author: DYER, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Walter John MORIARTY, Defendant-Appellant.
    No. 73-3524.
    United States Court of Appeals, Fifth Circuit.
    July 19, 1974.

      P. D. Aiken, Miami Beach, Fla., for defendant-appellant.
    Robert W. Rust, U. S. Atty., Don R. Boswell, Asst. U. S. Atty., Miami, Fla., for plaintiff-appellee.
    Before DYER and MORGAN, Circuit Judges, and KRAFT, District Judge.
   DYER, Circuit Judge:

Moriarty appeals from his jury conviction of possession of and trafficking in contraband in violation of 21 U.S.C.A. § 841(a)(1). His contentions on appeal are threefold: (1) that the hearsay testimony of the Government’s rebuttal witness with respect to Moriarty’s entrapment defense was both false in nature and incurably tainted by a violation of the court’s order sequestrating witnesses; (2) that the court abused its discretion by denying Moriarty’s motion for a continuance; and (3) that the court erred in giving the Allen charge upon the jury’s advising that it was “hung.” We affirm.

The outcome of Moriarty’s trial rested principally upon the issue of entrapment vel non, inasmuch as the critical facts were in large measure undisputed. The evidence demonstrated that Moriarty had initially met a Government informer, Bevilacqua, in entirely fortuitous and innocent circumstances in early June 1973 when Moriarty picked up Bevilacqua while the latter was hitchhiking. From this origin, the relationship flourished due, as Moriarty sees it, to the appellant’s altruistic concern for Bevilaequa’s distressed circumstances. Eventually, Bevilacqua requested his philanthropic confidant to procure cocaine for a relative who would soon arrive in town. Moriarty initially demurred, but finally acquiesced in the face of Bevilaequa’s repeated petitioning.

By prior arrangement, Moriarty, accompanied by a girl friend, Susan King, rendezvoused with Bevilacqua on July 10, 1973, at which time Bevilacqua introduced Moriarty to a law enforcement officer, Dietrich, who was posing as the out-of-town relative. Moriarty protested the outsider’s presence, indicating that he had intended to do business with Bevilacqua alone, but soon relented to Dietrich’s intrusion. The parties then got into Moriarty’s car, and while driving around the neighborhood consummated the transaction with Dietrich paying over $1,700 to Moriarty in exchange for two ounces of cocaine. Upon completing the deal, Dietrich placed Moriarty and King under arrest.

On the morning of trial, September 4, 1973, counsel for Moriarty and King moved for a continuance so that King could employ separate counsel and thereby obviate any possible conflict of interest on the part of counsel arising from the co-defendants’ assertion of inconsistent defenses. Despite misgivings over the eleventh-hour nature of this request, the district court granted the motion and rescheduled the trial, with counsel’s concurrence, for September 10. On September 5, Moriarty’s counsel unsuccessfully moved for another continuance on the ground of the impending absence of two defense witnesses. The motion was renewed on the morning of trial but was again denied. In the course of relating the reasons warranting a continuance, counsel for Moriarty indicated that one witness had left the country on vacation, that Moriarty had known of the witness’ upcoming trip but felt he could be induced to stay or else another continuance could be obtained, that counsel was fearful of inconveniencing the witness by forcing him to cancel the trip, and thus no subpoena was ever issued. No explanation was given with respect to the second witness, who was apparently in St. Louis at the time, other than that counsel was “trying” to get in touch with him. Counsel indicated that these two witnesses could corroborate Moriarty’s anticipated testimony to the effect that Bevilacqua had constantly hounded him by placing numerous telephone calls to Moriarty’s various quarters.

The trial proceeded as scheduled with Moriarty testifying in his own defense that, although he did illicitly transact business with Dietrich, he was entrapped by virtue of Bevilacqua’s incessant demands for cocaine. In addition to the testimony of Bevilacqua and Dietrich in its case-in-chief, the Government called as a rebuttal witness Officer McDonald, who testified that on a previous occasion he had been told by an informant that Moriarty was a dealer in cocaine and that pursuant .to this information, McDonald and the informant unsuccessfully sought to buy contraband from Moriarty. Moriarty objected to this line of questioning solely on grounds of hearsay, although counsel also elicited on cross-examination an admission by McDonald that he had conversed with Officer Dietrich with respect to his forthcoming testimony, even though Dietrich was fully aware that the rule of sequestration of witnesses was in effect. This latter point of alleged error was subsequently made a basis of Moriarty’s motion for a new trial, which was denied.

Upon completion of the trial, the jury retired for deliberations but soon advised the court that it was “hung.” The court thereupon gave the Allen charge to the jury, which shortly thereafter returned a verdict of guilty.

TESTIMONY OF OFFICER McDonald

Moriarty attacks the rebuttal testimony of Officer McDonald on various grounds. Although recognizing the hearsay evidence is admissible to prove predisposition when an accused interposes the defense of entrapment, see, e. g., United States v. McKinley, 5 Cir. 1974, 493 F.2d 547, 552; United States v. Simon, 5 Cir. 1973, 488 F.2d 133, 134; United States v. Stills, 5 Cir. 1973, 476 F.2d 592, 593, Moriarty protests that this hearsay evidence was proven false by McDonald’s own testimony, that the testimony in any event was the poisoned fruit of flagrant violations of the sequestration rule by McDonald’s conversing with Officer Dietrich, and that even if admissible, this suspect testimony was insufficient to prove Moriarty’s predisposition beyond a reasonable doubt. We find none of these contentions persuasive.

First, the hearsay statements were in no sense proven “false” by McDonald’s further testimony about events of which he had personal knowledge. The general tip that Moriarty trafficked in narcotics was simply not rendered inaccurate by Moriarty’s subsequent refusal to transact business with two particular individuals on a single occasion. Indeed, McDonald testified that Moriarty, far from disclaiming any knowledge of narcotics dealing on the earlier occasion, simply excused himself from entering into any negotiations because of the presence of friends in the house, and referred McDonald and his cohort to a known cocaine dealer to supply their needs. How Moriarty’s conduct in this regard rendered erroneous the hearsay testimony with respect to the underlying tip is not easily discerned.

As to Moriarty’s contention concerning the sequestration violation, it is imperative to note that McDonald was a last-minute witness who never received the court’s sequestration admonition. In fact, McDonald’s possible role in the trial appears to have been completely unknown to the prosecutors until Moriarty testified in support of his entrapment claim that Dietrich himself had previously attempted to beguile him into a narcotics transaction. The prosecutors’ impromptu investigation of Moriarty’s testimonial allegations revealed that Officer McDonald, not Dietrich, had made this earlier contact, and McDonald was, accordingly, brought in as a rebuttal witness. Hence, it is by no means clear that McDonald himself intentionally abridged the rule. In addition, McDonald testified that Dietrich, in discussing the case with McDonald, never indicated the substance of his own prior testimony and confined himself to McDonald’s anticipated testimony.

Even if we were to find a violation of the rule, it nonetheless does not ineluctably follow the McDonald’s testimony was inherently inadmissible, even though unobjected to by Moriarty on this basis at the time, or so patently offensive as to necessitate a new trial. Violation of the sequestration rule does not ipso facto bar further testimony, for as this Court has consistently held: [W]hether such a witness is to be permitted to testify is generally left to the sound discretion of the trial court. . ” United States v. Suarez, 5 Cir. 1973, 487 F.2d 236, 238, cert. denied, 1974, 415 U.S. 981, 94 S.Ct. 1572, 39 L.Ed.2d 878. Suarez is of considerable relevance because there we sustained the district court’s refusal to exclude such testimony even though important substantive statements were actually changed by the witness’ post-violation testimony. Here no indication of any kind suggests an alteration of McDonald’s testimony to reflect Dietrich’s purported coaching. Moreover, unlike cases relied upon by Moriarty, McDonald’s rebuttal testimony, albeit helpful to the Government, was by no means crucial to the case, compare United States v. Nazzaro, 2 Cir. 1973, 472 F.2d 302, 312 n. 12, in the sense that no conviction would have been obtained absent McDonald’s testimony. For we recently held that even where no other evidence is adduced than an informant’s testimony, this alone can be sufficient to prove a defendant’s predisposition to commit crime. United States v. Mitchell, 5 Cir. 1974, 493 F.2d 9, 10. Thus, the Mitchell rule amply rebuts Moriarty’s third argument that McDonald’s hearsay testimony alone cannot satisfy the Government’s burden of proving predisposition, for by crediting Bevilacqua’s testimony, the jury could properly find sufficient proof of predisposition.

MOTION FOR CONTINUANCE

Moriarty also argues that the court improperly denied his second request for a continuance since his motion was grounded on the unavailability of key defense witnesses. He asserts that the court’s inconvenience in granting another continuance was minimized by the brief time necessitated to try this straight-forward narcotics case and was greatly outweighed by the critical nature of the witnesses’ proposed testimony. We are unconvinced.

It is beyond dispute that the disposition of a motion for continuance rests in the discretion of the district court and that our review is accordingly limited to determining whether an abuse of discretion infected the district court’s denial. See, e. g., United States v. Casey, 5 Cir. 1973, 480 F.2d 151, 152; United States v. Bolton, 5 Cir. 1971, 438 F.2d 1219, 1220; United States v. Pierce, 5 Cir. 1969, 411 F.2d 678. A variety of factors persuades us that the court’s action was entirely proper. First, Moriarty failed to evince the requisite diligence in securing the attendance of these witnesses. See Neufield v. United States, 1941, 73 App.D.C. 174, 118 F.2d 375, 380, cert. denied, 1942, 315 U.S. 798, 62 S.Ct. 580, 86 L.Ed. 1199. No subpoenas were ever issued to require their attendance, inasmuch as Moriarty was relying instead upon his powers of persuasion to stall their departure or alternatively upon the court’s indulgence in granting a second continuance if his efforts were unsuccessful. This mere expectancy of success in producing witnesses is too weak a reed to rest on, particularly in light of the fact that the Government and the court had already been inconvenienced by the granting of the first, and similarly belated, request for a continuance. Second, even if Moriarty had displayed great diligence in bringing about the witnesses’ attendance, their anticipated testimony was purely corroborative in nature, in that each would testify, according to Moriarty, that Bevilacqua had undertaken prodigious efforts to contact Moriarty on various occasions. Importantly, Moriarty himself testified to this effect, and his testimony was not substantially contradicted by any of the Government’s witnesses. The value of this testimony thus seems marginal at best. Third, Moriarty was unable to indicate precisely when either witness would be available, since his counsel had simply been “trying” to obtain the St. Louis-based witness, and since the exact date of the other witness’ return from an overseas vacation was unknown. Fourth, Moriarty expressly agreed to the rescheduled trial date and assured the court that his witnesses would be available for whatever time the court chose to reset the trial. Under these circumstances, there was no abuse of discretion in denying the continuance request.

