author: GEE, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. TUG COLETTE MALLOY et al., Defendants-Appellants.
    No. 74-1144.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.
    Rehearing Denied March 18,1975.

      J. Martin Green, Beaumont, Tex., William D. Deakins, Jr., Houston, Tex., for defendants-appellants.
    Anthony J. P. Farris, U. S. Atty., Charles B. Wolfe, Jack Shepherd, Robert Darden, Asst. U. S. Attys., Houston, Tex., Morton Hollander, Chief, Appellate Sec., Civ. Div., Robert E. Kopp, James C. Hair, Jr., Harry R. Silver, Attys., Dept, of Justice, Washington, D. C., for plaintiff-appellee.
    Before TUTTLE, RONEY and GEE, Circuit Judges.
   GEE, Circuit Judge:

On the foggy morning of March 16, 1968, the loaded tank barge LSC 100-C, in the tow of the Tug COLETTE MAL-LOY, struck and damaged the north sector gate of the West Brazos River Floodgates. The United States, as owner of the Brazos River Floodgates, brought suit in admiralty against the Tug COLETTE MALLOY and the Barge LSC 100-C, in rem, and their owner, Leving-ston Shipbuilding Company, in personam. The United States also sought penalties against both vessels for violation of 33 U.S.C. §§ 408, 411 and 412, and against the tug for violation of 33 U.S.C. §§ 159, 191. The trial court found Levingston Shipbuilding Company free from liability but found the tug and the barge liable in rem for damages to the gate and for the statutory penalties. The defendants appeal, contending that since the trial court found the United States, through its gate operator, the sole party at fault the vessels could not be found fully liable. Further, defendants contend that the trial court erred in not requiring the United States to indemnify the vessels. The United States replies that the trial court reached the correct result, albeit for incorrect reasons, and that the vessels were not entitled to indemnity under the Suits in Admiralty Act, 46 U.S.C. § 741 et seq. We agree with the United States and so affirm.

Most of the facts are undisputed. The Brazos River Floodgates are located at the confluence of the Intracoastal Canal and the Brazos River. They are on the navigable waters of the United States, and their primary purpose is to prevent silt, sand, alluvium and other debris coming down the Brazos River from entering the Intracoastal Canal. One floodgate is located at each bank of the Brazos River. Steel wingwalls guide vessels’ entrance to the gates. Located on top of each wingwall are lights spaced at intervals of thirty feet. At the west gate there is a twenty-foot high light standard used to indicate whether the gate is open or closed.

About thirty minutes before the collision, John J. Flippen, mate of the Tug COLETTE MALLOY, contacted the east gateman, Leo Pruitt, by radio to advise him that the COLETTE MALLOY was approaching the east floodgate. After being cleared, the flotilla advanced across the river in a dense fog toward the west floodgate. The trial court found that despite the fog the Tug COLETTE MALLOY did not sound her fog signals while crossing the river. Once across the river, the flotilla lined up with the wingwalls and approached the gates at a speed under two miles per hour. The tankerman, Ralph Mathews, had been stationed on the bow of the barge to aid in fending off the wingwalls and to serve as a lookout. Owing to the fog, it was just before the collision when Mathews first saw that the floodgates were closed. His sole means of signal-ling the wheelhouse were by flashlight or by shouting. Finding his flashlight useless in the fog, Mathews shouted that the gates were closed. The trial court found that the shout went unheard in the wheelhouse and that this constituted fault on the part of defendants in failing to provide suitable means of communication between lookout and wheelhouse. The trial court further found that the west gateman had erred in not opening the gates in time to allow the flotilla passage, since he was aware that the tug and barge were proceeding across the Brazos. The captain was unable to stop and reverse the flotilla after realizing the gates were shut, and the flotilla crashed into them causing damage. Asked for an additional finding of fact, the trial court found that the Tug COLETTE MALLOY failed to give sound signals prior to entry into the floodgates in violation of 33 C.F.R. 207.180d(2).

33 U.S.C. § 408 provides:

§ 408. Taking possession of, use of, or injury to harbor or river improvements
It shall not be lawful for any person or persons to take possession of or make use of for any purpose, or build upon, alter, deface, destroy, move, injure, obstruct by fastening vessels thereto or otherwise, or in any manner whatever impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States, ... in whole or in part, for the preservation and improvement of any of its navigable waters or to prevent floods.

The Brazos River floodgates are “works” within the meaning of the Act. United States v. The Republic No. 2, 64 F.Supp. 373 (S.D.Tex.1946). 33 U.S.C. § 412 imposes penalties for violation:

And any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 407, 408, and 409 of this title shall be liable for the pecuniary penalties specified in section 411 of this title, and in addition thereto for the amount of the damages done by said boat, vessel, scow, raft, or other craft, which latter sum shall be placed to the credit of the appropriation for the improvement of the harbor or waterway in which the damage occurred, and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof.

Together these statutes have been construed to impose strict liability. United States v. The M/V Martin, 313 F.2d 851 (7th Cir. 1963); United States v. The Tug Terry E. Buchanan et al., 138 F.Supp. 754 (S.D.N.Y.1956); United States v. The Republic No. 2, supra; The Gansfjord, 25 F.2d 736, 738 (E.D.La. 1928), aff’d, Aktieselskabet Dampskib Gansfjord v. United States, 32 F.2d 236 (5th Cir.), cert. denied, 280 U.S. 578, 50 S.Ct. 32, 74 L.Ed. 629 (1929).

It is admitted that the barge struck and damaged the floodgates. The controversy stems from the trial court’s findings of fact that neither the failure to give fog or sound signals nor the lack of effective communication between lookout and wheelhouse contributed to the collision and that the sole cause of the accident was the west gateman’s failure to open the floodgates earlier. Defenses to the strict liability imposed by these statutes are not well-developed; however, we have no doubt that if the tug had shown the gateman to be solely at fault in causing the accident a defense would have been established. Rebel Towing Co. & Texmar, Inc. v. United States, Consolidated Admiralty No. 64-H-67 (S.D.Tex., March 3, 1965). Here the evidence of the tug’s own causal contributions to the accident negates the possibility of a sole cause defense. That concluded, whether the United States was in no way negligent or contributorily negligent is immaterial. Garden-variety contributory negligence is not ordinarily deemed a defense to strict liability, and we do not believe that such fault should be a defense in this strict-liability admiralty suit.

It is undisputed that the tug violated several statutory and regulatory measures. 33 C.F.R. 207.180(d)(2) provided at the time of the occurrence:

Sound signals. Vessels desiring passage through a lock or floodgate in either direction shall give notice to the lockmaster or gatetender by three long and distinct blasts of a horn or whistle or calls through a megaphone when within a reasonable distance from the lock or floodgate. When the lock or floodgate is ready for entrance, the lockmaster or gatetender shall reply with three long blasts of a horn or whistle or calls through a megaphone. When the lock or floodgate is not ready for entrance, the lockmaster or gatetender shall reply by four or more short, distinct blasts of a horn or whistle or calls through a megaphone (danger signal). Permission to leave the lock or floodgate shall be indicated by the lockmaster or gatetender by one long blast.

The trial court’s finding that the Tug COLETTE MALLOY did not give sound signals as required by the regulation is supported by the evidence.

The district court also found, and his finding is supported by the evidence, that the lookout posted on the bow of the barge was not provided adequate means of communication with the wheelhouse. If the lookout cannot, or does not, report his observations, improper watch is being maintained, Coyle Lines, Inc. v. United States, 195 F.2d 737 (5th Cir. 1952); Sun Oil Co. v. S. S. Georgel, 245 F.Supp. 537, 545 (S.D.N.Y. 1965), aff’d, 369 F.2d 406 (2d Cir. 1966); and 33 U.S.C. § 221 is violated. Finally, the district court found that the Tug COLETTE MALLOY did not sound her fog signals while proceeding from the East Brazos River Floodgates to the west floodgates despite the dense fog on the river. The evidence supporting this finding is uncontroverted. Failure to sound signals violated the clear statutory directive of 33 U.S.C. § 191, a statute designed to prevent collisions. 33 U.S.C. § 154. The court below found as facts, that none of the violations contributed to the collision and that the sole cause of the accident was the gateman’s own inattentiveness or error of judgment. We cannot agree, and deem such findings clearly erroneous. Rule 52(a), Federal Rules of Civil Procedure. It is true that the west gateman heard by radio that the east gateman had allowed the tug and barge to pass through the east gates and enter the river. This was some notice of the approach of the vessels. It is also true, however, that had the Tug COLETTE MALLOY complied with the duty imposed by 33 C.F.R. 207.180(d)(2) by giving the requisite sound signals and waiting for the answering signals of the gateman no collision would have occurred. This omission contributed to the accident. Similarly, fog signals sounded during the river crossing would have alerted the gateman that the tug was near. The gateman, aided by these signals, could have accurately judged just when the gates should have been opened, keeping river debris out of the canal in the interim. Finally, if the tug’s captain had been apprised that the gates were closed immediately as that fact became known to the lookout, the accident might have been averted. In short, the result below was the correct one — the vessels are indeed liable under the statutes — but for the reason that as a matter of fact and law the United States was not solely at fault in causing the accident.

