text:
    REYNOLDS TRADING CORP. et al., Appellants, v. The UNITED STATES, Appellee.
    Customs Appeal No. 74-1.
    United States Court of Customs and Patent Appeals.
    Oct. 24, 1973.
   MILLER, Judge.

Appellee has moved to dismiss this appeal and to quash the mandate from this court to the United States Customs Court to transmit the record and other appropriate documents.

The petition of appeal, entitled as above, was filed with this court on July 2, 1973, and the said mandate was issued the same date.

This appeal seeks relief from an order of the United States Customs Court, dated May 2, 1973, denying appellants’ motion for rehearing and to vacate and set aside “separate orders of dismissal entered in the actions enumerated on the Schedule attached to said Order entered in the above-entitled proceeding”. Appellants’ assignment of errors refers to “separate orders of dismissal entered in the actions enumerated on the Schedule attached to the Order entered by said Court on May 2, 1973.”

Upon receipt of the petition, the clerk of this court telephoned counsel for appellants to obtain further identification of the cases encompassed by the order below for the purpose of the mandate to the United States Customs Court and was given the following: “Court No. R67/2398, etc.” This was confirmed by letter from said counsel dated July 2, 1973, and received by this court on July 5, showing copy sent to the Chief, Customs Section, Office of the Assistant Attorney General (Civil) in New York City, and inclosing á copy of the May 2, 1973, order of the United States Customs Court and the schedule attached thereto. The mandate contains a reference to “Reappraisement No. R67/2398, etc.”

On August 22, 1973, appellee filed with the United States Customs Court a Motion to Settle the Record in this case; and on August 24, the appellee filed with this court the present motion to dismiss and to quash, asserting that no valid appeal has been filed because of failure of appellants to specify with sufficient particularity their names and the cases which are being appealed. In a Memorandum in Support of Motion, appellee cites Meyer & Lange et al. v. United States, 4 Ct.Cust.App. 422, T.D. 33855 (1913) for the proposition that the failure to include the ease number) in the initial pleadings is a jurisdictional defect and is not curable by amendment after the statutory time for filing an appeal has elapsed. (The last day for filing an appeal in this case was July 3, 1973.)

Although appellee appears to have been informed with sufficient particularity to enable it to file a motion to settle the record, it complains that it cannot determine from the pleading filed with this court which case is under appeal and that it was not made a party to any amendment of the pleadings to include the case designation set forth in the mandate. At the same time, appel-lee states that its action to remedy defects as to the scope of the record (the motion to settle the record) is not to be a waiver of any of the relief sought by its motion to dismiss.

We do not believe appellee can have it both ways. If it believed that it was being misled, surprised, prejudiced or damaged by defective pleadings, it should have moved promptly to quash the mandate instead of waiting until the United States Customs Court had gone to the time and expense of preparing the record and other documents pursuant to the mandate.

While it is true there are many Reynolds eases enumerated on the schedule attached to the order entered by the United States Customs Court on May 2, 1973, the only action of that court on appeal to this court is the order of May 2, 1973. Whatever Reynolds cases were encompassed by that order are encompassed by this appeal, and the only issue before us is the propriety of the denial of the plaintiff-appellants’ motion by that order. The order was a single act — not a plurality of decisions in a plurality of eases. The subject matter of this appeal is not the “separate orders of dismissal entered in the actions enumerated on the attached Schedule” referred to in the order, but the order itself. In appealing therefrom, appellant was under no obligation to do more than identify that order with certainty in its petition, which it clearly has done.

The case of Meyer & Lange, supra, is readily distinguishable, because there the annexed schedule of cases did not include the names or numbers of the protests which were dismissed. The predecessor to this court laid down the following policy: “We think orderly practice, as well as compliance with the rules of this court, should require that the caption or body of the petition for review should embrace the names of the parties; that the names of the appealing parties should be signed to the petition; . and for the benefit of the profession attention is again called to the provisions of rule 3 of this court.”

Rule 3 referred to is the same as present Rule 3 of this court and provides as follows: “Process to be issued from this court shall be of such form and style as is in use in the Supreme Court of the United States.” Rule 10 of the Supreme Court provides that the notice of appeal shall specify the parties taking the appeal and that “All parties to the proceeding in the court from whose judgment the appeal is being taken shall be deemed parties in this court, unless the appellant shall notify the clerk of this court in writing of his belief that one or more of the parties below have no interest in the outcome of the appeal.”

In view of the foregoing, we hold that the action of the clerk of this court with respect to furnishing the reappraisement number on the mandate was a ministerial action within the proper scope of the court’s responsibility rather than an attempt to cure a fatal defect in the pleadings. We do not agree with appellee’s contention that 28 U.S.C. § 2601 and Rule 15 of this court implicitly require the appealing party to provide the specific case number below in any and all circumstances. Authorities cited by appellee for such a proposition are not responsive. As pointed out by appellant in its memorandum of opposition to the motion to dismiss, the cases of Cook & Sons Equipment, Inc. v. Killen, 277 F.2d 607 (9th Cir. 1960) and Van Hoose et al. v. Eidson et al., 450 F. 2d 746 (6th Cir. 1971) involved a breach of express rules (Federal Rules of Civil Procedure and Federal Rules of Appellate Procedure, respectively). Also, in Cook the failure to name individuals as well as a corporation in the appeal was held fatally defective as to the individuals; while the holding in Van Hoose that the words “et al.” did not inform as to which, if any, of three other parties besides Van Hoose desired to appeal and was more than clerical error runs counter to the above-quoted Rule 10 of the Supreme Court which Rule 3 of this court adopts.

Accordingly, the motion of appellee is denied.


source: Caselaw Access Project

author: AINSWORTH, Circuit Judge:

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Travis JONES, Defendant-Appellant.
    Nos. 73-2192, 73-2194, 73-2196, 73-2224
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Nov. 23, 1973.
    Earl Gillian, Montgomery, Ala., (Court-appointed), for defendant-appellant.
    Ira DeMent, Calvin C. Pryor, D. Brow-ard Segrest, U. S. Attys., Montgomery, Ala., for plaintiff-appellee.
    Before WISDOM, AINSWORTH and CLARK, Circuit Judges.

       Rule 18, 5 Cir.; see Isbell Enterprises, Inc. v. Citizens Casualty Company of New York et al., 5 Cir., 1970, 431 F.2d 409, Part I.

   AINSWORTH, Circuit Judge:

Travis Jones was convicted by a jury of receiving and disposing of a stolen motor vehicle in interstate commerce. He was also convicted in three separate trials by jury of transporting stolen motor vehicles in interstate commerce. He takes four appeals from these convictions, which we consolidate in this opinion. Each appeal raises two issues: sufficiency of the evidence, and admissibility of testimony concerning other transactions involving stolen cars. We affirm all four convictions.

In No. 73-2192, Jones and a codefend-ant, who pled guilty, were indicted for transporting in interstate commerce a stolen Pontiac in violation of 18 U.S.C. § 2312. The evidence adduced at trial established that the car was stolen. Two accomplices, witnesses for the Government, testified that they saw Jones driving the Pontiac in August. One of these witnesses, Broaden, further testified that Jones told him to dispose of the ear. Proper instructions regarding the credibility of accomplice witnesses and limiting the use of testimony concerning other vehicles were given.

In No. 73-2194, Jones was convicted of receiving; concealing, and disposing of a stolen black Cadillac, in violation of 18 U.S.C. § 2313. The evidence at trial established that the car was stolen. There was no evidence placing Jones in actual possession of the car. Accomplice Broaden, as witness for the Government, testified that Jones had arranged for him to receive this car in August. Broaden further testified that Jones had arranged to have several cars delivered to him. As in the prior case, proper instructions on accomplice witness testimony and on the evidence relating to other vehicles were given.

In No. 73-2196, Jones and codefend-ant Loggins, who pled guilty, were charged with interstate transportation of a stolen red and white Cadillac in violation of 18 U.S.C. § 2312. Again, the evidence proved the car stolen. The evidence connecting Jones with this ear was Loggins’ testimony that Jones told him to drive the car from Illinois to Alabama, where he was to deliver it to Broaden. Jones arrived at Broaden’s house on November 15 about an hour after Loggins had arrived there in the red and white Cadillac. Again, proper instructions were given about accomplice witnesses and evidence relating to the other cars.

In No. 73-2224, Jones and codefendant Taylor, who pled guilty, were indicted for transporting a stolen white Ca.dillac in interstate commerce, a violation of 18 U.S.C. § 2312. The evidence established that the ear was stolen. Taylor testified that he and Jones drove the car from Illinois to Alabama. An FBI agent testified that Taylor had given him the same information upon being arrested. Broaden, who also received this car, testified that Jones and Taylor arrived at his house on November 15, and that a white Cadillac was parked out front. Although the record does not contain the judge’s charges (this case being tried before a different judge), no issue concerning jury charges is raised on appeal.

In each appeal, Jones urges that the evidence was not sufficient to convict him. However, in none of the four trials below was there a motion for directed verdict of acquittal. Therefore, the question of the sufficiency of the evidence was not preserved for appellate review absent a manifest miscarriage of justice. United States v. Wendt, 5 Cir., 1972, 463 F.2d 202. See also United States v. McGlamory, 5 Cir., 1971, 441 F.2d 130; United States v. Penner, 5 Cir., 1970, 425 F.2d 729, 730; Sheffield v. United States, 5 Cir., 1967, 381 F.2d 721; Meeks v. United States, 5 Cir., 1958, 259 F.2d 328; Moomaw v. United States, 5 Cir., 1955, 220 F.2d 589; Knight v. United States, 5 Cir., 1954, 213 F.2d 699, 700. We find no miscarriage of justice here, since the lesser standard which applies when a motion for acquittal is made is fully satisfied.

“On a motion for judgment of acquittal, the test is whether, taking the view most favorable to the Government, a reasonably-minded jury could accept the relevant evidence as adequate and sufficient to support the conclusion of the defendant’s guilt beyond a reasonable doubt. Sanders v. United States, 5 Cir., 1969, 416 F.2d 194, 196; Jones v. United States, 5 Cir., 1968, 391 F.2d 273, 274; Weaver v. United States, 5 Cir., 1967, 374 F.2d 878, 881.”

United States v. Warner, 5 Cir., 1971, 441 F.2d 821, 825, cert, denied, 404 U.S. 829, 92 S.Ct. 65, 30 L.Ed.2d 58 (1971). See also Glasser v. United States, 315 U.S. 60, 62 S.Ct, 457, 86 L.Ed. 680 (1941). We find the evidence at each trial was sufficient to support a jury verdict of guilty.