ALLEN CHARGE

Finally, Moriarty requests this court to reconsider its recent reaffirmation of the Allen charge under the circumstances of this case. See United States v. Bailey, 5 Cir. 1973, 480 F.2d 518. Bailey has settled the Allen charge issue in this Circuit, and Moriarty’s attempted resurrection of the matter by asking us to reverse this Court’s en banc decision is meritless.

Affirmed.

      . Co-defendant Susan King, the fourth member of the party, handed over a bank deposit bag containing the contraband to Dietrich at Moriarty’s request and counted the money while Dietrich examined the cocaine. Proof of the extent of her involvement led the district court to grant King’s motion for acquittal during the course of the defense’s case.


source: Caselaw Access Project

author: RONEY, Circuit Judge:

license: Public Domain

text:
    Juanita McCLURE, Plaintiff-Appellant, v. The FIRST NATIONAL BANK OF LUBBOCK, TEXAS, et al., Defendants-Appellees, Gaines County Developments, Defendant-Appellant.
    No. 73-1376.
    United States Court of Appeals, Fifth Circuit.
    July 22, 1974.
    Rehearing and Rehearing Era Banc Denied Oct. 7, 1974.

      Harold D. Hammett, Fort Worth, Tex., for McClure & Gaines.
    James H. Milam, Lubbock, Tex., for First Nat’l.
    Michael R. Waller, Houston, Tex., for Emens.
    Thos. Jefferson Griffith, Lubbock, Tex., for Hanslik.
    Before BELL, COLEMAN and RO-NEY, Circuit Judges.
   RONEY, Circuit Judge:

There are two issues in this 10b-5 securities fraud case: first, whether the promissory note given together with a trust deed for a bank loan is a security controlled by the federal securities acts, and second, whether the pledge of corporate stock for renewal of the bank loan constituted a sale within the meaning of the securities law. On a motion to dismiss, the District Court held that under the allegations of fact in the complaint, neither the execution and delivery of the promissory note nor any of the associated transactions, which included the pledge of stock, constituted a sale of a security within the meaning of the Securities Exchange Act of 1934. The Court, therefore, dismissed the complaint for lack of subject matter jurisdiction. 352 F.Supp. 454 (N.D.Tex.1973). We affirm.

The facts are fully set forth in the District Court opinion. Briefly, plaintiff Juanita Hanslik McClure was taken advantage of by her ex-husband, Adolph Hanslik, who has been discharged in bankruptcy so that any financial relief available to her must come from the First National Bank of Lubbock, Texas, and its vice-president and loan officer, Sterling Emens, Jr. The fraud theory against these two defendants is based on a $200,000 loan made by the Bank to a corporation, Gaines County Developments (GCD), which was half owned by Mrs. McClure. The stock had been divided between her and her husband in a domestic property settlement. Suing individually and derivatively on behalf of GCD, Mrs. McClure alleges that Hanslik and Emens on representations of corporate need, obtained her consent to the loan from the Bank to GCD on a one-year promissory note and a deed of trust on corporation land, but then used the $200,000 to repay unsecured personal debts of Hanslik to the Bank, rather than to pay corporate obligations. Hanslik gave his worthless personal note to the corporation for funds that he had thus diverted to his personal obligations. The Bank subsequently extended the one-year note but required Mrs. McClure to pledge her corporate stock as additional collateral. With the note unpaid, the Bank eventually foreclosed on the corporation’s land, its only substantial asset, so that even though not foreclosed, the pledged stock in the corporation became essentially worthless.

Since this case comes to us for review of a dismissal of a complaint on jurisdictional grounds, we do not reach factual issues and need not concern ourselves with whether actionable fraud is alleged in the complaint either under federal securities law or under state law. Fraud is assumed for the purpose of this review. If the District Court had jurisdiction of the subject matter of the complaint, the case would have to be remanded for full development of the facts and issues surrounding these transactions. Subject matter jurisdiction must be found, if at all, under section 10(b) of the Securities Exchange Act of 1934, 15 U.S.C.A. § 78j(b), and SEC Rule 10b-5, 17 C.F.R. § 240.10b-5 (1973). The decision as to whether the Court had subject matter jurisdiction turns on whether under the facts of this case there was a purchase or sale of a security within the meaning of the Act.

I.

The first question is whether the note given to the Bank for the loan is a security within the meaning of the Act. Although the Securities Exchange Act of 1934 provides that the term security means “any” note, judicial decisions have restricted the application of the Act to those notes that are investment in nature and have excluded notes which are only reflective of individual commercial transactions. The path laid down by these decisions is not entirely clear because of the difficulty in expressing in judicial opinions the characteristics of those note transactions to which the term “any note” does not apply. The authorities are reasonably consistent, however, in holding that the Act does not cover all notes. A review of the decisions convinces us that the notes executed and delivered to the Bank are the kind that are not covered. Indeed, the way to this decision has been clearly indicated by a recently published opinion by Judge Walter P. Gewin, writing for another panel of .this Court, which says that the reasoning of the District Judge in this case is compelling. Bellah v. First National Bank, 495 F.2d 1109 (5th Cir. 1974). We, of course, are bound only by the holding of other panels, not by the language of the opinions, but we believe that it would take en banc consideration for our Court now to hold that these notes are covered by the Act in the face or that decision.

In Bellah, the Court had under consideration a 10b-5 fraud complaint brought by two individuals against a bank which had renewed prior credit to them upon execution of a new promissory note and a deed of trust. Since the notes were of a six-month duration, the Court was considering whether the exemption in the Act of “any note . . . which has a maturity at the time of issuance of not exceeding nine months” should be applied. 15 U.S.C.A. § 78c(a)(10). Finding that judicial decisions had modified the exemption of “any” such note to exclude only so-called commercial notes, and not investment notes, the Court was compelled to determine whether the promissory note and deed of trust executed in favor of a bank for funds loaned for use in the borrowers livestock business were issued in the context of a commercial loan transaction and “beyond the purview of the Act.” 495 F.2d 1114.

Although not all of the securities eases dealing with notes can be brought into line, analysis of the factual situations upon which the various cases were decided supports our holding that in this case the note falls outside of the purview of the Act. The cases excluding certain notes from the coverage of the Act generally involved underlying transactions between payor and payee which were not of an investment nature. See Bellah v. First National Bank, 495 F.2d 1109 (5th Cir. 1974) (renewal note for bank loan intended to aid borrowers in operation of livestock business); Lino v. City Investing Co., 487 F.2d 689 (3d Cir. 1973) (note given for franchise rights); Janssen v. Tri-Pac Development Corp., Civil No. 72-1200 (E.D.Pa., Dec. 1, 1972) (note executed to purchase personal residence); Joseph v. Norman’s Health Club, Inc., 336 F.Supp. 307 (E.D.Mo.1971) (promissory notes issued in return for lifetime health club memberships); City National Bank v. Vanderboom, 290 F.Supp. 592 (W.D.Ark.1968), aff’d, 442 F.2d 221 (8th Cir.), cert. denied, 399 U.S. 905, 90 S.Ct. 2196, 26 L.Ed.2d 560 (1970) (corporate organizers gave notes for bank loans to purchase corporation’s capital stock); SEC v. Fifth Avenue Coach Lines, Inc., 289 F.Supp. 3 (S.D.N.Y.1968), aff’d, 435 F.2d 510 (2d Cir. 1970) (corporate note used to satisfy one insider’s personal obligations to others); Beury v. Beury, 127 F.Supp. 786 (S.D.W.Va.1954), appeal dismissed, 222 F.2d 464 (4th Cir. 1955) (loan made by defendant as president of one company to self as president of another; no indication whether evidenced by note).

On the other hand, where notes have been deemed securities within the meaning of the securities laws, either of two factors, not present here, usually indicated the investment overtones of the underlying transactions. First, in this case, only the Bank and GCD were involved in the execution of documents related to a commercial loan. GCD’s notes were neither offered to some class of investors, nor were they acquired by the Bank for speculation or investment. See Sanders v. John Nuveen & Co., 463 F.2d 1075 (7th Cir.), cert. denied, 409 U.S. 1009, 93 S.Ct. 443, 34 L.Ed.2d 302 (1972) (securities broker sold short-term open market commercial paper to customers); Farrell v. United States, 321 F.2d 409 (9th Cir. 1963), cert. denied, 375 U.S. 992, 84 S.Ct. 631, 11 L.Ed.2d 478 (1964) (trust deeds and trust notes sold to general public in so-called “Secured 10% Earnings Program”); Llanos v. United States, 206 F.2d 852 (9th Cir. 1953), cert. denied, 346 U.S. 923, 74 S.Ct. 310, 98 L.Ed. 417 (1954) (promissory notes given in exchange for funds solicited for scheme to wager on “fixed” volleyball game); Hall v. Security Planning Service, Inc., 371 F.Supp. 7 (D.Ariz.1974) (development corporation sold mortgages and mortgage notes executed by land purchasers to thousands nationwide); SEC v. Crofters, Inc., 351 F.Supp. 236 (S.D.Ohio 1972), rev’d on other grounds sub nom. SEC v. Coffey, 493 F.2d 1304 (6th Cir. 1974) (private corporation's 2-year notes purchased with State’s investment funds); SEC v. Thunderbird Valley, Inc., 356 F.Supp. 184 (D.S.D.1973) (corporate notes sold to general public); United States v. Hill, 298 F.Supp. 1221 (D.Conn.1969) (corporate notes sold to general public); Anderson v. Francis I. duPont & Co., 291 F.Supp. 705 (D.Minn.1968) (notes given to general public for funds to be used in a commodities trading investment pool); SEC v. Gulf Intercontinental Finance Corp., 223 F.Supp. 987 (S.D.Fla.1963) (that notes advertised and sold to general public were securities not questioned by parties); SEC v. Addison, 194 F.Supp. 709 (N.D.Tex.1961) (notes and other securities sold to general public allegedly to finance mining operations); SEC v. Los Angeles Trust Deed & Mortgage Exchange, 186 F. Supp. 830 (S.D.Cal.), modified as to remedy, 285 F.2d 162 (9th Cir. 1960), cert. denied, 366 U.S. 919, 81 S.Ct. 1095, 6 L.Ed.2d 241 (1961) (trust deed notes sold to investors in “10% Earnings Program”); Schamber v. Aaberg, 186 F.Supp. 52 (D.Colo.1960) (stock and promissory notes payable out of production sold to investors in two states); SEC v. Vanco, Inc., 166 F.Supp. 422 (D.N.J.1958), aff’d, 283 F.2d 304 (3d Cir. 1960) (corporate notes and stock interests offered to shareholders of related publicly held corporation); cf. Lehigh Valley Trust Co. v. Central National Bank, 409 F.2d 989 (5th Cir. 1969) (loan participation agreement sold by one bank to another was “certificate of participation” in note).