Failing to escape liability, defendants contend that the United States should be required to indemnify them pursuant to the Suits in Admiralty Act, 46 U.S.C. § 741 et seq., and the Federal Tort Claims Act, 28 U.S.C. § 1346(b). Indemnification would undermine the strict liability imposed by the statutes; we refuse to grant it here.

Affirmed.

      . Prosser, Law of Torts, § 78 (3d ed. 1964). The author points out that one type of action, sometimes labelled contributory negligence, constitutes a defense: voluntarily and unreasonably encountering a known danger. There is no evidence of that here, and we do not speak of contributory negligence in that sense.

      . Roy Miles King, west gate operator, testified on direct examination that he was in a position to hear signals but heard none. Ralph Edward Mathews, the tankerman for the Tug COLETTE MALLOY testified on direct that he recalled no whistle signals. Thomas Tatum, Captain of the COLETTE MALLOY at the time of the collision, admitted in his deposition that he made no whistle signals. The only evidence to the contrary is an uncertain statement from the tug’s mate, John J. Flip-pen. In any case, the other testimony amply supports the finding that no whistle or comparable sound signals were given.

      . The lookout testified that after he realized those in the wheelhouse could not see his flashlight he shouted that the gates were closed. He stated that he thought he felt the engine go into neutral at that time. On further questioning, he admitted:
      Q. Now after you first yelled, did you yell again? Did you have to yell again to the man on the bridge?
      A. Yes, 1 yelled the second time. After I waited and didn’t hear the engines speed up again, after they went into neutral I thought he was going to reverse the engines and I didn’t hear it speed up again and 1 yelled again.
      Q. So apparently he had not heard you, then?
      A. I’m afraid not.
      Tr. 83-84.
      Flippen, the mate in the wheelhouse, testified in deposition that he could not hear the lookout shout from the bow.

      . “Nothing in these rules shall exonerate any vessel, or the owner or master or crew thereof, from the consequences of any neglect to carry lights or signals, or of any neglect to keep a proper lookout, or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.”
      33 U.S.C. § 221.

      . “In fog, mist, falling snow, or heavy rainstorms, whether by day or night, the signals described in this section shall be used as follows, namely:
      (e) A steam vessel when towing, shall . at intervals of not more than one minute, sound three blasts in succession, namely, one prolonged blast followed by two short blasts.”


source: Caselaw Access Project

license: Public Domain

text:
    Wayne VANDENBURG, Plaintiff-Appellant-Cross-Appellee, v. NEWSWEEK, INC., Defendant-Appellee-Cross-Appellant.
    No. 74-1318.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.

      Francis C. Broaddus, Jr., Williams & Ellington, El Paso, Tex., for plaintiff-appellant-cross-appellee.
    Richard Munzinger, Schuyler B. Marshall, El Paso, Tex., Stanley Godofsky, Leo P. Larkin, Jr., New York City, for defendant-appellee-cross-appellant.
    Before RIVES, GODBOLD and GEE, Circuit Judges.
   GEE, Circuit Judge:

On this diversity libel suit’s previous trip to our court, we affirmed denial of Newsweek’s motion for summary judgment but cautioned “against attempting to glean from this decision any whisper of what the outcome should be on a motion for directed verdict, on the final verdict, or on a motion for judgment n. o. v.” Vandenburg v. Newsweek, Inc., 441 F.2d 378, 380 (5th Cir.), cert. denied, 404 U.S. 864, 92 S.Ct. 49, 30 L.Ed.2d 108 (1971). Unable to forecast then what our opinion would be, the parties are again before us on appeal from a judgment n. o. v. favoring Newsweek.

The alleged libel is contained in an article which appeared in Newsweek’s July 15, 1968 issue. Entitled “The Angry Black Athlete,” it dealt generally with the black power movement and its effect on college and university athletics. Vandenburg complains of two paragraphs:

It is a mess that extends from Niagara to the University of California, from Michigan to the University of Texas at El Paso. Sometimes the racial issue is inflamed by a coach’s get-tough policy. “I could give in to a lot of Negro demands,” says one Southwestern track coach, “and keep my team intact. But someone has to hold the line against these people.”
At El Paso, track coach Wayne Van-denburg threatened to kick six athletes off the team if they joined the boycott of the New York Athletic Club indoor meet in February. The club was charged with discriminatory membership policies. Vandenburg won and the athletes competed. But two months later, after a talk with Harry Edwards, the same athletes refused to enter a meet at Brigham Young University in Utah because of Mormon doctrines about blacks. Vandenburg promptly dropped champion long-jumper Bob Beamon and five others from the squad.

After testimony, the case was submitted to the jury, who returned a $130,000 verdict for Vandenburg. Ten months later the trial court granted Newsweek’s motion for judgment n. o. v., finding Van-denburg had failed to establish elements essential to his case. Vandenburg appeals; Newsweek asserts points on cross appeal, conditioned on our deciding Van-denburg’s claims. Finding the judgment n. o. v. justified by Vandenburg’s failure to establish actual malice, we affirm the trial court.

In a libel action brought by a public figure or a public official, the plaintiff must satisfy the New York Times standard; that is, he “may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth.” Gertz v. Welch, 418 U.S. 323, 342, 94 S.Ct. 2997, 3008, 41 L.Ed.2d 789, 807 (1974). See Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) and New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (leading case). State-law definition of actual malice conforms, as it must, to this constitutionally-based privilege. El Paso Times, Inc. v. Trexler, 447 S.W.2d 403, 405 (Tex.1969).

The New York Times test represents recognition that the freedoms of press and speech are essential to that wide-open discussion of public issues deemed so important by our founders to the continued existence of our governmental system. Further, the test is recognition “[t]hat erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive’. . . . ” (citations omitted). New York Times Co. v. Sullivan, supra at 271— 272, 84 S.Ct. at 721. The public figure or public official generally has placed himself in a position inviting comment and has meaningful opportunity to rebut the alleged libel, so state interest in protecting the individual from damage to reputation is less compelling. Gertz v. Welch, supra, 418 U.S. at 343-345, 94 S.Ct. at 3009, 41 L.Ed.2d at 807—808. The balance is thus struck to limit the possibility of a self-censorship detrimental to the political and social system as a whole, despite the fact that deserving public persons may in some cases be unable to meet the stringent requirements of the New York Times test. Id. 418 U.S. at 343, 94 S.Ct. at 3008-3009, 41 L.Ed.2d at 807.

We assume arguendo that the statement at issue contained inaccuracies. As stated above, in order to establish actual malice under Sullivan standards, the plaintiff must show respondent had actual knowledge of falsity or reckless disregard of same. This is not a proposition that can be supported by a normative conclusion that the publisher should have known of the falsity of the statement. Rather, evidence — direct or circumstantial — of the publisher’s subjective awareness is required. If plaintiff cannot show the publisher knew that the publication was false, he must show reckless disregard. “[R]eekless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 1325, 20 L.Ed.2d 262 (1968). Negligent reporting methods are insufficient. New York Times Co. v. Sullivan, supra, 376 U.S. at 288, 84 S.Ct. 710. On the other hand, when the story is not “hot news,” as is the case here, the investigation must be more thorough, and “actual malice may be inferred when the investigation . . . was grossly inadequate in the circumstances.” Vandenburg v. Newsweek, Inc., supra, 441 F.2d at 380.

Remembering that evidence of actual malice must be clear and convincing, more than a preponderance, we proceed — as we should in First Amendment cases of this sort — to make an independent examination of the record.

The New York Athletic Club (NYAC) meet, held in early 1968, was the focal point of black organizers’ activities. Charging the club with discriminatory practices, the leaders of the protest urged Negro athletes to boycott the meet and organized picket lines. Only nine black athletes crossed the picket lines to participate in the NYAC meet; all six University of Texas at El Paso (UTEP) black athletes did so. As his first piece of evidence tending to show actual malice, Vandenburg points to a Sports Illustrated article, authored by Axthelm close to the time of the NYAC meet, reporting Coach Vandenburg’s explanation of his own role in the UTEP athletes’ decision to participate as follows: “I asked each one if he wanted to come . . . and each one said yes. There was no pressure. I told them again tonight that they could back out and I’d never hold it against them.” The Sports Illustrated article also stated that Bob Beamon, a UTEP athlete, had decided to participate in the meet so he could visit his family home in New York. As admitted by Axthelm himself, this story is contrary to the later Newsweek version reporting Vandenburg’s threats to his team. Vandenburg makes much of this fact, along with the circumstances that “The Angry Black Athlete” was Axthelm’s first cover story for Newsweek and that Axthelm intended— indeed solicited information — to cover one side of the black athlete’s movement only, to show actual malice. Further, he points to Axthelm’s failure to re-interview him or talk to the athletes involved, the NYAC officials or other UTEP officials before publishing his contrary version in Newsweek. As explanation, Ax-thelm proffers events at and subsequent to the NYAC meet and reports from sources he believes reliable. First, few blacks competed in the NYAC competition due to the boycott and picketing; all the UTEP athletes entered Madison Square Garden to compete. Also, it is fact that later some UTEP athletes refused to participate in a meet at Brigham Young University for racial reasons and as a result were no longer members of the UTEP track team. These facts could reasonably raise doubt about Van-denburg’s earlier assertion, despite other press reports carrying Vandenburg’s version. Secondly, Samuel Skinner and Harry Edwards provided information to Axthelm which led to publication of the Newsweek story. Skinner’s deposition, introduced at trial, confirms Axthelm’s uncontradicted testimony that Skinner was one source of the NYAC information. Harry Edwards testified that he had told Axthelm that the NYAC threat story had been confirmed by a UTEP track team member.