Jones also asserts that it was error to admit evidence of transactions concerning ears other than the vehicle specified in the indictment. We assume that Jones’ contention refers to the fact that the indication that he dealt in a ready supply of cars from Illinois to Alabama might lead the jury to believe he formed part of a large stolen car ring. It is because the evidence relating to the other cars shows behavior which is part of a larger scheme and has a clear connection with the crime charged in the indictment that the evidence is admissible. It was never stated at trial that the other cars were stolen or that Jones faced othr er criminal charges. Moreover, the trial judge gave precise and careful limiting instructions as to the use which could be made of the other-car evidence. A long line of cases speaks for the admissibility of this evidence, beginning with the discussion of admissibility of evidence of another crime unconnected with the one on trial in Weiss v. United States, 5 Cir., 1941, 122 F.2d 675, 682, cert, denied, 314 U.S. 687, 62 S.Ct. 300, 86 L. Ed. 550 (1941):

“ . . . The general rule is that evidence of another crime unconnected with the one on trial is inadmissible, but this rule is subject to a number of exceptions, the first of which is that evidence of other offenses by the accused is admissible to show his criminal intent as to the offense charged, where the other offenses are similar to and not too remote from that charged, and where intent is in issue as an element of the offense charged. . Another is to rebut a claim of mistake or inadvertence. An exception also applies where the crime charged is one of a series of swindles or other crimes involving a fraudulent intent, or where the crime charged is part of a plan or system of criminal action. It is clearly admissible in prosecutions for obtaining money by false pretenses. The length of time over which an inquiry as to other of-, fenses may extend is within the sound discretion of the trial court.” [Footnote omitted.]

We elaborated in Sutton v. United States, 5 Cir., 1968, 391 F.2d 592, 593:

“The trial judge must be given considerable latitude in allowing evidence to show the element of intent. Holt v. United States, 5 Cir., 1965, 342 F.2d 163, 166; Roe v. United States, 5 Cir., 1963, 316 F.2d 617, 621; Weiss v. United States, 5 Cir. 1941, 122 F.2d 675, 682. Furthermore, the court properly charged the jury concerning the limited use they should make of the evidence. Condrey v. United States, 5 Cir. 1965, 351 F.2d 456; Ah-rens v. United States, 5 Cir. 1959, 265 F.2d 514.”

Matthews v. United States, 5 Cir., 1969, 407 F.2d 1371, 1381, makes the following summary:

“Proof of another crime which aids in or is appropriate in establishing the crime in question is admissible. [Citations omitted.] Prior and subsequent crimes are admissible on the issue of intent to commit the crime in question. [Citations omitted.] Prior or subsequent, the similar act should not be too remote in point of time from the offense charged. [Citations omitted.] Such remoteness is not the case here. Nor is there abuse of discretion by the trial judge in admitting the prior similar acts going to the issue of intent. [Citations omitted.] Where the prior acts or crimes are clearly part of the larger scheme, have a clear connection with the crime charged, and are patently a part thereof, they are admissible in evidence. [Citations omitted.]”

See also United States v. Boyd, 5 Cir., 1971, 446 F.2d 1267, 1270; United States v. Mancuso, 5 Cir., 1970, 423 F.2d 23, 30, cert, denied, 400 U.S. 839, 91 S.Ct. 79, 27 L.Ed.2d 73 (1970); United States v. Restrepo, 5 Cir., 1969, 417 F.2d 927, 928; United States v. Chapman, 5 Cir., 1969, 413 F.2d 440, 444; Gilstrap v. United States, 5 Cir., 1968, 389 F.2d 6, 9, cert, denied, 391 U.S. 913, 88 S.Ct. 1806, 20 L.Ed.2d 652 (1968) ; Brumley v. United States, 5 Cir., 1967, 379 F.2d 327; Pardo v. United States, 5 Cir., 1966, 369 F.2d 922, 924-925; Condrey v. United States, 5 Cir., 1965, 351 F.2d 456, 457; Ahrens v. United States, 5 Cir., 1959, 265 F.2d 514, 516; Ehrlich v. United States, 5 Cir., 1956, 238 F.2d 481, 484.

We note that the evidence below dealing with Jones’ connection with transactions involving other cars concerns simultaneous acts and is not necessarily, and was not presented to the jury as, evidence of other crimes. Even were these transactions considered as evidence of other crimes, they would clearly be admissible under the above-cited cases. The evidence below is evidence of interrelated acts committed in the same period of time and forming a part of a scheme which includes the offense charged, and as such is clearly admissible.

The four convictions below are affirmed.

Affirmed.

      . 18 U.S.C. § 2312:
      “Whoever transports in interstate or foreign commerce a motor vehicle or aircraft, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

      . 18 U.S.C. § 2313:
      “Whoever receives, conceals, stores, barters, sells, or disposes of any motor vehicle or aircraft, moving as, or which is a part of, or which constitutes interstate or foreign commerce, knowing the same to have been stolen, shall be fined not more than $5,000 or imprisoned not more than five years, or both.”

      . We said in Knight v. United States, 213 F.2d at 700:
      “No motion for a judgment of acquittal was made in the lower court in behalf of either defendant. Consequently, the sufficiency of the evidence .on which the convictions were based is not reviewable here. Colt v. United States, 5 Cir., 160 F.2d 650; Jordan v. United States, 5 Cir., 120 F.2d 65. However, to avoid a manifest miscarriage of justice, this court does have the power to reverse a conviction notwithstanding no motion for a judgment of acquittal was made. Moore v. United States, 5 Cir., 161 F.2d 932, 933.”


author: HASTIE, Circuit Judge.

text:
    Eugene C. KELLEY, Appellee, v. SOUTHERN PACIFIC COMPANY, a corporation, Appellant.
    No. 71-2262.
    United States Court of Appeals, Ninth Circuit
    Sept. 7, 1973.
    Donald O. Roy (argued), John J. Cor-rigan, San Francisco, Cal., for appellant.

      R. Jay Engel, San Francisco, Cal., for appellee.
    Before HASTIE, BROWNING and WRIGHT, Circuit Judges.

       The Honorable William H. Hastie, senior United States Circuit Judge of the Third Circuit, sitting'by designation.

   HASTIE, Circuit Judge.

This is an appeal by Southern Pacific Co., a railroad, from a money judgment recovered by Eugene Kelley, a workman, in an action for negligent injury under the Federal Employers’ Liability Act, 45 U.S.C. § 51 et seq.

The only matter in dispute is whether the relationship between Kelley and Southern Pacific was such as to bring the tort in suit within the coverage of the F.E.L.A. By agreement of the parties, the issues, factual as well as' legal, upon which liability depended were tried to the district court without a jury. After an evidentiary hearing the court entered findings of fact and conclusions of law and imposed liability on the railroad.

The controlling language of the F.E. L.A. makes a “common carrier by railroad . . . liable in damages to any person suffering injury [as a result of the railroad’s negligence] while he is employed by such carrier . . . .” The disputed question here is whether Kelley was “employed by” Southern Pacific within the meaning of the statute.

Kelley was seriously injured while he was engaged in unloading automobiles from a Southern Pacific tri-level flat car after the arrival of the shipment at its San Francisco destination. In the language of the district court’s finding of fact, amply supported by the evidence: “Plaintiff and the three men he was working with at the time of his fall were hired, paid by and could be discharged by Pacific Motor Trucking Company and were in the employment of Pacific Motor Trucking Company”. That company is a motor common carrier that operates over 15,000 route miles in the western states. Although all of its stock is owned by Southern Pacific, the Trucking Company functions as a distinct entity. Neither in the district court nor on this appeal has a case been made for piercing the corporate veil and disregarding the separate legal and functional identity of the Trucking Company. Cf. Fawcett v. Missouri Pac. R. R., W.D.La.1965, 242 F.Supp. 675, aff’d. per curiam 5th Cir. 1965, 347 F.2d 233, cert, denied 382 U.S. 907, 86 S.Ct. 242, 15 L.Ed.2d 159.

The relevant Southern Pacific tariff enabled a shipper of new automobiles by rail to take delivery either before or after the “grounding” of the automobiles. In this case the shipper had elected to have the automobiles grounded before delivery and had paid Southern Pacific a standard added charge for this unloading service.

The Trucking Company contracted with Southern Pacific to perform for specified unit prices such unloading of automobiles from railway cars as the railroad should require. Thus, in the unloading operation, Kelley was both performing his normal work for and assigned to him by. his regular employer, the Trucking Company, and at the same time enabling the railroad to discharge its contractual responsibility to the shipper. Appropriately, Kelley was a member of the Teamsters union and not of one of the railroad craft unions.

As stated above, the district court explicitly found that Kelley was an employee of the Trucking Company. Moreover, after considering the evidence on control and supervision, the court declined to make a finding proposed by the plaintiff that Kelley was an employee of Southern Pacific. Thus, the court did not find or proceed on the basis that Kelley was either a borrowed servant, temporarily in the employment of Southern Pacific, or that he was a servant in the employ of both companies. Rather, the court adopted a special concept of “employment” for F.E.L.A. purposes that has found favor with the Court of Appeals for the Fourth Circuit in a ease that is not significantly different from this case. Smith v. Norfolk & W. Ry., 4th Cir. 1969, 407 F.2d 501.

The district court reasoned, adopting the Fourth Circuit analysis, that, under its contract with the shipper, the railroad was legally obligated to have the automobiles unloaded from its cars and that in performing that work the “employees of Pacific Motor Trucking Company . . . were acting as agents of Southern Pacific Company”, This led to the court’s conclusion of law that “[a]t the time and place of this accident the work being performed by Eugene C. Kelley involved a non-delegable duty on the Southern Pacific Company which brought plaintiff within the traditional agency relationship to Southern Pacific Company and in such relationship to Southern Pacific Company as to be covered by the Federal Employers’ Liability Act”. Thus, the district court, not persuaded by the evidence that Kelley was a servant or an employee of Southern Pacific in common law conception, concluded that the “agency relation” which resulted from Southern Pacific’s contracting with Kelley’s employer to perform Southern Pacific’s “non-delega-ble” contractual duty to its shipper sufficed to bring Kelley’s status vis-á-vis the railroad within the F.E.L.A.

Our difficulty with this analysis begins with what the Supreme Court said in the leading case of Baker v. Texas & Pac. Ry., 1959, 359 U.S. 227, 228, 79 S.Ct. 664, 665, 3 L.Ed.2d 756

“The Federal Employers’ Liability Act does not use the terms ‘employee’ and ‘employed’ in any special sense, Robinson v. Baltimore & Ohio R. Co., 237 U.S. 84, 94, 35 S.Ct. 491, 494, 59 L.Ed. 849, so that the familiar general legal problems as to whose ‘employee’ or ‘servant’ a worker is at a given time present themselves as matters of federal law under the Act.”

Thus, the F.E.L.A. is applicable only when a common law master-servant relationship exists between the railroad and the person injured by its negligence. The relationship of principal and agent, which the court as trier of fact found and upon which it relied in this case does not suffice.