Second, in the case at bar, the Bank ostensibly extended its loan so that GCD might pay off its business debt. Thus, GCD did not obtain investment assets, directly or indirectly, in exchange for its notes. See Rekant v. Desser, 425 F.2d 872 (5th Cir. 1970) (real estate corporation issued note and stock to obtain land for subdivision); Alberto-Culver Co. v. Scherk, 484 F.2d 611 (7th Cir. 1973), rev’d on other grounds,-U.S.-, 94 S.Ct. 2449, 40 L.Ed.2d - (1974) (corporate note issued in purchase of foreign business entities); Movielab, Inc. v. Berkey Photo, Inc., 452 F.2d 662 (2d Cir. 1971) (corporation issued promissory notes in exchange for assets of film processing and optical businesses); Ingenito v. Bermec Corp., 376 F.Supp. 1154 (S.D.N.Y.1974) (new notes containing different terms substituted for original notes given for tax sheltered cattle and cattle management contracts); Davis v. Avco Corp., 371 F.Supp. 782 (N.D.Ohio 1974) (notes given for loan to be used to buy into a pyramid distribution scheme with which finance company was associated); Olympic Capital Corp. v. Newman, 276 F.Supp. 646 (C.D.Cal.1967) (that note evidencing debt to small business investment company was security not questioned by parties); cf. MacAndrews & Forbes Co. v. American Barmag Corp., 339 F.Supp. 1401 (D.S.C.1972) (bills of exchange issued for industrial machinery a form of notes subject to the Act.)

We realize that our holding today that the Act does not apply to commercial notes of a longer duration than nine months, taken with the decisions voiding the short-term exemption as to investment paper, virtually writes that exemption out of the law. On one hand, the Act covers all investment notes, no matter how short their maturity, because they are not encompassed by the “any note” language of the exemption. On the other hand, the Act does not cover any commercial notes, no matter how long their maturity, because they fall outside the “any note” definition of a security. Thus, the investment or commercial nature of a note entirely controls the applicability of the Act, depriving of all utility the exemption based on maturity-length. The original scrivener of the definitional section may well wonder what happened to his carefully drawn exemption on the way to the courthouse, but if the judicial decisions do not properly reflect the intent of Congress as to the coverage of the Act, only that body can properly rectify the situation at this point, if stare decisis is to apply and the Supreme Court does not make some definitive decision contrary to the presently decided eases.

II.

Mrs. McClure’s second argument is that her pledge of her stock in consideration for the Bank’s renewal of the GCD loan was a “sale of any security” protected by the anti-fraud provisions of section 10(b) of the Securities Exchange Act and SEC Rule 10b-5. We do not doubt that a pledge of securities can constitute a “sale” in some cases, but we hold that the pledge was not a sale in the circumstances of this case.

The securities acts have as their fundamental purpose the protection of investors. To this end they are designed to “substitute a philosophy of full disclosure for the philosophy of caveat em/ptor and thus achieve a high standard of business ethics in the securities industry.” Affiliated Ute Citizens v. United States, 406 U.S. 128, 151, 92 S.Ct. 1456, 1471, 31 L.Ed.2d 741 (1972), quoting SEC v. Capital Gains Research Bureau, Inc., 375 U.S. 180, 186, 84 S.Ct. 275, 11 L.Ed.2d 237 (1963). A commercial bank in accepting a pledge of stock as additional consideration for the extension of an overdue commercial loan does not necessarily affect the securities industry. A commercial bank’s business is lending money not trading in securities. Cf. Bronner v. Goldman, 361 F.2d 759 (1st Cir.), cert. denied, 385 U.S. 933, 87 S.Ct. 295, 17 L.Ed.2d 214 (1966) (factor selling pledged stock not a “broker” or “dealer”). If the bank sells stock pledged as loan collateral, it might than be subjected to liability in connection with the sale if it does not meet the requirements of the anti-fraud provisions of the securities acts, but mere acceptance of a stock pledge as collateral in a privately negotiated transaction between borrower and lender does not, of itself, bring within the scope of the federal securities acts a transaction otherwise outside their purview. See 1 L. Loss, Securities Regulation 649 (2d ed. 1961).

The cases relied upon by Mrs. McClure, SEC v. Guild Films Co., 279 F.2d 485 (2d Cir.), cert. denied, 364 U.S. 819, 81 S.Ct. 52, 5 L.Ed.2d 49 (1960); SEC v. Pig’n Whistle Corp., 359 F.Supp. 219 (N.D.Ill.1973); SEC v. National Bankers Life Insurance Co., 334 F.Supp. 444 (N.D.Tex.1971), aff’d, 477 F.2d 920 (5th Cir. 1973); and American Bank & Trust Co. v. Joste, 323 F.Supp. 843 (W.D.La.1970), do not mandate a contrary conclusion. Except for joste, these eases involved the question of whether a pledge of unregistered stock is a sale for purposes of section 5 of the Securities Act of 1933, 15 U.S.C.A. § 77e. In the framework of that section, the pledge of unregistered stock as loan collateral is a “sale” because it causes the bank to become an “underwriter” when it forecloses and sells the unregistered securities. SEC v. National Bankers Life Insurance Co., 324 F.Supp. 189, 194 (N.D.Tex.), aff’d mem., 448 F.2d 652 (5th Cir. 1971). See also 1 L. Loss, Securities Regulation 645-651 (2d ed. 1961). In this context, it is significant that, unlike the case at bar, each of the section 5 cases involved sale of the pledged stock by the pledgee after the pledgor defaulted. Joste, too, although an action brought under an anti-fraud provision of the 1933 Act, 15 U.S.C.A. § 77l, is distinguishable on the ground that the bank therein sold the pledged stock upon default. On the other hand, in this case the Bank did not foreclose on Mrs. McClure’s pledged stock and did not sell it. Title to it remains in Mrs. McClure. Under these circumstances, her pledge did not constitute a “sale” of her stock within the meaning of section 10(b) of the 1934 Act and of Rule 10b-5. Cf. Herpich v. Wallace, 430 F.2d 792, 812 (5th Cir. 1970) (guarantor of pledgor not “purchaser” of pledged stock where inter alia no allegation of foreclosure).

Affirmed.

      . A number of the note cases were decided under the Securities Act of 1933, 15 U.S.C.A. § 77a et seq., rather than under Mrs. McClure’s asserted jurisdictional predicate, the Securities Exchange Act of 1934. For present purposes the distinction is of little moment. In spite of occasional differences in wording, the definitions of “security” in the two Acts are functionally equivalent. See Tcherepnin v. Knight, 389 U.S. 332, 335-336, 88 S.Ct. 548, 19 L.Ed.2d 564 (1967). See also 2 L. Loss, Securities Regulation 795-796 (2d ed. 1961); 5 id., 2729 (Supp.1969).

      . The two factors identified here are not necessarily the only ones appropriate for consideration. See generally Comment, Commercial Notes and Definition of ‘Security’ Under Securities Exchange Act of 1934: A Note is a Note is a Note?, 52 Neb.L.Rev. 478, 510-524 (1973). Each case must turn on “the complete context of each transaction.” Lino v. City Invg. Co., 487 F.2d 689, 696 n. 15 (3d Cir. 1973).

      . Four oases do not fit easily into the foregoing classification of cases. See Zeller v. Bogue Elec. Mfg. Corp., 476 F.2d 795 (2d Cir.), cert. denied, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973) (corporation’s note issued to evidence open account indebtedness to partly owned subsidiary); Young v. Seaboard Corp., 360 F.Supp. 490 (D.Utah 1973) (defendants caused bank to collapse by inducing it to make uncollectible loans for which notes were given); Prentice v. IIsu, 280 F.Supp. 384 (S.D.N.Y.1968) (defendant’s notes exchanged for advances for expenses of retrieving assets to be invested in plaintiff’s corporation); Whitlow & Assocs. v. Intermountain Brokers, Inc., 252 F.Supp. 943 (D.Hawaii 1966) (deposit with unsuccessful application for loan commitment “in connection with” sale of security). In Zeller, the Second Circuit accepted the distinction between commercial and investment notes but held that the controlled subsidiary stood in the position of an at least involuntary investor in the parent as the result of the advances the parent had caused it to make. 476 F.2d at 800.


author: SIMPSON, Circuit Judge:

text:
    Fred Arispe CRUZ, Plaintiff-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Defendant-Appellee.
    No. 72-3701.
    United States Court of Appeals, Fifth Circuit.
    July 19, 1974.
    Herman Schwartz, Edward I. Koren, Amherst, N. Y., for plaintiff-appellant.
    John L. Hill, Atty. Gen., Max P. Flusche, Jr., Asst. Atty. Gen., Austin, Tex., for defendant-appellee.

      Before WISDOM, COLEMAN and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

The appellant Fred A. Cruz, then a Texas prison inmate, sued Dr. Beto, the Director of the Texas Department of Corrections in federal district court in May 1970, seeking injunctive, declaratory, and pecuniary relief. Jurisdiction was alleged under Title 28, U.S.C. Sec. 1343, and Title 42, U.S.C. Sec. 1983. The district court dismissed the petition without hearing. Cruz v. Beto, S.D.Tex.1970, 329 F.Supp. 443. We affirmed per curiam, Cruz v. Beto, 5 Cir. 1971, 445 F.2d 801. The Supreme Court of the United States granted Cruz’s petition for writ of certiorari, vacated our judgment and remanded the cause to the district court for a hearing and appropriate findings. Cruz v. Beto, 1972, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263.

