text:
    James X. WADDELL et al., Appellants, v. Noah L. ALLDREDGE, Warden, et al.
    No. 72-1417.
    United States Court of Appeals, Third Circuit.
    Submitted April 23, 1973.
    Decided June 29, 1973.
    James X. Waddell, pro se.
    S. John Cottone, U. S. Atty., Harry A. Nagle, Lewisburg, Pa., for appellee.
    Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.
   OPINION OF THE COURT

PER CURIAM:

This appeal challenges a March 22, 1972, district court order granting a motion to dismiss an August 10, 1971, complaint invoking jurisdiction of the court to grant relief under 28 U.S.C. §§ 1361 and 1651(a) and seeking, inter alia, orders directing the prison officials at the U. S. Northeastern Penitentiary, Lewisburg, Pa., to allow Black Muslims to establish “worshipping services in accord with the teachings of Messenger Elijah Muhammed” and to prepare at least one meal a day, pork free. The Answer asked that the Complaint be dismissed because (1) mandamus relief was not available for failure to exhaust petitioner’s administrative remedy by petition to the United States Bureau of Prisons, (2) relief under the Federal Tort Claims Act is unavailable for failure to exhaust administrative remedies, 28 U.S.C. § 2675, and to join an indispensable party, (3) habeas corpus relief is not available to investigate complaints of prisoners for mistreatment, and (4) petitioner may not proceed under 42 U.S.C. § 1983. See Long v. Parker, 390 F.2d 816, 819 (3d Cir. 1968). The Answer also alleged:

“. . . the plaintiff and all persons similarly situated are authorized to conduct religious services which are properly supervised and conducted by ordained ministers of their religion. Although the defendant has authorized visits from ordained Black Muslim ministers for that purpose and has agreed to pay expenses or salary to such ministers, the leader of the Black Muslim movement and the plaintiff have failed to cooperate with the defendant in any manner in this endeavor.
“Relative to the plaintiff’s allegation regarding diet and the preparation of food at the institution, the defendant states that the same policies and procedures proven in the case of Long v. Parker, Civil Nos. 8870 and 9152, are presently in full force and effect. These policies afford the plaintiff a nutritious and balanced diet.”

Petitioner filed a Counter Answer, denying these allegations and alleging that Mr. Raush, Associate Warden, had stated that the Bureau of Prisons would not allow the Muslims to worship.

Especially in prisoner actions asking for mandamus remedies, this court has held that federal prisoners must exhaust available administrative means at their disposal before judicial review is available. See Green v. United States, 283 F.2d 687, 688-89 (3d Cir. 1960), where the court said:

“. . . appellant has failed to exhaust his administrative remedies. Under the regulations promulgated by the Bureau of Prisons, there is available to all prisoners, the right of the ‘Prisoner’s Mail Box.’ This procedure sets up an effective means of review of actions of local prison authorities. .

“This case presents an alleged situation in which administrative review should have been utilized. Appellant asserts deprivation of a fundamental right by the Warden of the Lewisburg Penitentiary. The claim implies an abuse of discretion by that official. However, in the administration of federal prisons primary supervision is delegated by statute to the Bureau of Prisons, 62 Stat. 849, 18 U.S.C. § 4042. By that law the Bureau is directly responsible for the control and maintenance of all such institutions and has the power to review any action taken by the local wardens.”

In McKart v. United States, 395 U.S. 185, 194-195, 89 S.Ct. 1657, 23 L.Ed.2d 194 (1969), Mr. Justice Marshall stated the reasons behind the doctrine of exhaustion of administrative remedies in this language, which we have concluded is applicable to this record:

“Particularly, judicial review may be hindered by the failure of the litigant to allow the agency to make a factual record, or to exercise its discretion or apply its expertise. In addition, other justifications for requiring exhaustion in cases of this sort have nothing to do with the dangers of interruption of the administrative process. Certain very practical notions of judicial efficiency come into play as well. A complaining party may be successful in vindicating his rights in the administrative process. If he is required to pursue his administrative remedies, the courts may never have to intervene. And notions of administrative autonomy require that the agency be given a chance to discover and correct its own errors. Finally, it is possible that frequent and deliberate flouting of administrative processes could weaken the effectiveness of an agency by encouraging people to ignore its procedures.”

Similarly, this language is used in Davis, Administrative Law Treatise (1970 Supp.) § 20.01, p. 644:

“The reason for requiring exhaustion is that the informal denial is likely to come from subordinate employees, and that whatever errors in facts of law or discretion they have made are likely to be corrected by the superior officers who consider the case when it is heard, so that resort to the federal court may be unnecessary.”

Other Courts of Appeals have similarly required exhaustion of administrative remedies by prisoners through application to the United States Bureau of Prisons. See Light v. United States, 430 F.2d 932, 933 (5th Cir. 1970), and cases there cited; Paden v. United States, 430 F.2d 882, 883 (5th Cir. 1970); cf. Heft v. Parker, 258 F.Supp. 507 (M.D.Pa. 1966).

Section 5(a) of Bureau of Prisons Policy Statement 7300.2A dated 12/28/67 and entitled Prisoners Mail Box provides for the forwarding of mail to the Bureau of Prisons in Washington, D. C., on a daily basis and Section 6(a) provides for a reply directly to the inmate. Hence, there was readily available to petitioner a method of review of any ruling of Associate Warden Raush.

Paragraph 4 of the Policy Statement 7300.43A dated 7/7/70 on Religious Beliefs and Practices of Committed Offenders makes clear that reasonable opportunities for Black Muslims to attend religious services are prescribed. See subsections b(l)-(4), e and f(l).

In Long v. Parker, 390 F.2d 816 at 820 (3d Cir. 1968), this court stated:

“. . . members of the Black Muslim faith have an absolute right to embrace their religious beliefs, and to be free from discrimination because of their adherence to those beliefs. While it is clear that these rights are not lost to those who are committed to prison, it is also clear that within the prison society as well as without, the practice of religious beliefs is subject to reasonable regulations, necessary for the protection and welfare of the community involved.”

and at 821:

“. . . while provision is made for Catholic and Protestant chaplains as part of the staff of the institution, the appointment of chaplains for each of the numerous sects and denominations having small followings would be impossible under conditions existing in a maximum security prison.”

Also, the Policy Statement 22Q01.1. dated 5/19/69 on Use of Pork or Pbrk Derivatives in the Preparation and Seasoning of Specific Food Items provides, inter alia,:

“a. The Food Administrator, in preparing ten-day menus for administrative appraisal, shall identify with an asterisk all food items to be prepared or seasoned with pork or pork derivatives.
“b. Menu boards posted in all dining rooms shall indicate, with an asterisk after the food item, specified products prepared or seasoned with pork or pork derivatives. It shall be the responsibility of field administrative officials to inform in an appropriate way, the local institution population of the meanings of the asterisk.
“c. In all instances where the posted menu limits consumer choice of fresh or canned vegetables to one entree, pork or pork derivatives shall not be used as a seasoning agent.”

Furthermore, we noted in Long v. Parker, 455 F.2d 466, 467 (3d Cir. 1972):

“The prison authorities are entirely willing to have Muslim ministers visit the prison and to allow them the same fees and expenses as &lven the clerics of other faiths but the said ministers so far have refused. Food accommodation to all inmates’ religions is made as much as is possible.”

For the foregoing reasons, the district court order of March 22,1972, will be affirmed.

      . The Complaint, which alleges discrimination against “other individuals” as well as petitioner, also asked for $75,000 damages per person for the hardships they had suffered as a result of the denial of their alleged right to worship and of their alleged right to have pork-free meals.

      . As of 8/7/72, this Policy Statement was superseded by Policy Statement 7300.2B. Such Policy Statements are authorized by 28 C.F.R. 0.95(c) and (d) and 28 C.F.R. 0.96 and 0.97.

      . Subsection F(l) provides:
      “f. Diet

      (1) A committed offender may abstain from eating those food items, served to the general population, which are prohibited by the religion of the resident. The committed offender may receive added portions of non-rationed food items, from the main serving line, which in no way cause a violation of the restrictions of the faith professed by the committed offender. Ordinarily, the practical problems of institutional administration must be primary in arranging for the observance of religious holidays, sacraments, celebrations, diets, and the like.”


source: Caselaw Access Project

author: WISDOM, Circuit Judge:

license: Public Domain

text:
    HYSTER COMPANY, Petitioner-Cross Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross Petitioner.
    No. 72-2926.
    United States Court of Appeals, Fifth Circuit.
    June 27, 1973.
    Verne W. Newcomb, James B. Ruyle, Portland, Or., for petitioner-cross-respondent.
    Walter C. Phillips, Regional Director, N.L.R.B., Atlanta, Ga., Elliott Moore, Acting Asst. Gen. Counsel, N.L.R.B., Washington, D.C., for respondent-cross petitioner.
    Before WISDOM,. GEWIN and COLEMAN, Circuit Judges.
   WISDOM, Circuit Judge:

The Hyster Company, a manufacturer of lift trucks and material handling equipment, seeks review of a finding by the National Labor Relations Board that the company was guilty of violations of § 8(a)(1) and § 8(a)(3) of the National Labor Relations Act, 29 U.S.C. § 158(a)(1), (3) at its plant in the little town of Sulligent, Alabama. The Board concluded, first, that James Maddox, a prominent local citizen, acted as an agent of the company and that his statements to company employees were attributable to the company; second, that Willis Stanford was discharged because of union activity; and third, that the company’s personnel manager, Billy Paul, threatened employees with reprisals if they assisted with union activity. Chairman Miller dissented from the Board’s findings that Maddox was an agent of the company and that Stanford was illegally discharged. We affirm the Board’s conclusion that Billy Paul violated § 8(a)(1) by his statements to employees but we reverse the other findings because of a lack of substantial evidence.