Vandenburg does not seriously dispute that Axthelm received the information as described. The issue, then, is whether Vandenburg had reason to think it false, reason to question the reliability of his sources or to investigate further given all the circumstances. Here, it is true, Axthelm’s knowledge of Coach Vandenburg’s previous statement about giving the UTEP track athletes freedom to choose whether to compete or not put Axthelm on notice that a more careful investigation was required, Curtis Publishing Co. v. Butts, supra, 388 U.S. at 157, 87 S.Ct. 1975, as did his own desire to produce a successful first cover story for Newsweek, id. at 158, 87 S.Ct. 1975. However, Axthelm had corroborative stories from sources he believed reliable containing facts not inherently improbable in light of later events.

The evidence does not show Axthelm’s faith in his sources to be unreasonable. Samuel Skinner was sports director for KDIA radio in San Francisco and sports editor of the Sun Reporter, also of the San Francisco area. His news career spanned 12 years. He had worked as a stringer for both Sports Illustrated and Newsweek previously. Vandenburg has failed to point to any fact that would have caused Axthelm seriously to doubt Skinner’s reliability. While there is evidence that Skinner received some of his initial information from Harry Edwards, it does not appear that Axthelm knew that. On the contrary, Axthelm testified that Skinner asserted direct contact with Bob Beamon, a UTEP athlete. Skinner affirmed that he did indeed talk to Bob Beamon. Skinner’s race is insufficient standing alone to indicate partisanship. Skinner did specialize in reporting about blacks in sports, but Vandenburg pointed to no instance in which Skinner’s race affected the accuracy of his reporting of such sports. Vandenburg’s main challenge to Edwards’ reliability rests on Edwards’ own involvement in the black athlete movement. Harry Edwards, then associate professor at San Jose State College and a former athlete, was a leader in organizing the NY AC boycott. His belief in the goals of the movement is unquestioned, and so he could be considered a biased source. On the other hand, he was a logical source of information since he and his staff were talking to black athletes around the country at that time. Axthelm testified that he had found Edwards’ information on previous stories reliable. We regard that testimony as uncontradicted. Aslo, Axthelm believed that Edwards had been in direct contact with UTEP athletes; Edwards confirmed that he had. The same story had been given Axthelm by Skinner. Since both sources stated that they had talked to UTEP athletes, there was no reason for Axthelm to think the information mere rumor. Finally, the June 1968 El Paso dispatch sent Axthelm is not inconsistent with the Newsweek story; it simply does not discuss the reason for the athletes’ earlier participation in the NYAC meet. “While verification of the facts remains an important reporting standard, a reporter, without a ‘high degree of awareness of their probable falsity,’ may rely on statements made by a single source even though they reflect only one side of the story without fear of libel prosecution . . ..” New York Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir. 1966). Vandenburg has not shown that “high degree of awareness.”

Much of what we have said applies also to the Brigham Young University meet incident, since Edwards and Skinner both were sources for Axthelm’s version. In April 1968, several black athletes at UTEP decided to boycott the BYU meet because, inter alia, of their understanding of Mormon beliefs concerning Negroes. Officials at the University of Texas at El Paso, including Coach Vandenburg, responded with a statement that any athlete who did not participate in the BYU meet would be “voluntarily disassociated” from the track team. Axthelm reported that the athletes were “dropped” from the team. Putting aside the semantical difference — or lack thereof — Axthelm had ample reason to write what he did. Ax-thelm stated that Edwards and Skinner told him the athletes had been dropped from the team. Edwards testified, and Axthelm was aware, that his story had been verified by UTEP black athletes. Axthelm had additional backers; Anita Verschoth — a stringer especially used for sports events and with whom Axthelm had worked earlier at Sports Illustrated —sent a dispatch to the writer containing a quote from Coach Vandenburg to the effect that he had suspended the athletes and that the suspension was final. Appellant did not establish Ver-schoth to be untrustworthy. Finally, Axthelm had received a dispatch from Dale Walker, the Newsweek stringer in El Paso, specifically containing the word “dropped.” Walker’s reliability went undamaged. Moreover, Walker was actually in El Paso. Further, we think it a reasonable interpretation of UTEP’s official statement that the athletes were dropped from the track team as a result of their boycott.

One final portion of the story is challenged: the unattributed statement by “one Southwestern track coach” Ax-thelm used as an example of a “get-tough” policy which exacerbated the racial issue. Vandenburg argues, as he must, that readers could only believe that the statement referred to him. That proposition is far from clear since the unattributed quotation is followed by a specific reference to Coach Vanden-burg at UTEP; it seems at least as likely for a reader to decide that two different coaches were involved. The editing process stressed by appellant falls short of clear and convincing evidence of actual malice; indeed, it shows as well Ax-thelm’s efforts to preserve the speaker’s anonymity. In any case, Verschoth’s dispatch contained similar sentiments attributed specifically to Coach Vandenburg.

New York Times dictates that appellant must have clear and convincing evidence of actual malice to win his suit. After examining the record, we agree with the trial judge that Vandenburg has failed to meet that standard.

Affirmed.

      . In our previous treatment of this case, it was decided that Vandenburg was a public figure and that the New York Times standard was applicable. Vandenburg v. Newsweek, Inc., 441 F.2d 378, 379 (5th Cir.), cert. denied, 404 U.S. 864, 92 S.Ct. 49, 30 L.Ed.2d 108 (1971). Testimony at trial — from both Van-denburg and Axthelm — supports the decision that Vandenburg was a public figure, at least for a “limited range of issues.” See Gertz v. Welch, 418 U.S. 323, 351, 94 S.Ct. 2997, 3013, 41 L.Ed.2d 789, 812 (1974).

      . “ ‘Those who won our independence believed . . . that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law — the argument of force in its worst form.’ ”
      New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 720-721, 11 L.Ed.2d 686 (1964).

      . Time, Inc. v. Pape, 401 U.S. 279, 284, 91 S.ct. 633, 28 L.Ed.2d 45 (1971); Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82, 88 S.Ct. 197, 19 L.Ed.2d 248 (1967); New York Times Co. v. Sullivan, supra, 376 U.S. at 285-286, 84 S.Ct. 710.

      . Only five actually competed, the sixth being held out from participation due to his physical condition by Coach Vandenburg.

      . A stringer is a local reporter used by national news magazines and networks to gather local news information. He is used in lieu of the bureau reporters.

      . Vandenburg did attempt to show that Ax-thelm had inaccurately reported Edwards’ information in other instances; however, in neither case is Edwards clearly shown to be the source of information for the story.

      . The facts in our case are distinguishable from Curtis Publishing Co. v. Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), relied on by appellant. In Butts, the Saturday Evening Post knew its sole and one-time informant had been put on probation due to bad check charges but published without independent verification. Also, the author was not well versed on the subject of the article. Political, social bias is not the indicator of potential falsehood that criminal activity is, especially when a record for reliability is shown. Here there was an independent source. Also, Axthelm was familiar with the subject matter of the article.


author: BUTZNER, Circuit Judge.

text:
    Braxton RUSSELL, Appellant, v. UNITED STATES of America, Appellee.
    No. 73-2397.
    United States Court of Appeals, Fourth Circuit.
    Argued Dec. 3, 1974.
    Decided Dec. 27, 1974.

      George L. Freeman, Jr., Fairfax, Va. [court-appointed], for appellant.
    K. Gregory Haynes, Asst. U. S. Atty. (David H. Hopkins, U. S. Atty., for the Eastern District of Virginia), for appel-lee.
    Before BUTZNER, FIELD, and WIDENER, Circuit Judges.
   BUTZNER, Circuit Judge.

Braxton Evan Russell appeals from denial of his motion for relief under 28 U.S.C. § 2255. In these proceedings, both the government and Russell, referring only to the indictment, assume that he was found guilty of possession of cocaine with intent to distribute. Russell contends that the conviction is invalid because it is dependent on a presumption — since declared unconstitutional— which allowed a finding of intent to distribute to be based solely on the quantity of the drug possessed by the accused. But the record shows Russell was found guilty of a lesser included offense, simple possession, and not the more serious crime of possession with intent to distribute. The presumption, therefore, played no part in his conviction. We remand for resentencing, however, because the district court misapprehended the range of punishment for simple possession.

Russell was indicted for possession of cocaine with intent to distribute under the Assimilative Crimes Act, 18 U.S.C. § 13, and the Virginia Drug Control Act, Va.Code Ann. § 54-524.101(a) (1971 Supp.). He was tried by the court without a jury and sentenced to eight years in the penitentiary. Uncontradicted evidence disclosed that he had possessed approximately eight ounces of 24% cocaine and nine ounces of a cutting material. On direct appeal, Russell contended only that the cocaine had been seized in violation of his fourth amendment rights. We affirmed. United States v. Russell, No. 71-1685 (4th Cir. 1972).