Upon remand the district court on June 22, 1972, again dismissed the action without a hearing and without notice, by an order stating merely that “[I]t appearing that the Petitioner has been released from confinement, the questions raised are moot and the action dismissed.”

Petitioner had been represented by counsel in this court and before the Supreme Court, but apparently was no longer. He responded to the district court’s dismissal order by pro se “Motion to Alter or Amend Judgment and/or for Correction of Judgment or Order”; assertedly under Rules 59(a) and 60(b) of the Federal Rules of Civil Procedure. This motion urged that the proceedings were not mooted by Cruz’s release from prison inasmuch as (1) the original complaint’s demand for damages survived his release from confinement and (2) the complaint was filed as a class action, under Rule 23(b)(2), Federal Rules of Civil Procedure, and plaintiff was entitled to a hearing to determine the propriety of the class action and his right to represent the class. This motion was denied below, again without a hearing, by a minute entry which is set forth in the margin.

Cruz pro se filed timely notice of appeal and sought leave to appeal in forma pauperis, which the lower court denied. Upon our granting such leave, Cruz’s appeal was perfected and orally argued by counsel. We reverse the judgment appealed from and remand for a hearing below, for reasons briefly indicated.

Cruz’s original petition was filed pro se, written on toilet paper. After the action was transferred to the Southern District of Texas, counsel volunteered and were granted leave to represent him. The Amended Complaint filed by such counsel sought relief for plaintiff and the class he purported to represent (1) by declaratory judgment, declaring that the regulations and customs of the Texas Department of Corrections deprived plaintiff and his class of equal protection and due process Fourteenth Amendment rights (a) by preventing their engaging in the free exercise and full enjoyment of the Buddhism religion including the right to hold religious services in prison, and to attend such services with other prisoners of the same faith; (b) by preventing them from conducting legal research in the privacy of assigned quarters including the right to have their own legal books and records available for study and research in said quarters; and (c) by preventing their receiving newspapers, magazines and educational material, while in isolation as opposed to solitary confinement; and (2) for injunctive relief as authorized by Title 42, U.S.C. Sec. 1983 restraining discrimination against plaintiff and his class for violation of the constitutional rights covered by the declaratory judgment.

Additionally, the complaint sought money damages under Sec. 1983 for plaintiff’s claimed injury, resulting from the deprivation of such rights.

The appellees assert that since no specific reference is made thereto by the Supreme Court’s per curiam opinion, the question of money damages is no longer in the case, insisting that the remand was for consideration only of the claims for declaratory and injunctive relief. Much the same significance is attached to the Supreme Court’s failure to discuss the class action aspect of the amended complaint. It follows then, we are told, that nothing remained to be litigated when Cruz was released from confinement before the Court’s mandate reached the district court.

In an effort to bring as much light as possible to bear on this claim, we requested from counsel and were furnished copies of the petition for certiorari addressed to the Supreme Court in October 1971 by volunteer counsel from the Mexican-American Legal Defense and Educational Fund, Inc.

The result of this examination is somewhat less than conclusive. The petition did not address itself in terms to the claim for pecuniary damages. On the other hand it did discuss the rights assertedly denied in terms of their being withheld from more than the single petitioner: the denial of privileges extended to inmates of other faiths; the imposition of punishment on religious grounds and for exercising religious practices; the denial of access to legal materials, and the right of access to news of the world.

We hold that the Supreme Court did not, sub silentio or otherwise, eliminate the claim of Cruz for money damages and further that it did not reject the class action aspect of the complaint. Nor are we persuaded that elimination of either claim occurred by reason of the indefinite terms in which the petition for certiorari was framed. The petition for certiorari and the per curiam reversal as well dealt primarily with getting the case back into court for adjudication. Precise delineation of the scope of the relief sought or available was not in either instance of particular concern.

The claim for money damages for violation of appellant’s civil rights was not rendered moot by Cruz’s release from confinement. Simmons v. Wainwright, 5 Cir. 1972, 462 F.2d 1340, footnote 1; United States ex rel. Jones v. Rundle, 5 Cir. 1971, 453 F.2d 147; cf. Tolbert v. Bragan, 5 Cir. 1971, 451 F.2d 1020. Nor was the district court justified in rejecting this claim as he did, without a hearing, as “frivolous”. See note 4, supra.

Further, determination as to whether the suit should be maintained as a class action under Rule 23, F.R.Civ.P., and Cruz’s right to act for the class as fairly representative of the members thereof and able adequately to protect their interests should not have been undertaken without a hearing. See Huff v. N. D. Cass Co., 5 Cir. en banc 1973, 485 F.2d 710, where he examined the applicable standards, and held that such determination usually should be predicated on more information than the complaint itself affords. This case presents a clear example of circumstances where a preliminary evidentiary hearing should be held. Whether or not present counsel will continue to represent the class should be considered, whether or not funds are needed, and if so are available to provide individual notice to identifiable class members, and like matters need resolution by findings entered after a hearing, and, if discovery is found to be necessary or helpful, after discovery as well. If the lack of counsel is the sole impediment to Cruz being permitted to represent the class, consideration should be given to the appointment of counsel.

The orders appealed from, entered June 22, 1972 and July 12, 1972 are reversed and this cause is remanded for further proceedings in the district court not inconsistent herewith.

Reversed and remanded.

      . The suit, originally filed in the Eastern District of Texas was transferred to the Southern District of Texas when Cruz was transferred within the Texas penal system from Tyler in the Eastern District to an institution near Houston in the Southern District. As noted in the text, infra, he has now been released from confinement.

      . Cruz’s pro se petition also alleged jurisdiction under Title 28, U.S.C. Sec. 2201, the federal declaratory judgment act, which is of course not a jurisdictional statute, but simply provides a remedy in cases where federal jurisdiction is otherwise present. On the prior appeal to this court and in the Supreme Court of the United States the case has been treated as a Sec. 1983 Civil Rights action, as to which jurisdiction attaches under Title 28, U.S.C. Sec. 1343.

      . The class described comprised “a substantial number of prisoners in the Texas Department of Corrections who either are adherents of the Buddhist faith or who wish to explore the gospel of Buddhism.”

      . “July 12, 1972: Petitioner’s Motion to Alter or Amend Judgment, etc., filed July 5, 1972, is denied. In the event the petition filed pro se by plaintiff (on toilet tissue) purports to constitute a class action, I am of the view that the class which he purports to represent (Buddhists, confined by the Texas Department of Corrections) is not so numerous that joinder of all members would be impracticable. I likewise am of the view that petitioner would not fairly and adequately protect the interest of the class acting pro se and without benefit of counsel, as he is.
      Insofar as he seeks actual damages, I would consider the claim frivolous.”

      . Before the case reached an oral argument calendar, one panel of this court denied the appellee’s motion to dismiss the appeal, and a separate panel denied a motion by appellant for summary reversal.

      . Mexican American Legal Defense and Educational Fund.

      . The named defendants in the amended complaint were Dr. Beto, the Director of the Department of Corrections and Z. E. Harrison, Warden of the Eastham Unit of the Department of Corrections. At some point and for some undisclosed (and unimportant) reason, Mr. Harrison’s name no longer appears in the caption, and the single name, Dr. Beto, is used by both parties on their motion papers and briefs. We are aware also that Dr. Beto is no longer Director of the Texas Department of Corrections, having been succeeded by Mr. W. J. Estelle. The appropriate substitution of names in the caption can be accomplished below upon remand.

      . See Eisen v. Carlisle and Jacquelin et al., 1974, - U.S. -, 94 S.Ct. 2140, 40 L.Ed. 2d 732.

      . Tlie original pro se complaint, handwritten on toilet paper, does not suggest the convening of a three-judge court and does not, at least in recognizable terms, indicate that any decree is sought restraining the enforcement, operation or execution of a state statute, the complaint being addressed rather to prison customs and usages, and discriminatory treatment of Cruz and his class by prison officials. The first amended complaint, the dismissal of which led to the reversal and remand by the Supreme Court of the United States, Cruz v. Beto, 1972, 405 U.S. 319, 92 S.Ct. 1079, 31 L.Ed.2d 263, while asserting that the customs and regulations of the Texas Department of Corrections which discriminate against the plaintiff and his class were promulgated pursuant to Vernon’s Annotated Civil Statutes, Art. 6166j as amended, sought neither declaratory nor injunctive relief against the statute. It does not appear therefore that the relief sought under the present pleading is such as to require the convening of a three-judge district court. Title 28, U.S.C., § 2281. See Sands v. Wainwright, 5 Cir. en banc 1973, 491 F.2d 417. After remand, should the issues be expanded so as to require that the action be presented to and decided by a statutory three-judge court under the teachings of Sands, supra, the district judge should take the necessary steps to have such a court convened.


text:
    Leslie SMITH, et al., Plaintiffs, Claimants, Appellees, Cross-Appellants, v. UNITED STATES of America, Defendant, Claimant, Third-Party Plaintiff, Appellant, Cross-Appellee, v. RONLEE, INC., Defendant, Claimant, Third-Party Defendant, Fourth-Party Plaintiff, Appellant, Appellee, Cross-Appellee, v. E. & I., INC., Defendant, Claimant, Fourth-Party Defendant, Appellant, Cross-Appellee, v. CROSS CONTRACTING CO., INC., Petitioner for Limitation of Liability, etc., Defendant, Plaintiff, Appellant, Cross-Appellee.
    No. 72-3736.
    United States Court of Appeals, Fifth Circuit.
    July 19, 1974.
    Rehearing Denied Aug. 27, 1974.

      Robert W. Rust, U. S. Atty., Clemens Hagglund, Asst. U. S. Atty., Miami, Fla., for U. S. A.
    Richard F. Ralph, Miami, Fla., for E. & I., Inc.
    Edward L. Magill, Miami, Fla., for Ronlee.
    William R. Eckhardt, Houston, Tex., Harry Zuckerman, Miami, Fla., for Cross Contracting Co.
    Laurence F. Ledebur, Thomas L. Jones, Walter H. Fleischer, Admiralty & Shipping Section, Dept, of Justice, Washington, D. C., for appellants.
    Donald Feldman, Miami, Fla., for W. Mann & J. Law.
    Arthur Roth, Miami, Fla., for L. Smith, M. Smith & J. Gray.
    Wicker, Smith, Pyszka, Blomqvist & Davant, Miami, Fla., for Highlands.
    Before BELL, SIMPSON and IN-GRAHAM, Circuit Judges.
   SIMPSON, Circuit Judge:

This is an interlocutory appeal on the issue of liability by the defendants, all of whom were found negligent in a bench trial by the lower court. The trial was bifurcated as to liability and damages. Additionally, two of the five personal injury plaintiffs, Joseph Law and Leslie Smith, cross-appeal from the district court’s findings of contributory negligence on their part.