I.

In 1969 the company, while investigating potential sites for new construction, met with members of the Town Council and the Industrial Development Board of Sulligent, Alabama. James Maddox had been the chairman of the Industrial Development Board from 1961 to 1964 and was then the chairman of the Town Council. Sulligent (population: 1762) was eager to attract new enterprise. Over several months company representatives and community leaders discussed many subjects, including housing, transportation, and schools, but the subject of unionization arose only once in a brief question as to whether there were any unionized plants in the county. There were none. After several meetings the Sulligent Industrial Development Board agreed to purchase land, erect a building, provide some equipment, and lease the facilities to the company on a nonprofit basis. The capital for this investment by the Board was financed by a public bond issue.

In a sense, Maddox continued his relationship with the company because as a prominent citizen he was frequently listed as a character reference by job applicants. When so listed Billy Paul, the personnel manager and a personal friend, would telephone him to discuss the applicant. On several occasions Maddox suggested to several people that they apply to the company for employment. Maddox made statements to several employees that he did not want a union at the company, that he had employees looking out for a union, that the company would leave if unionized, and that employees would be fired if they supported unionization. Whether in fact the personnel manager had directed several employees and job applicants, including Willis Stanford, to speak with Maddox before being hired or when suggestions of. unionization arose, was disputed.

Willis Stanford was hired in June 1971. In mid-July Stanford and two other employees signed union authorization cards. Approximately two weeks later, after Billy Paul and Maddox had spent a vacation together, Stanford was discharged. The company explained that it had fired him because of his unsatisfactory performance, disorganization in his job area, and a decision that it was overstaffed. Other union adherents were not discharged.

Though his first supervisor recommended Stanford for a merit increase because of a helpful suggestion that increased efficiency, that same supervisor later noted that Stanford’s performance had begun to deteriorate. Stanford’s next supervisor felt from the outset that Stanford’s work was deficient. These dissatisfactions were made known to Stanford and the supervisor filed a “negative” report in the personnel folder. Later, the supervisor filed a second negative report after finding Stanford idle. He was again told of the supervisor’s complaints but he was not shown the written reports themselves. Finally, the company’s Director of Management Action, Ned Snow, noticed Stanford standing idle again. Snow had previously told the plant manager that the plant was overstaffed, that there was a lack of work for the men to do, and the materials handling system, of which Stanford was a part, was improperly organized. Snow had previously ordered the plant manager to cancel plans to hire additional prospective employees.

The day after Snow discovered Stanford unoccupied, August 18, Snow met with the personnel manager, the plant manager, and Stanford’s foreman. It was decided to terminate his employment for idleness, inefficiency, and excessive socializing with other employees.

Before Stanford’s dismissal, three employees had signed union authorization cards: Stanford, Carruth, and Smith. Carruth testified that Paul asked him if the union organizer was around and warned Carruth to “watch his step.” Smith testified that Paul told him not to sign an authorization card and to notify Paul immediately if union organizers approached Smith. Stanford testified that Paul asked him if he had been a union member at his previous place of employment and that Paul told Stanford that the company did not want a union. The Board concluded that these statements by Paul constituted unlawful solicitation and interrogation of employees.

II.

Accepting as true the anti-union statements attributed to Maddox, we find there is not substantial evidence that Maddox acted as an agent for the company. Maddox was not an employee of the company, he did not have any ownership interest in the company, and he was not compensated by the company. Cf. NLRB v. Mississippi Products, 5 Cir. 1964, 213 F.2d 670; NLRB v. Birmingham Publishing Co., 5 Cir. 1958, 262 F.2d 2. As past Chairman of the Industrial Development Board and as Chairman of the Town Council he appreciated the salutary effects of attracting new investment to a town of approximately 1700. His interest and effort in persuading businesses to settle in Sulligent was not unique. The leaders of small communities have identical goals and are willing to offer financially attractive arrangements. The legal relationship of lessor-lessee between the Development Board and the company did not of itself create an agency relationship with Maddox. Cf. NLRB v. Lake Butler Apparel Co., 5 Cir. 1968, 392 F.2d 76, where the county development authority was given a list of employees by the company to assist in mailing a statement to employees that expansion plans had been cancelled due to union activities.

Maddox was involved in the hiring of some of the company’s employees but that was a natural function of a prominent local citizen and would not in itself establish agency; This the Board admitted in oral argument. The parties disputed whether Billy Paul had directed two employees to interview with Maddox before applying for work. We concur with the dissenting opinion of Chairman Miller that the record shows that Smith had gone to see Maddox on his own initiative and that “Carruth’s testimony in this point is so confused as to be almost unintelligible.” After Stanford had been hired he talked with Maddox on August 1 at which time Maddox asked Stanford if he had signed a union authorization card. When Stanford replied that he had, Maddox stated that he would “hate to have any trouble up there . . . I’m looking forward to the day they are working five or six hundred people. . . .” Maddox did not purport to be speaking for the company.

There was no definite evidence that Maddox was overtly clothed with apparent authority to act for the company, or that the company knew of the content of his conversations with employees, such as to place a duty of disavowal on the company. These facts are in contrast to cases involving clear evidence of extensive co-operative activities of a company with local business leaders to intimidate organizational efforts. See Lake Butler, 392 F.2d at 79; Colson Corp. v. NLRB, 8 Cir. 1965, 347 F.2d 128; Amalgamated Clothing Workers (Hamburg Shirt Co.) v. NLRB, 1966, 125 U.S.App.D.C. 275, 371 F.2d 740; Henry I. Seigel Co. v. NLRB, 6 Cir. 1969, 417 F.2d 1206. There is no significant evidence that the company conducted itself such as to support “the employees reasonable and predictable conclusion that the business leaders in inveighing against the Union were serving in effect as organs of communication from management.” Hamburg Shirt, 371 F.2d at 744. Nor was this similar to the imputation of acts of employees to the company. NLRB v. Mississippi Products, Inc., 5 Cir. 1954, 213 F.2d 670. The facts show only that job applicants realized the advantage of a recommendation from a community leader and that Maddox was such a leader whose evaluations were respected by the company. We conclude that there was a lack of substantial evidence that Maddox was an agent for the company.

III.

We further conclude that there is not substantial evidence to support a finding that Stanford was discharged because of his union activities. Because Maddox was not an agent of the company and because there is no evidence that the company was informed of the content of Maddox’s conversation with Stanford, knowledge of the Stanford-Maddox conversation cannot be imputed to the company. Moreover, even if it were imputable, Stanford revealed only that he had signed an authorization card. The trial examiner placed great emphasis on the joint Maddox-Paul vacation, but that standing alone does not allow an inference of knowledge of the conversation to Paul.

We concur with the reasons stated in the dissent by Chairman Miller that there was sufficient proof that Stanford had been warned during his probationary period of the company’s dissatisfaction with his work; that no other union supporter suffered any kind of discrimination ; and that there was “no proof of animus toward Stanford because of his limited union activities.” See, NLRB v. Mid State Sportswear, Inc., 5 Cir. 1969, 412 F.2d 537; NLRB v. Fox Mfg. Co., 5 Cir. 1956, 238 F.2d 211. “The primary function of this Court in reviewing Board decisions is a determination of whether the Board has exercised a ‘reasonable’ discretion in light of the circumstances of the individual case.” NLRB v. Standard Forge & Axle Co., 5 Cir. 1969, 420 F.2d 508. In view of all of the facts relating to Stanford’s dismissal we hold that there is not substantial evidence that he was discharged because of union activity. Stanford is not entitled to reinstatement or back pay.

IV.

Finally, we hold that there is substantial evidence in the record as a whole to support the Board’s conclusion that Billy Paul, the personnel manager, violated § 8(a)(1) by his interrogation, solicitation of surveillance, and intimations of reprisal to several employees.

Enforcement granted in part; denied in part.

      . In Mid State Sportswear, compare the court’s conclusion that the discharge of ICeeton was justified because of improper work, with the court’s conclusion that the discharge of Dunavent was illegal where her work was “excellent until the date of her suspension”. The company failed to give her advance warnings, fail-eel to explain to her the reasons for her discharge at the time of her suspension, and later vacillated as to those reasons. Of. NLRB v. Georgia Rug Mill, 5 Cir. 1962, 308 F.2d 89, 91, where the employer’s reasons for discharge shifted several times.


author: COFFIN, Chief Judge.

text:
    UNITED STATES of America, Appellee, v. Felix James McGUIRE, Defendant, Appellant.
    No. 73-1036.
    United States Court of Appeals, First Circuit.
    Heard April 9, 1973.
    Decided June 20, 1973.

      Allan R. Rosenberg, Boston, Mass., with whom Putnam, Bell & Russell, Boston, Mass., on brief, for appellant.
    Robert B. Collings, Asst. U. S. Atty., with whom James N. Gabriel, U. S. Atty., Boston, Mass., on brief for appellee.
    Before COFFIN, Chief Judge, Mc-ENTEE and CAMPBELL, Circuit Judges.
   COFFIN, Chief Judge.

This appeal, challenging a judgment of conviction, after trial without a jury for refusal to submit to induction raises the issue we find critical — whether the district court erred in finding a basis in fact for denial of appellant’s claim of conscientious objector status. The basis relied upon was lack of sincerity, which derived from two factors: a delay of one and a half months in claiming CO status after reclassification into I-A and appellant’s failure to mention his interest in such a status to his local board at an interview where he inquired about other possibilities for deferment. After a close scrutiny of the established facts, the pertinent cases, and consideration of policy, we reverse.