Both Russell and the government acknowledge that the indictment, which expressly charged possession with intent to distribute, also implicitly charged the lesser included offense of simple possession. Cf. Hewitt v. Commonwealth, 213 Va. 605, 194 S.E.2d 893 (1973). There is no doubt about Russell’s unlawful possession. Apart from the legality of the search, which has been settled, only his intent is in issue.

Several months after Russell’s conviction was affirmed, the Supreme Court of Virginia held in Sharp v. Commonwealth, 213 Va. 269, 192 S.E.2d 217 (1972), that the following provision of § 54 — 524.101(a) was unconstitutional:

“A conviction for a violation of this § 54 — 524.101(a) may be based solely upon evidence as to the quantity of any controlled drug or drugs unlawfully possessed.”

Russell contends that his conviction was based on this unconstitutional presumption. He argues that the government introduced no direct evidence of actual or attempted distribution and that the quantity of the drug was insufficient to show intent to distribute without relying on the unconstitutional provision of the Act.

As we have stated, however, the record of Russell’s criminal trial indicates that he was found guilty of possession of cocaine, instead of possession with intent to distribute. Therefore, the unconstitutional provision was not used to determine his guilt. After both sides had rested, the district court ruled:

“On the evidence heard the Court finds that this Defendant did on the day in question knowingly have in his possession this controlled drug, to wit, cocaine. The Court is so satisfied that he had it knowingly in his possession and the Court finds him guilty.”

The judge’s additional remarks clearly indicate that he had reached no firm decision about Russell’s intent to distribute. Referring to the presentence investigation, the court said:

“I want to give him the opportunity, if he wants to do it, purely voluntarily, to give any explanation if any he has what this is all about, and so forth, because there is an awful lot of difference in my mind if a person has it for personal consumption — I am talking about as far as the punishment, and if the record seems to indicate he had it for other purposes, see, and that is why there is a range of potential punishment.”

However, the court could not utilize the presentence report to supply proof of Russell’s guilt. See Fed.R. Crim.P. 32(c); A.B.A. Standards Relating to Sentencing Alternatives and Procedures § 4.2 (App.Draft 1968). United States v. Pruitt, 341 F.2d 700, 702 (4th Cir. 1965) (dictum). We are confident that the court did not misuse the presentence report in this fashion. The judgment signed after sentencing refers again only to a conviction for simple possession. We conclude, therefore, that Russell’s conviction is valid.

At the time of Russell’s offense, Virginia law penalized possession of cocaine with intent to distribute by imprisonment for not less than one nor more than forty years. The penalty for simple possession, which is also a felony, was imprisonment for not less than one nor more than ten years or, in the discretion of the court, confinement in jail for not more than twelve months. The transcript of the sentencing proceedings, conducted more than two months after Russell’s conviction, discloses that the court took into consideration the forty year maximum penalty instead of the pertinent ten year maximum.

Federal appellate courts are not empowered to review sentences, save in exceptional circumstances. United States v. Pruitt, 341 F.2d 700, 703 (4th Cir. 1965). Review, however, is authorized in proceedings brought pursuant to 28 U.S.C. § 2255 when the record discloses that the sentencing judge misapprehended the pertinent statute governing punishment. Cf. United States v. Lewis, 392 F.2d 440 (4th Cir. 1968). Accordingly, we vacate that part of the judgment sentencing Russell to prison for eight years and remand the case for resentencing under the statute relating to simple possession. We do not disturb that part of the order which adjudges him guilty of possession of cocaine. We find no merit in Russell’s other assignments of error.

      . Va.Code Ann. § 54-524.101(a) makes it unlawful for any person knowingly or intentionally:
      “(1) To distribute, or to possess with intent to distribute, a controlled drug. .
      § 54-524.81 includes cocaine in its list of controlled drugs.

      . § 54-524.101(c) provides:
      “It is unlawful for any person knowingly or -intentionally to possess a controlled drug

      . The Act was repealed and reenacted without this provision in 1972. Va.Code Ann. § 54-524.101:1 (1974 Supp.).

      . We recognize that intent to distribute a narcotic may be inferred from the amount of the drug in the defendant’s possession. United States v. Welebir, 498 F.2d 346 (4th Cir. 1974); United States v. Childs, 463 F.2d 390 (4th Cir. 1972). However, these cases do not allow a presentence report to be used to prove an essential element of the .crime.

      . The judgment provided:
      “It is adjudged that .the defendant upon his plea of not guilty, and a finding of guilty has been convicted of the offense of Possession of Cocaine — T18 USC 13 as charged in the indictment . . . ”
      As we have previously noted, the indictment charged not only possession with intent to distribute but also the lesser included offense of simple possession.

      . Va.Code Ann. §§ 54 — 524.101(b) and (c); 54— 524.81 (1971 Supp.). The penalties also included fines. These sections were repealed and reenacted with modifications in 1972. Va.Code Ann. §§ 54-524.101:1 and 54-524.-101:2; 54-524.84:6 (1974 Supp.).


author: PER CURIAM:

text:
    James V. McLEAN et al., Plaintiffs-Appellees, v. L.P.W. REALTY CORP. et al., Defendants-Appellees. GULF OIL CORPORATION, Defendant and Third-Party Plaintiff-Appellee, v. BEAMAN CORPORATION, Third-Party Defendant-Appellant, UNITED PORCELAIN CO., INC., Third-Party Defendant-Appellee.
    No. 215, Docket 74-1498.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 15, 1974.
    Decided Dec. 19, 1974.
    William F. Larkin, New York City (Coppola & D’Onofrio, New York City, on the brief), for third-party defendant-appellant; Beaman Corporation.
    James M. Furey, Hempstead, N. Y. (Furey & Mooney, Hempstead, N. Y., on the brief), for third-party plaintiff-appel-lee, Gulf Oil Corporation.
    Irwin H. Haut, New York City (Alexander, Ash, Schwartz & Cohen, Sidney A. Schwartz, New York City, on the brief), for third-party defendant-appel-lee, United Porcelain Co., Inc.
    Anthony J. McNulty, New York City (A. Allen Stanger, William P. McNulty, New York City, on the brief), for defendant-appellee, Joseph James, Inc.
    Marvin Ausubel, New York City, for plaintiffs-appellees.
    Before FRIENDLY, FEINBERG and GURFEIN, Circuit Judges.
   PER CURIAM:

Appellant Beaman Corporation was hired by Gulf Oil Corporation to furnish and install certain improvements to a service station sublet by Gulf to station operator Joseph James, Inc. Beaman subcontracted the installation to United Porcelain Co., Inc. In June 1966, plaintiffs James V. McLean and Joseph Linfante, employees of United Porcelain, were seriously injured on the job. Almost eight years later, the complicated litigation growing out of this accident was finally tried before Judge Whitman Knapp and a jury in the United States District Court for the Southern District of New York. The trial was characterized chiefly by the ingenuity of counsel in asserting a great variety of claims by the parties against each other. The upshot, for our purposes on appeal, is that plaintiffs were awarded damages of $90,-000 only from Gulf, Gulf was allowed full indemnity from Beaman on the basis of an indemnity clause in the improvement contract and United Porcelain was exonerated by a judgment notwithstanding the verdict.

In briefs and in argument on appeal that equal their confusing performance in the district court, the parties raise many contentions. We briefly mention only a few, finding the rest wholly without merit. Beaman claims that there was no basis for holding it liable to Gulf under its contract. The contention is not persuasive. Margolin v. New York Life Ins. Co., 32 N.Y.2d 149, 153-154, 344 N.Y.S.2d 336, 297 N.E.2d 80 (1973); Levine v. Shell Oil Co., 28 N.Y.2d 205, 210-213, 321 N.Y.S.2d 81, 269 N.E.2d 799 (1971). In addition, the exoneration of United Porcelain was proper since the accident was not proximately caused by breach of any duty by United.

In the district court, Gulf unsuccessfully claimed indemnification from James under a hold-harmless clause in the station lease. In this court, Gulf and Beaman argue that the rejection of Gulf’s claim was error. We doubt that Beaman has standing to raise this issue at all, and Gulf’s appeal has been dismissed for failure to prosecute. But in any event, the clause is unenforceable under New York General Obligations Law § 5 — 321 (McKinney Consol.Laws, c. 24 — A, 1964) Cf. Redding v. Gulf Oil Corp., 38 A.D.2d 850, 330 N.Y.S.2d 158 (2d Dep’t 1972). Levine v. Shell Oil Co., supra, a case superficially similar to this one, is not to the contrary. There the applicability of section 5-321 was not raised by the parties or discussed by the court. Redding v. Gulf Oil Corp., supra, 330 N.Y.S.2d at 161. Moreover, the factual circumstances here are much more favorable to the station operator than they were in Levine. James had no practical control over the construction process. Nor had he any knowledge enabling him to recognize the danger created by the defective plans supplied by Gulf for work that was apparently supposed to be done before James took possession of the station under a one-year lease. On this issue, Beaman and Gulf urge a contrary application of the New York cases. But while the law of New York is not crystal clear at the moment, we believe that the New York courts would regard enforcement of this indemnification clause as unconscionable. Were it not for diversity jurisdiction, these defendants might have had rulings on the matter from more authoritative sources.

Judgment affirmed.