The original actions alleged admiralty jurisdiction in the lower court for personal injuries to the plaintiffs occurring on navigable waters. Title 28, U.S.C., Sec. 1333(1). Jurisdiction over the United States (United States or occasionally, the government) was based upon The Suits in Admiralty Act, Title 46, U.S.C., Secs. 741-752 (waiver of sovereign immunity). The lower court found that the United States had been negligent, its contractor Ronlee, Inc. (Ronlee), a Florida corporation, had been negligent, Ronlee’s subcontractor E. & I., Inc., (E. & I.), a Florida corporation, had been negligent, and E. & I.’s subcontractor Cross Contracting Company, Inc. (Cross), a Louisiana Corporation had been negligent, and was also liable to the plaintiffs, its own employees, for furnishing unseaworthy barges. The court further found that the United States was entitled to indemnity from Ronlee, that Ronlee was entitied to indemnity from E. & I., and that E. & I. was entitled to indemnity from Cross, based on similar “hold harmless” clauses in the original contract and in each of the subcontracts. Finally, as noted above, two of the plaintiffs were found to have been contributorily negligent. We remand for further findings in connection with the negligence issues, affirm as to the indemnity claims, and reverse the finding of contributory negligence as to Joseph Law and Leslie Smith.

I FACTS

Though tried only as to liability, this case required many days in actual trial, and many many more in pre-trial hearings, conferences, motion hearings and the like. The facts are involved, technical, complex and sometimes confusing. We relate only such facts as are pertinent to our disposition of the instant appeal. The starting point was the decision by the government, through the U. S. Army Corps of Engineers, to construct a levee project known as Levee 47 on the east side of Lake Okeechobee, in Florida. The entire project was originally contracted to Ronlee. Ronlee, in turn, subcontracted about half of it to E. & I., involving the southern portion of the project. E. & I., then subcontracted its entire share to Cross. The actual work was done exclusively by Cross employees using equipment owned or supplied by Cross, including the two barges involved here.

The underlying events giving rise to these proceedings involved dynamite blasting done in a borrow pit near the construction area. Underwater blasting was necessary in order to break up rock that was being used for the construction of the levee. The basic procedure included the use of two drill barges outfitted with power drilling equipment for drilling holes in the lake bottom into which dynamite charges could be dropped underwater. A licensed blaster was in charge of each barge and assisted by three helpers.

On November 11, 1966, a day of fair weather, the two drilling-blasting barges were facing each other in the borrow pit and Cross employees were engaged in blasting operations. Under normal circumstances, the actual detonation of dynamite was to be preceded by observation of several safety measures. When both barges had completed drilling and loading the allotted number of holes, they were to move back from the line of charges, and from each other, to a distance of not less than 250 feet. The two barges were generally worked as a unit and the charges associated with one barge would not be set off until the other barge was in position and ready to detonate. The Corps of Engineers safety manual prescribed that, at blasting time, air horn signals were to be given so that all workers on either barge could take cover.

Each barge had a blasting machine, which is the plunger apparatus commonly associated with dynamite blasting. Each also had a lead line and a skiff with an outboard motor. Just prior to the accident, the workers at barge No. 1 had completed drilling and loading six holes on 8-foot spacings to an overall depth of 33 feet. Barge No. 1 had been moved back to safe distance. Joseph Law was the licensed blaster in charge of that barge, and his brother, Herbert Law, was one of the three helpers assigned to it. The other personnel on barge No. 1 consisted of helpers Stephen Jones and James Jackson. The work of drilling and loading at barge No. 2 had not been completed. Leslie Smith was in charge of that barge, assisted by helpers Melbourne Smith, Joseph Gray, and Willie Mann, Jr.

At this time the two barges were about 346 feet apart, barge No. 1 being at Station 15 plus 00 south of No. 2, which was at Station 18 + 46. It was brought to the attention of Leslie Smith that some special assistance was needed in breaking up a large rock north of barge No. 2. It sometimes occurred that a particular rock was too large for use in construction, even after having already been once blasted. It was customary in such a situation to employ a “dobie shot”. This procedure involved a blaster using his skiff to go to the location of the rock from his barge, dropping dynamite bundled together into the water next to the rock, then retreating to a safe distance to detonate. Leslie Smith ordered his helper Willie Mann to take the skiff from their barge, No. 2, pick up Joseph Law at barge No. 1, then circle back to the location north of barge No. 2 where special blasting was needed. Mann did as instructed, and Joesph Law joined him in the skiff from barge No. 2, taking the blasting machine from his barge No. 1. They dropped the dynamite bundle and stopped momentarily at barge No. 2 to converse with Leslie Smith.

Joseph Law had left his brother Herbert, who was not a licensed blaster, in charge of barge No. 1. As noted the holes drilled by the barge No. 1 crew were loaded and ready for detonation. Herbert Law decided to detonate the charge. The workers at barge No. 2 were in the process of drilling and loading the last hole of that series. Herbert Law attempted to sound the air horn as a signal that he was going to blast, but the horn malfunctioned, as the evidence shows it had on prior occasions. He then waved his arms at the people he could see at barge No. 2, which was a procedure sanctioned by both his supervisor and the government inspector, Kenneth Spalding. At that moment Joseph Law waved good-bye from the skiff to Leslie Smith aboard barge No. 2. Herbert testified that he interpreted that wave to be a response to his arm waving. Since barge No. l’s blasting machine was in the skiff with Joseph Law, Herbert detonated by use of an electric battery located on barge No. 1. Simultaneously with the explosion of the charges from barge No. 1, the charges set at barge No. 2 exploded, injuring Leslie Smith, his three helpers, and Joseph Law, who was in the skiff. These men are the five plaintiffs in the personal injury actions below.

The government inspector, Spalding, was not on the scene at the time of the accident, his visits to the work site being generally of short duration. Neither Ronlee nor E. & I. had any personnel or equipment at the site at any time. The government worked directly with Cross, although Ronlee received four percent and E. & I. six percent of the total contract funds. The evidence indicated and the trial court found that the explosion at barge No. 2 was not a result of faulty dynamite such that the blast at No. 1 would have caused the second explosion by virtue of propagation. There was testimony to the effect that no physical connection between the charges at No. 1 and No. 2 had been made, negating an inference that the detonation of one would have automatically detonated the other. The trial judge observed that the precise cause of the explosion at barge No. 2 could not be conclusively determined. It was undisputed that the signalling provisions of the safety manual were violated, and it appeared that such violations had not been uncommon or infrequent in the past.

II APPEAL BY THE UNITED STATES

The United States attacks the district court’s imposition of liability upon it based on the negligence of Kenneth Spalding, the government inspector on the job, and argues alternatively that the finding of a right of indemnity from Ronlee should be affirmed. Error is also asserted with respect to the lower court’s failure to assign a percentage to the contributory negligence of Law and Smith for purposes of comparative damages and a proportional reduction of the final judgment. That point is mooted by our reversal on the contributory negligence issue, infra, Part V.

The district court’s pivotal finding as to the government’s negligence is Finding of Fact number 14, which we quote in full:

“14. The contractor was required to conduct weekly safety meetings with all employees in order to indoctrinate the employees to the application of and compliance with the safety program. The safety meetings were conducted weekly by Kenneth Spalding, the United States inspector on the job. The meetings were attended weekly by some of the employees, but not by all of them. Ed Woolridge, Cross’ superintendent on the job, called the meetings and attended them. The meetings were not held in a manner which would reasonably indoctrinate the employees in the application of and compliance with the safety program.
Barge No. 1 was equipped with an air horn for signalling, while barge No. 2 had no signalling device. The air horn of barge No. 1 would stick and not work from time to time. The men complained to Woodridge (sic) and Spalding about the malfunction of barge No. l’s horn. Spalding told them that, as the situation required, they could wave their hands back and forth as a substitute for a horn signalling system. Spalding further instructed the men to signal just before they were ready to detonate.
These instructions from Spalding constituted a departure from the requirements of the manual. The signalling procedure adopted by Spalding and given to the mean (sic) was not a consistent one. It depended in a large measure on distances between the barges. When it was considered that the barges were a “safe distance” apart, no signals were to be given. In addition, Spalding directed the use of hand signals between the barges.
The signalling procedure was negligently devised by the United States inspector in the scope and course of his employment.
In addition, the United States inspector had knowledge of the method of signalling actually used and the dangers incident thereto. He had the power to rectify same, but did not so do.
The failure to have an audible signalling device on barge No. 2, the failure to have one which consistently worked on barge No. 1, and the failure to have a comprehensive and uniform signalling procedure constituted negligence on the part of Cross. This negligence existed not only on November 11, 1966, but for a significant number of months prior thereto.”

These findings were applied by the district court to impose liability on the United States in Conclusion of Law No. 7:

“7. The giving of instructions regarding blasting procedure was not a discretionary function, but was one on the operational level. The United States is not liable for inspecting the work, but it is liable for negligent direction thereof. When the United States merely observes and is guilty of omission or inaction, it cannot be liable. When it affirmatively acts and instructs negligently, as it did herein, it is liable.”

The government initially argues that there is not evidence in the record to support the finding that Spalding did, in fact, devise and instruct with respect to the hand signalling system. We review the finding by the district court under F.R.Civ.P. 52(a), and reverse only if it is clearly erroneous. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20. That standard has consistently been interpreted by this court to mean that to warrant reversal the finding of fact must be without the support of substantial evidence. See, for example, Lentz v. Metropolitan Life Ins. Co., 5 Cir. 1970, 428 F.2d 36, 39. We discern substantial evidence in this record to support the district court’s finding of negligence by the United States.