The earliest pertinent date is September 30, 1966 when appellant, who, as a student at St. Anselm’s College had applied for admission to Officer Candidate School was asked during an examination a question he could not affirmatively answer: “Would you burn a Vietnamese village?” At this time appellant held a II-S classification. Although he had been scheduled to graduate in June, 1966, his graduation had been postponed to January, 1967, to allow him to finish a required paper. But his local board reclassified him I-A on November 21, 1966. He immediately visited his board, on November 30, and engaged in a discussion with the assistant clerk which later came to be so important because of certain omissions therein. He asked about deferments for VISTA or the Peace Corps, stated his hope to enter graduate school the following January, and told the clerk he would be appealing his loss of a student deferment. Shortly thereafter he wrote his board asking for a form on which he could apply for a III-A hardship deferment and also sought the advice of the government appeals agent on the loss of his II-S.

The appeals agent, on December 30, wrote appellant that an appeal would not seem to be in appellant’s interest but that appellant could seek the services of a private attorney. On January 10 appellant decided to appeal and also asked for a Form 150, which he returned on January 23, noting his religious beliefs, his revulsion at recourse to violence, and his reaction to his September 30 interview. The board again classified him I-A, on February 10. A personal appearance was granted him on February 23 after which the board’s minutes made reference to appellant’s earlier efforts to gain admission to Officer Candidate School as indicating that appellant’s conscientious objection arose subsequently — a fact which we must observe was as irrelevant for a late crystallizer as it was established. In any event, the state appeals board on appeal provisionally upheld, without giving reasons, the local board’s determination. Under the then applicable law appellant’s case was referred to the Justice Department for investigation and recommendations.

Appellant met with initial success. The hearing officer, having the benefit of interviews with numerous neighbors and others, none of whom questioned appellant’s sincerity, and of a meeting with appellant, deemed him sincere and, on March 15, 1968, recommended a 1-0 classification. Appellant’s gain was a short-term one, for on May 24, 1968, one T. O. Smith, then Chief of the Conscientious Objector Section of the Justice Department, relying principally on appellant’s failure to mention his conscientious beliefs at his November 30, 1966 conversation with his local board clerk, his subsequent request for a hardship deferment form, and his delay in applying for 1-0 status until mid-January, 1967, stated that “there are substantial grounds for doubting [appellant’s] sincerity.” The appeals board immediately classified appellant I-A. A few months later, in August, 1968, appellant’s mother by letter requested that her son, on whom she said she depended, be deferred, but the board refused to reopen. At long last, appellant, being ordered to report on October 10, 1968, appeared but refused induction. The district court, reasoning much as did T. O. Smith, found a basis in fact for a finding of insincerity and found no error in the board’s failure to reopen upon receiving the request from appellant’s mother. We need deal only with the former finding.

The standard of review, passing the test of time, is still whether there is any “basis in fact” for a board’s finding of insincerity. Estep v. United States, 327 U. S. 114, 122, 66 S.Ct. 423, 90 L.Ed. 567 (1946). With time, however, the application of this standard to sincerity issues has become refined. Conjecture of insincerity is not enough. There must be “some affirmative evidence [or] . . . something in the record which substantially blurs the picture painted by the registrant and thus casts doubt on his sincerity.” Kessler v. United States, 406 F.2d 151, 156 (5th Cir. 1969) (emphasis added). See also Batterton v. United States, 260 F.2d 233 (8th Cir. 1958); United States v. Heidt, 445 F.2d 447 (2d Cir. 1971).

While it might once have been concluded that failure to reveal a conviction of conscientious objection when other avenues of deferment were being explored, combined with a one and a half month delay after reclassification into I-A until a Form 150 was filed, provided sufficient affirmative evidence to constitute a substantial blur on a registrant’s professed sincerity, the accumulating case law proves a stubborn barrier.

To consider first the factor of appellant’s delay in declaring his conscientious objection, we eliminate immediately the period between September 30, 1966, when his beliefs began to form, and the end of November, when he found himself no longer in II-S but in I-A. The circuits now seem clear that a basis in fact cannot rest on delay during a period when a registrant was classified in a lower deferred status. As for the delay in notification after reclassification, although 32 C.F.R. § 1625.1(b) requires a registrant to report a change in circumstances within ten days of that change, the failure to do so has not been deemed significant as to the issue of sincerity until the passage of a substantial amount of time beyond ten days. At least we so read the cases, for we find none holding a delay of a month and a half, in itself, to be a sufficient basis for a finding of insincerity.

When we consider whether the failure of appellant to mention his conscientious objection in his November 30 conversation with the board’s assistant clerk may add enough to make out a “basis in fact”, we are first tempted to say that as a matter of law it may not be put into the scales at all. In O’Bryan, supra, where the registrant applied for CO status two weeks after losing his appeal from a I-A classification, the court held that failure to apply before exhausting his administrative remedies could not evidence a basis in fact for a finding of insincerity. This case goes farther than Bornemann, supra, in that it defines the time at which notification of CO beliefs becomes relevant as not merely the period of holding another lower deferment classification but termination of the period of appeal from a I-A classification. Here, instead of appealing, appellant chose to seek the advice of the government appeals agent, who did not reply until December 30, a copy of the reply not being received by the board (and presumably appellant) until January 3. If, as seems in accord with policy, frivolous appeals are to be discouraged and resort to the expertise of appeals agents encouraged, the action taken by appellant falls within the concept of exhausting administrative remedies, and appellant’s action in applying to his board for a Form 150 seven days after receiving word from the appeals agent brings him fairly within the rationale of O’Bryan.

We do not, however, rest decision on such a technical analysis. We shall assume that it is permissible to consider a registrant’s silence as to his beliefs at a conversation after his reclassification but before he had had an opportunity to exhaust his appellate remedy and to consult an appeals agent. But on the particular facts of this case appellant’s silence, we conclude, cannot fairly be held against him. The government in its brief construes appellant’s “failure to speak up” as an “inconsistency between [his] purported beliefs and his actions” which appellant “made no attempt to clear up”. In fact, appellant testified that he asked about the Peace Corps and VISTA, with which latter organization he had filed an application — both being consistent with his religious claims; and that he looked to “other sources” for information on conscientious objection and his hardship deferment. The VISTA (and Peace Corps) queries were naturally directed to the board, since individual boards could have different policies.

That appellant professed to have other sources for information concerning the more uniformly applicable standards governing CO and hardship claims does not seem to us to rise to a level of dissimulation which “substantially blurs” his sincerity. Kessler, supra. Cf. Witmer v. United States, 348 U.S. 375, 75 S.Ct. 392, 99 L.Ed. 428 (1955). Indeed, to say that a registrant who speaks to his local board on the heels of losing a deferment must reveal all of the approaches he may be contemplating or else run the risk that his reticence may be construed as insincerity is to turn the occasion into a trap which would suggest the appropriateness of a reverse Miranda warning: “anything you don’t say may be held against you.”

Moreover, had appellant applied for and received various other deferments, these could not, absent other evidence, be deemed inconsistent with a claim for a 1-0 classification. Stetter, supra-, Abbott, supra. Nor, a fortiori, would his silence as to his beliefs while holding such a classification be held against him. Bornemann, supra. Nor is pursuit of another deferment pending appeal from initial denial of a CO classication considered inconsistent. United States v. Owen, 415 F.2d 383 (8th Cir. 1969). Nor is the unsuccessful pursuit of other deferments. Cox v. Wedemeyer, 192 F.2d 920 (9th Cir. 1951). Here, appellant never in fact did apply for other deferments; he sought only information. If active application for other deferments cannot alone constitute a predicate for a finding of insincerity, we cannot see how mere inquiry about such, absent direct evidence of insincerity, see, e. g., Salamy, supra-, Witmer, supra, can weigh more heavily. In this case, not only is there no such evidence; those interviewed who knew appellant and the hearing officer who met with him were unanimous in believing appellant sincere. When we add the fragile footing of a month and one half delay after reclassification in making a claim to that of failure to mention conscientious beliefs in exploring various possibilities of deferment with the assistant clerk, we conclude that both together are too flimsy a foundation to constitute a basis in fact.

Judgment vacated; case remanded to the district court for proceedings consistent with this opinion.

      . Appellant had previously attended similar Roman Catholic institutions, St. Joseph’s Grammar School and Bishop Bradley High School and worked part-time for ten years for St. Joseph’s Cathedral in Manchester.

      . See United States v. Bornemann, 424 F. 2d 1343 (2d Cir. 1970) ; United States v. Abbott, 425 F.2d 910 (8th Cir. 1970) ; United States v. Stetter, 445 F.2d 472 (5th Cir. 1971) ; United States v. O’Bryan, 450 F.2d 365 (6th Cir. 1971) ; United States v. Anderson, 447 F.2d 1063 (9th Cir. 1971).

      . Cases finding insincerity: Salamy v. United States, 379 F.2d 838 (10th Cir. 1967) [delay of notification of 21 months after reclassification; additional evidence of insincerity] ; United States v. Mes-singer, 413 F.2d 927 (2d Cir. 1969 [failure to notify during 14 months of I-A, followed by 16 months of II-S, with CO request coming two months later; other evidence pointed to insincerity]) ; United States v. Kember, 437 F.2d 534 (9th Cir. 1970) [delay of 7 months; other evidence pointed to insincerity, including statement of registrant].
      Cases refusing to find insincerity: United States v. O’Bryan, 450 F.2d 365 (6th Cir. 1971) [delay of approximately three months after I-A classification] ; United States v. Heidt, 445 F.2d 447 (2d Cir. 1971) [delay of almost .eight months] ; United States v. Rutherford, 437 F.2d 182 (8th Cir. 1971) [not a ease where request for CO status was made “substantially after it had become relevant” (emphasis added)] ; United States v. Bornemann, 424 F.2d 1343 (2d Cir. 1970) [no delay of “substantial period”].

