Judge, dissented and filed an opinion.

      John F. Kelly, Handover, Md. [Court-appointed counsel], for appellant.
    Russell T. Baker, Asst. U. S. Atty. (George Beall, U. S. Atty., on brief), for appellee.
    Before HAYNSWORTH, Chief Judge, and WINTER and CRAVEN, Circuit Judges.
   WINTER, Circuit Judge:

Indicted by a grand jury for forgery and possession of stolen mail matter in violation of 18 U.S.C. §§ 495 and 1708, Robert Nathaniel Brown initially pleaded not guilty to both counts. Thereafter, he entered into a plea bargain whereby he pleaded guilty to the charge of possession in consideration of dismissal of the charge of forgery and a recommendation by the government that he received a sentence of three years to be served at Lorton concurrently with the unexpired portion of a sentence to be served after revocation of parole. He was, instead, sentenced to a term of four years without recommendation that it be served at Lorton.

Because we conclude that the plea bargain was not carried out by the office of the United States Attorney, we vacate the sentence and remand for defendant to be resentenced by another district judge.

I.

After the plea bargain was struck between defendant’s attorney and the prosecutor, the defendant tendered a change of plea from not guilty to guilty on the charge of possession of stolen mail matter. Before accepting the change of plea at rearraignment, the district judge engaged in a thoroughgoing exploration of the voluntariness of defendant’s guilty plea. The terms of the plea bargain were spread upon the record, and they provided that the prosecutor would recommend at sentencing (1) that the court sentence the defendant to a term not to exceed three years, (2) that the court make the sentence run concurrently with an outstanding sentence in the District of Columbia if parole was revoked there, as was expected, (3) that the court sentence the defendant to the District of Columbia’s institution at Lorton, which would determine his eligibility for parole, (4) that the court continue bond pending preparation of the presentence report, and (5) that the forgery count would be nol pressed. After advising the defendant that the court was not bound by the prosecutor’s sentencing recommendations and that the maximum sentence possible was two thousand dollars and/or five years in prison, the district judge heard evidence from the prosecutor and the defendant personally which apparently satisfied him that there was a “factual basis” for the guilty plea. See Rule 11, F.R.Cr.P. He then accepted the guilty plea and ordered a presentence report.

Approximately two months later, at sentencing, a different Assistant United States Attorney appeared for the United States. At that time the following colloquy ensued:

PROSECUTOR: At this time, Your Honor, the Government calls for sentencing the case of the United States of America vs. Robert Nathaniel Brown, Criminal No. 73-0167.
THE COURT: Anything you wish to say, Mr. [prosecutor].
PROSECUTOR: Well, Your Honor, in light of the plea bargaining agreement, the Government at this time is recommending three years incarceration, and we also recommend that if possible the Defendant be incarcerated at the Lorton Reformatory in Virginia.
THE COURT: Why?
PROSECUTOR: Well, Your Honor, that was part of the plea bargaining.
THE COURT: Not because you believe in it ?
PROSECUTOR: Well, Your Honor, I do have some problems with that, anyhow, but that is the way I understand it.
THE COURT: Anything else?
PROSECUTOR: Nothing further.

After defendant’s attorney had presented his argument on sentencing and the defendant had exercised his right of al-locution, the district court sentenced the defendant to four years’ imprisonment, expressly declining to make the arrangements necessary for incarceration at the Lorton Reformatory.

II.

Disposition of this case is governed by Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). As was recognized there, guilty pleas induced by a plea bargain may be accepted by a trial court and a sentence thereon imposed provided that certain substantive principles of fairness are observed and the necessary procedural protections are followed. One substantive safeguard to which a criminal defendant is always entitled is that when a guilty plea “rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Santobello, supra, 404 U.S. at 262, 92 S.Ct. at 499.

In the instant case, we believe that the government failed to keep its bargain. We have no occasion to consider the propriety of sentence, or recommendation as to sentence, as an element of a plea bargain, but it is manifest that the consideration which induced defendant’s guilty plea was not simply the prospect of a formal recitation of a possible sentence, but rather the promise that an Assistant United States Attorney would make a recommendation on sentencing. This could reasonably be expected to be the sound advice, expressed with some degree of advocacy, of a government officer familiar both with the defendant and with his record and cognizant of his public duty as a prosecutor for the United States.

Undoubtedly the district court had this understanding of the role of an Assistant United States Attorney at sentencing when he sought the prosecutor’s recommendation. Certainly he was entirely correct in inquiring into the basis of the recommendation to aid him in the exercise of his sentencing discretion. Whether the prosecutor’s halfheartedness in presenting the recommendation was a factor in the district court’s imposing a sentence more severe than that “recommended” is a matter into which we need not inquire. In Santobello, where one prosecutor had promised not to make a sentencing recommendation at the time of plea bargaining and then another prosecutor had called for the maximum punishment at the time of sentencing, there was a strong, unequivocal statement by the trial judge that his sentence was not affected in any way by the prosecutor’s recommendation but rather was based on a highly adverse presentence report, parts of which he read into the record. Stating that they had “no reason to doubt” the trial judge’s statement “that the prosecutor’s recommendation did not influence him,” the Court nonetheless reversed and remanded, “emphasiz[ing] that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.” 404 U.S. at 262-263, 92 S.Ct. at 499. The question of the effect on the district court of the prosecutor’s noncompliance with the plea bargain was thus deemed irrelevant. The sentence was vacated and the case remanded in the “interests of justice” and in order to enforce “the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty.” 404 U.S. at 262, 92 S.Ct. at 499.