The government correctly states that it cannot be found liable simply because it had knowledge of a dangerous procedure yet failed to rectify it, and the district court said as much in its Conclusion of Law No. 7. But it is equally true that if Spalding did devise and instruct with respect to the concededly dangerous procedure, the government is responsible for such an affirmative act of negligence. Spalding himself said, in a deposition admitted into evidence, that he did not recall who devised the system. App. at 632. Woolridge, the Cross supervisor directly in charge of the work at the borrow pit, testified that Spalding conducted the safety meetings at which the system was discussed and adopted. App. at 301. Leslie Smith testified that the arm waiving procedure was for use both in signalling the fact of an impending detonation by the blasting barge, and in acknowledging recognition of that signal by the other barge. App. at 670. Smith also substantiated Woolridge’s testimony that Spalding led the safety meetings, and went on to state expressly that it was Spalding who devised the arm waiving procedure. App. at 681-82. In light of the foregoing we cannot say that the district court was clearly erroneous in finding that Spalding devised the system.

The United States raises a further point in connection with its negligence liability. The relevant finding of the lower court is Finding of Fact 18, which stated:

“Had the signalling system set forth in the manual been followed, or had a reasonably prudent and safe signalling procedure been devised and required to be followed, the injuries to the personnel of the drill barges would not have ensued. The plaintiffs would have been out of the risk of harm from the explosive materials on the rear of drill barge No. 2, which explosives caused the injuries to the plaintiffs. (Damage to drill barge No. 2 was in the immediate area of the explosive materials at the stern of said barge.) The improper method of using hand signals was a proximate cause of the injuries.
The risk and harm to be anticipated by an improper signalling system unfortunately came to be realized.”

The government’s argument turns on the simplistic postulate that there can be no proximate cause without cause in fact. Since the district court declined to speculate as to the exact cause of the explosion at barge No. 2, it is urged that the finding of proximate cause is without a factual basis as required by F.R.Civ.P. 52.

Technically, we agree with the government on this point. The district court erred in its failure to delineate properly the elements of causation as they apply to this case. There are two major aspects to the principle, both requisite to a finding of tort liability. First there must be cause in fact, which means that a cause and effect relationship must exist between the alleged tortious conduct and the injury. Second, the cause must be proximate, which is most often translated into whether or not the injury was a foreseeable result of the conduct in question. See generally Prosser on Torts, Sec. 41 Causation (3d ed. 1964).

The district court failed to make the requisite finding as to cause in fact. The court’s thoughts on the subject appear outside its Findings of Fact and Conclusions of Law:

“It is not a question of two reasonable inferences. There is no testimony from which one could reasonably infer, in my judgment, the cause.
One could engage in conjecture and say the cause was one of two things —one of three things: Defect: somebody connected the barges, or propagation: some unknown phenomena.”

App. at 1034. The above evidences, together with the absence of reference to cause in fact in the court’s formal findings, that the question of whether the explosion at barge No. 1 caused the one at barge No. 2 was simply never resolved by the trial judge. It follows therefrom that liability could not have properly been imposed, because it is not established that anything Herbert Law did at barge No. 1 bore a cause and effect relationship to the explosion at barge No. 2.

The government next goes on to say that a remand on this issue is not necessary, because the district court already indicated that the cause could not be discerned. With this we disagree. It is true that the above quoted passage indicates that the court felt that the “cause” could not be determined. But “cause” is subject to interpretation. If the court meant that one could not reasonably infer that the explosion at' barge No. 1 “caused” the explosion at No. 2, then there would be no “cause in fact”. However, if the court meant only that the precise cause could not be determined or selected from several possibilities, then it would still be free, on remand, to find that the blast at No. 1, for whatever exact reason, caused the explosion at No. 2. A finding that it is more likely than not that one blast caused the other would satisfy this aspect of the causation principle. Accordingly, we remand for a further factual determination by the district court in this respect.

Ill THE INDEMNITY CLAUSE

Another issue affecting all the defendants centers upon the indemnity clause in the contract between the United States and Ronlee, and incorporated by reference to the prime contract in each of the successive subcontracts. The relevant provision reads as follows:

The Contractor shall assume all liability and hold and save the Government, its officers, agents and employees harmless for any and all claims for personal injuries, property damages or other claims arising out of or in connection with the transportation, storage and use of explosives under the contract.

Since this issue touches all the parties, this discussion will deal with each defendant’s contentions in this regard.

The district court held that the government was entitled to indemnity from Ronlee under the foregoing provision, notwithstanding its own negligence in the matter, and the government understandably argues that we should affirm that holding. Ronlee, E. & I., and Cross all urge that we reverse, based upon the fact that each indemnitee was itself negligent.

We begin our analysis with the Supreme Court’s treatment of a similar, though not identical, contractual situation in United States v. Seckinger, 1970, 397 U.S. 203, 90 S.Ct. 880, 25 L.Ed.2d 224. We observe initially that here, as there, the interpretation of the contract is controlled by federal law, which was entered into “pursuant to authority conferred by federal statute and, ultimately, by the Constitution.” United States v. Seckinger, supra, 397 U.S. at 209-210, 90 S.Ct. at 884, 25 L.Ed.2d at 232.

In Seckinger the wording of the indemnity clause differed slightly from the clause of the prime contract with Ronlee here and hence that case is not directly applicable to this case. The contract in Seckinger provided, in pertinent part, that:

He [the contractor] shall be responsible for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work.

The United States had been negligent with respect to the plaintiff in that case, and the Supreme Court held that the indemnity clause entitled the government to recover back from the contractor that portion of the judgment awarded to the plaintiff as against the government alone which corresponded with the contractor’s percentage of negligence contributing to the plaintiff’s injuries. In essence, it was an application of the comparative negligence principle usually associated with maritime law. The most significant distinction from our case is that the clause here under consideration does not say “as a result of his fault or negligence,” but provides rather for indemnity “for any and all claims.” We must decide then whether that distinction removes the contractual stipulation of this indemnity clause from the comparative negligence analysis of Seckinger and allows the government full indemnity despite its own negligence.

The basic issue in Seckinger was whether “all damages” meant “by whomever caused” or, as the Court ultimately decided, “all damages attributable to the contractor individually.” In discussing these optional interpretations, some attention was given to what would suffice as evidence of a contractual agreement granting indemnity despite negligence by the indemnitee. We feel that portion of Seckinger most nearly answers the question raised by this case. Set forth at Note 17, 397 U.S. at p. 212, 90 S.Ct. at p. 886, 25 L.Ed.2d 234, is a sample contract provision, recommended by the American Institute of Architects, drafted to immunize the indemnitee from his own negligence (assuming the contractor is himself negligent). The language of that sample stipulation tracks closely that of the contract provision in this case. Especially similar is the use of phrases such as “hold harmless,” “for any and all claims” and “assume all liability.”

The only significant distinction between the two is that the model provision concludes with specific reference to the fact that indemnification shall obtain regardless of the indemnitee’s negligence. The Court commented on this, saying that:

We specifically decline to hold that a clause that is intended to encompass indemnification for the indemnitee’s negligence must include an ‘indemnify and hold harmless’ clause or that it must explicitly state that indemnification extends to injuries occasioned by the indemnitee’s negligence, (emphasis supplied) Seckinger, supra, Note 17.

The use of the disjunctive in this quotation raises a clear inference that a clause which does in fact utilize “hold harmless” language indicates the intent of the parties for the indemnity to operate despite negligence by the indemnitee. This is to say, if neither “hold harmless” language or an express disclaimer is required, the negative inference arises that the presence of either is a strong indication that indemnity is intended in spite of or regardless of negligence on the part of the indemnitee.

The Supreme Court, in reaching its decision in Seckinger, noted expressly that it was guided in part by synthesizing numerous applicable maxims of contract interpretation. Ibid, 397 U.S. at p. 215, 90 S.Ct. at p. 887, 25 L.Ed.2d at p. 235. Defendants Ronlee, E. & I., and Cross urge reversal of the district court based in large part upon the language of the maxims. Among those noted are: (1) a contract should be construed most strongly against its drafter; (2) an indemnitee should not be allowed recovery despite his own negligence unless the parties clearly demonstrated an intent to that effect; and (3) the disparity in the bargaining positions of the parties should be taken into consideration. We acknowledge the prima facie application and relevancy of these canons, but, nevertheless, on balance, conclude that they do not overshadow the unmistakable nature of the language used in this contract and the illuminating comments of the Supreme Court in Seckinger, particularly as to Note 17, supra.

Further, the indemnitor-defendants all cite us to state cases requiring a higher degree of precision in establishing indemnity despite mutual negligence. In Florida, an express statement to the effect that the indemnitee may so recover is required. Florida Power and Light Co. v. Price, Fla.1964, 170 So.2d 293. But as already noted our decision must be based upon federal contract interpretation by federal courts and as authoritatively articulated by the Supreme Court. State decisions are often helpful in deciding federal questions, but not when the Supreme Court has indicated a contrary view.

We observe lastly that federal courts have reached the same conclusion in consideration of contract provisions substantially similar to the one at issue in this case. In Mississippi Power Co. v. Roubicek, 5 Cir. 1972, 462 F.2d 412, this court had occasion to consider an almost identical “hold harmless” indemnity clause, and to hold that it provided indemnity despite the indemnitee’s own negligence. Though Mississippi Power was decided by an Erie application of state law, our opinion observed that Mississippi law, as to the particular point in question, is strikingly similar to federal law as declared in Seckinger, supra. Ibid, 462 F.2d at p. 415. The Second Circuit reached a similar conclusion in considering a virtually identical indemnity clause in the context of federal maritime law. Capozziello v. Brasileiro, 2d Cir. 1971, 443 F.2d 1155. We are convinced that in this case in light of the foregoing principles and decisions, the United States notwithstanding its own negligence, is entitled under the contract provisions to be indemnified by Ronlee.

This is not quite the end of the matter. The indemnity clause in the contract between the government and Ron-lee was successively applicable as between Ronlee and E. & I., then between E. & I. and Cross, because the prime contract was incorporated in toto by reference into the subcontracts. Cross strenuously urges two additional grounds for not extending indemnification into the subcontracts, aside from whatever construction might be placed on the relevant clause in the prime contract.

Section 5 of each of the subcontracts provided, in part, that:

The Subcontractor agrees:

(a) To be bound to the Contractor by the terms of the Principal Contract, drawings, specifications, and other pertinent documents insofar as they are applicable to this subcontract and to assume toward the Contractor all the obligations and responsibilities that the Contractor, by those documents, assumes toward the Owner.