      . For example, in Bornemann, supra, the registrant’s local board granted a VISTA deferment in July 1966, 4 months before McGuire inquired of his board about VISTA.


author:
MARIS, Circuit Judge.
      ROSENN, Circuit Judge

text:
    Joseph BERKELEY, Appellant, v. WEST INDIES ENTERPRISES, INC.
    No. 72-1138.
    United States Court of Appeals, Third Circuit.
    Argued Jan. 29, 1973.
    Decided June 8, 1973.
    As Amended June 12, 1973.
    Rehearing Denied June 26, 1973.

      Rosenn, Circuit Judge, filed dissenting opinion.
    Thomas Alkon, Isherwood & Colianni, Christiansted, St. Croix, V. I., for appellant.
    Roger L. Campbell, Loud & Campbell, St. Thomas, V. I., and Irwin J. Silver-light, Nichols & Silverlight, Christiansted, St. Croix, V. I., for appellee.
    Before MARIS, VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

MARIS, Circuit Judge.

The plaintiff, Joseph Berkeley, a workman employed by a subcontractor, brought this third-party action in the District Court of the Virgin Islands against the defendant, West Indies Enterprises, Inc., the prime contractor, to recover damages for severe injuries, allegedly resulting from the defendant’s negligence, which had been suffered by the plaintiff during the course of his employment as a carpenter. The question for decision on this appeal is whether the action was timely brought.

The date of the plaintiff’s injury was November 23, 1968; he applied for compensation under the Virgin Islands Workmen’s Compensation Act, 24 V.I.C. § 251 et seq., and was awarded compensation pursuant to a final order of the Commissioner of Labor dated June 24, 1969. The present suit was brought on November 18, 1970, more than one year from the time of the Commissioner’s decision but less than two years from the date of the plaintiff’s injury. The defendant filed an answer and a motion to dismiss the complaint in which it asserted that the plaintiff’s claim was barred by the special statute of limitations contained in § 263 of the Workmen’s Compensation Act, 24 V.I.C. § 263. The plaintiff opposed the motion for dismissal, asserting that his action for the recovery of damages for personal injuries was governed by the general statute of limitations which provides that an action for injury to the person be brought within two years from the time of injury. 5 V.I.C. § 31(5) (A).

The district court, after hearing argument, concluded that § 263 did not clearly express a legislative intent that the one-year limitation for which it provided should apply to a personal injury action brought by an injured employee against a third party and that in the absence of clear language to the contrary, the general statutory two-year limitation for such actions applied. An order was entered denying the defendant’s motion to dismiss the complaint. However, the district court subsequently reconsidered the defendant’s motion. In view of the construction given by the courts of Puerto Rico to the similar one-year limitation contained in the Workmen’s Accident Compensation Act of that commonwealth, 11 L.P.R.A. § 32, from the provisions of which § 263 of the Virgin Islands Act had originally been taken, the district court decided that it should apply the one-year limitation, as thus construed, to the present case. Berkeley v. West Indies Enterprises, Inc., 1971,-V.I.-. Accordingly, the district court vacated its prior order and entered an order granting the defendant’s motion to dismiss the complaint as untimely filed. From that order the plaintiff has taken the present appeal.

The plaintiff contends, on this appeal, that the district court was right upon its initial consideration of the motion to dismiss in holding that the general two-year statute of limitations applies to this personal injury action and that the court on reconsideration erred in con-eluding that the special one-year limitation in § 263 of the Workmen’s Compensation Act applies and bars the present action. We turn, then, to examine the provisions of the statutes in question. 5 V.I.C. § 31 in pertinent part provides:

“§ 31. Time for commencement of various actions
“Civil actions shall only be commenced within the periods prescribed below after the cause of action shall have accrued, except when, in special cases, a different limitation is prescribed by statute:
“(5) Two years—
“(A) An action for . . . any injury to the person . . . ”

§ 263 of the Virgin Islands Workmen’s Compensation Act, 24 V.I.C. § 263, in pertinent part provides:

“§ 263. Liability of third persons; subrogation
“In cases where the injury, . . . entitling the workman or employee . . . to compensation in accordance with this chapter has been caused under circumstances making third persons responsible for such injury, . . the injured workman or employee . . . may claim and recover damages from the third person responsible for said injury, . . . within one year following the date of the final decision of the case by the Commissioner, who may subrogate himself to the rights of the workman or employee or his beneficiaries to institute the same action ...”

It will be seen that the Legislature expressly recognized by the language of § 31 that a limitation different from the general limitations imposed by that section might be prescribed in special cases. We are satisfied that prescribing such a special limitation is exactly what the Legislature did when it enacted § 263 of the Workmen’s Compensation Act. § 263 preserves to an injured employee his right to claim and recover damages from the third person responsible for his injury subject, of course, to the right of the Commissioner to subrogate himself to that right for the benefit of the Government Insurance Fund to the extent of the expenses of that Fund in the ease. But the right of the employee to bring suit on his third-party claim is subjected by the Act to two limitations. The “employee . . . may not institute any action . . . until after the expiration of the 90 days from the decision of the case by the Commissioner.” And he may bring it “within one year following the date of the final decision of the case by the Commissioner.” While the latter language admittedly could be more precise we believe that it indicates a legislative intention to establish a limitation of one year upon the bringing of such a third-party suit. If this were not so and the general two-year limitation of 5 V.I.C. § 31 were held to be applicable that statute would always limit the injured employee to less than two years in which to bring his suit. Indeed, if the decision of the Commissioner on the employee’s claim is delayed — in the present case it took more than seven months— his time thereafter for bringing suit might actually be much shorter than one year or, if the decision were long delayed, it might be cut off altogether, and this without any fault on the injured employee’s part but solely as the result of the time taken by the Commissioner to reach a decision on the employee’s claim for compensation. On the other hand, if it were to be held that the general two-year limitation does not apply to such suits and that § 263 does not supply a special limitation on the time for bringing them there would be no limitation whatever on such third-party suits. We do not think that either result could have been intended by the Legislature.

If § 263 as we have construed it were less clear than we believe it to be, our construction would nonetheless be compelled by the legislative history of the Act. The Act, which now appears in title 24 of the Virgin Islands Code, is a codification of the Kean Workmen’s Compensation Act which was enacted by an Ordinance of the Municipal Council of St. Thomas and St. John, approved March 9, 1954. That Ordinance was taken directly, in somewhat abbreviated form, from the Workmen’s Accident Compensation Act of Puerto Rico, 11 L.P.R.A. § 1 et seq. 24 V.I.C. §§ 251, 263, Historical Note; Carmona v. De Jongh, D.C.1958, 3 V.I. 281, 157 F.Supp. 540; Caribbean Eng. Corp. v. Acting Com’r of Agr. & Labor, D.C.1958, 3 V.I. 339, 162 F.Supp. 193. Indeed, in the case of § 263 of the Virgin Islands Act, with which we are here concerned, the pertinent language is virtually identical, except for the title of the public officer involved, with that of present § 32 [formerly § 31] of the Puerto Rico Act. Under these circumstances there comes into play the rule of statutory construction which is settled in the Virgin Islands that the language ©f a Virgin Islands statute which has been taken from the statutes of another jurisdiction is to be construed to mean what the highest court of the jurisdiction from which it was taken had, prior to its enactment in the Virgin Islands, construed it to mean. Municipality v. Stakemann, D.C.1924, 1 V.I. 60; James v. Henry, D.C.1957, 3 V.I. 273, 157 F.Supp. 226; Williams v. Dowling, 3 Cir. 1963, 4 V.I. 465, 318 F. 2d 642; Caribe Construction Co. v. Penn, 3 Cir. 1965, 5 V.I. 180, 342 F.2d 964; Paiewonsky v. Paiewonsky, 3 Cir. 1971, 8 V.I. 421, 446 F.2d 178. And see Willis v. Eastern Trust and Banking Co., 1898, 169 U.S. 295, 18 S.Ct. 347, 42 L.Ed. 752. In the case of Moreno v. Penzol, 1952, 73 P.R.R. 12, the Supreme Court of Puerto Rico applied the one-year limitation of § 31 [now § 32] of the Workmen’s Accident Compensation Act of Puerto Rico to bar a suit brought by an injured employee against a third party more than one year after the final decision of his case by the Manager of the State Insurance Fund, whose duties in this regard correspond to those of the Commissioner of Labor in the Virgin Islands. It thus appears that when the Workmen’s Compensation Act of the Municipality of St. Thomas and St. John was taken from the Puerto Rico law in 1954 it brought with it the judicially settled meaning that what is now 24 V. I.C. § 263 imposes a special one-year limitation upon suits for damages brought by injured employees, or the Commissioner of Labor as their subrogee, against third parties alleged to be responsible for the injury. We conclude that the district court rightly held, on reconsideration, that the plaintiff’s suit was barred by the limitation of § 263 and should be dismissed.

We need only add that there appears to be a sound basis in public policy for providing a special statute of limitations with respect to suits against third parties by an injured employee who has applied for compensation under the Workmen’s Compensation Act. For such a provision makes certain that an injured employee will not be prejudiced in his right to sue a third-party tortfeasor by any undue delay beyond his control which may occur in the Commissioner’s reaching a decision upon his claim for compensation. As we have already pointed out, if the general two-year statute were applicable and the Commissioner’s proceedings should take a long time, the period within which the employee could exercise his right to bring a third-party suit might be drastically shortened or the right might even be cut off before he could exercise it. Under the special limitation provided by § 263 of the Act, on the other hand, the employee’s right to bring a third-party suit will never be cut off until the Commissioner’s decision on his claim for compensation has been rendered, no matter how much time has elapsed since the date of the injury. See Larson, Workmen’s Compensation Law, Vol. 2, § 75.-30.

The order of the district court will be affirmed.

ROSENN, Circuit Judge

(dissenting).