In determining the significance of the prosecutor’s failure to fulfill the promise contained in the plea bargain in Santo-bello, the Supreme Court did not inquire into the reasons for the breach; nor do we. We have no reason to think that the bargain was breached as a result of anything more than the failure of the first prosecutor to inform the second, and the second’s complete candor in responding to the inquiry of the district court. But in Santobello, hinging reversal on the breach of the agreement alone, the Court attached no weight to the fact that the failure to comply with the plea bargain had been inadvertent.

The staff lawyers in a prosecutor’s office have the burden of “letting the left hand know what the right hand is doing” or has done. That the breach of agreement was inadvertent does not lessen its impact. 404 U.S. at 262, 92 S.Ct. at 499.

The test established to be applied by us is thus an objective one — whether the plea bargain agreement has been breached or not — irrespective of prosecutorial motivations or justifications for the failure in performance. We hold that it was. It is true that defense counsel in colloquy with the court purported to present the reasons why defendant’s term should not exceed three years, why he should be confined at Lorton, and why the sentence should be a concurrent one; but, unlike our dissenting brother, we do not think that the statements of defense counsel constituted performance of the agreement by the government. The government effectively undercut the agreement before defense counsel even began to speak.

III.

Having concluded that the plea bargain in the immediate case was breached, we would ordinarily be brought to the question of the appropriate relief on remand. On certiorari from the New York courts, the defendant in Santobello sought an order from the Supreme Court vacating his sentence and allowing him to withdraw his guilty plea so that he might proceed to trial. Though vacating the sentence, the Supreme Court, over sharp dissent, remanded the case to the state courts to permit them to choose whether there should

only ... be specific performance of the agreement on the plea, in which case petitioner should be resen-tenced by a different judge, or whether, in the view of the state court, the circumstances require granting the relief sought by petitioner, i. e., the opportunity to withdraw his plea of guilty. 404 U.S. at 263, 92 S.Ct. at 499.

See also Culbreath v. Rundle, 466 F.2d 730 (3 Cir. 1972).

In the instant case, defendant does not seek to withdraw his guilty plea but only asks the lesser relief of “specific performance” of the plea bargain. We thus have no need to consider a choice of remedies. In the light of defendant’s position, we conclude that a remand for resentencing before a different district judge, after full compliance with the terms of the plea bargain, follows a for-tiori from Santobello.

Reversed and remanded.

HAYNSWORTH, Chief Judge

(dissenting) :

Until oral argument, the principal point in this case was whether, the sentence having been greater than the recommendation, the defendant was entitled to withdraw his guilty plea and go to a trial on a plea of not guilty as provided in the proposed amendment to Rule 11. See, e. g., United States ex rel. Cul-breath v. Rundle, 3 Cir., 466 F.2d 730-735; United States v. Gallington, 8 Cir., 488 F.2d 637. The point was aborted, •however, when defense counsel announced at the oral hearing that he had received positive instructions from the defendant not to seek the right to withdraw his plea. All that remains, then, is an appraisal of the sentencing hearing to determine whether the Government recommended that a sentence of no more than three years be imposed to be served at Lorton in accordance with the plea bargain. Though no principle of law divides us, I am prompted to note my disagreement with the majority out of a sense of fairness to the trial judge and to the prosecutor.

At the hearing when the guilty plea was tendered, the Assistant United States Attorney who negotiated the bargain clearly, correctly, and without reservation stated what the bargain was. If, at the sentencing hearing, a different Assistant United States Attorney may be said to have been halfhearted in making the recommendation because of his inability to answer the judge’s question as to why confinement should be in a facility of the District of Columbia, and his expression of some personal reservation about it, he was not required to stultify himself. If that were all, however, I would agree with the majority because the judge’s question probably should have been anticipated and the Assistant present at the sentencing hearing should have been informed why the Assistant who negotiated the bargain agreed to recommend confinement at Lorton. All of this was fully developed at the sentencing hearing, however, after the colloquy quoted by the majority.

After the prosecutor’s recommendation, the Court was reminded that the bargain had been negotiated by another Assistant United States Attorney, and it was informed in detail why confinement at Lorton had been included as a part of the bargain. First, Lorton was not too far removed from the defendant’s home in the District of Columbia. However, this thirty-seven-year-old man had no family, though it was said that if he were put on probation and the District of Columbia Parole Board did not revoke his parole, he would consider marriage. Second, he wished the District of Columbia Parole Board, alone, to have authority to release him conditionally, and, third, he wished a training program which was available at Lorton. The question which the Court first directed to the prosecutor, who was unable to answer it, was fully answered by defense counsel and the defendant, and the reasons for the bargain fully developed. They were considered by the District Judge and rejected because he was of the opinion that Lorton’s training program was not superior to those available at federal institutions, and he was of the decided opinion that the general rehabilitation services of federal institutions were superior to those available at Lor-ton. It is true that the prosecutor never again spoke up. He did not say, “for the reasons now disclosed, I unreservedly recommend confinement at Lorton for no more than three years,” but the reasons for the recommendations had been developed in a colloquy, largely with defense counsel, and rejected. Any such additional statement by the prosecutor would only have been argumentative.