Logically, then, the district court determined by its Conclusion of Law 9, that this incorporation of the prime contract into the subcontracts included the indemnity clause, and that thus each respective contractor was thus entitled to indemnity — until, of course, the buck stopped with Cross.

Cross objects to the foregoing analysis on the ground that “the subcontract does not even intimate, much less spell out in unmistakable terms, that Cross is to indemnify E. & I., Inc. for damage approximately caused by negligence of E. & I., Inc.” Brief for Appellant/Cross-appellee at 9. We find this position illogical and evidence of a true confusion in terms. Spelling out indemnity despite negligence in unmistakable terms refers to the language of the clause itself, not to an interpretation of a clause which undertakes to incorporate an already interpreted clause. Moreover, the incorporation clause does spell out exactly what it was intended to do, to require the subcontractor: “to assume toward the Contractor all the obligations and responsibilities that the Contractor, by those documents assumes toward the Owner.”. The district court properly construed this language as extending the indemnity protection successively to each contractor-indemnitee.

Finally, Cross asserts that the liability for which the government seeks indemnification is outside the terms of the clause and thus not indemnifiable, arguing that the government’s negligence was for improper instruction in connection with hand signals, and thus liability was not based on the “transportation, storage, and use of explosives under the contract”, as required by the indemnity clause. This argument fails by reason of its own semantical deficiency. While the Negligence of the government was indeed based on the hand signal system, its liability arose “out of or in connection with the . . . use of explosives under the contract”.

IV RONLEE’S APPEAL

Only one issue raised by Ronlee requires discussion here, as the others have either been resolved supra or will be resolved in connection with our handling of the cross-appeal. As to this issue we are, to a limited extent, breaking new ground, inasmuch as we have found no decided cases on point. However, we are guided by established general principles which we think point our way to a sound result.

This remaining issue is the finding of negligence as to Ronlee based upon the contractual arrangement it had with the government for superintendence of safety at the job site.

The district court’s holding was based upon an analysis of the relevant contractual provisions viewed in light of the law applicable to independent contractors. We quote the pertinent contract provisions in part:

“11. SUPERINTENDENCE BY CONTRACTOR
The Contractor shall give his personal superintendence to the work or have a competent foreman or superintendent, satisfactory to the Contracting Officer, on the work at all times during progress, with authority to act for him.”
“40. ACCIDENT PREVENTION (Jan.1965)
(a) In order to provide safety controls for protection to the life and health of employees and other persons; for prevention of damage to property, materials, supplies, and equipment; and for avoidance of work interruptions in the performance of this contract, the Contractor shall comply with all pertinent provisions of Corps of Engineers Manual, EM 385-1-1, dated 13 March 1958, entitled ‘General Safety Requirements’, as amended, and will also take or cause to be taken such additional measures as the Contracting Officer may determine to be reasonably necessary for the purpose.
(d) Compliance with the provisions of this article by subcontractors will be the responsibility of the Contractor.
(e) Prior to commencement of the work the Contractor will:
(1) Submit in writing his proposals for effectuating this provision for accident prevention:
(2) Meet in conference with representatives of the Contracting Officer to discuss and develop mutual understandings relative to administration of the overall safety program.”
“41. GOVERNMENT INSPECTORS (Jan.1965)
The work will be conducted under the general direction of the Contracting Officer and is subject to inspection by his appointed inspectors to insure strict compliance with the terms of the contract. No inspector is authorized to change any provision of the specifications without written authorization of the contracting officer, nor shall the presence or absence of an inspector relieve the Contractor from any requirements of the Contract.”

In Finding of Fact 9 the district court found that Ronlee did not comply with any of the affirmative steps regarding safety it was obligated by the contract to take, except for submitting an accident prevention plan to the government (though not to the subcontractors). That plan provided, in pertinent part:

“Accident Prevention Responsibilities
The Project Manager will be responsible for the enforcement of Accident Prevention Plan and applicable portion of Corps of Engineers Safety Requirements and pertinent provisions of the Manual Corps of Engineers, U. S. Army, General Safety Requirements, EM 385-1-1, dated March 13, 1958, and Applicable Special Conditions to Contract Documents.”
“Subcontractors’ Responsibility
The subcontractors and subcontractors’ supervisory personnel will be furnished a copy of the Accident Prevention Plan and be appraised of their accident prevention responsibility prior to the commencement of work. All subcontractors will be instructed in writing (copy of the letter to be sent to the Resident Engineer), concerning the requirements and their responsibility under this plan. Subcontractors will be subject to, and required to abide by, the Accident Prevention Plan and the Corps of Engineers Safety Requirements. The rules will be enforced by the Superintendent. All provisions of this plan apply equally to general contractor and subcontractors.”

The specific applicable portions of the Corps of Engineers safety manual mentioned in the contract are set out in Finding of Fact 13:

“22-79. Prior to the firing of a shot, all persons in the danger area shall be warned of the blast and ordered to a safe distance from the area. Blast shall not be fired until it is absolutely certain that every person has retreated to a safe distance and that no one remains in a dangerous location. “22-80. All blasting operations shall use the following signals. Warning Signal-A one minute series of long blasts five minutes prior to blast signal. Blast Signal-A series of short blasts one minute prior to the shot.
“22-81 a. Prior to, and while the drill boat or vessel is being moved from the blasting area, a series of short signals by horn or whistle, similar to the usual navigation warning signals shall be given.
“22-81 c. No blast shall be fired closer than 250 feet to a boat or vessel containing an explosive magazine. Men engaged in drilling operations on another drill boat within 500 feet shall leave the drill frames for cover in the event that any complete holes have been loaded.”

Reasoning from the foregoing, the district court concluded that Ronlee had control over job safety at all material times, that the provisions of the safety manual were violated, and therefore Ronlee was liable to the plaintiffs for negligence. Ronlee does not question the safety violations or the applicable law, but argues that it did not have “control” sufficient to obligate it to exercise reasonable care with respect to the safety of Cross’ employees.

It is black-letter law that a general contractor is in general not liable for damages sustained by employees of his subcontractor. The well recognized exceptions to this rule occur either when the contractor has control over that part of the subcontractor’s work which was involved in the accident, or when he has actual knowledge that work is being performed in a dangerous manner. Ronlee did not have actual knowledge of the signalling system, but it did have control over safety at the work site. That conclusion is the only-permissible inference from the contract between Ronlee and the government. The common law exception to a general contractor’s immunity appears in numerous textbooks and treatises, and we quote an acceptable version found in the Restatement of Torts 2d:

“414 Negligence in Exercising Control Retained by Employer
One who entrusts work to an independent contractor, but who retains the control of any part of the work is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.” Restatement of Torts 2d, See. 414.

The initial difficulty in this particular situation is in assessing the effect of the subcontracts upon the prime contract between Ronlee and the government. It is clear from the quoted portions of that prime contract that Ronlee was the independent contractor at the outset, and the government did not retain control over how Ronlee would insure compliance with the relevant safety-requirements. Under the subcontract between Ronlee and E. & I., in section 5, each party agreed to assume the obligations and responsibilities toward each other that Ronlee and the government assumed under the prime contract. Thus one might plausibly think that Ronlee took the government’s position with respect to controlling safety on the job site, and should therefore be without liability. The error in such reasoning is that Ronlee assumed some affirmative duties in the prime contract and, inferentially, authority to fulfill them, which could not be dispensed with simply by entering into a subcontract.

Several aspects of the prime contract lead us to the foregoing conclusion. In section 11, quoted supra, Ronlee agreed to personally superintend the work in highly unequivocal language. In section 40(d), quoted supra, Ronlee specifically agreed to guarantee that subcontractors would comply with the safety requirements, which is consistent with its promise to superintend. Clearly, Ronlee could not delegate to a subcontractor its contractual obligation to superintend subcontractors. Further, the accident prevention plan submitted by Ronlee to the government provided that the plan itself, including responsibility for compliance, would apply equally to Ronlee and its subcontractors. This reflects the very intent Ronlee would now disclaim, that it intended to assume responsibility for safety notwithstanding the letting of subcontracts. This reading is in turn supported by the fact that Ron-lee continued to receive four percent of the contract funds paid by the government after having completely subcontracted the work covered by its contract with the government. We are entitled to assume that this payment was for an affirmative, continuing obligation which Ronlee was not free to delegate to a subcontractor by virtue of a subcontract under which the parties agreed to assume the respective positions of the original contracting parties.

The official comments to the Restatement furnish additional and quite persuasive support for the foregoing. First, the degree of control necessary for liability under this theory is somewhat less than that necessary for finding parties to be in a master and servant relationship: “He [the employer] may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others.” Restatement of Torts 2d, Sec. 414, comment a. Given the obligations of Ronlee under the prime contract, it is clearly reasonable to infer a corresponding degree of control over safety sufficient to satisfy the accompanying obligations, and therefore sufficient to come within the description in comment a supra.

The next comment to Sec. 414 is also in point, aptly describing the intended situation under the facts of this case.

“The rule stated in this Section is usually, though not exclusively, applicable when a principal contractor entrusts a part of the work to subcontractors, but himself or through a foreman superintends the entire job. In such a situation, the principal contractor is subject to liability if he fails to prevent the subcontractors from doing even the details of the work in a way unreasonably dangerous to others, if he knows or by the exercise of reasonable care should know that the subcontractors’ work is being so done, and has the opportunity to prevent it by exercising the power of control which he has retained in himself.”
Restatement of Torts 2d, Sec. 414, comment b.

Had Ronlee performed under the prime contract as contemplated by the parties to that contract, knowledge of the dangerous manner in which blasting was being done would have been inescapable.

Ronlee attempts to overturn this finding as to its liability by reference to several additional facts of the case, none sufficient in our judgment to bring about the desired result. First, Ronlee did not have any personnel or equipment on the job, and never exercised the slightest control as to any aspect of the methods employed by Cross employees. This, of course, confuses the fact of control, that is to say authority, with the exercise of control. Just as only the former is relevant to the existence of a master-servant relationship, it is likewise the sole criterion for liability under the Restatement and its common law origin. See generally 41 Am.Jr.2d Independent Contractors, Sec. 29. Similarly, the fact that the government did exert some supervision through its inspector, Spalding, and did not notify Ronlee of any safety violations, is irrelevant. The control retained is the determinative factor. Furthermore, Ronlee agreed in Section 41 of the contract that the presence or absence of a government inspector would not work to relieve it of any contractual duties.