I respectfully dissent because I believe the result reached by the majority leads to the following anomalous results:

(1) A workman who sustains a personal injury and who never claims workmen’s compensation has two years in which to commence suit against the allegedly responsible third party. If he does file a workmen’s compensation claim, however, and the Commissioner renders a decision promptly, the two year period in which he may bring suit is substantially lessened.

When an injured workman files a workmen’s compensation claim, under 24 V.I.C. § 263, he may not file his third party claim until at least ninety days after the final decision of the Commissioner. He, thus, has only nine months to consider his action, and prepare and file his complaint. If the Commissioner renders his final decision less than one year after the injury, for example within seven months, suit against the third party must be commenced within nineteen months of the date of the injury instead of within the usual two years. Instead of protecting a personal injury claimant’s right to at least a two year statute of limitations, this interpretation of the statute has the effect of a prejudicial reduction in time in which to file suit. Ironically, the more efficient is the Commissioner, the more seriously the workman is prejudiced.

(2) Under 24 V.I.C. § 261(d)(1), an uninsured workman who receives com-' pensation for his injury may proceed against the negligent third party for the entire two year period of the statute of limitations. No one year limitation is included in this statute. When the employee is insured and receives compensation, however, in some circumstances he has less than two years to bring suit. The workman whose employer violates the law by not insuring his employees is thus placed in a more advantageous position than the workman whose employer abides by the workmen’s compensation laws.

As I read and reconcile pertinent Virgin Islands statutes, a personal injury claimant would at all times have two years from the date of injury to file his personal injury claim, whether or not he also files a workmen’s compensation claim. If he files a workmen’s compensation claim, and the Commissioner renders his final decision more than one year after the date of the injury, then the claimant has at least one year from the date of the final decision to bring his personal injury action. Such an interpretation, in my opinion, has a sound public basis since (1) it expands the statute of limitations when warranted, but never contracts it; (2) it encourages third party claims, and thus supports the Government Insurance Fund’s subrogation rights.

I therefore conclude that 24 V.I.C. § 263 and its one year limitation do not bar a cause of action under the circumstances of this case. The Puerto Rican precedents, on which the majority relies, may be persuasive but they are neither compelling nor mandatory.

The court aptly explicated the purpose of 24 V.I.C. § 263 in Ayala v. Marshall, 6 V.I. 615, 618 (1968), stating:

Thus it will be seen that the principal purpose of this section is to provide for the subrogation by the Commissioner in cases where the injured employee seeks both compensation under the statute and damages from a third party tortfeasor.

The issue in Ayala was whether employees eligible to claim under the Virgin Islands workmen’s compensation laws could file a common law suit against the third party although they had never sought the compensation remedy. Recognizing both that a common law remedy for negligence existed against third parties and that “a statute will not be construed to be in derogation of the common law unless both the language and intent of the statute clearly require such a construction,” the court held:

It does not necessarily follow . . . that by granting to the employee the right to seek both compensation and damages from a third party the statute deprives him of the right to seek such damages alone at common law.

6 V.I. at 618-19.

In interpreting § 263 for purposes of the issue at hand here, I would similarly follow the logical principle of reconciling both statutes and avoiding any derogation of the common law right in the absence of statutory language which “clearly require[s]” such interpretation. The general statute of limitations in the Virgin Islands, 5 V.I.C. § 31, provides a two year period for filing of causes of action for injuries to the person “except when, in special eases, a different limitation is prescribed by statute.” The one year period in which to bring claims under § 263 provides in some circumstances such a “special case,” but the principles favoring reconciliation of statutes and disfavoring derogation of common law rights suggest no such “special ease” exists in the present suit. When the Commissioner takes more than one year to reach a decision, a special case exists and the two year statute of limitations is extended. When the Commissioner acts in less than one year, however, no special case exists which would shorten the two year statute of limitations.

Section 263, unlike § 31, speaks in permissive rather than mandatory terms:

[T]he injured workman or employee . . . may claim and recover damages from the third person responsible for said injury, . . . within one year following the date of the final decision of the case by the Commissioner. [Emphasis added.]

For § 263 to have “clearly require[d]” a diminution of the time within which to file common law personal injury claims, I believe it would have had to have been drafted in express mandatory terms.

The statutory schema of the several pertinent statutes reflects an intention of the drafters not to have shortened the general statute of limitations when the Commissioner reached a final decision in less than one year, as in the case sub judice, but, rather, to provide at least a full year’s span for consideration, preparation, and filing of a complaint in cases when the Commissioner’s decision was not reached until more than one year after the injury occurred. I would thus interpret § 263 to allow filing of claims against third parties either (a) within two years of the injury, or (b) within one year of the Commissioner’s final decision, whichever should occur later. Such a construction protects a workmen’s compensation claimant by providing at least a two year period in which to sue.

The majority opinion argues that its construction of § 263 is compelled by precedent in Puerto Rico construing the Commonwealth’s nearly identical workmen’s compensation act from which the Virgin Islands statute was borrowed. It is true that Puerto Rican precedents both before and after the Virgin Islands adopted the Puerto Rican statute interpret the equivalent Commonwealth statute, 11 L.P.R.A. § 32, as a one year statute of limitations. In Puerto Rico, however, the statute of limitations on common law tort claims is also one year, 31 L.P.R.A. § 5298(2). The equivalent statute of limitations in the Virgin Islands is two years. In none of the Puerto Rican precedents, therefore, was the precise issue here before the Puerto Rican courts — whether the one year limitation in the compensation statute can compress the period for filing ordinary personal injury suits.

In the precedent specifically relied on by the majority, Moreno v. Penzol, 73 P.R.R. 12 (1952), a tort claim had been filed more than one year after both the injury and the final decision of the Manager of the State Insurance Fund. The issue before the court was whether the Manager’s decision could be considered final when it had subsequently been appealed to the Industrial Commission. The appellant argued that filing of suit within one year of the appellate body’s decision was sufficient. The court disagreed. The issue in Moreno was therefore quite different from the issue in the case sub judice. In such circumstances, the Moreno precedent, although arguably persuasive in its dicta, is by no means compelling.

Although dealing with a quite different factual context, the Eighth Circuit, in United States ex rel. Demarois v. Farrell, 87 F.2d 957, 962-963 (8th Cir. 1937), spoke in general terms of the use of precedents in jurisdictions from which statutes had been borrowed:

When a statute is adopted from one jurisdiction into the jurisprudence of another, it will be construed so as to harmonize it with its new environment in preference to a rigid adherence to the interpretation given it in its original home; especially is this true when the construction given it in its original home would render it inconsistent with the system into which it has been adopted.

The issue in the present case involves just such a problem of harmonizing § 263 with the two year limitation of § 31, a problem never faced in Puerto Rico because of its general one year limitation on tort actions. As it is possible to harmonize the language of § 263 with that of § 31 in a consistent, rational configuration, and in the absence of a clear legislative intention to the contrary, I would do so. Since Joseph Berkeley did file his cause of action within the general two year statute of limitations, I do not believe it should have been dismissed.

      . “In cases where the injury, the occupational disease, or the death entitling the workman or employee or his beneficiaries to compensation in accordance with this chapter has been caused under circumstances making third persons responsible for such injury, disease or death, the injured workman or employee or his beneficiaries may claim and recover damages from the third person responsible for said injury, disease, or death, within one year following the date of the final decision of the case by the Commissioner, who may subrogate himself to the rights of the workman or employee or his beneficiaries to institute the same action in the following manner:
      “When an injured workman or employee, or his beneficiaries in case of death, may be entitled to institute an action for damages against a third person in cases where the Government Insurance Fund, in accordance with the terms of this chapter, is obliged to compensate in any manner or to furnish treatment, the Commissioner shall subrogate himself to the rights of the workman or employee or of his beneficiaries, and may institute proceedings against such third person in the name of the injured workman or employee or of his beneficiaries, within 90 days following the date of the final decision of the case, and any sum which as a result of the action, or by virtue of a judicial compromise, may be obtained in excess of the expenses incurred in the case shall be delivered to the injured workman or employee or to his beneficiaries entitled thereto. The workman or employee or his beneficiaries shall be parties in every proceeding instituted by the Commissioner under the provisions of this section,' and it shall be the duty of the Commissioner to serve written notice on them of such proceedings within 5 days after the action is instituted.
      “If the Commissioner should fail to institute action against the third person responsible within the term of 90 days from the date of the final decision of the case, the workman or employee or his beneficiaries shall be fully at liberty to institute such action in their behalf, without being obliged to reimburse the Government Insurance Fund for the expenses incurred in the case.
      “The injured workman or employee or his beneficiaries may not institute any action, nor may compromise any right of action they may have against the third person responsible for the damages, until after the expiration of the 90 days from the decision of the case by the Commissioner.
      “No compromise between the injured workman or employee, or his beneficiaries in case of death, and the third person responsible, made before the expiration of the term of 90 days after the decision or after the expiration of said term, if the Commissioner has filed Ms complaint, shall be valid or effective in law unless the expenses incurred by the Government Insurance Fund in the case are first paid. No judgment shall be entered in actions of this nature, and no compromise whatsoever as to the rights of the parties to said actions shall be approved, without making express reserve of the rights of the Government Insurance Fund to reimbursement of all expenses incurred. The clerk of the court taking cognizance of any claim of the above-described nature, shall notify the Commissioner of any order entered by the court which affects the rights of the parties to the case, as well as the final disposition thereof.
      “The Commissioner may compromise as to his rights against a third party responsible for the damages. No such extrajudicial compromise, however, shall affect the rights of the workman or employee, or of his beneficiaries, without their express consent and approval.
      “Any sum obtained by the Commissioner through the means provided in this section shall be covered into the Government Insurance Fund.” 24 Y.I.C. § 263.

      . Moreno v. Penzol, 73 P.R.R. 12 (1952).