      . Ethel McLean and Susan Linfante are also plaintiffs, suing for loss of consortium.

      . The final judgment also dismissed plaintiffs’ claim against James and against L.P.W. Realty Corp., owner of the property and lessor to Gulf.

      . Beaman argues that it does, because it will benefit if James must indemnify Gulf.

      . § 5-321. Agreements exempting lessors from liability for negligence void and unenforceable
      Every covenant, agreement or understanding in or in connection with or collateral to any lease of real property exempting the lessor from liability for damages for injuries to person or property caused by or resulting from the negligence of the lessor, his agents, servants or employees, in the operation or maintenance of the demised premises or the real property containing the demised premises shall be deemed to be void as against public policy and wholly unenforceable.


author: SIMPSON, Circuit Judge:

text:
    Hershel Hiram McKNIGHT, Petitioner-Appellant, v. UNITED STATES of America, Respondent-Appellee.
    No. 73-3993.
    United States Court of Appeals, Fifth Circuit.
    Feb. 12, 1975.

      Richard D. Pullman, Dallas, Tex. (Court-appointed), for petitioner-appellant.
    Robert W. Wilson, Asst. U. S. Atty., Lubbock, Tex., W. E. Smith, Asst. U. S. Atty., Ft. Worth, Tex., for respondent-appellee.
    Before TUTTLE, THORNBERRY and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

This appeal is from the district court’s dismissal of Hershel Hiram McKnight’s motion for post conviction relief pursuant to Title 28, U.S.C., Sec. 2255. Because McKnight’s uncontested factual allegations establish a bona fide controversy, requiring resolution by an evidentiary hearing and resultant findings, we reverse and remand.

MeKnight was convicted in 1971 on both counts under which he was indicted: Count 1 charged him with conspiracy to rob a bank in violation of Title 18, U.S.C., Sec. 371; Count 2 charged him with carrying a firearm during the commission of a felony in violation of Title 18, U.S.C., Sec. 924(c)(2). On the same day that sentence was imposed, March 18, 1971, MeKnight filed a notice of appeal. Three months later, MeKnight joined with his attorney in a motion to dismiss the appeal. We granted this motion by an administrative order dated June 18, 1971. Thereafter, on January 11, 1972, MeKnight filed a pro se motion in the district court seeking Sec. 2255 relief and alleging twelve grounds therefor. The district court denied relief on the merits and we affirmed without written opinion. MeKnight v. United-States, 5 Cir. 1972, 468 F.2d 951. MeKnight then filed this, his second collateral attack, in which he alleged that his conviction under Count 2 of the indictment was contrary to law because (1) the district court lacked jurisdiction under Title 18, U.S.C., Sec. 924(c)(2) in that interstate commerce was unaffected; (2) the indictment omitted the word “unlawfully”; (3) the jury instructions were erroneous; and (4) the Grand Jury misinterpreted the charges against him. Declining to reach the merits, the district court denied relief on the following grounds:

“The motion and the files and records of the case conclusively show that the Petitioner is entitled to no relief. Each of the challenges urged by Petitioner could have been raised on direct appeal. The record affirmatively reflects a conscious election on the part of Petition (sic) not to appeal by his motion to the United States Court of Appeals for the Fifth Circuit that his appeal be dismissed. Failure to appeal, like failure to raise a known question of unconstitutionality, is a bar to Sec. 2255 relief where a deliberate choice not to appeal is made by conscious election. Larson v. United States, 5th Cir. 1960, 275 F.2d 673.”

McKnight timely took the instant appeal, alleging that he was sick and badly in need of immediate and extensive medical care at the time his direct appeal was pending; that he was informed by his own counsel, local jail authorities and the United States Marshal that the Lubbock, Texas jail, where he was to remain incarcerated during his appeal, could not provide him with adequate medical care; that these same officials told him that if he would dismiss his appeal he would be removed to a federal penitentiary where proper medical attention could be provided; that his fear of continuing without proper medical care overcame his desire to pursue his direct appeal at which time he filed his motion to dismiss. In sum, McKnight alleges that the district court erred in denying his Sec. 2255 motion without a hearing solely on the grounds that he had dismissed his direct appeal. We agree.

The district court correctly cited Larson for the principle that a failure to appeal will normally bar Sec. 2255 relief where a deliberate choice not to appeal is made by conscious election. The emphasis is not merely on the fact that an appeal was not taken, but rather on why the appeal was not taken. In Larson the evidence showed that the appeal was not taken for fear of receiving a harsher penalty in the event of a new trial. The decision was tactical.

The Supreme Court has specified that “the Sec. 2255 court may in a proper case deny relief to a federal prisoner who has deliberately bypassed the orderly federal procedures provided at or before trial and by way of appeal — e. g., motion to suppress under Fed.Rule Grim. Proc. 41(e) or by appeal under Fed.Rule App.Proc. 4(b).” Kaufman v. United States, 1969, 394 U.S. 217, 227 n. 8, 89 S.Ct. 1068, 1075 n. 8, 22 L.Ed.2d 227. But where a district court intends to use such rationale in denying a Sec. 2255 motion, this Court requires that the lower court’s decision not only indicate a finding of deliberate bypass, but also reflect sufficient evidentiary development therefor. See Collier v. Estelle, 5 Cir. 1974, 488 F.2d 929; Montgomery v. Hopper, 5 Cir. 1973, 488 F.2d 877; Montgomery v. United States, 5 Cir. 1972, 469 F.2d 148; Bonaparte v. Smith, 5 Cir. 1971, 448 F.2d 385; Johnson v. Smith, 5 Cir. 1971, 449 F.2d 127. Thus, in Morris v. United States, 5 Cir. 1974, 503 F.2d 457, the district court’s denial of appellants’ Sec. 2255 motions on the ground that they consciously elected to forego direct appeal was reversed and remanded by this Court for an evidentiary hearing on whether “Appellants’ right to appeal was voluntarily and understandingly waived.” 503 F.2d at 458. The appellants in Morris had allegedly dismissed their apipeals so they would be transferred to federal facilities where they could attack their convictions without the harassment they allegedly experienced at the local prison. Although they did not specify in their Sec. 2255 motions that their abandonment of the right to appeal was involuntary, this court found that their factual allegations, if proven, would have the same result. We therefore remanded to the district court for a specific finding as to this voluntariness.

The foregoing makes it clear that McKnight’s allegations, if true, raise a bona fide issue as to voluntariness of this dismissal of the direct appeal. It may be argued, however, that McKnight failed to issuably raise these allegations before the district court. While these factual allegations concerning dismissal of the prior appeal were not alleged in the present Sec. 2255 application, this may not be dispositive. According to McKnight’s argument before this court, his allegations concerning the lack of available medical treatment at the Lubbock jail were initially raised in an affidavit attached to a Motion to Reinstate Appeal in Forma Pauperis presented to this court. The motion was denied by a panel of this court on December 3, 1971. Although this motion and accompanying affidavit were not made a part of the record presently before us, there was sufficient reference made to them to have placed the district court on notice of the situation. In McKnight’s reply brief in his first collateral attack he stated:

“It is evident appellee has failed to understand why appellant waived his direct appeal. The Lubbock jail is a ‘Hell Hole’, appellant was extremely sick, and needed medical attention. It was either stay at the jail for the appeal (which he was told by Marshal’s, Attorney and Prosecutor), or die from lack of medical attention. The trip from Leavenworth would not be a vacation as implied by learned counsel. The motion for postconviction relief was for the purpose of correcting an injustice, nothing else.”

The government made the above-quoted portion of McKnight’s reply brief a part of this record by appending it to the government’s Answer to McKnight’s present Sec. 2255 application.

We will not assume abandonment of the right to appeal from a criminal conviction unless facts clearly supporting such an assumption are developed on the record. Morris v. United States, 5 Cir. 1974, 503 F.2d 457, 458; Chapman v. United States, 5 Cir. 1972, 469 F.2d 634, 637; McKinney v. United States, 5 Cir. 1968, 403 F.2d 57, 59. Thus, to reiterate what we said in Morris, 503 F.2d at 459:

“Although this case raises the question of waiver in a somewhat unorthodox context in that appellants’ petitions cannot be fairly read as being bottomed on the denial of the right to appeal, we nevertheless treat the issue of waiver as being incorporated into the petition in the absence of evidence that the right to appeal was effectively abandoned, bearing in mind that the court below relied on waiver to deny consideration of the appellants’ claims. Collier v. Estelle, 5 Cir. 1974, 488 F.2d 929, 931.”

Should the district court determine that McKnight did not deliberately bypass his right to a direct appeal by a conscious election, it will be in order for that court to consider the merits of the present motion for relief under Title 28, U.S.C. Sec. 2255. Under the circumstances, we of course express no views as to the merits.

Reversed and remanded for further proceedings.