While there are a large number of reported eases dealing with this particular theory of negligence, few approach the peculiar factual situation presented by this case. Additionally, we have not found any cases which deal with contract provisions obligating the contractor to more than the standard boilerplate “power of inspection” with respect to safety. As we have noted, this contract went beyond that and provided for affirmative duties in connection with safety.

Most nearly in point and most persuasive are the few cases dealing with whether a contract, in and of itself, creates a right of control that, though unexercised, leads to liability because the failure to exercise it amounts to negligence of the owner-contractor. See, particularly, Trent v. Atlantic City Electric Co., 3 Cir. 1964, 334 F.2d 847; Jamison v. A. M. Byers Co., 3 Cir. 1964, 330 F.2d 657.

We find the cases cited in rebuttal by Ronlee of no help. They are uniformly inapposite. Many deal with the hazardous activity doctrine, Restatement of Torts 2d, Sec. 427, and are thus irrelevant to this discussion. Those dealing with the issue of control describe a significantly different level of control from that reflected in the contract between Ronlee and the government. In United States v. Page, 10 Cir. 1965, 350 F.2d 28, the contractor (in that case, the United States) was found to be lacking in the requisite control for the imposition of liability. There the government had the right, under the contract, to impose additional safety measures not articulated in the contract, and to inspect the work as it progressed. But Ronlee, under its contract, had full authority to control activities so as to insure compliance with the Corps of Engineers safety manual. It could stop, start, alter, or modify anything done in order to satisfy that affirmative duty. Likewise, in Sword v. Gulf Oil Corporation, 5 Cir. 1958, 251 F.2d 829, another case cited by Ronlee, the contract in question specifically said that the independent contractor had full authority to control and direct the work and that defendant Gulf was interested “only in the results.”

We address briefly Ronlee’s additional arguments with respect to its negligence liability. First, Ronlee follows the government’s lead with respect to the causation issue discussed supra, Part II, and a remand on that point has been found necessary. Second, it is suggested that the actual injuries in this case, assuming Ronlee negligent, were really the effect of intervening or superseding negligence by Herbert Law, which would absolve Ronlee of liability. It is said to be superseding because Law testified that he would have detonated the charges at barge No. 1 even if he had known that the other barge was still drilling. This proposed mode of analysis garbles what we perceive to be the law of superseding cause. We think that “the problem is one of whether the defendant is to be held liable for an injury to which he has in fact made a substantial contribution, when it is brought about by a later cause of independent origin, for which he is not responsible.” Prosser, Law of Torts, Sec. 51, Intervening Causes, at 309 (3d ed. 1954) (emphasis supplied). The answer to Ron-lee’s claim lies in the italicized portion of the quote, as Ronlee was responsible for the fact that Herbert Law would have detonated despite continuing work at the other barge. But for the negligent disregard of an affirmative duty to insure that blasting was not done in a dangerous manner, e. g. while work was being done at the other barge, the plaintiffs would not have been injured. The action of Herbert Law can hardly be termed superseding under these circumstances.

We find that Ronlee had the requisite authority to control the safety procedures employed at the job site, and that its failure to exercise it was negligence which proximately caused the plaintiffs’ injuries. We also note that the district court al&o apparently premised Ronlee’s liability upon an alternative ground, the violation of a non-delegable duty to insure compliance with the Corps of Engineers safety manual. To the extent that this agrees with our interpretation of Ronlee’s obligation under the prime contract, which we hold could not be delegated by the vehicle of a subcontract putting the parties in the respective positions of the original parties, we approve that holding.

V APPEAL BY E. & I.

The contentions raised by E. & I. not already discussed supra do not require extensive exposition. It is suggested by E. & I., though by none of the other parties, that the district court lacked admiralty jurisdiction to hear this case. There is no assertion that the waters upon which the accident took place were not navigable, nor that the workers were not seamen. Rather, E. & I.’s brief contains a bare eonclusory statement, not fully intelligible, to the effect that jurisdiction was lacking, with citation to several authorities. We find nothing in the cited cases to persuade us that the lower court erred in exercising jurisdiction. See, Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 1972, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454. Maritime locality and a relationship between marine blasting and traditional maritime activity, both present in this case, satisfy the jurisdictional requirements listed by the Supreme Court in Executive Jet Aviation.

E. & I. occupies essentially the same position as Ronlee in this litigation, i. e. a contractor who delegated an entire portion of contract work to a subcontractor, keeping neither personnel nor equipment at the work location. In subsection (a) of section 5 of the contract between Ronlee and E. & I. (quoted in Part III hereof, supra) it was agreed that E. & I. would assume all obligations and responsibilities owed by Ronlee to the government. This, in turn, meant that E. & I. was obligated to honor section 40(d) of the prime contract, which stipulated that Ronlee (and hence E. & I.) would assume responsibility for subcontractors’ compliance with applicable safety regulations. In a sense, then, each contractor undertook a non-delegable duty to insure that proper safety procedures were observed, regardless of subcontracts. Both Ronlee and E. & I. were found liable on this ground, while Cross sustained liability on the alternative grounds of respondeat superior and unseaworthiness.

VI APPEAL BY CROSS

The only issue raised by Cross on appeal is the question of indemnity. Since that point is fully covered by Part III, supra, discussion of Cross’ appeal need not be undertaken.

VII CROSS-APPEAL BY PLAINTIFFS LAW AND SMITH

At issue here is the finding of contributory negligence on the part of these two plaintiffs. The district court stated in Finding of Fact 20:

“Both Leslie Smith and Joseph Law were contributorily negligent. They were negligent in waving as they did just prior to the blast from barge No. 1. They were not in a safe position and they should have known that arm waving could indicate to barge No. 1 that barge No. 2 was ready for barge No. 1 to blast.”

The underlying but unstated assumption in the above finding is that the waving by the two named plaintiffs to each other played a legally causal role in the accident which ensued. From much of the evidence, it would be plausible to infer that the waving was mistaken by Herbert Law at barge No. 1 as the improvised signal for indicating recognition that charges were about to be detonated. Thus one might conclude that the good-bye waves constituted the final step in the chain of events which ended with Herbert Law’s detonation of the charges at barge No. 1.

We find the above logic defective and reverse the district court’s finding in this respect as being erroneous as a matter of law. The law of contributory negligence is no different from that of ordinary negligence when it comes to causation. None would argue with Prosser’s statement that:

“Causation is a fact. It is a matter of what has in fact occurred. A cause is a necessary antecedent: in a very real and practical sense, the term embraces all things which have so far contributed to the result that without them it would not have occurred.” Prosser, Law of Torts, See. 41 Causation in Fact, at 241 (3d ed. 1964).

Stated in more familiar terms, negligence leads to liability only if the injuries would not have occurred but for the act of negligence. But, as revealed by Herbert Law’s testimony at trial, causation was absent in this situation:

“Q. Mr. Law, I believe your first answer to the question, you just answered counsel you wouldn’t have shot if you had known the other barge was still drilling; is that correct ?
A. I will rephrase that; we would have shot.
Q. You rephrase it or you just changed the answer ?
A. Well, I changed it, whatever way.
Q. There would have been some doubt in your mind, however, about shooting, then; is that not correct? A. No; no doubt. We would have shot. We had been doing it all the time, so I know I wouldn’t have changed.”

App. at 491-92.

The quoted testimony makes clear that the waving by Joseph Law and Smith was not a factor in the chain of causation. It did not cause Herbert Law to detonate the chai-ge at barge No. 1. Accordingly, the district court was in error in determining that it constituted contributory negligence.

VIII CONCLUSION

We summarize our holdings briefly: (1) the judgment of liability as to the United States, Ronlee, and E. & I. is remanded for further findings of fact with respect to the issue of causation; (2) the independent finding of liability as to Cross is affirmed; (3) the finding as to indemnity by virtue of the contract clause between each of the contracting parties is affirmed; and (4) the finding of contributory negligence as to plaintiffs Law and Smith is reversed.

Affirmed in part, reversed in part, and remanded with directions.

      . In addition to Cross Contracting Co., Inc.’s Petition for Exoneration Prom or Limitation of Liability as owner of Drill Barge No. 2 (filed March 7, 1968, following filing of the original complaints in early November, 1967, and denied, with no ensuing appeal, by the Judgment as to Liability entered below October 23, 1972) eight separate original actions were brought by the five injured jdaintiffs.
      Numerous theories of recovery were asserted in the various plaintiff’s actions, including : Jones Act negligence against Cross; maintenance and cure against Cross; maritime claims for unseaworthiness and negligence against Cross; breach of warranty against Cross; absolute liability against Cross for lack of exercise of due care in extra-hazardous activity, blasting; against the United States for negligence and for breach of contract; against the United States in strict liability; and also against duPont and Ensign-Biekford for breach of warranty, products liability, and negligence (see below).
      Named as defendants in the plaintiff’s actions were Ensign-Biekford Co., Inc. a Connecticut corporation, manufacturer of the primacord used in blasting, and E. I. duPont de Nemours & Co., Inc., a, Delaware corporation, the supplier of the dynamite, primacord, blasting caps, delay devices and other explosive materials and the manufacturer of most of those materials.
      Ensign-Biekford Co. was dismissed as a defendant March 12, 1969 for lack of jurisdiction over the person. No appeal was taken from this dismissal.
      Recovery against duPont de Nemours & Co., Inc., as to all claims was denied by the Judgment entered October 23, 1972. duPont’s cross-claim against Cross Contracting Co., was therefore held moot. The judgments in duPont’s favor are not appealed. The United States filed third party complaints against Ronlee, Inc. Ronlee cross-claimed against E. & I., Inc. and against Cross Contracting Co., Inc. and E. & I. cross-claimed against Cross Contracting Co., Inc.
      The various original suits, counter-claims, and cross-claims were tried as to liability only in a consolidated trial. The results of the trial, insofar as they affect these consolidated appeals, are set forth in the text.

      . The northerly portion of the project was subbed to another contractor by Ronlee and is not involved in these proceedings.

      . We note, in defense of the lower court’s oversight, Professor Prosser’s observation that, with respect to causation, “[t]here is perhaps nothing in the entire field of law whieli has called forth more disagreement, or upon which the opinions are in such a welter of confusion.” Prosser on Torts, Sec. 41, Causation, at 240 (3d ed. 1964).