      . Marrero Morales v. Bull Steamship Company, 279 F.2d 299 (1st Cir. 1962) ; Guerrido v. Alcoa Steamship Co., 234 F.2d 349 (1st Cir. 1956) ; Flores v. A. H. Bull Steamship Co., 167 F.Supp. 841 (D.P.R.1958).

      . I find no inconsistency between the statutory principles I have used in interpreting § 263 and the general Virgin Islands principle that when it adopts a statute from a different jurisdiction, it is presumed to have also adopted the judicial interpretations which the other jurisdiction had placed on the statute prim to the Virgin Islands’ adoption. Paiewon sky v. Paiewonsky, 446 F.2d 178, 181, 8 V.I. 421 (3d Cir. 1971), et al., as cited by the majority. That presumption is inapplicable in eases such as the present one when the issue is not one merely of interpreting the borrowed statute, but the reconciliation of that statute with other local statutes which create distinctly different problems in the two jurisdictions.


author: MATTHES, Chief Judge.

text:
    UNITED STATES of America For and on Behalf of J. W. Smith & Co., Plaintiff-Appellant, v. AETNA CASUALTY & SURETY CO., and Wieman-Slechta Co., Defendants-Appellees. UNITED STATES of America For and on Behalf of J. W. Smith & Co., Plaintiff-Appellee, v. AETNA CASUALTY & SURETY CO., and Wieman-Slechta Co., Defendants-Appellants.
    Nos. 72-1422, 72-1468.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 14, 1973.
    Decided June 29, 1973.

      Warren S. Zwieback, Omaha, Neb., for J. W. Smith & Co.
    Stephen A. Davis, Omaha, Neb., for Aetna Casualty.
    James F. Kasher, Omaha, Neb., for Wieman-Slechta.
    Before MATTHES, Chief Judge, and MEHAFFY and STEPHENSON, Circuit Judges.
   MATTHES, Chief Judge.

J. W. Smith and Company (Smith), a mechanical subcontractor, instituted this suit under the Miller Act, 40 U.S.C. § 270a et seq., to recover from the prime contractor, Wieman-Slechta Company (Wieman-Slechta), and its surety, Aetna Casualty and Surety Company (Aetna), the sum of $23,618.89 allegedly due on a subcontract in connection with a federal construction project.

Two issues were tried to the court, the first being whether a letter, dated April 3, 1970, prepared by Wieman-Slechta and signed by Smith, reciting payment of $14,335.92 by Wieman-Slechta to Smith in full settlement of all accounts, coupled with Smith’s subsequent negotiation of Wieman-Slechta’s check in the same amount, constituted an accord and satisfaction of all accounts between Smith and Wieman-Slechta.

In resolving this question, the trial court found that the parties intended the letter to be a sham for the purpose of deceiving Aetna and as such was “of no effect in relation to the debt between Smith and Wieman-Slechta. . . .”

The second issue before the court was whether, by reason of the sham letter, a copy of which had been sent to Aetna by Wieman-Slechta, Smith was estopped from asserting its claim against Aetna. The court ruled that Smith was es-topped.

Accordingly, judgment was entered in favor of Smith against Wieman-Slechta for $23,618.89, stipulated by the parties to be the amount in controversy, and in favor of Aetna.

Smith’s appeal challenges the trial court’s finding and judgment relieving Aetna of liability on the ground of estoppel.

Wieman-Slechta, by cross-appeal, urges that the trial court erred in not finding that the April 3 letter was an accord and satisfaction of all accounts between Wieman-Slechta and Smith, and in not finding that, in any event, Wieman-Slechta had partially paid the amount due. Specifically, Wieman-Slechta asserts that its indebtedness to Smith for the purposes of this case is $15,178.94 instead of $23,618.89.

Aetna, in its brief and at oral argument, defends the court’s action relieving it from liability.

We affirm the judgment against Wieman-Slechta but reverse the judgment in favor of Aetna.

On September 1, 1969, Wieman-Slechta entered into a written contract with the federal government for the construction of an auto hobby shop at Offutt Air Force Base, near Omaha, Nebraska. As required by the Miller Act, Wieman-Slechta executed at the same time a payment bond with Aetna for the protection of all persons supplying labor and material to the project. A day later, Wieman-Slechta subcontracted with Smith for the performance of all mechanical work. By March 15, 1970, Smith had satisfactorily completed the work at a contract price, including extras, of $43,658.66. Wieman-Slechta and Smith had worked together under similar arrangements on previous projects, several of which were still in progress at the time of the auto hobby shop job. The accounts of the parties in relation to two of these previous projects were in spirited dispute. Although some progress payments had been made by Wieman-Slechta to Smith on the auto hobby shop job, in late March, 1970, Smith complained to a representative in Aetna’s claims department that payments had become delinquent. In response, Aetna apparently warned Wieman-Slechta to bring its accounts up to date or Aetna would refuse to issue future bonds to the company.

On April 3, 1970, Mr. Wieman of Wieman-Sleehta called J. W. Smith to his offices and presented to him the letter in controversy reciting payment of $14,335.92 by Wieman-Slechta to Smith in full settlement of all accounts. Mr. Smith signed the letter and thereupon Wieman handed Smith a check, dated April 8, 1970, for the same amount.

On April 6, not yet having cashed the post-dated check, Smith mailed a letter to Wieman-Slechta acknowledging receipt of the letter of April 3 “[w]ith protest” and restating the accounts between the parties to show a balance due Smith on all accounts of approximately $70,000. Thereafter, Smith negotiated the post-dated cheek.

The parties stipulated that a copy of the letter of April 3 was forwarded to an authorized agent and attorney in fact for Aetna by Wieman-Slechta who forwarded the letter without comment to Aetna where it was placed in the auto hobby shop job file. Neither Smith nor Wieman-Slechta forwarded a copy of the April 6 letter of protest to Aetna.

Several times in early July, Smith spoke by telephone with Aetna representative Bill Lee and requested payment of approximately $24,000 from Aetna on the bond for work performed by Smith on the auto hobby shop job. In reply, Mr. Lee apparently referred to the copy of the letter of April 3 contained in the surety’s file showing a full settlement of accounts. Mr. Lee suggested that Smith proceed against Wieman-Slechta.

On July 30, 1970, Wieman-Slechta sent Smith a letter directing the proper application of previous payments and incidentally setting forth the status of the accounts between the parties. The letter showed a balance of $24,018.89 due Smith on the auto hobby shop job. Shortly thereafter, to no avail, Mr. Smith again called Mr. Lee of Aetna and read him the contents of the July 30 letter. Mr. Smith also informed Lee of the April 6 letter of protest.

Between the dates of April 8 and September 14, 1970, Wieman-Slechta was paid $26,083.51 by the federal government pursuant to the prime contract.

ACCORD AND SATISFACTION

Accord and satisfaction has been defined as a discharge of an existing indebtedness by the rendering of some performance different from that which was claimed as due and the acceptance of such substituted performance by the claimant in full satisfaction of his claim. Ruehle v. Ruehle, 161 Neb. 691, 74 N.W.2d 689 (1956); 6 Corbin, Contracts § 1276, p. 115 (1962). Part payment of an unliquidated and disputed debt may effectively operate as a discharge by accord and satisfaction if the parties so agree. Slade v. Swedeburg Elevator Co., 39 Neb. 600, 58 N.W. 191 (1894). Indeed, “[t]he key element of accord and satisfaction is the intention of the parties, which as a rule presents a question of fact.” Black v. Denver United States National Bank, 362 F.2d 38, 41 (9th Cir.), cert. denied, 385 U.S. 990, 87 S.Ct. 596, 17 L.Ed.2d 451 (1966).

If, as found by the trial court, the letter of April 3 was a sham, Wieman-Slechta’s efforts to enforce the letter as an accord and satisfaction are in vain. For it is settled and sound law that when two parties execute a written instrument purporting to be a contract when in fact it is not, the purpose being to deceive a third person, the instrument is unenforceable by either of the immediate parties. Nice Ball Bearing Co. v. Bearing Jobbers, 205 F.2d 841 (7th Cir.), cert. denied, 346 U.S. 911, 74 S.Ct. 242, 98 L.Ed. 408 (1953); Coffman v. Malone, 98 Neb. 819, 154 N.W. 726 (1915); 6A Corbin, Contracts § 1473, p. 607 (1962). Nor, in such eases, is the parole evidence rule applicable since the document was not in fact an agreed integration of a real bargain. Coffman v. Malone, supra,, 154 N.W. at 727.

The record before us contains substantial evidence supporting the trial court’s finding that the April 3 letter was a sham and that the parties did not intend it to operate as a full discharge of the amounts due Smith by Wieman-Slechta. In this regard, we note especially the following undisputed facts:

On April 3 and prior thereto, Wieman-Slechta stood in danger of losing Aetna as a surety on future jobs unless Smith was paid;
Smith was hard-pressed financially, had to meet a payroll and would “do almost anything” to receive payment;
An account receivable on Wieman-Slechta’s books of $24,549.52, purportedly settled by the letter of April 3, was disputed by Smith, and was the subject of a lawsuit filed in the Nebraska state court by Wieman-Slechta against Smith prior to April 3 and still pending when this case was tried;
In the letter of July 30 to Smith, Wieman-Slechta admitted a “balance [due Smith] as of July, 1970 our books” of $24,018.89 on the auto hobby shop job account. When interrogated about this letter, Mr. Wieman offered no explanation other than that “ [m] y records would show that.”

ESTOPPEL

Broadly speaking, the essential elements of an equitable estoppel, as related to the party claiming the estoppel are: (1) lack of knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance, in good faith, upon the misleading conduct or false representations of the party to be estopped; and (3) change in position based thereon to his injury, detriment or prejudice. 28 Am.Jur.2d Estoppel and Waiver § 35 (1966).