In light of what transpired after-wards, I think the prosecutor’s initial inability to answer the Court’s inquiry about the recommendation of confinement at Lorton was not a failure of performance of the plea bargain. He knew what the bargain was; he stated the Government recommended its acceptance, and his inability to answer the Court’s inquiry was cured when the reasons supporting the recommendation were fully developed later in the course of the sentencing hearing. Under the circumstances, I cannot conclude that there was a failure of performance of the Government’s agreement.


author: PER CURIAM.

text:
    Donald Barnes BRADLEY, Petitioner-Appellant, v. Henry E. COWAN, Warden, Kentucky State Penitentiary, Respondent-Appellee.
    No. 73-2218.
    United States Court of Appeals, Sixth Circuit.
    Argued June 13, 1974.
    Decided July 30, 1974.
    Donald Cox (Court Appointed), Lynch, Sherman & Fowler, Louisville, for petitioner-appellant.
    Kenneth A. Howe, Jr., Asst. Deputy Atty. Gen., for respondent-appellee; Ed W. Hancock, Atty. Gen., on brief.

      Before PHILLIPS, Chief Judge, and EDWARDS and LIVELY, Circuit Judges.
   PER CURIAM.

This is an appeal by a habeas corpus petitioner from the District Court’s denial of his application.

Petitioner was convicted in a Kentucky trial court in 1967 of the offense of armed robbery and sentenced to life imprisonment. The Court of Appeals of Kentucky affirmed his conviction. Bradley v. Commonwealth, 439 S.W.2d 61 (1969), cert. denied, 397 U.S. 974, 90 S.Ct. 1091, 25 L.Ed.2d 268 (1970). In 1972 petitioner filed a motion to vacate his sentence pursuant to Kentucky Rule of Criminal Procedure 11.42. This motion was denied without an evidentiary hearing by the Kentucky trial court which subsequently was affirmed by the Court of Appeals of Kentucky. Thereafter, petitioner filed his habeas corpus application in the District Court.

In his effort to secure post conviction relief in the Kentucky and federal courts, petitioner advanced numerous contentions. On appeal to this court, petitioner pursues his contentions with respect to (1) the alleged deprivation of effective assistance of counsel and (2) his consent to a search of a hotel room in which incriminating evidence was found.

Petitioner contends that the District Court improperly denied him an eviden-tiary hearing on the issue of effective assistance of counsel. Petitioner alleged specific facts in the District Court to support his claim of collusion between the defense counsel, the assistant Commonwealth Attorney and certain private individuals.

At no stage in earlier proceedings has petitioner been accorded a hearing on this issue. That issue was not raised by petitioner until five years after his conviction and after his counsel had appealed his conviction to the Supreme Court are matters to be considered in weighing the merits of petitioner’s allegations. However, even though the factual averments ultimately may be shown to be completely without foundation, they are sufficient to require an evidentiary hearing.

Accordingly, this case will be remanded to the District Court for an eviden-tiary hearing, as required by Townsend v. Sain, 372 U.S. 293, 312-313, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963).

Unlike the assistance of counsel issue, there is already substantial testimony in the record with respect to petitioner’s alleged consent to the search of a hotel room. The presence of this testimony leads the Attorney General of Kentucky to assert that the dispute with respect to the consent issue is a legal, not a factual, one and, therefore, no hearing is required.

We recognize the rule that where a petition for habeas corpus raises a purely legal issue, no hearing is required. See, e. g., Barker v. Ohio, 330 F.2d 594 (6th Cir. 1964). However, in the circumstances of this case, we cannot conclude that either the state or federal courts have after a full hearing reliably found the relevant facts with respect to the consent issue. Townsend, supra, 372 U.S. at 313, 83 S.Ct. 745.

An evidentiary hearing is already required on remand on the assistance of counsel issue. At this evidentiary hearing, the parties should be permitted to introduce proof with respect to petitioner’s alleged consent to a search of the hotel room in which incriminating evidence was found. The District Court should weigh both the evidence already in the record and any supplemental proof on the consent issue adduced at the evidentiary hearing.

It is well settled that one of the specifically established exceptions to the Fourth Amendment requirements of both a warrant and probable cause is a search conducted pursuant to consent. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973). When a prosecutor seeks to rely upon consent to justify the lawfulness of a search, he has the burden of proving the consent was, in fact, freely and voluntarily given. Bumper v. North Carolina, 391 U.S. 543, 548, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968). Furthermore, consent to a search must be “unequivocal and specific.” Gatlin v. United States, 117 U.S.App.D.C. 123, 326 F.2d 666, 673 (1963), and authorities therein cited.

The judgment of the District Court is reversed. The case is remanded to the District Court for further proceedings not inconsistent with this opinion.