      . We affirmed pursuant to local Rule 21. See NLRB v. Amalgamated Clothing Workers of America, 5 Cir. 1970, 430 F.2d 966. We set forth in a footnote however the twelve grounds upon which relief was sought:
      In this proceeding for relief under 28 USCA, Sec. 2255, appellant contends: (1) that he was denied the right to challenge the grand jury array; (2) that several classes of his peers were excluded from the grand jury and from the jury panel which returned the verdict against him; (3) that the conspiracy charge violated his first amendment rights; (4) that the firearms charge violated his first and second amendment rights; (5) that the indictment was defective because it charged two counts and the validity of the second was dependent on conviction under the first; (6) that there was an invalid search and seizure; (7) that he was denied effective assistance of counsel because the trial judge intimidated his trial attorney; (8) that his long confinement in jail between arrest and trial was cruel and unusual punishment; (9) that the government improperly granted two of its witnesses immunity from prosecution; (10) that he was not immediately taken before a United States Commissioner; (11) that he was interrogated by government officers when his attorney was not present; and (12) that the district court erred in denying relief without holding an evidentiary hearing.
      The government contends that the substantive issues sought to be raised by MeKnight in his present attack were impliedly decided by our previous affirmance. Therefore, the government urges, the doctrine of res judica-ta applies. In view of our present holding, however, we intimate no view as to the applicability of res judicata.

      . Larson involved a much publicized trial in which Larson and a co-defendant were convicted of the murder of a Deputy United States Marshal. The jury returned a verdict of guilty as to both defendants, but recommended against capital punishment as to Larson only. Consequently Larson was sentenced to life imprisonment while his co-defendant was sentenced to death. Larson did not appeal, a tactical decision that was later shown to have been born out of fear of receiving the harshest of all penalties, death.

      . Although some of the cases cited deal with state prisoners seeking habeas corpus relief, “their holdings relative to the bypass doctrine are equally applicable to § 2255 applicants under Kaufman (v. United States, 1969, 394 U.S. 217, 89 S.Ct. 1068, 22 L.Ed.2d 227).” Montgomery v. United States, 5 Cir. 1972, 469 F.2d 148, 150.

      . In his brief before this court, McKnight purports to reproduce that portion of his Motion to Reinstate Appeal in Forma Pauperis in which he stated his reasons for filing his prior motion to dismiss the direct appeal:
      “(1) That the motion was predicated upon haste due to very exacerbating illness, and upon the ignorance of the law, both of which plague the defendant.
      (2) That defendant was informed by official parties, his counsel, jail authorities, and the U. S. Marshal, that he could not receive the immediate and extensive medical needed during his wait for an appeal, and that if he would so sign he would be removed to a penitentiary where such was available.
      (3) The (sic) under the condition of a very debilitating illness your defendant had no choice, except to possibly die from the very serious effects of hepatitis and gout.
      (4) That due to defendant’s illness and ignorance of the law he has not, as a matter of right, received due process or the equal protection of the laws to effect such an appeal due to the coercive nature of his position while ill and in confinement in the jail, causing him thereby to relinquish his Appeal of Right.
      (5) That defendant’s counsel did not give him the most effective service possible as required under the Sixth Amendment of the Constitution, in that he could have well advised against the sub rosa actions contrived against defendant to deprive him of his Appeal of Right.
      (6) That defendant has appended hereto two documents, Exhibit ‘A’ and ‘B’ — attesting to his illness which continues to be debilitating at this time. This is a matter of official record at the U. S. Public Health Service Unit, here at Leavenworth, Kansas.”
      (Brief of Appellant, p. 3)
      McKnight also purports to reproduce the attached affidavit:
      “COMES NOW Hershel Hiram McKnight, of P. O. Box 1000, Leavenworth, Kansas, and makes and publishes this affidavit concerning the state of his health during the time of trial, after the trial, and while in the jail, all in Case Number CR-5-132:
      1. ) Your affiant states that he had hepatitis and that such will show upon the record under the International Classification of Diseases Adapted as No. 571.9.
      2. ) Your affiant also states that he is still suffering from the acquired gout of his long stay in the jail, and that it is a matter of record here under the International Classification of Diseases No. 274.
      3. ) Your defendant would so testify to the same if brought before a court of law making inquiry into the nature of this application for reinstatement of original appeal.
      4. ) Your defendant further says that he is on medication three times daily under the direction and care of Joseph R. Halperin, M.D., USPHS, Surgeon (R), Leavenworth, Kansas.
      FURTHER AFFIANT SAYETH NOT:” (Brief of Appellant, p. 4)


author: HASTIE, Senior Circuit Judge.

text:
    UNITED STATES of America, Plaintiff-Appellee, v. DEXTER CORPORATION and North Shore Sanitary District. North Shore Sanitary District, Defendant-Appellant.
    No. 74-1135.
    United States Court of Appeals, Seventh Circuit.
    Argued Sept. 23, 1974.
    Decided Dec. 16, 1974.
    Rehearing Denied Feb. 4, 1975.

      George B. Collins, Chicago, Ill., Murray R. Conzelman, Waukegan, Ill., for defendant-appellant.
    James R. Thompson, U. S. Atty., Gary L. Starkman and James B. Burns, Asst. U. S. Attys., Chicago, Ill., for plaintiffappellee.
    Before HASTIE  and CASTLE, Senior Circuit Judges, and FAIRCHILD, Circuit Judge.

       Senior United States Circuit Judge William H. Hastie of the United States Court of Appeals for the Third Circuit, sitting by designation pursuant to 28 U.S.C. § 294(d) (1970).

   HASTIE, Senior Circuit Judge.

In this case an information charged that Dexter Corporation, a manufacturer, and appellant North Shore Sanitary District, a municipal corporation, “did cause . . . to be discharged and deposited from out of The Dexter Corporation’s Midland Division plant facility and . . . The North Shore Sanitary District sewer system, refuse matter, to wit: phenolic resin, into Lake Michigan . . .; in violation of Title 33, United States Code, Sections 407 and 411”.

Section 407, originally Section 13 of the Rivers and Harbors Act of 1899, declares that “[i]t shall not be lawful to cause . . to be discharged, or deposited either from the shore, wharf, manufacturing establishment, or mill of any kind, any refuse matter of any kind or description whatever other than that flowing from streets and sewers and passing therefrom in a liquid state, into any navigable water . . ..” Section 411 makes a violation of Section 407 a misdemeanor.

Dexter Corporation pleaded nolo con-tendere, was fined $500 and is not before us now. North Shore Sanitary District went to trial before the district court, sitting without a jury. The essential facts were stipulated.

North Shore Sanitary District is a municipal corporation of the State of Illinois and, as duly authorized, operates a sanitary sewer system in Lake County. Dexter Corporation’s manufacturing plant connects with and utilizes this municipal system for the discharge of waste and storm water.

In its manufacturing operation Dexter uses phenolic resin, a toxic and to some extent corrosive liquid that is lighter than water. During a rainstorm, an employee at the Dexter plant accidentally caused a substantial quantity of phenolic resin to be discharged into the sanitary sewer system where its subsequent course was diverted through a by-pass, which the Sanitary District used at times of heavy rainfall, and thence into Lake Michigan. Under normal conditions the Sanitary District’s processing of sewerage would have prevented the phenolic resin from reaching the lake. But in this case the rainy weather by-pass had been opened and the toxic liquid flowed untreated from the sewer into the lake. There, being lighter than water, it was discovered on the surface.

On these facts the district court found the Sanitary District guilty of violating Section 407 and imposed a $500 fine. This appeal followed.

We now consider whether the exception stated in Section 407 makes the section’s general prohibitory language inapplicable here. Certainly, the phenolic resin in this case comes within the comprehensive statutory designation of “any refuse matter of any kind or description whatever” discharged from a “manufacturing establishment”. But the statute proceeds to exclude from its coverage refuse matter “flowing from streets and sewers and passing therefrom in a liquid state”. On its face this exclusionary language seems applicable to the effluent in this case. The parties have stipulated and the government concedes that the Sanitary District caused the refuse in question to pass through its sewers into the lake and that the refuse was at all times a liquid.

There was a rational basis for this explicit exception in the circumstances of the statute’s enactment. Concern to eliminate immediate and potential hazards to navigation moved Congress to enact late Nineteenth Century legislation that culminated in the Rivers and Harbors Act of 1899. Thus, though Section 13 of the 1899 Act has also served in more recent times to provide some protection for the quality of bodies of water, its essential design was to safeguard their navigability. In this historic context, the statutory exception that governs this case is understandable. Although the statutory prohibition of the deposit or discharge of refuse into streams covered liquids as well as solids, an influx of liquid, free of solids in suspension, posed no significant immediate or potential hazard to navigability. At the same time local communities were progressively developing sanitary and storm sewerage systems and regulating their effluent. It is not surprising, therefore, that Congress in 1899 should see fit to leave the treatment and disposition of all liquid waste handled by local public sewerage systems to local regulation, exercising federal control thereover only to the extent necessary to prevent public sewers from becoming conduits for solids that might accumulate in and eventually impair the navigability of adjacent waters. In any event, the language of the statutory exception is clear and unambiguous.

At argument, the appellee predicated a contrary interpretation of the controlling statutory language upon United States v. Republic Steel Corp., 1960, 362 U.S. 482, 80 S.Ct. 884, 4 L.Ed.2d 903. However, that ease involved only “industrial solids” and held that such matter, discharged through a sewerage system in the form of particles suspended in water, is not within the Section 407 exception. It is true that, in this context, the opinion of the Court spoke of two categories of “articles in suspension”, namely, “organic matter in sewage” and “industrial solids”. The significance of these categories is not clear, particularly since no such breakdown is undertaken in the statute. In any event, the case was concerned only with industrial solids and decided merely that under Section 407 such solids in suspension were not refuse in a liquid state.