“The doctrine of equitable estoppel does not erase the duty of due care and is not available for the protection of one who has suffered loss solely by reason of his own failure to act.” Hampton v. Paramount Pictures Corp., 279 F. 2d 100, 104 (9th Cir. 1960).

Estoppel has been recognized as a valid defense to a Miller Act claim in a number of cases. United States v. Forrester, 441 F.2d 779, 783 (5th Cir. 1971); United States v. Glassman Construction Co., 397 F.2d 8, 11 (4th Cir. 1968); Graybar Electric Co. v. John A. Volpe Construction Co., 387 F.2d 55, 59 (5th Cir. 1967); United States v. Greene Electrical Service, 379 F.2d 207, 210 (2d Cir. 1967); Moyer v. United States, 206 F.2d 57, 60 (4th Cir. 1953), 39 A.L.R.2d 1098 (1955). See cases collected in Annot., 39 A.L.R.2d 1104 (1955).

In what appears to be the leading case on the defense of estoppel to a Miller Act claim, Moyer v. United States, 206 F.2d 57 (4th Cir. 1953), 39 A.L.R.2d 1098 (1955), the court held that a group of materialmen was not estopped from recovering for supplies furnished a subcontractor on the ground that they had given false receipts of payment to the subcontractor, in the absence of a showing that the prime contractor and surety had relied on the false receipts to their detriment.

In the present case, the district court was persuaded to hold that Aetna relied to its detriment on the April 3 sham letter by failing to prevent the release of government funds sufficient to satisfy Smith’s claim.

As we view this record, the court’s finding rests upon several faulty premises. First, there is no direct evidence of Aetna’s reliance on the April 3 letter. The only representative of Aetna to testify, John P. Dowd, a claims superintendent, merely stated that he had seen the letter in the project file. At no time did Mr. Dowd testify that the company had relied on the letter in rejecting Smith’s claim. Secondly, assuming for the purposes of argument the presence of sufficient indirect evidence of Aetna’s reliance, we are convinced that any such reliance was plainly unwarranted. It stands undisputed that in the months prior to final payment by the government to Wieman-Slechta, Smith contacted Aetna numerous times by telephone and demanded payment on the bond. During these conversations Aetna was informed of Smith’s April 6 letter repudiating the alleged settlement, and of Wieman-Slechta's July 30 letter acknowledging a balance due of approximately $24,000.

In view of the foregoing we conclude that Aetna had sufficient notice of Smith’s claim prior to the time that final payment was made by the government to Wieman-Slechta, and that by the exercise of diligence and due care Aetna could have taken appropriate action to prevent final payment. Aetna instead assumed the position, according to unimpeached testimony, that it was necessary for Smith to exhaust all efforts to collect from Wieman-Slechta before it would intervene.

The Miller Act is intended to protect those who furnish labor and material for public construction and to insure they will be paid that which is due. The Act is highly remedial in nature, and entitled to a liberal construction and application in order to properly effectuate the congressional intent. Graybar Electric Co. v. John A. Volpe Construction Co., supra, 387 F.2d at 58.

Although we certainly recognize that the findings of the trial court should be sustained unless clearly erroneous, this record drives us to the conclusion that a mistake has been made in relieving Aetna from its liability on the bond. See United States v. United States Gypsum Co. 333 U.S. 364, 394-395, 68 S.Ct. 525, 92 L.Ed. 746 (1948). Accordingly, the judgment dismissing Aetna must be vacated.

There remains for consideration Wieman-Slechta’s argument that the district court erred in finding a partial payment had not been made on the account. Wieman-Slechta asserts that a proper analysis of the evidence shows that the correct balance on the auto hobby shop job is $15,178.94. On this basis, Wieman-Slechta asks this court to modify the judgment by reducing it to that amount.

Although the district court did not review in its memorandum opinions the details of the various transactions of the parties as to payments, the court manifestly considered the various exhibits and testimony relating to the accounts. In its opinion on the motion of Wieman-Slechta to alter or amend the judgment the court found that Wieman-Slechta failed to prove payment of the account in full or in part.

Wieman-Slechta has not demonstrated to our satisfaction that the court’s finding on this aspect of the case is clearly erroneous. We therefore reject the claim of partial payment.-

The judgment entered on April 27, 1972, is vacated and the cause is remanded with directions to the district court to enter another judgment in favor of Smith and against Wieman-Slechta and Aetna Casualty and Surety Co. for $23,618.89 plus appropriate interest.

Costs shall be taxed equally against Wieman-Slechta and Aetna.


author: STEPHENSON, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. Kenneth IRBY, Appellant.
    No. 72-1711.
    United States Court of Appeals, Eighth Circuit.
    Submitted May 15, 1973.
    Decided June 29, 1973.
    Rehearing and Rehearing En Banc Denied Aug. 7, 1973.
    John F. Arnold, St. Louis, Mo., for appellant.
    Michael W. Reap, Sp. Atty., U. S. Dept, of Justice, Office for Drug Abuse Law Enforcement, St. Louis, Mo., for appellee.
    Before MATTHES, Chief Judge, and •MEHAFFY and STEPHENSON, Circuit Judges.
   STEPHENSON, Circuit Judge.

• Defendant, Kenneth Irby, was convicted by a jury verdict on two counts of violating 21 U.S.C. § 841(a)(1), knowingly and intentionally distributing approximately .31 grams of heroin, a controlled substance, and possessing heroin with the intent to distribute approximately 1.06 grams of the narcotic drug. On November 17, 1972, upon the jury’s finding of guilty, defendant was sentenced to custody for five years under each count, such terms to run concurrently, and to be followed by a special parole term of three years.

I.

Defendant initially urges that in its charge to the jury, the district court refused to distinguish between the general intent required to prove Count I and the specific intent inherent in Count II.

Concededly, an explanation of the significance of “general” versus “specific intent” might have been given. The record demonstrates, however, in its charge the district court instructed the jury as to the elements of each count. In so doing, the Court noted that “specific intent” was required under Count II. The jury was also instructed on the lesser included offense of simple possession under Count II. In addition the Court gave standard instructions as to proof of intent, and the meaning of “knowingly.”

We are satisfied that the failure of the district court to give a “cautionary” instruction setting out the different intent required in Count I and Count II did not constitute reversible error since the Court’s charge as a whole correctly instructed the jury as to the required elements of each count. United States v. Mitchell, 463 F.2d 187, 191 (8th Cir. 1972). The jury was specifically instructed that the offenses were to be considered separately.

Even assuming, however, that a cautionary instruction should have been given, reversal is not mandated. As noted, the jury had been instructed as to proof of intent, and defendant was properly convicted under Count I based upon that standard. Since defendant’s five year sentences under each count were concurrent, his conviction solely under Count I supports the imposed sentence. “The law is settled that reversal is not required if the conviction underlying any one of several concurrent sentences is valid and alone supports the sentence and judgment.” Kilcrease v. United States, 457 F.2d 1328, 1331 (8th Cir. 1972); accord, United States v. Dugan, 477 F.2d 140 (8th Cir. 1973); United States v. Huckensteine, 475 F.2d 1131 (8th Cir. 1973); compare Greene v. United States, 358 U.S. 326, 329-330, 79 S.Ct. 340, 3 L.Ed.2d 340 (1959). In this case there is no reason for not applying the concurrent sentence doctrine. See, Benton v. Maryland, 395 U.S. 784, 789-790, 89 S.Ct. 2056, 2059-2060, 23 L.Ed.2d 707; accord United States v. Bessesen, 433 F.2d 861, 867 (8th Cir. 1970).

II.

Defendant next asserts that the district court erred when it permitted one Detective Swan to testify to statements made by defendant while in custody, since no foundation was laid as to voluntariness thereof. See Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

According to Detective Swan, subsequent to defendant’s arrest and prior to questioning, defendant was advised of his Miranda rights. During the trial, Swan testified that he had questioned defendant relative to the source of the heroin. Defendant indicated to Swan that he had purchased the substance from Albert Franklin.

No objection was made to the admission of this inculpatory statement by defendant. This is consistent with his defense that he possessed heroin but with no intent to sell it or to distribute it. During opening statement, defense counsel stated that defendant “bought several packets of heroin,” and that he threw down the heroin just prior .to his arrest. Counsel stated further that “he’ll [defendant] admit to you [the jury] that he did have heroin on his possession but he’ll tell you he never offered it for sale nor had he intended to do so.” In closing argument counsel stressed that defendant was guilty of the misdemeanor of simple possession and not guilty of the felony charge of distribution or possession with intent to distribute the narcotic drug. Defendant now urges for the first time that no foundation was laid to demonstrate the voluntariness of his initial admission to Detective Swan.

The record discloses that defense counsel not only failed to raise an objection at trial, but indeed attempted unsuccessfully to formulate a trial tactic based upon the theory of simple possession without the intention to resell. See, Nance v. United States, 440 F.2d 617, 619-620 (7th Cir. 1971); see generally, United States v. Carter, 431 F.2d 1093, 1096, 1097 (8th Cir. 1970). It is apparent that defendant deliberately bypassed his opportunity to object. Since under these circumstances we find no plain error, defendant will not now be heard to complain about that which hindsight proves to be an ineffective strategy.

III.

It is also defendant’s position that the evidence on this record as a whole is insufficient to establish his guilt upon Count II beyond a reasonable doubt, and that the district court therefore erred in denying his motion for acquittal notwithstanding the verdict.

Although the evidence with respect to Count II is wholly circumstantial, we are satisfied that there is substantial evidence upon this record sufficient to establish defendant’s guilt in the minds of the jurors “beyond a reasonable doubt.” Accordingly, the motion for acquittal notwithstanding the verdict was properly denied. United States v. Reed, 446 F.2d 1226, 1230 (8th Cir. 1971); see, Holland v. United States, 348 U.S. 121, 139-140, 75 S.Ct. 127, 99 L.Ed. 150 (1954).