We are reinforced in this view by consideration that, apart from the Smith case in the Fourth Circuit, considered decisions in this circuit and elsewhere have rejected the contention that employees of a contractor, engaged by a railroad to perform work that is the railroad’s responsibility, become railroad employees ipso facto. Dougall v. Spokane, P. & S. Ry., 9th Cir., 1953, 207 F.2d 843 (right of way maintenance work); Norman v. Spokane, P. & S. Ry., D.Ore.1950, 101 F.Supp. 350, aff’d. per curiam “for the reason given in the district court’s opinion”, 9th Cir. 1951, 192 F.2d 1020 (railroad bridge repair); Tarboro v. Reading Co., 3d Cir. 1968, 396 F.2d 941 (unloading coal cars); Turpin v. Chicago, B. & O. Ry., Mo.1966, 403 S.W.2d 233, cert, denied, 384 U.S. 1003, 86 S.Ct. 1925, 16 L.Ed.2d 1015 (unloading flat cars).

It also merits mention that years ago Congress considered and rejected a proposal to include companies that provide railroad accessorial services under the F.E.L.A. In 1939, Congress amended the F.E.L.A., 53 Stat. 1404, and in the process considered various proposals. One proposal would have extended coverage to suppliers of accessorial services and their employees. Its rejection, after extensive committee hearings, was announced by the Senate Judiciary Committee in reporting the bill that ultimately passed:

“The bill as introduced was intended to broaden the application of the act to include express, freight forwarding and sleeping-car companies. Upon the hearings it was clearly shown that there is neither necessity nor demand for the inclusion of these companies in the act. Therefore, they have been excluded from the substitute.” S.Rep. No. 661, 76th Cong., 1st Sess.

The result which Congress deemed undesirable and, therefore, refused to legislate directly, should not, in our view, be achieved judicially by treating employees of contractors rendering accessorial services as if they were employees of the railroad when common law analysis has failed to yield that conclusion.

The judgment is reversed.

      . As a result of the accident Kelley had applied for and was awarded as a Trucking Company employee, full workmen’s compensation benefits for total disability.


author: SCHNACKE, District Judge: WALLACE, Circuit Judge

text:
    John A. BELCHER, etc., Plaintiff-Appellee, v. Irving TARBOX et al., Defendant-Appellant. John A. BELCHER, etc., Plaintiff-Cross Appellant, v. Irving TARBOX et al., Defendant-Cross Appellee.
    Nos. 72-1266, 72-1415.
    United States Court of Appeals, Ninth Circuit.
    Nov. 7, 1973.
    Howard R. Harris (argued), National City, Cal., for appellant.
    Neil F. Martin (argued), San Diego, Cal., Robert M. Angus, Burnsville, Minn., for appellee.
    Before DUNIWAY and WALLACE, Circuit Judges, and SCHNACKE, District Judge.

       Hon. Robert H. Schnaeke, United States District Judge, Northern District of California, sitting by designation.

   SCHNACKE, District Judge:

Plaintiff and defendant are engaged in the business of publishing handicapping systems for betting on horse races. Plaintiff issues his formulations separately; defendant periodically issues a magazine or book containing reprints of a number of such formulations. Six of plaintiff’s were so reprinted, and plaintiff brought this action for infringement of his copyrights, trademarks and trade names. The court below, as to five of the six, found the copyrights valid and infringed and awarded plaintiff injunctive relief and damages. We" affirm this portion of the judgment. The sixth is discussed subsequently.

Defendant’s primary contention is that the works were not entitled to copyright protection since they, and the advertising material associated with them, fraudulently represented to the public that users of the system described could beat the horses; that the author had in fact done so successfully; and that, as to some of the systems, they had been developed by professional mathematicians or with the aid of computer equipment, and payments or awards had been made for them in excess of those shown by the facts. The evidence, on the contrary, indicated that handicapping systems, including plaintiff’s, are constructed after the fact and upon the unstated assumption that fortuitous patterns exhibited by selected data will be repeated. At best, the evidence indicated, such systems reduce bettors’ losses, presumably by restricting the number of bets they place. In addition, plaintiff had not profited by the use of the systems, except as he had sold them to the public, and the evidence failed to substantiate the other representations made.

It is arguable that the trial judge impliedly found that the materials copyrighted in the first five copyrights were not fraudulent. In his findings of fact he does not refer to the defense of fraud in relation to these five, while in his finding of fact as to the sixth he finds fraud. In his conclusions of law he finds that there are no defenses to the infringement of the five. Because at the trial fraud was made an issue as to these five, it could be argued that this is a finding that there is not such fraud. On the other hand, under Rule 52(a), F.R.Civ.P., the court is required to find the facts specially. If fraud in the five copyrighted items is a material defense, the trial judge should have made specific findings on the subject because there was substantial evidence offered in support of this defense. However, if fraud is not a defense, the court’s failure to make findings on that subject is immaterial. We therefore consider whether fraud is a defense.

Is false and fraudulent material entitled to copyright protection or does the clean hands doctrine preclude it? There is scant authority. In Stone & McCarrick, Inc. v. Dugan Piano Co., 220 F. 837 (5th Cir. 1915), the court, applying an analogy from trademark cases, invoked the doctrine of clean hands to affirm the dismissal on other grounds of a copyright action.

We think that decision unsound. There is nothing in the Copyright Act to suggest that the courts are to pass upon the truth or falsity, the soundness or unsoundness, of the views embodied in a copyrighted work. The gravity and immensity of the problems, theological, philosophical, economic and scientific, that would confront a court if this view were adopted are staggering to contemplate. It is surely not a task lightly to be assumed, and we decline the invitation to assume it.

Defendant also urges that copyright protection should be denied plaintiff because his works contain extracts from past performance records originally published in the Daily Racing Form, a copyrighted publication. Section 7 of the Copyright Act, 17 U.S.C. § 7, deals with the copyright of so-called composite works containing within them material copyrighted by another or in the public domain. In stated circumstances (including consent of the copyright holder), the new matter is subject to copyright. However, there is no provision denying copyright protection to new matter in composite works made up in part of matter copyrighted by another, without the holder’s consent, or permitting a third person such as defendant to copy with impunity the entire composite work, thereby infringing both copyrights. Since the proprietors of Daily Racing Form have not complained, so far as appears, we do not reach the question whether the reprinting of their past performance charts as historical records rather than current news constitutes an infringement.

Other arguments advanced by defendant are without merit.

Plaintiff has cross-appealed from the portion of the judgment below denying enforcement of his rights in the sixth publication entitled “Two Professional Methods From Computimeter Co.” The trial court found that the plaintiff was owner of the copyright on the composition and the lawful owner of “Computi-meter” as a registered trademark, but refused enforcement of either, because of findings that the composition and its attendant advertising were designed to deceive the public by misrepresenting the origin of the composition, viz., that it was the product of computer research and analysis, when in fact no computer was used.

The court concluded that it would not protect either the copyright or the trademark of a composition put forth with deception and misrepresentation.

For the reasons we have given in affirming the balance of the judgment, it is our view that as to the copyright, the holding was erroneous. We therefore remand solely for the purpose of ascertaining the damage, if any, sustained by plaintiff as a result of the copyright infringement.

The trial court may also consider the allowance of additional attorneys’ fees in connection with both appeals. 17 U.S.C. § 116; Serbin, Inc. v. Key West Hand Print Fabrics, Inc., 381 F.2d. 735 (5th Cir. 1967); Overman v. Loesser, 205 F. 2d 521, 524 (9th Cir. 1953).

Affirmed in part and reversed and remanded in part for further proceedings as indicated above.

WALLACE, Circuit Judge

(concurring and dissenting):

I dissent only from that portion of the majority opinion which holds that fraudulent material is entitled to copyright protection and chooses not to follow Stone & McCarrick, Inc. v. Dugan Piano Co., 220 F. 837 (5th Cir. 1915), viewing that decision as unsound. I disagree and think that the departure from Stone & McCarrick is unfortunate. The issue there and here is whether the court, applying equitable principles mandated by 17 U.S.C. § 112, should enjoin the infringement of copyrighted material which is deceptive and fraudulent. The Fifth Circuit denied the protection of a court of equity for copyrighted materials (advertisements) which were fraudulent. The court stated that “the law should extend its protection [only to those advertisements] that speak the truth, and certainly not to that class of advertising matter the effect of which is to mislead and deceive the public.” 220 F. at 841. The court reasoned that “if the plaintiff makes any material false statement in connection with the property he seeks to protect [via the copyright laws], he loses, and very justly, his right to claim the assistance of a court of equity.” 220 F. at 842 (quoting other cases).

In Morton Salt Co. v. G. S. Suppiger Co., 314 U.S. 488, 494, 62 S.Ct. 402, 86 L.Ed. 363 (1942), Stone & McCarrick was cited with approval. Morton Salt denied relief in a patent infringement case because of the inequitable conduct of the patentee. After referring to misrepresentation as an equitable defense in a trademark infringement case, the Court referred to a similar doctrine for copyright cases. The Court then stated:

The patentee, like these other holders of an exclusive privilege [i. e. trademark and copyright holders] granted in the furtherance of a public policy, may not claim protection of his grant by the courts where it is being used to subvert that policy.

314 U.S. at 494, 62 S.Ct. at 406.

As a general principle, courts of equity may appropriately withhold their aid where the plaintiff is using the right asserted contrary to the public interest. A copyright is in the nature of a privilege. Stuff v. La Budde Feed & Grain Co., 42 F.Supp. 493, 497 (E.D.Wisc. 1941). Such a privilege should not be abused by granting copyright protection to material which is used to defraud the public. Further, the copyright law is intended “to grant valuable, enforceable rights [in order] ‘to afford greater encouragement to the production of literary works of lasting benefit to the world.’ ” Washingtonian Publishing Co. v. Pearson, 306 U.S. 30, 36, 59 S.Ct. 397, 400, 83 L.Ed. 470 (1939) (footnotes omitted). I fail to see how extending copyright protection to fraudulent material will help advance the literary arts and produce “literary works of lasting benefit to the world.”

The majority opinion questions what public policy would be furthered by permitting fraudulent matter to be reprinted and circulated freely. Majority opinion, fn.3. However, on the other side of the coin, I cannot subscribe to the apparent majority assumption that not permitting reproduction of fraudulent material will advance the public interest. The public interest is to protect members of the public from being defrauded. While granting copyright protection of fraudulent material will assure that only one person will defraud members of the public with a single fraudulent scheme, rather than several defrauders using the same scheme, it will not insure that any fewer members of the public will be defrauded by this single scheme. By allowing copyright protection to such material, the law is not only condoning fraud but is placing its power, endorsement and support behind fraudulent works. Persons who heretofore have never composed fraudulent literature can do so and seek solace in the law as the protector of their copyrighted fraud. I submit that this is detrimental to our legal system and not in the public interest.