Subsequently, a few courts, incorrectly we think, have relied on United States v. Republic Steel Corp., as authority for making the Section 407 exception inapplicable to liquid waste of industrial origin that is passed through public sewers. But the Republic Steel holding does not require and rational reading of the simple language of Section 407 does not permit that interpretation. In a single sentence the statute prohibits the deposit or discharge in navigable water of “refuse matter of any kind or description whatever”, except for “that flowing from . . . sewers . . in a liquid state”. The quoted pronoun “that”, must refer to the subject phrase, “refuse matter of any kind”. Thus, the exception is not limited to refuse of domestic origin. We will not substitute for what the statute says our notions of what might preferably have been said.

The judgment is reversed.

Reversed.

      . Cf. United States v. Standard Oil Co., 1966, 384 U.S. 224, 86 S.Ct. 1427, 16 L.Ed.2d 492; United States v. Esso Standard Oil Co. of Puerto Rico, 3 Cir. 1967, 375 F.2d 621.

      . See S.Rep. No. 224, 50th Cong., 1st Sess., 2 (1888); H.R.Rep. No. 1826, 55th Cong., 3d Sess., 3^4 (1899). The history of the 1899 Act is sketched in United States v. Pennsylvania Industrial Chemical Corp., 1973, 411 U.S. 655, 663-666, 93 S.Ct. 1804, 36 L.Ed.2d 567.

      . See cases cited in note 1, supra.

      Supplementing the earlier legislation Congress has more recently inaugurated an elaborate program of pollution control. 33 U.S.C. c. 23, entitled Pollution Control of Navigable Waters.

      . See Rodgers, Jr., Industrial Water Pollution and the Refuse Act, 1971, 119 U.Pa.L.Rev. 761, 778.

      . The opinion writer, Mr. Justice Douglas, seems to have used “sewage”, a word that does not appear in the statute, to mean human or other domestic waste.

      . E. g., United States v. Granite State Packing Co., D.N.H.1972, 343 F.Supp. 57, 61.

      . This seems to have been the contemporary reading of the statute by Attorney General, later Associate Justice, Joseph McKenna. 1897, 21 Op.Atty.Gen. 594, 595.


author: VAN OOSTERHOUT, Senior Circuit Judge.

text:
    BEALL CONSTRUCTION COMPANY, Petitioner, v. OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION et al., Respondents.
    No. 74-1297.
    United States Court of Appeals, Eighth Circuit.
    Submitted Nov. 11, 1974.
    Decided Dec. 18, 1974.

      McNeill Stokes, Atlanta, Ga., for petitioner.
    David M. Cohen, Atty., App. Section, Civ. Div., Dept, of Justice, Washington, D. C., for respondents.
    Before VAN OOSTERHOUT, Senior Circuit Judge, HEANEY, Circuit Judge, and MEREDITH, Chief District Judge.

      The Honorable James H. Meredith, Chief Judge, Eastern District of Missouri, sitting by designation.

   VAN OOSTERHOUT, Senior Circuit Judge.

The Petitioner in this matter has taken a timely appeal from an Order of the Occupational Safety and Health Review Commission (Commission) imposing a $620 fine for one serious violation and four nonserious violations of the Occupational Safety and Health Act of 1970 (29 U.S.C. § 651 et seq.). This court has jurisdiction under 29 U.S.C. § 660(a).

In this court Petitioner contends: (1) the Occupational Safety and Health Act of 1970 and its enforcement procedures established by §§ 5, 6, 8, 9, 10, 11, 12 and 17 of the Act are unconstitutional on their face as well as applied; (2) the Commission’s findings that Petitioner violated several OSHA regulations are not supported by substantial evidence and; (3) that as the prevailing party in this matter, Petitioner is entitled to costs and expenses for defending itself against the alleged violations of the OSHA regulations. On the basis of the facts of this case, we affirm.

Petitioner is a medium-sized contracting firm which during the time in question was a general contractor for construction of a multi-story building in Fremont, Nebraska. As a result of a routine inspection on November 5, 1971, by OSHA compliance officers Petitioner was cited for eight nonserious violations of 29 U.S.C. § 654(a)(2), including a citation for improper guarding of elevator shaft openings above the second floor. These citations and proposed penalties totalling $1,275 became final and nonre-viewable pursuant to 29 U.S.C. § 659(a) when Petitioner failed to contest them within the prescribed 15 day period.

On January 19, 1972 two compliance officers reinspected Petitioner’s job site to determine whether the above described violations had been corrected. As a result of this reinspection the OSHA regional officer pursuant to 29 U.S.C. § 659(b) notified Petitioner on February 11, 1972 that it had failed to abate the elevator shaft violation originally discovered in the November 5th inspection. A proposed penalty of $31,744 was assessed for the nonabatement over a 42 working day period. In addition the OSHA regional officer also .issued citations alleging a serious violation of suspension scaffold regulations (29 C.F.R. §§ 1926.451(a)(1), (i)(l), (i)(4), (i)(ll)) and nonserious violations pertaining to stairway illumination (29 C.F.R., § 1926.56(a)), protection from exposed light bulbs (29 C.F.R. § 1926.40l(j)(l)), the proper storage of compressed gas cylinders (29 C.F.R. § 1926.350(a)(9)), the duty of employers to develop fire protection programs (29 C.F.R. § 1926.-150(a)(1)), the employer’s duty to keep debris cleared from work areas (29 C.F.R. § 1926.25(a) and (b)), and to disposal of garbage and waste materials at frequent intervals (29 C.F.R. § 1926.-25(c)). Penalties totalling $3,698 were proposed for the latter alleged violations.

Pursuant to 29 U.S.C. § 659(a), (b) Petitioner contested the citations resulting from the January 19th inspection before an Administrative Law Judge. The Administrative Law Judge ruled that the elevator shaft openings had been properly barricaded after the November 5th inspection and vacated the proposed penalty of $31,744. The Judge, however, held that there was substantial evidence to support a finding that there was an improper erection of a suspension scaffold and that a penalty of $850 was proper. With respect to the nonserious violations, the Administrative Law Judge found supporting evidence and imposed a fine of $722.50.

The Commission on review of the Administrative Law Judge’s findings affirmed as to the existence of the violations but reduced the penalty on the scaffolding violation from $850 to $300 and the penalties for nonserious violations from $722.50 to $320, making a total penalty imposed of $620. Petitioner has petitioned pursuant to 29 U.S.C. § 660(a) for review by this court of the Commission’s final decision.

Petitioner initially challenges the constitutionality of §§ 5, 6, 8, 9, 10, 11, 12 and 17 of the Occupational Safety and Health Act of 1970. Section 5(a)(1) of the Act (29 U.S.C. § 654(a)(1)) requires employers to “furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.” Section 5(a)(2) (29 U.S.C. § 654(a)(2)) requires employers to comply with the occupational safety and health standards promulgated under the Act. Section 6 (29 U.S.C. § 655) authorizes the Secretary of Labor to promulgate occupational safety and health regulations. Pursuant to this statutory authority the Secretary has promulgated detailed safety regulations. See 29 C.F.R. § 1926 et seq. Violation of § 5 (general duty clause or promulgated regulation) makes an employer liable for “civil penalties” under § 17 of the Act (29 U.S.C. § 666). Sections 8, 9, 10, 11 and 12 (29 U.S.C. §§ 657-661) provide authority for job site inspections, issuance of citations to employers, enforcement procedures such as notification of employers of proposed penalties, and procedures for agency and judicial review.

Petitioner contends that the penalties imposed under § 17 of the Act (29 U.S.C. § 666) are penal or criminal in nature and thus entitle an employer to such rights as trial by jury, proof beyond a reasonable doubt, and confrontation of witnesses. Denial of these rights, alleges Petitioner, is a violation of amendments five and six to the federal constitution. The Eighth Circuit has considered and held against Petitioner on this argument. American Smelting & Ref. Co. v. OSHRC, 501 F.2d 504, 515 (8th Cir. 1974); see Frank Irey, Jr., Inc. v. OSHRC, No. 73-1765 (3d Cir. Nov. 4, 1974). We find a clear intention on the part of Congress to create a civil sanction. Accordingly, we hold that the penalties involved in this case were regulatory rather than punitive. Thus, the procedural rules governing criminal prosecutions are not applicable. See Helvering v. Mitchell, 303 U.S. 391, 399-00, 58 S.Ct. 630, 82 L.Ed. 917 (1938). As to the question of whether Petitioner was entitled to a jury trial in the administrative proceedings, the Supreme Court has held that parties in a proceeding before an administrative agency are not entitled to a jury trial. Pernell v. Southall Realty, 416 U.S. 363, 383, 94 S.Ct. 1723, 40 L.Ed.2d 198 (1974); Curtis v. Loether, 415 U.S. 189, 194, 94 S.Ct. 1005, 39 L.Ed.2d 260 (1974). With de novo review by the Commission preserved to employers, the denial of a jury trial is not a violation of the seventh amendment. See Frank Irey, Jr., Inc. v. OSHRC, supra, Slip at 9 n. 11.