IV.

Defendant also argues that the district court erred when it overruled defendant’s objections to testimony by the arresting officers relating to the chemical content of exhibits; that the district court erred in overruling defendant’s motion for judgment of acquittal at the close of the government’s case, since the government allegedly failed to prove that the substance was heroin; and that the district court abused its discretion in admitting exhibits since the chain of custody allegedly was not established.

Upon examination of the record before us, we are satisfied that the district court’s rulings were correct, and that these allegations are wholly without merit. We therefore find further discussion to be unnecessary.

The judgment of conviction is affirmed.

      . See, 21 U.S.O. §§ 841(b) (1) (A) and 841(c)

      . The district court charged that: “The essential elements of Count One, each of which the government must prove beyond a reasonable doubt are:

        First: That the defendant, Kenneth Irby, did distribute heroin, a schedule one controlled substance;

        Second: That the defendant, Kenneth Irby, did so knowingly and intentionally.
      The essential elements of Count Two, each of which the government must prove beyond a reasonable doubt are:

        First: That the defendant, Kenneth Irby, possessed heroin, a schedule one controlled substance;

        Second: That the defendant, Kenneth Irby, did so possess with a specific intent to distribute heroin, a schedule one controlled substance; and

        Third: That the defendant, Kenneth Irby, did so knowingly and intentionally.” (Emphasis supplied.)

      . See, W. Mathes, Jury Instructions and Forms for Federal Criminal Cases, 27 F.R.D. 39, 78 (1960) ; but see, United States v. Guy, 456 F.2d 1157, 1164-1165 (8th Cir. 1972).

      . Direct examination of Detective Swan:
      Q All right. Now, going back to the statement, could you begin, start at the beginning and then give the entire statement that Bernard Boyd — I mean Kenneth Irby made to you?
      A I questioned — I questioned him relative to the suspected heroin that we had seized from him and I asked him where he obtained it, or who he had bought it from, and Kenneth Irby stated, “do you remember the guy that was with me at the time I was busted, not Boyd,” he said, “the other, the dude in the pink shirt? And he said, “I copped it off of his brother Albert.”
      Q Albert Franklin ?
      A Albert Franklin; right.
      Q All right. And what is generally ment by the term “copped”?
      A Copped ?
      Q As far as the street language.
      A Is buy or — meant pay something.
      It is a term used in dope. It is when somebody cops something, he buys something from another individual. It is selling.

      . But see, Henry v. Mississippi, 379 U.S. 443, 451, 85 S.Ct. 564, 569, 13 L.Ed.2d 408 (1965), “* •* * [T]rial strategy adopted by counsel without prior consultation with an accused will not, where the circumstances are exceptional, preclude the accused from asserting constitutional claims, * * (Emphasis supplied.)


author: SIMPSON, Circuit Judge:

text:
    MITSUI O. S. K. LINES, K. K., Plaintiff-Appellee, v. HORTON & HORTON, INC., Defendant-Appellant.
    No. 72-3104.
    United States Court of Appeals, Fifth Circuit.
    June 21, 1973.

      Robert Eikel, Houston, Tex., for defendant-appellant.
    Frank E. Caton, Houston, Tex., for plaintiff-appellee.
    Before BELL, GOLDBERG and SIMPSON, Circuit Judges.
   SIMPSON, Circuit Judge:

Shortly after noon of November 28, 1970 the Kasugasan Maru (ship), a 492-foot general cargo vessel of 8500 gross tons owned by plaintiff-appellee Mitsui O.S.K. Lines, K.K., a Japanese corporation (Mitsui) was proceeding outbound to the Gulf of Mexico in the Houston Ship Channel to seaward of Beacons 75 and 76, near “Five-Mile-Cut”, where the channel traverses the open waters of Galveston Bay. The ship was loaded light with a draft aft of about 20 feet. Her beam was 62 feet, visibility was good, the wind and weather normal. Approaching inbound was the barge H & H 130 (barge) closely coupled to and being pushed ahead by the tug Sallie Sewall (tug). Both tug and barge were owned and operated by the defendant-appellant-cross-claimant, Horton & Horton, Inc. (Horton). The barge was 240 feet long, 45 feet wide and ten feet in depth. The tug was approximately 59 gross tons.

In attempting a port-to-port passing, the ship and barge collided in the channel. The exact point of collision was in dispute, both in reference to the center line of the 400-foot channel and as to proximity to a 15° curve left (outbound) in the channel.

The trial was bifurcated as to liability and damages. Upon evidence fully supporting such a result, the court below made oral findings following the liability phase of the trial that the sole proximate cause of the collision was the negligence of the crew of the tug: in failing to keep a proper lookout, in failing to take affirmative action to avoid collision, in failing to heed warning signals from the ship, and in failing to maintain the tug’s starboard side of the channel, either because of trouble with the tug’s steering mechanism or because of having an inept and inexperienced captain at her helm. After the entry of oral findings of fact and conclusions of law as to liability, and pending the hearing on damages, the district court denied Horton’s motion to reopen the evidence as to liability to permit consideration of further evidence pertaining to a large piece of metal sheared from the port side of the barge in the collision. Horton proffered that this evidence would exactly locate the point in the channel where the collision occurred. The district court’s refusal to reopen the case and consider this evidence was based inter alia, upon a determination that the proffered evidence would not alter its conclusions as to liability already reached. We agree with that holding.

It is a uniform rule that the granting or denial of a motion to reopen proceedings for newly discovered evidence rests within the sound discretion of the trial court, that the review of such a decision is limited to search for an abuse of discretion, and that the moving party must show that the proffered evidence would not be merely cumulative. United States v. Jacquillon, 5 Cir. 1972, 469 F.2d 380, 388; United States v. 41 Cases, More or Less, 5 Cir. 1970, 420 F.2d 1126, 1132; Chemical Delinting Co. v. Jackson, 5 Cir. 1951, 193 F.2d 123, 127. The evidence proffered here was in fact cumulative as it merely confirmed what the district court had previously found, viz., that the collision occurred on the west (the ship’s starboard) side of the center line of the channel in the ship’s lane of traffic.

Defendant did not make a convincing showing that the proffered evidence would exonerate it from liability or was otherwise inconsistent with the determination of the trial court. Indeed, taking the record as a whole, including the proffered evidence, the evidence amply supports the trial court’s findings of causative negligence by the crew of the tug. McAllister v. United States, 1954, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20.

Horton also questions the sufficiency of Mitsui’s proof as to damages. The district court awarded Mitsui damages in the amount of $23,857.14 for repairs to the ship and for lay-up time. Much of the confusion is caused by the fact that the repairs to the ship were not undertaken until a year after the collision when the ship was undergoing its annual survey or dry docking in Japan. This meant that the damages caused by the collision had to be apportioned from the costs incurred as the result of the routine annual survey.

Damages need not be proved with an exact degree of specificity. It suffices if a state of facts is shown from which a court or jury can find with reasonable certainty that the damages claimed were actually or may be reasonably inferred to have been incurred as a result of the collision. Our standard of review of factual findings of this sort is the “clearly erroneous rule” of McAllister v. United States, supra; Cates v. United States, 5 Cir. 1971, 451 F.2d 411, 416-417; Theodories v. Hercules Navigation Co., 5 Cir. 1971, 448 F.2d 701, 704; F.R.Civ.P. Rule 52(a). Nevertheless “[t]he damages must not be merely speculative, and something else must be shown than the simple fact that the vessel was laid up for repairs.” The Conqueror, 1898, 166 U.S. 110, 127, 17 S.Ct. 510, 517, 41 L.Ed. 937, 945.

The surveyor who examined the ship testified that the repairs undertaken in the Japanese shipyard were of a type and kind which could be expected to be necessitated by damages from the collision described by the ship’s witnesses. Representatives of the Japanese shipyard which did the work testified as to the costs of repair. The surveyor also gave expert testimony based on his experience that three days was the average time required for an annual dry docking of a vessel of the Kasugasan Maru’s class. Since the dry docking required six days in all it was his opinion that the additional three days was necessary to make repairs of the collision damage to the ship. Because there was no way to differentiate specifically between those expenses attributable solely to dry docking and those expenses attributable solely to the collision repairs, the accessorial charges were divided on an equal basis. Such evidence is sufficient for a court or jury to find legitimately that such were the actual damages as a result of the collision, F.R. Civ.P. 52(a), and to this extent the award of damages is affirmed.

However, the district court granted plaintiff approximately $6,500 as part of the damage award for the general operating costs and services for the ship for three of the six days or one-half of the repair period. This award was based solely upon the surveyor’s estimate of operating costs and services. Later on cross-examination he conceded that this was a determination beyond his specialized knowledge. This evidence standing alone as it did was an insufficient basis for the operating costs and services portion of the damages award. See The Conqueror, supra, 166 U.S. at 130-131, 17 S.Ct. at 518, 41 L.Ed. at 946-947. This portion of the award resting as it does not on competent testimony but upon no more than surmise and conjecture cannot be permitted to stand. Ove Skou v. United States, 5 Cir., 1973, 478 F.2d 343 (decided May 17, 1973); The Nicolaou Maria, 5 Cir. 1944, 143 F.2d 406.

The judgment of the lower court is modified to eliminate this amount of $6,500, reducing the judgment for damages to the sum of $17,357.14. As so modified, the judgment below is in all other respects affirmed.

Modified and affirmed.

      . Despite a fine spun theoretical argument as to its showing that the collision occurred on the east (the tug’s starboard) side of the center of the channel, the metal from the barge was salved at a point on the bottom of the channel 80' west of the 400' channel center line. Its location was known at the time of the trial as to liability, although it had not been salved.