The majority fears that by adjudicating the issue of fraudulent content our courts would be faced with problems “staggering to contemplate.” I assume the majority is concerned with (1) possible increased burden on the courts 'in terms of the number of challenges to copyrights; and (2) possible problems in defining judicial standards on which to judge fraudulent material.

The first possible problem is based on an assumption I am not ready to make. If we were to hold that fraudulent material is not entitled to the protection of the copyright laws, does it necessarily follow that there will be such barrage of challenges to copyrights on the ground of fraudulent content that would create staggering burdens on the court? Indeed, since Stone & McCarrick was decided in 1915, we have found only one case which has directly involved fraudulent content in copyrighted materials.

The second possible problem might be in defining what is fraudulent material. Even assuming that such judicial standards would be difficult to formulate, we should not, for that reason, fail to do so. However, I fail to see the gravity and immensity of dealing with fraud, frequently have fraud cases before us and should not decline to hear copyright cases where an allegation of fraud is presented. We

Finally, the majority opinion points out that there is nothing in the copyright act to suggest that courts are to pass upon the truth or soundness of the views in a copyright work. But that does not necessarily answer the question. The same act makes no provision for courts to pass on the content of allegedly immoral, illegal or obscene subject matter. Nevertheless, these defenses have often been accepted by the courts. I Nimmer, Copyright (1972), § 36 at 146.-28. See 41 Opinions of the Att’y Gen. 396, 399 (Dec. 18, 1958); Rogers, Copyright and Morals, 18 Mich.L.Rev. 390 (1920); Comment, Immorality, Obscenity and the Law of Copyright, 6 S.Dak. L.Rev. 109 (1961).

I would affirm the entire case including the trial court’s apparent conclusion that equity will not provide copyright protection to fraudulent material.

      . Their positions in the court below. Each has appealed portions of the judgment,

      . Contra, Advisers, Incorporated v. Wiesen-Hart, Inc., 161 F.Supp. 831 (S.D.Ohio 1958) ; see Deutsch v. Felton, 27 F.Supp. 895 (E.D.N.Y.1939) ; 1 Nimmer, Copyright (1972), § 36 at 146.28. Edward Thompson Co. v. American Law Book Co., 122 F. 922 (2nd Cir. 1903), is easily distinguishable.

      . Copyright protection restricts permissible publication. We fail to see what public policy would be served by eliminating this restriction in the case of fraudulent matter and permitting it to be reprinted and circulated freely.

      . Defendant evidences no desire to reproduce the Daily Racing Form material by itself.

      . While the copyright act does not state that courts are to pass upon the truth or falsity of the views in copyrighted material, 17 U. S.O. § 112 provides that in granting relief to vindicate rights under the copyright act, the courts shall grant injunctions “according to the course and principles of courts of equity.” In the instant case, injunctive relief was requested and granted.
      In 1958, the Attorney General of the United States wrote:
      [S]ome of the opinions bearing on the question appear to be based upon an exercise of equity discretion rather than upon copyright law. Bullard v. Esper, supra [72 F.Supp. 548, 549 (N.D.Tex.1947)] ; Richardson v. Miller, 20 Fed.Case 722 (Case No. 11,791, C.C.D.Mass.1877) ; see also Stone & McCarrick Inc. v. Dugan Piano Co., 220 Fed. 837 (C.A.5, 1915).
      41 Opinions of the Att’y Gen. 396, 400 n. 4 (Dec. 18,1958).

      . Indeed, the majority opinion may give them an incentive to do so.

      . In Advisers, Inc. v. Wiesen-Hart, Inc., 161 F.Supp. 831 (S.D.Ohio 1958), the district court found that a coupon book advertised as worth $100 in discount sales was used to entice the gullible into business establishments whose merchandise was advertised in it. The court found the book was fraudulent because all members of the public were given the same discounts, but nevertheless held that it was a proper subject for copyright protection. However, the court found that it was not the intent of Congress to award statutory damages of $1 per copy for books which were so fraudulent. I disagree with the case. The copyright should not have been upheld.


author: PER CURIAM.

text:
    KING RADIO CORPORATION, INC. Plaintiff-Appellee, v. UNITED STATES of America Defendant-Appellant.
    No. 73-1268.
    United States Court of Appeals, Tenth Circuit.
    Submitted Oct. 16, 1973.
    Decided Nov. 6, 1973.

      Jerome T. Wolf, Kansas City, Mo., for plaintiff-appellee.
    Scott P. Crampton, Asst. Atty. Gen., Tax Div., Dept, of Justice, Ernest J. Brown, Acting Chief Appellate Section, Tax Div., Dept, of Justice, and Robert J. Roth, U. S. Atty., for defendant-appellant.
    Before LEWIS, Chief Judge, and SETH and MeWILLIAMS, Circuit Judges.
   PER CURIAM.

This is an appeal by the government from a judgment of the United States District Court for the District of Kansas awarding taxpayer a refund for the taxable year 1964 in the amount of $1,854.77 plus interest.

The facts are not in dispute: During the year 1964 taxpayer had constructed a one-story combination office building-production facility of approximately 25,000 square feet. No permanent floor plan was incorporated in the architectural plans for construction of a portion of the building. Accordingly, this portion of the building was not divided by fixed walls or partitions into individual offices and work areas. Upon completion of the building, taxpayer purchased for the undivided portion a movable partition system consisting of ceiling height and glazed rail height partitions. Taxpayer used the partition system to divide this portion of the floor space into offices, rooms, and work areas.

The movable partition system consists of the partitions, and aluminum channels which are fastened to the floor and ceiling with small screws or masonry nails. The partitions are installed by sliding them into an aluminum channel. They are joined by an aluminum “H” section which provides stability and covers the vertical joints. Electrical wiring can be incorporated into the partitions, and the partitions allow for the installation of standard size door frames and doors.

The movable partition system is nonstructural, i. e., it neither bears loads nor in any other manner contributes to the integrity of the building itself. The obvious advantage of such a system, and the reason taxpayer purchased it, is that its flexibility allows the building floor plan to accommodate current needs without requiring expensive and time consuming remodeling which would be required if permanent, fixed wall partitions were used. The system, or a portion thereof, can be stored when not in use, and relocation of the channels causes no noticeable damage to the structure, other than small holes where the screws or masonry nails held the channels in place.

Taxpayer claimed for the year 1964 an investment tax credit for the purchase of the movable partition system under section 38 of the Internal Revenue Code of 1954. The Commissioner disallowed the credit, and taxpayer then successfully brought suit in the district court seeking a refund. The sole issue presented by this appeal is whether taxpayer’s investment in the movable partition system qualifies for the investment tax credit.

We find ourselves with this problem adrift in the murky sea of tax law with only one buoy to guide us in reaching a decision. That buoy is the Eighth Circuit’s decision in Minot Federal Savings & Loan Assn. v. United States, 435 F.2d 1368 (8th Cir. 1970), wherein the Court held in favor of the taxpayer in a situation very similar to the case before us. To determine whether we will follow the same course requires that we turn our attention to the congressional intent underlying the investment tax credit as reflected in the legislative history of the Internal Revenue Act of 1962, and the Treasury Regulations enacted thereunder.

The investment tax credit in issue was incorporated in the Revenue Act of 1962 as section 38 of the Code. Property which qualifies for the credit is termed "section 38 property” and such property is defined in Section 48 of the Code as follows:

“ § 48. Definitions; special rules
(a) Section 38 property.—
(1) In general. — Except as provided in this subsection, the term ‘section 38 property’ means—
(A) tangible personal property, or
(B) other tangible property (not including a building and its structural components) but only if such property—
(i) is used as an integral part of manufacturing, production, or extraction or of furnishing transportation, communications, electrical energy, gas, water, or sewage disposal services, or
(ii) constitutes a research or storage facility used in connection with any of the activities referred to in clause (i)”.

These skeletal definitions are given flesh in the Treasury Regulation’s Formulated pursuant to the express authorization set forth in section 38(b).

The Revenue Act of 1962 and the Regulations in express language extend the investment tax credit to all tangible personal property, and, in some instances, to other tangible property, excluding a building and its structural components. Accordingly, the core issue we must resolve is whether the movable partition system purchased by taxpayer is, within the meaning of the above definitions as used in Revenue Act, tangible personal property, or whether it is other tangible property, and more specifically, whether it is a structural component of taxpayer’s building.

The government urges that the proper test to apply in resolving this issue is a functional equivalent or use test, i. e., the function of the property is the criteria by which it should be classified as either tangible personal property or other tangible property. Taxpayer contends that the proper test to apply is a permanency test, i. e., the criteria for classification is whether the property in question is such an integral part of the building that its removal would result in either no noticeable damage to the building, in which case it would be tangible personal property, or would result in at least noticeable, temporary damage to the structure itself, in which case it would be other tangible property (here, a structural component).

Prior to resolving this issue, it is pertinent to set forth portions of the legislative history accompanying the Revenue Act of 1962 so that we may gain an insight into the impetus behind the enactment of the investment tax credit provision of that Act. Sen.Rep.No.1881, 87th Cong. 2d Sess. U.S.Code Cong. & Admin. News 1962, p. 3304 (1962) provides in part:

“The objective of the investment credit is to encourage modernization and expansion of the Nation’s productive facilities and thereby improve the economic potential of the country, with a resultant increase in job opportunities and betterment of our competitive position in the world economy. . . .” (Sen.Rep.No.1881 at U.S. Code Cong. & Admin.News 1962, p. 3314)
“[A]ll tangible personal property qualifies as section 38 property . . .” (Sen.Rep.No.1881 at U.S. Code Cong. & Admin.News 1962, p. 3318; See also H.Rep.1447, 87th Cong. 2d Sess. (1962) 1962-3 Cum. Bull. 415).

Conf.Rep.No.2508, 87th Cong. 2d Sess. U.S.Code Cong. & Admin.News 1962, p. 3732 (1962) states in part:

“It is the understanding of the conferees on the part of both the House and the Senate that the purpose of the credit for investment in certain depre-ciable property, in the case of both regulated and nonregulated industries, is to encourage modernization and expansion of the Nation’s productive facilities and to improve its economic potential by reducing the net cost of acquiring new equipment, thereby increasing the earnings of the new facilities over their productive lives.” (Conf.Rep.No.2508 at U.S.Code Cong. & Admin.News 1962, p. 3734).

The Technical Explanation of the Bill, 87th Cong. 2d Sess. U.S.Code Cong. & Admin.News 1962, p. 3455 (1962) provides in part with respect to the classification of property:

“Tangible personal property may qualify as section 38 property irrespective of whether it is used as an integral part of manufacturing, production, or extraction or of the furnishing of transportation, communications, electrical energy, gas, water, or sewage disposal services. Local law definitions will not be controlling for purposes of determining the meaning of the term ‘tangible personal property’. For purposes of section 48, the term ‘tangible personal property’ includes any tangible property except land, and improvements thereto, such as buildings or other inherently permanent structures thereon (including items which are structural components of such buildings or structures) .” “Buildings and structural components thereof are not eligible for the credit . . . The term ‘structural components’ of a building includes such parts of the building as central air-conditioning and heating systems, plumbing, and electric wiring and lighting fixtures, relating to the operation and maintenance of the building.”
(Technical explanation of the Bill at U.S.Code Cong. & Admin.News, 1962, p. 3470).