Petitioner contends that § 10 of the Act (29 U.S.C. § 659(a), (b)) denies an employer procedural due process by permitting the Secretary of Labor to assess penalties without giving employers a chance to be heard. Section 10 requires employers to contest a citation by the Secretary following an inspection within fifteen days from the receipt of notice of the citation. Failure to contest within this period results in the citation and penalty being deemed a final order of the Commission and not subject to review by any court or agency. We find it unnecessary, however, to decide whether 29 U.S.C. § 659(a), (b) deprive an employer of procedural due process. Petitioner filed timely notice with the Secretary of his intention to contest the citations pursuant to 29 U.S.C. § 659(a), (b). Petitioner was afforded a hearing before an Administrative Law Judge pursuant to 29 U.S.C. §§ 659(c), 661(i) and 5 U.S.C. § 554 (Administrative Procedure Act). After a hearing the Administrative Law Judge made written findings of fact and conclusions of law vacating in part and modifying in part the Secretary’s proposed penalties. Vacated were proposed penalties for failing to abate the earlier violation of improper guards for elevator shaft openings, penalties for portions of a serious scaffold violation, penalties for alleged use of a defective ladder, penalties for the existence of unsanitary toilet facilities, and penalties for use of improper use of containers storing inflammable materials. Penalties were imposed for the use of an improperly secured swinging scaffold, use of unguarded temporary lighting fixtures, inadequate lighting in stairwells, failure to develop an adequate fire protection program, deficient housekeeping practices, and failure to secure stored compressed gas cylinders. Although an employer has no absolute right to have the Administrative Law Judge’s decision reviewed by the three member Commission, review of the decision may be granted upon a petition by an aggrieved party to a Commissioner requesting discretionary review. 29 U.S.C. § 661(i); 29 C.F.R. § 2200.91 (1973). Such review was sought by Petitioner and granted by the Commission. The Commission’s de novo review, Brennan v. Occupational Safety & Health Review Comm’n, 487 F.2d 438, 441 (8th Cir. 1973), resulted in an affirmance of the Administrative Law Judge’s decision in regard to the existence of the violations but with a substantial reduction in the amount of penalties imposed. From the foregoing it appears that Petitioner was given timely notice of proposed penalties by the Secretary and an opportunity to be heard. A hearing was held at which Petitioner was allowed to cross-examine the Secretary’s witnesses and present evidence, of its own. We conclude upon the facts of this case Petitioner was not denied procedural due process of law.

Additionally, Petitioner argues that §§ 9 and 10 of the Occupational Safety and Health Act (29 U.S.C. §§ 658, 659) are an unconstitutional delegation of power to the Secretary of Labor in violation of Article III, § 1 of the United States Constitution which provides in pertinent part:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

The Third and Fourth Circuit Courts of Appeal have considered and rejected Petitioner’s contention that the Act creates an unconstitutional delegation of power. Frank Irey, Jr., Inc. v. OSHRC, No. 74-1765 (3d Cir. Nov. 4, 1974); McLean Trucking Co. v. OSHRC, 503 F.2d 8 (4th Cir. 1974). The delegation of adjudicative functions to an administrative agency with special expertise in the subject matter, with the right of judicial review retained, does not violate the separation of powers principle found in Article III, § 1 of the federal constitution.

In its Brief Petitioner argues:

[W]hen the power to increase penalties i upon notice of contest is combined with the power initially to announce penalties at smaller levels than the maximum in the statutory scheme, there is an unconstitutional deterrent on the employer’s exercise of his right to contest. Cf. North Carolina v. Pearce, 395 U.S. 711, 725 [89 S.Ct. 2072, 23 L.Ed.2d 656] (1969).

In the case before us the original penalties were reduced by the Administrative Law Judge from $35,442 to $1572.50 and were further reduced by the Commission to $620. The only increase in penalty is found with respect to an inadequate fire protection charge. The penalty initially assessed was $297.50. The Administrative Law Judge reduced the penalty to $42.50. The Commission rounded out this penalty to $45. This $2.50 increase is de minimis and hence under the facts of this case we need not reach the issue of whether the Commission can increase the penalty.

Petitioner contends on appeal that the Commissioner’s findings are not supported by substantial evidence on the record as a whole. The scope of judicial review by a court of appeals is provided in § 11(a) of the Act (29 U.S.C. § 660(a)):

The findings of the Commission with respect to questions of fact, if supported by substantial evidence on the record considered as a whole, shall be conclusive.

Thus, we are bound to apply the substantial evidence test to the Commission’s findings of fact. Brennan v. Occupational Safety & Health Review Comm’n, 487 F.2d 438, 442 (8th Cir. 1973). In our review of the record as a whole, including the transcript of evidence produced before the Administrative Law Judge, we find substantial evidence to support the Commission’s findings that Petitioner violated 29 C.F.R. §§ 1926.451(a)(1), (i)(4) (defective scaffold); 29 C.F.R. § 1926.401(j)(i) (defective lighting); 29 C.F.R. § 1926.150(a)(1) (inadequate fire protection program); 29 C.F.R. §§ 1926.25(a), (b) (inadequate housekeeping); and 29 C.F.R. § 1926.-350(a)(9) (improper storage of compressed gas cylinders). We affirm the Commission’s findings as to the existence of the alleged violations.

The assessment of penalties by the administrative agency is not a factual finding but the exercise of a discretionary grant of power. Brennan v. Occupational Safety & Health Review Comm’n, supra. Our review of such penalties is whether there has been an abuse of discretion. Id. In reducing the penalties the Commission considered such facts as Petitioner’s good faith and some apparent animosity between the regional office and Petitioner. Petitioner was not penalized additionally for his prior violations. We find no abuse of discretion on the part of the Commission in assessing penalties totalling $620.

In its final argument Petitioner contends that “[a]s the prevailing party in this matter, [it] should have been granted its costs and expenses for defending against the alleged violations of the OSHA Regulations.” Petitioner characterizes the charges against it by the Secretary as “vexatious, frivolous, or malicious.” Statutory authority cited for the granting of costs, including attorneys’ fees, is 28 U.S.C. § 2412 which provides:

Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity, in any court having jurisdiction of such action. A judgment for costs when taxed against the Government shall, in an amount established by statute or court rule or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by him in the litigation. Payment of a judgment for costs shall be as provided in section 2414 and section 2517 of this title for the payment of judgments against the United States. (Emphasis added).

Expressly excluded as recoverable costs are attorneys’ fees. See Wilderness Society v. Morton, 495 F.2d 1026, 1036 (D.C.Cir. 1974). Moreover, to recover costs under § 2412 a litigant must be the “prevailing party.” Petitioner succeeded in obtaining reductions or even dismissal of some alleged citations but could not be said to be a “prevailing party” in view of the Commission’s findings and our affirmance of those findings. Accordingly, Petitioner is not entitled to judgment for costs or attorneys’ fees.

We hold that under the facts of this case Petitioner has not demonstrated that any of his constitutional rights have been violated. Petitioner has had a full and fair hearing both before the Administrative Law Judge and the Commission on the penalties assessed. We limit our holding on the constitutional issues to the facts of this case.

The decision of the Commission is affirmed. Judgment will be entered for the penalties imposed by the Commission.

      . The enforcement of the $1275 in penalties which under 29 U.S.C. § 659(a) became final and nonreviewable is not before us in this appeal. Hence we express no view on the validity of § 659(a).

      . The Administrative Law Judge and the Commission both vacated the penalty of $31,-744. The Secretary has not appealed from such determination. Much of Petitioner’s Brief is directed to such issue. Since Petitioner has obtained complete relief from the $31,744 penalty, the discussion has no relevancy except on the Petitioner’s claim for costs and attorneys’ fees, infra.

      . 29 U.S.C. § 659(a) provides:
      If, after an inspection or investigation, the Secretary issues a citation under section 658(a) of this title, he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under section 666 of this title and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty. If, within fifteen working days from the receipt of the notice issued by the Secretary the employer fails to notify the Secretary that he intends to contest the citation or proposed assessment of penalty, and no notice is filed by any employee or representative of employees under subsection (c) of this section within such time, the citation and the assessment, as proposed, shall be deemed a final order of the Commission and not subject to review by any court or agency.

      . The penalties imposed by the Secretary following the January 19, 1972 reinspection were for both original violations discovered that day, and for continuing violations resulting from nonabatement. Thus Petitioner filed notices pursuant to § 659(a) (original citations) and § 659(b) (continuing violation for failure to abate elevator shaft hazard).

      . The decision of the Commission was by a 2-1 vote with Commissioner Moran dissenting. Secretary of Labor v. Beall Const. Co., OSHRC Docket No. 557 (Feb. 21, 1974).
      The net penalty was reduced from $1572.50 down to $620. The majority decision justified the modification of the penalties for each violation by an assessment of the number of workers actually affected by the violations.

      . With respect to the serious violations the Commissioner found that the only method used by Petitioner to secure the swinging scaffold was a 500 lb. concrete block set on the inboard ends of two outrigger beams. OSHA regulations specifically provide that concrete blocks shall not be used to support scaffolds. 29 C.F.R. § 1926.451(a)(2). Moreover, no tiebacks were used as secondary means of anchorage as required by 29 C.F.R. § 1926.451(i)(4).