Our review of the Revenue Act of 1962, its legislative history, and the Treasury Regulations enacted thereunder leads us to the conclusion that the decision in Minot in favor of the taxpayer is a correct interpretation of congressional intent in this area, and that the permanency test applied in that case is an accurate characterization of the approach envisioned by Congress and the Treasury Regulations themselves.

Initially, we note that it is the express intent of Congress that all tangible personal property qualify for the investment tax credit, and that “[t]angible personal property is not intended to be defined narrowly . . ., nor to necessarily follow the rules of state laws.” Further, it is well settled that in interpreting Acts of Congress the “words of statutes — including revenue acts — should be interpreted where possible in their ordinary, everyday senses.” Malat v. Ridell, 383 U.S. 569, 571, 86 S.Ct. 1030, 1032, 16 L.Ed.2d 102 (1966). It is clear to us that movable partitions, such as the ones in this case, are in their ordinary and everyday sense meaning personal property, and in no sense are they a structural component of a building in the ordinary and everyday sense of that word: They are neither an integral part of the structure itself, such as a floor or wall, nor do they bear a load as do walls, beams, and girders.

The Treasury Regulations define tangible personal property to include “any tangible property except land and improvements thereto, such as buildings or other inherently permanent structures (including items which are structural components of such buildings or structures).” The term structural components is defined to include “such parts of a building as walls, partitions, floors, and ceilings, as well as any permanent coverings therefor, such as paneling or tiling; windows and doors; all components . . . of a central air conditioning or heating system, including motors, compressors, pipes and ducts; plumbing and plumbing fixtures, such as sinks and bathtubs [etc.] . . .” (emphasis added)

We think a close analysis of the legislative history and the Regulations supports our decision that the criteria by which to classify property such as that here is permanency. The Regulation in defining structural components refers to parts of a building and then lists as examples a series of items which are integrated with the building during the construction phase. Further, the phrase in the Regulation “as well as” (referring to permanent coverings therefor) is defined to mean a “correlative construction used to indicate the equality or sameness of two things” (emphasis added). That is, the “parts of a building” which are referred to are permanent parts of the building as are the items following “permanent coverings therefor”. Also, in the Technical Explanation of the Bill, the parts of a building which are listed as structural components are all permanent in the sense that they are incorporated in the building during construction, e. g., central air-conditioning and heating systems, and plumbing.

We find further support for this approach, as did the Court in Minot, in several Revenue Rulings issued by the Commissioner. In one instance, a bank’s vault doors, record vault doors, night depository facilities, and walk-up and drive-up teller’s windows were held not to be structural components of the bank building, even though attached to the structure, and in another instance, wall-to-wall carpeting installed in a motel in a manner similar to that used to install the movable partition system in question here was held to qualify for the investment credit since it was “not an integral part of the floor itself, and therefore, [was] not a permanent covering for the floor . . . . ” Surely a movable partition system such as taxpayer’s is less permanent than a bank vault door and no more permanent than wall-to-wall carpeting.

The functional use approach, as suggested by taxpayer, appears to be the appropriate test for use in determining whether certain property which admittedly would not qualify for the investment credit nevertheless is entitled to such credit if it fits into one of the exceptions set forth in the Regulations, e. g., the “closely related” exception in 26 CFR § 1.48-l(e)(1)(ii), or the “sole justification exception” in 26 CFR § 1.-48-1 (e)(2).

We think that it was the intent of Congress to extend the investment tax credit to as broad a segment of American industry as possible, and to exclude from the benefits of such credit only those portions of a building (structural components) which are permanent in the sense that they cannot be removed or relocated without doing at least temporary damage to the structure itself.

To the extent that Rev.Rul. 69-14, 1969-1 Cum.Bull. 26 includes movable partitions within the definition of structural components of a building, such ruling in our opinion misconstrues the intent of Congress in this area. Accordingly, we find that the movable partition system in issue here is tangible personal property within the meaning of that word as defined in section 48 of the Internal Revenue Code of 1954, and that taxpayer is entitled to the investment tax credit allowed for such property under the Code for the taxable year 1964.

Affirmed.

      . The ceiling height partitions reach from the floor to the ceiling and are used to define individual offices and rooms. The glazed rail height partitions are five feet six inches high and are used to define work areas which are not completely enclosed.

      . In Minot, the Court held that taxpayer’s investment in a movable partition system similar to the system purchased by taxpayer here qualified for the investment tax credit since the partition system was tangible personal property and was not a structural component of the building.

      . “§ 38. Investment in certain depreciable property
      (a) General rule. — There shall be allowed, as a credit against the tax imposed by this chapter, the amount determined under subpart B of this part.
      (b) Regulations. — The Secretary or his delegate shall prescribe such regulations as may be necessary to carry out the purposes of this section and subpart B. Added Pub.L. 87-834, § 2(a), Oct. 16, 1962, 76 Stat. 962.”

      . These Regulations are set forth in 26 CFR § 1.48 et seq. The pertinent portions of such Regulations for our purposes provide in part:
      “§ 1.48 Statutory provisions ; definitions; special rules.
      Sec. 48. Definitions; special rules — (a) Section 38 property—
      (1) In general. Except as provided in this subsection, the term ‘section 38 property’ means—
      (A) Tangible personal property, or
      (B) Other tangible property (not including a building and its structural components) ..."
      § 1.48-1 Definition of section 38 property (e) Definition of tangible personal property. If property is tangible personal property it may qualify as section 38 property irrespective of whether it is used as an integral part of an activity (or constitutes a research or storage facility used in connection with such activity) specified in paragraph (a) of this section. Local law shall not be controlling for purposes of determining whether property is or is not “tangible” or “personal” .... For purposes of this section, the term “tangible personal property” means any tangible property except land and improvements thereto, such as buildings or other inherently permanent structures (including items which are structural components of such buildings or structures) . . . .”
      (e) Definition of building and structural components.
      (2) The term “structural components” includes such parts of a building as walls, partitions, floors, and ceilings, as well as any permanent coverings therefor such as paneling or tiling; windows and doors; all components (whether in, on, or adjacent to the building) of a central air conditioning or heating system, including motors, compressors, pipes and ducts; plumbing and plumbing fixtures, such as sinks and bathtubs; electric wiring and lighting fixtures ; chimneys; stairs, escalators, and elevators, including all components there-' of; sprinkler systems, fire escapes; and other components relating to the operation or maintenance of a building. However, the trem “structural components” does not include machinery the sole justification for the installation of which is the fact that such machinery is required to meet temperature or humidity requirements which are essential for the operation of other machinery or the processing of materials or foodstuffs. . . . ”

      . Webster’s New World Dictionary, the World Publishing Company, 2d Edition (1972).

      . Rev.Rul. 65-79, 1965-1 Cum.Bull. 48.

      . Rev.Rul. 67-3219, 1967-2 Cum.Bull. 48.

      . Note, in 1964 Congress specifically extended the investment tax credit to elevators and escalators, which admittedly could not be removed or relocated without causing substantial damage to the structure. The government argues that enactment of this legislation clearly reflects Congressional intent that movable partitions not qualify for the credit, since the legislative history states in part:
      “The proposed regulations issued by the Treasury Department with respect to the term ‘structural components’ provide an extensive list of the type of items considered to be structural components and therefore not eligible for the investment credit. Among these items are escalators and elevators. While these regulations are an accurate interpretation of the intention of Congress last year in this respect, nevertheless your committee believes that it is appropriate to reconsider the treatment of escalators and elevators * * * (emphasis added).
      (H.Rep.No.749, 88th Cong. 1st Sess. p. 35 (1964)
      The government finds support for its position in the portion emphasized since partitions were included in the regulation to which the legislative history refers. The problem with this analysis is that in 1964 no Court had been called upon to decide this issue, nor had the Commissioner issued Rev. Rul. 69-14. Hence, we find little support for the government’s position in the 1964 amendment. Further, we do note that the investment tax credit was re-enacted in the Internal Revenue Act of 1971 subsequent to the decision in Minot and no steps were taken at that time to overturn that decision.


author: BRODERICK, District Judge.

text:
    Michael T. EARLES, Appellee, v. UNION BARGE LINE CORPORATION, Appellant, Billy Leroy McNAMER, Appellee, v. UNION BARGE LINE CORPORATION, Appellant.
    Nos. 72-1313, 72-1314.
    United States Court of Appeals, Third Circuit.
    Submitted Feb. 12, 1973.
    Decided May 23, 1973.
    As Amended Aug. 9, 1973.
    See also, D.C., 321 F.Supp. 1329.

      Harry Alan Sherman, Pittsburgh, Pa., for appellees.
    Bruce R. Martin, Pittsburgh, Pa., for appellant.
    Before VAN DUSEN and ADAMS, Circuit Judges, and BRODERICK, District Judge.
   OPINION OF THE COURT

BRODERICK, District Judge.

This is an appeal from a judgment entered on May 4, 1971 in the United States District Court for the Western District of Pennsylvania after a jury returned a verdict based on unseaworthiness in favor of the plaintiffs.

The pertinent facts are that the plaintiffs, Michael T. Earles and Billy Leroy McNamer, were citizens of Kentucky and were employed on May 8, 1967, the date of their injuries, by the Walker Boat Yard, Inc. (hereinafter referred to as Walker) located in Paducah, Kentucky. Walker, among other things, serviced, stored and cleaned barges for companies which did business along the Ohio River. Plaintiff Earles had been employed full time by Walker for approximately one month prior to May 8, 1967 as a maintenance man to perform miscellaneous harbor work, such as moving and cleaning barges. His job requirements consisted in knowing how to push a broom or to use a hose, and his duties involved mainly work aboard either grain or salt barges which were either open or had roll-type covers on them. Plaintiff McNamer had worked for Walker for approximately eight months prior to the incident of May 8, 1967, and his duties included helping to clean open and roll-type barges containing salt and other freight, helping to stack covers, and helping as a deck hand aboard one of Walker’s boats. Neither Earles’ nor McNamer’s duties prior to May 8, 1967 had included working inside of a chemical barge. Prior to May 8, 1967, the records of UBL (Union Barge Line) 903 show that this barge had been loaded with toluene at Houston on April 5, 1967, had been discharged of that chemical on April 28, 1967, and was delivered empty to Walker on the morning of May 6, 1967. Walker had been engaged by the defendant Union Barge Line Corporation (hereinafter referred to as Union Barge), a citizen of Pennsylvania, to perform a “contract to strip the barge of old cargo, cold water wash it, and and [sic] pump it clean.” For this purpose, UBL-903 was in the possession and control of Walker from May 6 to May 10, 1967. In the course of their duties on May 8, 1967, plaintiffs were instructed to go over and clean up a barge. Plaintiffs, and another Walker employee named Jimmy Woodford, were supplied with a flat, two pumps, some dip buckets and a fire hose and nozzle. The three men were taken by Walker's harbor boat, which towed a crane barge and the flat, out to Owens Island where UBL-903 was tied up. Owens Island is situated approximately a mile and a half from Walker’s at the junction of the Ohio and Tennessee Rivers. Walker had a fleet of barges tied off Owens Island, and first two other barges had to be repositioned in order to gain access to UBL-903, The plaintiffs and Mr. Woodford then tied their flat to UBL-903 and boarded it with their equipment. UBL-903 was approximately 195 feet long, 35 feet wide and 11 feet deep and contained six chemical tanks, three tanks along each side. All of the hatch covers to these tanks were open when the three men arrived at the barge; there was no sign of any kind on the barge. The method of cleaning the tanks of old cargo consisted of having one man enter a tank through the hatch, descend a metal ladder approximately eleven feet long which was attached to the side of the tank, hose the sides and floor of the tank with water pumped from the Ohio, pump back out the wash water, dip the balance of the wash water out with a bucket after the pump had lost its prime, and then exit the tank. After the three men had taken turns in entering some of the tanks and doing the cleaning, their foreman Everett Livingston returned, looked in the tanks and told them to “[r]inse it down and then go down and dip the sump wells in the bottom, and we will be back to get you.” One man would be in a tank for a total time of approximately twenty minutes, and there was a delay of approximately twenty minutes from the time one tank was finished being cleaned and the time they began to clean the next tank, which time was used to reposition the flat and equipment. After cleaning several tanks in this fashion, plaintiff Earles entered a tank to do the hosing, and Jimmy Wood-ford followed into the tank behind Earles to feed him the fire hose. Immediately after Earles and Woodford went into the tank, they breathed the poisonous fumes from the old cargo in that tank. Within twenty to thirty seconds after entering, they were overcome by the fumes, lost conciousness and fell on the floor of the tank with Earles’ body lying in a puddle of the old chemical cargo. Plaintiff McNamer entered the tank to find out why the men were acting strangely, tried to rescue them and breathed the poisonous fumes. McNamer, however, was able to reach the ladder, climb out of the tank and flag down a passing boat before he, too, was overcome. Plaintiffs were treated for toluene exposure at a local hospital. They subsequently filed separate suits for their personal injuries, which suits were consolidated for the purposes of trial. Following a jury trial based upon diversity of citizenship on the issue of unseaworthiness of the vessel, verdicts were awarded each plaintiff and judgments entered in the amounts of $7,000.00 for plaintiff Earles and $5,500.00 for plaintiff McNamer. Union Barge now presents this appeal claiming that, as a matter of law, the evidence in the case does not support a finding of unseaworthiness on the ground that a shipowner’s warranty of seaworthiness does not include the obligation to furnish a reasonably safe place for a seaman to perform his chores.

In maritime law, the locality of the tort traditionally governs the scope of maritime jurisdiction. While state law governs torts occurring on land, and piers and docks are extensions of this land, the gang plank serves generally as the dividing mark with maritime law being applied to those torts which occur on navigable waters, when the wrong bears a significant relationship to traditional maritime activity, or which occur on land but are caused by a ship on navigable water. Navigable waters are those waters in the United States which afford a channel for useful commerce. The Ohio River, used daily for the transportation to market of various products of this country, is a navigable water, and, therefore, maritime law governs a tort which occurs on the Ohio River. Maritime law, additionally, reaches “[e]very species of tort, however occurring, and whether on board a vessel or not, if upon the high seas or navigable waters. . . . ” In the instant case, not only were plaintiffs injured upon navigable waters, they were injured while aboard a barge resting on a navigable water. A vessel has been defined to include “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” A barge, although without motive power, has been held to be a vessel within admiralty jurisdiction and within the meaning of the Longshoremen’s and Harbor Workers’ Compensation Act since it is a means of transportation by water. Therefore, maritime law governs the accident which plaintiffs suffered while aboard the barge on the Ohio River.

The defendant barge owner takes the position that the barge was not unseaworthy and that this Court should so determine this as a matter of law. Defendant contends that the poisonous gas in the tank of the barge is a concomitant of chemical cargoes and that the very purpose of this tank barge was to carry such chemical cargoes.

A review of the history of the present day doctrine of the warranty of seaworthiness owed by a vessel or its owner to a seaman, or other person doing work on board the vessel of a type which traditionally was performed by a seaman, has been adequately set forth in other opinions. In brief, early cases in the maritime law were concerned with the concept of unseaworthiness only as it concerned the right of a mariner to sue for his wages or as it related to the rules covering maritime insurance and the carriage of goods by sea. Under shipping articles, the law implied that the captain would furnish the mariner at the commencement of a voyage with a seaworthy ship, one which was “furnished with all the necessary and customary requisites for navigation.” Therefore, if a ship proved unseaworthy when she entered upon the voyage, the seamen were not bound by their contract, could refuse to continue the voyage, and could compel the master to return the ship to port. The test of seaworthiness in the late nineteenth century was thus stated to be “whether the vessel is reasonably fit to carry the cargo which she has undertaken to transport.” In this respect, the warranty was said to be absolute and non-dependent upon either the knowledge of its owner or the diligence in providing a seaworthy vessel. The fact that a vessel was staunch and fit did not matter; the character of a ship in determining unseaworthiness was measured by reference to the particular cargo to be transported. In the early twentieth century, The Osceola extended the concept of unseaworthiness to apply to personal injuries sustained by a mariner on board the vessel. From that time forward until today, the case law in regard to the unseaworthiness of a vessel has blossomed from hundreds of suits into certain accepted principles of law. First of all, unseaworthiness in maritime law is a condition of the vessel which proximately causes injuries to a seaman or one performing a seaman’s duties. Since the liability for unseaworthiness is predicated without regard to fault or the use of due care, it is irrelevant to the shipowner’s liability how that condition came into being, whether there was complete control over the instrumentality causing the injury, or whether the shipowner had actual or constructive knowledge of the condition. Unseaworthiness has been found when consumable supplies caused the injury and when the ship’s crew or gear were unfit. It applies whether the condition is temporary or permanent. But, where there is no defective condition of the equipment, appurtenances, crew, cargo or gear of the ship, then no liability for unseaworthiness can exist. The doctrine of the warranty of seaworthiness, in essence, means that “things about a ship, whether the hull, the decks, the machinery, the tools furnished, the stowage, or the cargo containers, must be reasonably fit for the purpose for which they are to be used.”

Since this Court is being asked by the appellant to determine as a matter of law that UBL-903 was not unseaworthy under the evidence presented in the court below, we have considered Albanese v. N. V. Nederl. Amerik Stoomv. Maats, Jones v. Den Norske Amerikalinje A/S, and Grigsby v. Coastal Marine Service of Texas, Inc. Albanese concerned the injuries incurred by a longshoreman while he was working in the hold of defendant’s vessel which contained poisonous carbon monoxide fumes. In the part of the case dealing with the claim between the longshoreman and the shipowner, which claim was unaffected by the subsequent history of the ease, the Second Circuit stated that:

The jury had been instructed that the owner would be liable, with or without knowledge if the ship had become unseaworthy because of a dangerous condition created by noxious fumes in the hold. This was correct. . .

This Circuit sustained Altánese’s theory of unseaworthiness in Jones, wherein a longshoreman brought suit against a vessel owner for damages because of injuries sustained when he breathed carbon monoxide fumes while working in the hold. Additionally, the Fifth Circuit in Grigsby affirmed a finding that a barge was unseaworthy where the plaintiff entered a tank of the barge without knowledge that the tank contained poisonous carbon monoxide fumes. It, therefore, becomes apparent, after an examination of Altánese, Jones and Grigsby and after an examination of the facts presented at the trial of this case, this Court cannot hold as a matter of law that the UBL-903 was not unsea-worthy.

In the instant case the evidence introduced at trial showed that the barge in question had carried toluene prior to its delivery to Walker, that plaintiffs - were overcome after breathing poisonous fumes in a tank on the barge, and that they were subsequently treated medically for exposure to those fumes. Plaintiffs testified that they had been told only that they were to go over to Owens Island and clean up a barge. There were no signs on the barge to indicate what chemical the barge had been carrying, and the hatch covers to the tanks were lying open when the men arrived at the barge. Had it appeared at the trial that Walker knew it was being hired to remove poisonous fumes and that this knowledge was communicated to the plaintiffs who were employees of Walker, then plaintiffs might not have been entitled to rely upon a warranty of seaworthiness of the vessel as to that defect which they were being paid to remove. As was stated by the Grigsby court, “[T]here is no warranty that the vessel is seaworthy with respect to the unsea-worthy condition which is directly' responsible for bringing aboard the persons claiming the benefit of the warranty.” There was no evidence presented, however, that Walker knew it was being hired to remove poisonous fumes from a tank on UBL-903; and plaintiffs had neither knowledge of the prior contents of the tank nor knowledge that the tank contained any poisonous fumes.

Accordingly, there is no error in the Orders of the district court which denied defendant’s motions for summary judgment and for a directed verdict.

Generally, the question of unseaworthiness of a vessel is a question of fact to be determined by a jury. Had the jury been correctly charged on the law of unseaworthiness in the court below, we would not disturb the verdict in favor of the plaintiffs. The trial judge charged the jury that:

A ship owner’s warranty of seaworthiness includes furnishing a reasonably safe place for a seaman or one working aboard the barge to perform his chores (emphasis added).

In essence, the jury was told that the shipowner owed the duty to plaintiffs to provide a reasonably safe place to work or to perform their chores, and, therefore, if they found the tank aboard UBL-903 to be an unsafe place to work or to perform chores, the barge owner would be liable to plaintiffs for breach of the warranty of seaworthiness.

The duty of the vessel owner to furnish a reasonably safe place for a seaman or one working aboard the barge to perform his chores is clearly a duty of care, the breach of which results in liability for negligence when the breach proximately causes injury to a foreseeable person. The breach of the duty to use reasonable care to provide a safe place to work, without more, does not necessarily result in liability for unseaworthiness. The language used by the Supreme Court in cases which discuss the negligence of the vessel owner or the stevedore-employer are illustrative of the fact that the duty to use reasonable care to provide a safe place to work is found in the law of negligence and not in the law of the warranty of seaworthiness. For instance, in The M/V “Tungus” v. Skovgaard, the Court commented upon a negligence claim where “the law imposes upon [the ship and its owners] a duty of exercising ordinary care to provide [an employee of the company hired to discharge the ship’s cargo] with a reasonably safe place to carry on his work of repairing the pump; in Michalic v. Cleveland Tankers, Inc. the Court speaks about a Jones Act claim of “negligent failure to provide [a crew member] with a safe place to work”; in West v. United States, the Court said “[o]f course, one aspect of the shipowner’s duty to refrain from negligent conduct is embodied in his duty to exercise reasonable care to furnish a safe place to work; ” and, finally we see that in Atlantic Transport Co. v. Imbrovek a stevedore received a verdict in negligence for the failure of his employer to see that he had a safe place in which to work.

The United States Supreme Court has clearly and repeatedly stated that “the duty to provide a seaworthy ship depends not at all upon the negligence of the shipowner or his agents,” the shipowner’s “duty to furnish a seaworthy ship is absolute and completely independent of his duty under the Jones Act to exercise reasonable care,” and that “liability based upon unseaworthiness is wholly distinct from liability based upon negligence.” We interpret these statements to mean that the Supreme Court has not incorporated or included within the law of unseaworthiness those duties of care which a shipowner owes to persons working aboard the vessel, the breach of which, when the breach proximately causes injuries, would result in liability to the shipowner for negligence. The Court has not melded the duty to provide a seaworthy vessel with the duty to provide a safe place to work, but has repeatedly stated that the two concepts of seaworthiness and negligence should remain separate and distinct.

A good explanation as to why the concepts of negligence cannot be incorporated into the law of unseaworthiness was set forth by the Fifth Circuit in Cox v. Esso Shipping Company as follows :

In view of another trial, we think it appropriate to point out that where, as is now so common, the seaman’s case is for unseaworthiness and negligence under the Jones Act, the standards of each must be clearly distinguished.
One is an absolute duty, the other is due care. Where, as this charge did, the ultimate issue of seaworthiness of the gear was in terms of “reasonably suitable” for the work intended, and other issues, such as defendant’s negligence and plaintiff’s contributory negligence and the distinctly unnau-tical form of “unavoidable accident” speak in terms of due care, i. e., what a reasonably prudent person would do, there is a great hazard that the jury will get the impression that all is to be tested by one gauge. Of course, that is not so. The owner has an absolute duty to furnish reasonably suitable appliances. If he does not, then no amount of due care or prudence excuses him, whether he knew or could have known, of its deficiency at the outset or after use. In contrast, under the negligence concept, there is only a duty to use due care, i. e., reasonable prudence, to select and keep in order reasonably suitable appliances. Defects which would not have been known to a reasonably prudent person at the outset, or arose after use, and which a reasonably prudent person ought not to have discovered would impose no liability.

We have been unable to locate any opinion by either the United States Supreme Court or by this circuit which has stated that the separate liabilities for unseaworthiness and negligence are to be considered a single doctrine with the respective duties of care found in the law of negligence being incorporated into the duty of the shipowner to provide a seaworthy vessel. Indeed, the duty to provide a seaworthy vessel, for which the shipowner may be liable in unseaworthiness, differs considerably from the duty of care owed by the shipowner to others working on or around the vessel. The former involves the duty of the shipowner to provide things about the ship which are in a condition reasonably fit for the purpose for which they are to be used, while the latter involves the breach of a duty of care which results in liability in negligence. This separation of concepts remains even though it is conceivable that both duties may have been breached by the same occurrence. .

We consider it crucial that the concepts of unseaworthiness and negligence should not be merged in a case such as this where the vessel owner was out of possession and control of the barge when the injuries occurred, where the sole issue presented to the jury was whether the vessel was unseaworthy, and where there was no claim of negligence. As was stated in West v. United States:

Of course, one aspect of the shipowner’s duty to refrain from negligent conduct is embodied in his duty to exercise reasonable care to furnish a safe place to work. But we do not believe that such a duty was owed under the circumstances of this case. Petitioner overlooks that here the respondent had no control over the vessels, or power either to supervise or to control the repair work in which petitioner was engaged. We believe this to be decisive against both aspects of plaintiffs’ dual theory, ... It appears manifestly unfair to apply the requirement of a safe place to work to the shipowner when he has no control over the ship or the repairs, and the work of repair in effect creates the danger which makes the place unsafe.

The duty of care of the vessel owner may vary in regard to the employees of the independent contractor depending upon the jury findings as to when the defective condition arose and the knowledge, if any, which the owner had of the defective condition. There was no evidence presented at the trial of this case as to whether the barge owner or Walker knew of the existence of fumes in the tank of UBL-903. This circuit adopted the reasoning of West in Bryant v. National Transport Corp. where recovery based upon negligent failure of a shipowner to provide an employee of a shipyard with a safe place to work was denied where the cause of the accident was either the defective condition of the independent contractor’s shipyard’s equipment or its careless use by the contractor’s employees and where the shipowner was not in possession or control of the area or the activity in which the accident occurred.

The trial court in this matter appears to have relied upon Venable v. A/S Det Forenede Dampskibsselskab for its charge that the shipowner's warranty of seaworthiness included the duty to provide a reasonably safe place for a seaman to perform his chores. Venable was a case tried on the issues of both negligence and unseaworthiness, and the Fourth Circuit discussed both concepts in its opinion. While the Venable court did state that “operational negligence has been subsumed under the doctrine of unseaworthiness, and a trial court’s instructions should no longer attempt to distinguish between the two,” the United States Supreme Court in Usner has since then reiterated that operational negligence has not been subsumed under the doctrine of unseaworthiness. We, therefore, today decide that under the facts of this case the warranty of seaworthiness does not include the duty to provide a reasonably safe place for a seaman to perform his chores, and it was reversible error to use the above-quoted language in the charge (page 1104, supra). The general maritime law’s doctrine of seaworthiness of the vessel is separate and distinct from the general law of negligence, and the two should not have been combined by the trial court in this case. Whether the barge was unseaworthy depends solely upon whether it was or was not reasonably fit for the purpose for which it was to be used, and this was the sole issue before the jury. We, therefore, conclude that under the facts of this case an instruction to the jury that the warranty of seaworthiness “includes” furnishing a reasonably safe place for a seaman or one working aboard the barge to perform his chores, was not appropriate. We, therefore, reverse the judgment and remand for a new trial on the issue of liability only in accordance with this opinion. The trial judge may make the determination to include in such new trial the issue of damages unless “such action appears, to the court inconsistent with substantial justice.” F.R.Civ.P. 61.

      . “Toluene is a vital or ‘critical’ material in wartime, because TNT, trinitrotoluene . . . is undoubtedly the principal explosive in modern warfare. Toluene is used extensively as a solvent in the rubber, lacquer, and munition industries. It is poisonous when inhaled.” A. Lowy & B. Harrow, An Introduction to Organic Chemistry, 242-43 (7th Ed. 1954).

      . Defendant’s Exhibit A, an extract from the barge record of Union Barge Line (UBL)-903, provides in pertinent part that:
      UBL-903 departed Shell Oil at Houston loaded with toluene via DIXI Carriers on 4/5/67 at 2305 and was delivered to Baton Rouge 4/13/67 at 1530.
      Picked up by Towboat MARINER at Baton Rouge on 4/16/67 at 1000 and elivered [sic] to Walkers fleet, Paducah, Kentucky, via tug THUNDERBIRD on 4/21/67 at 0910.
      Picked up at Walkers by Igert, Inc. on 4/23/67 at 0945 and delivered to TYNER for discharge on 4/28/67 at 1345.
      Empty Barge UBL-903 picked up at Tyner by Igert, Inc. on 5/2/67 at 2300 and delivered to Walkers, Paducah on 5/6/67 AM.
      Barge was to be stripped and cold water washed.
      Picked up by Igert, Inc. on 5/10/67 PM and delivered to Calvert City 5/10/67 at 1900.
      N.T. 118-19.

      . N.T. 116-17. The trial transcript does not reveal any evidence as to the knowledge of either Walker or Union Barge concerning the presence of poisonous fumes in the tanks of UBL-903.

      . State Industrial Comm’n. v. Nordenholt Corp., 259 U.S. 263, 42 S.Ct. 473, 66 L.Ed. 933 (1922).

      . Nacirema Operating Co. v. Johnson, 396 U.S. 212, 214-215, 90 S.Ct. 347, 349-350, 24 L.Ed.2d 371 (1969).

      . Victory Carriers, Inc. v. Law, 404 U.S. 202, 205 & n. 2, 92 S.Ct. 418, 421 & n. 2, 30 L.Ed.2d 383 (1971).

      . Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972) (Absent legislation to the contrary, there is no federal admiralty jurisdiction over aviation tort claims arising from flights on land-based aircraft between points within the continental United States even though an airplane crashed into the navigable waters of Lake Erie, since the wrong bears no relationship to traditional forms of maritime commerce and navigation.

      . The Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740 provides that:
      The admiralty and maritime jurisdiction of the United States shall extend to and include all cases of damage or injury, to person or property, caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.
      This Act was applied by the United States Supreme Court in Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 83 S.Ct. 1185, 10 L.Ed.2d 297 (1963).

      . The Montello, 87 U.S. 430, 20 Wall. 430, 22 L.Ed. 391 (1874).

      . Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 60, 34 S.Ct. 733, 734, 58 L.Ed. 1208 (1914).

      . 1 U.S.C. § 3.

      . The Dick Keys, 7 Fed.Cas. p. 678 (No. 3,898) (C.C.S.D.Ohio 1863).

      . 33 U.S.C.A. § 901 et seq. The Longshoremen’s Act is the Congressional provision for industrial accident coverage applicable to maritime employees who could not, under Southern Pacific Co. v. Jensen, 244 U.S. 205, 37 S.Ct. 524, 61 L.Ed. 1086 (1917), be covered by State Workmen’s compensation statutes. The Act applies to all injuries and deaths “occurring upon the navigable waters of the United States, (including any dry dock).” 33 U.S.C.A. § 903(a).

      . Norton v. Warner Co., 321 U.S. 565, 64 S.Ct. 747, 88 L.Ed. 931 (1944).

      . Union Barge has not argued, either in the Court below or in this appeal, that appellees were not performing the traditional work of seamen when they fell victims to the poisonous fumes. In Seas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099 (1946), the United States Supreme Court extended the warranty of seaworthiness of the vessel to a stevedore employee of an independent contractor who was injured while working aboard the ship. The Court again applied the doctrine of unseaworthiness in Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143 (1953), when recovery againt the shipowner was permitted by a person who was injured while doing carpentry work on the grain-loading equipment aboard the ship. Since Sierecki and Hawn, the warranty of seaworthiness of a vessel has been held to encompass other harbor workers such as repairmen, Lawlor v. Socony-Vacuum Oil Co., 275 F.2d 599 (2nd Cir. 1960), cert, denied, 363 U.S. 844, 80 S.Ct. 1614, 4 L.Ed.2d 1728 (1960), and Shipcleaners, Christiansen v. United States, 192 F.2d 199 (1st Cir. 1951). “Most — perhaps all — harbor workers are seamen and thus entitled to the maritime remedies formerly restricted to the ship’s company — or at least to the recovery of damages for unseaworthiness”, G. Gilmore & C. Black, Jr., The Law of Admiralty, § 6-53, at 358 (1957), as long as they are performing a “service absolutely necessary to enable the ship to discharge its maritime duty.” Atlantic Transport Co. v. Imbrovek, 234 U.S. 52, 62, 34 S.Ct. 733, 735, 58 L.Ed. 1208 (1914). If a person injured aboard a vessel was not performing the type of work traditionally done by the ship’s crew, however, he may not recover from the shipowner for unseaworthiness of the vessel. United New York and New Jersey Sandy Hook Pilots Association v. Halecki, 358 U.S. 613, 79 S.Ct. 517, 3 L.Ed.2d 541 (1959) ; Bryant v. National Transport Corp., 467 F.2d 139 (3d Cir. 1972).

      . See e. g., Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed. 2d 941 (1960) ; Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944).

      . Dixon v. The Cyrus, 7 Fed.Cas. pp. 755, 757 (No. 3,930) (D.C.D.Pa.1789).

      . The Moslem, 17 Fed.Cas. p. 894 (No. 9,875) (D.C.S.D.N.Y.1846).

      . The Silvia, 171 U.S. 462, 464, 19 S.Ct. 7, 8, 43 L.Ed. 241 (1898).

      . The Southwark, 191 U.S. 1, 24 S.Ct. 1, 48 L.Ed. 65 (1903).

      . 189 U.S. 158, 23 S.Ct. 483, 47 L.Ed. 760 (1903). In The Osceola, the United States Supreme Court stated as the second proposition of law:
      2. That the vessel and her owner are, both by English and American law, liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship, or a failure to supply in order the proper appliances appurtenant to the ship.

        Id. at 175, 23 S.Ct. at 487.

      . Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971). The condition of unseaworthiness must necessarily be a relative one, dependent in each instance upon the circumstances surrounding “the things about the ship” and the purpose for which they are to be used. Walker v. Sinclair Refining Co., 320 F.2d 302, 304 (3d Cir. 1963).

      . Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927 (1922).

      . Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971).

      . Alaska S.S. Co. v. Petterson, 347 U.S. 396, 74 S.Ct. 601, 98 L.Ed. 798 (1954), aff’g 205 F.2d 478 (9.th Cir. 1953).

      . Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 549, 80 S.Ct. 926, 933, 4 L.Ed. 2d 941 (1960).

      . Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 42 S.Ct. 475, 66 L.Ed. 927 (1922).

      . Boudoin v. Lykes Brothers S.S. Co., 348 U.S. 336, 75 S.Ct. 382, 99 L.Ed. 354 (1955).

      . Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944).

      . Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550, 80 S.Ct. 926, 933, 4 L.Ed. 2d 941 (1960).

      . Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed.2d 562 (1971). Usner stands for the proposition that a shipowner cannot be held liable for injuries to a longshoreman, which injuries were not caused by any defective condition of the ship or its gear, but, instead, were proximately caused by a fellow-longshoreman’s single, instantaneous and unforeseeable act of negligence. In Radovich v. Cunard Steamship Co., 364 F.2d 149 (2nd Cir. 1966), the court spoke of the act-condition or operational negligence-unseaworthiness dichotomy.

      . Gutierrez v. Waterman S.S. Corp., 373 U.S. 206, 213, 83 S.Ct. 1185, 1190, 10 L.Ed.2d 297 (1963).

      . 346 F.2d 481 (2d Cir. 1965), rev’d on other grounds, 382 U.S. 283, 86 S.Ct. 429, 15 L.Ed.2d 327 (1965).

      . 451 F.2d 985 (3d Cir. 1971).

      . 412 F.2d 1011 (5th Cir. 1969), cert, dismissed, 396 U.S. 1033, 90 S.Ct. 612, 24 L.Ed.2d 531 (1970).

      . 346 F.2d 481, 483 (2d Cir. 1965).

      . See Rivera v. Rederi A/B Nordstjernan, 456 F.2d 970 (1st Cir. 1972). See also Friend v. Tropis Co., 382 F.2d 633 (4th Cir. 1967), cert, denied 390 U.S. 906, 88 S.Ct. 820, 19 L.Ed.2d 872 (1968) (implies that had static electricity in the hold emanated from the ship, the vessel would be unseaworthy, however, when the static electricity did not emanate from the ship but was caused by entry into the ship of an isolated unforeseeable causative agent from without the ship [as in Morales v. City of Galveston, 370 U.S. 165, 82 S.Ct. 1226, 8 L.Ed.2d 412 (1962)], there was no warranty of seaworthiness which had been breached by the shipowner).

      . It is not contended in the instant case that the status of the barge, the pattern of repairs or the extensive nature of the work to be done, West v. United States, 361 U.S. 118, 122, 80 S.Ct. 189, 192, 4 L.Ed.2d 161 (1959), were such that the warranty of seaworthiness should be held as a matter of law not to apply to Earles and McNamer. A person injured aboard a vessel, however, may not recover for unseaworthiness if the ship was undergoing major repairs and was not in navigation. See West, supra; Bryant v. National Transport Corp., 467 F.2d 139 (3d Cir. 1972) ; McDonald v. United States, 321 F.2d 437 (3d Cir. 1963).

      . Bruszewski v. Isthmian S.S. Co., 163 F.2d 720 (3d Cir. 1947), cert, denied, 333 U.S. 828, 68 S.Ct. 451, 92 L.Ed. 1113 (1948). In Gindville v. Ameriean-Hawaiian S.S. Co., 224 F.2d 746 (3d Cir. 1955), we explained that Bruszewski meant “no more than if a carpenter is called in to repair a hole in a roof he cannot complain that a roof with a hole in it is an unsafe place to work.” Id. at 747.

      . Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011, 1030 (5th Cir. 1969).

      . Mahnich v. Southern S.S. Co., 321 U.S. 96, 64 S.Ct. 455, 88 L.Ed. 561 (1944) ; Siderewicz v. Enso-Gutzeit O/Y, 453 F. 2d 1094 (2nd Cir. 1972).

      . N.T. 144. Substantially the same language is used in the district court’s opinion denying defendant’s motion for summary judgment. Earles v. Union Barge Line Corp., 321 F.Supp. 1329, 1330 (W.D. Pa.1970). The case cited in support of this proposition is Venable v. A/S Det Forenede Dampskibsselskab, 399 F.2d 347, 353 (4th Cir. 1968).

      . 358 U.S. 588, 79 S.Ct. 503, 3 L.Ed.2d 524 (1959).

      . Id. at 594, 79 S.Ct. at 508.

      . 364 U.S. 325, 81 S.Ct. 6, 5 L.Ed.2d 20 (1960).

      . Id,, at 331, 81 S.Ct. at 11.

      . 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959).

      . Id. at 123, 80 S.Ct. at 193.

      . 234 U.S. 52, 34 S.Ct. 733, 58 L.Ed. 1208 (1914).

      . Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 544, 80 S.Ct. 926, 930, 4 L. Ed.2d 941 (1960).

      . Id. at 549, 80 S.Ct. at 932.

      . Usner v. Luckenbach Overseas Corp., 400 U.S. 494, 498, 91 S.Ct. 514, 517, 27 L.Ed.2d 562 (1971).

      . 247 F.2d 629 (5th Cir. 1957).

      . Id. at 637.

      . See, e. g., Bryant v. National Transport Corp., 467 F.2d 139 (3d Cir. 1972) ; Ward v. Union Barge Line Corp., 443 F.2d 565 (3d Cir. 1971) ; Knox v. United States Lines Company, 294 F.2d 354 (3d Cir. 1961).

      . 361 U.S. 118, 80 S.Ct. 189, 4 L.Ed.2d 161 (1959).

      . Id. at 123, 80 S.Ct. at 193.

      . 467 F.2d 139 (1972). See generally Mesle v. Kea S.S. Corp., 260 F.2d 747 (3d Cir. 1958), cert, denied, 359 U.S. 966, 79 S.Ct. 875, 3 L.Ed.2d 834 (1959) (shipowner’s duty of care is to exercise reasonable care to maintain the vessel in a safe condition for a business invitee, with due regard for the purpose of the pres: ence of the business invitee).

      . 399 F.2d 347 (4th Cir. 1968).

      . Id. at 351.

      . 400 U.S. 494, 91 S.Ct. 514, 27 L.Ed. 2d 562 (1971). Prior to Usner, the Fifth Circuit had rejected the idea of “instant unseaworthiness,” holding that operational negligence of an independent contractor’s employee which occurred at the moment of injury to a co-worker did not render the vessel unseaworthy. Antoine v. Lake Charles Stevedores, Inc., 376 F. 2d 443 (5th Cir.), cert, denied, 389 U.S. 869, 88 S.Ct. 145, 19 L.Ed.2d 146 (1967) (cause of accident was concurrent negligence of plaintiff and co-worker). Accord, Robichaux v. Kerr McGee Oil Indus. Inc., 376 F.2d 447 (5th Cir. 1967). Although Mascuilli v. United States, 387 U.S. 237, 87 S.Ct. 1705, 18 L.Ed.2d 743 (1967) created confusion in some courts such as the Fourth Circuit in Venable v. A/S Det Forenede Dampskibsselskab, 399 F.2d 347 (4th Cir. 1968) as to whether the defense of operational negligence was now no longer valid so that the shipowner could be held liable for “instant unseaworthiness” resulting from the single and instantaneous isolated act of negligence which proximately caused personal injuries, the Fifth Circuit in Grigsby v. Coastal Marine Service of Texas, Inc., 412 F.2d 1011, 1033 (5th Cir. 1969) continued to reject any idea that “the very finding of operational negligence is a simultaneous finding of unseaworthiness.” And, in Luckenbach Overseas Corp. v. Usner, 413 F.2d 984, 985 (5th Cir. 1969), aff’d 400 U.S. 494, 91 S.Ct. 514 (1971), the Fifth Circuit relied upon its decision in Grigsby when it decided in the negative the issue of “whether a ship is rendered unseaworthy as a result of the instantaneous negligence of stevedores, this negligence resulting in the injury of another stevedore, when all the equipment and appurtenances aboard the ship are admittedly in a seaworthy condition.”

      . Even though Union Barge has withdrawn its motion for a new trial, we can properly grant a new trial. See Slaughter v. Philadelphia National Bank, 417 F.2d 21, 33 at n. 22 (3d Cir. 1969) ; 28 U.S.C, § 2106.

      . The other issue raised by the appeal as to whether the barge owner has the status to ascertain the amount of the liens for Longshoremen’s Act payments and benefits and to have the judgment altered or amended to protect the lien need not be decided.