author: CLARK, Circuit Judge:

text:
    SIERRA CLUB et al., Plaintiffs-Appellants, v. Rogers C. B. MORTON et al., Defendants-Appellees, Shell Oil Company et al., Intervenors-Appellees.
    No. 74-3092.
    United States Court of Appeals, Fifth Circuit.
    March 27, 1975.

      Bruce J. Terris, Helen Cohn Needham, Washington, D. C., John D. Hoffman, San Francisco, Cal., for plaintiffs-appellants.
    John L. Briggs, U. S. Atty., Jacksonville, Fla., Irwin L. Shroeder, William M. Cohn, U. S. Dept, of Justice, Washington, D. C., J. Berry St. John, Jr., Gene W. Lafitte, New Orleans, La., Thomas A. Clark, John W. Boult, A. Broaddus Livingston, William M. Register, Jr., Tampa, Fla., Wallace H. Johnson, Asst. Attys. Gen., Edmund B. Clark, Raymond N. Zagone, Neil T. Proto, Attys., Dept, of Justice, Washington, D. C., for defendantsappellees.
    Before GEWIN, BELL and CLARK, Circuit Judges.
   CLARK, Circuit Judge:

This case involves yet another clash between a federal agency and environmentalists over a proposed development of the nation’s resources. The judicial focus, blurred as usual by the lack of technical and scientific expertise, is upon whether the impact statement compiled during consideration of the federal action satisfies the National Environmental Policy Act (NEPA), 42 U.S.C.A. § 4321 et seq.

At issue here is a lease sale by the Department of Interior (Interior) of 147 tracts on the Outer Continental Shelf along the coasts of Mississippi, Alabama and Florida consisting of a band of underwater coastal land lying from the tidal zone to roughly thirty miles off shore, extending from the Mississippi Delta to Tampa Bay and including offshore islands and enclosed bays. This leasing is referred to as the MAFLA sale.

Plaintiffs, who attack Interior’s decision to proceed and its predicate environmental impact statement, are national, state and local environmental organizations and certain individuals. This action seeks a declaratory judgment, injunctive relief, and a writ of mandamus to prohibit the sale of oil and gas leases by Interior on the MAFLA sale area. Intervenors are 17 oil companies who, at the December 1973 MAFLA sale, along with several other parties, made bonus bids of more than 1.5 billion dollars for the right to explore for oil and gas on these submerged federal lands.

The sale was made pursuant to the provisions of the Outer Continental Shelf Lands- Act, 43 U.S.C. § 1337. Interior’s Bureau of Land Management first called for nominations of desired tracts. A draft environmental statement was later issued. After discussions and revisions, the final environmental impact statement (EIS) under attack here was filed with the Council on Environmental Quality (CEQ). The notice of lease offer was then published in the Federal Register and, finally, the leases were awarded between December 27, 1973 and January 18, 1974.

The district court found the EIS to be sufficient under NEPA requirements and the decision to proceed on the basis thereof to be reasonable. We affirm.

On appeal plaintiffs assert that (1) the EIS is inadequate under Section 102(2)(C) of the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(2)(C); (2) Interior failed to fully study, analyze, and evaluate the effects of the leasing program on the environment in violation of Section 102 subsections A, B and D of NEPA and Interior’s own regulations; (3) the decision to consummate the sale violated the substantive requirements of NEPA and is arbitrary, capricious, and an abuse of discretion in violation of the Administrative Procedure Act, 5 U.S.C. § 702 et seq.; and (4) the decision to leave to adjacent states the responsibility to safeguard the environment from the effects of construction of pipelines and onshore facilities violates the NEPA requirement that federal agencies protect the environment from harmful effects resulting from their actions.

Under existing jurisprudence, plaintiffs were required to establish by a preponderance of the evidence, rather than by a prima facie showing of deficiencies, that the EIS for MAFLA was inadequate. The additional attack on the Secretary of Interior’s decision to proceed with the leasing must be founded on proof that it was arbitrary and capricious. Since the basic legal premises on which the district judge based his determination that the federal agency actions passed muster were correct, plaintiffs must shoulder a more imposing burden in this Court. Having failed to convince the trial court that the EIS was inadequate, the plaintiffs must now demonstrate that the lower court’s findings accepting the EIS as adequate and the decision to proceed as permissible were clearly erroneous.

Section 102(2) contains the procedural requirements designed to compel all federal agencies contemplating actions having a significant impact on the environment to consider NEPA’s substantive policies and goals as enunciated in Section 101. The effectiveness of Section 102(2) depends upon compliance with procedural duties “to the fullest extent possible,” i.e., a compliance, the completeness of which is only limited by the agency’s statutory obligations. While no agency may properly adopt a less demanding standard for their effort, judicial review is based on a pragmatic standard. In determining whether an agency has complied with Section 102(2), we are governed by the rule of reason, i.e., we must recognize “on the one hand that the Act mandates that no agency limit its environmental activity by the use of an artificial framework and on the other that the act does not intend to impose an impossible standard on the agency.” The court’s task is to determine whether the EIS was compiled with objective good faith and whether the resulting statement would permit a decisionmaker to fully consider and balance the environmental factors.

The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, particularly the profound influences of population growth, high-density urbanization, industrial expansion, resource exploitation, and new and expanding technological advances and recognizing further the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local government, and other concerned public and private organizations, to use all practicable means and measures, including financial and technical assistance, in a manner calculated to foster and promote the general welfare, to create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans.

TESTING THE EIS

Plaintifffs submit that the EIS fails to comply with Section 102(2)(C) of the Act since it: does not adequately describe and analyze the present environment of the area; fails to adequately describe and analyze the most significant impacts that will result from the MAF-LA sale; fails to analyze the cumulative effect of oil development in the Gulf of Mexico; and fails to adequately analyze reasonable alternatives to the MAFLA sale.

The purposes of an environmental impact statement are to detail the environmental and economic effects of proposed federal action “to enable those who did not have a part in its compilation to understand and consider meaningfully the factors involved,” and to compel the decisionmaker to give serious weight to environmental factors in making discretionary choices. “The sweep'of NEPA is extraordinarily broad, compelling consideration of any and all types of environmental impact of federal action.” To carry out this statutory mandate, every relevant environmental effect of the project must be given appropriate consideration. Section 102(2)(C) seeks these goals by specifically requiring a detailed statement.

The purposes served by this “detailed statement” requirement have been succinctly enumerated by the First Circuit in Silva v. Lynn, 482 F.2d 1282, 1284-85 (1st Cir. 1973). The Silva court stated:

The “detailed statement” required by § 4332(2)(C) serves at least three purposes. First, it permits the court to ascertain whether the agency has made a good faith effort to take into account the values NEPA seeks to safeguard. To that end it must “explicate fully its course of inquiry, its analysis and its reasoning.” Second, it serves as an environmental full disclosure law, providing information which Congress thought the public should have concerning the particular environmental costs involved in a project. To that end, it “must be written in language that is understandable to nontechnical minds and yet contain enough scientific reasoning to alert specialists to particular problems within the field of their expertise.” . It cannot be composed of statements “too vague, too general and too conclusory.” Finally and perhaps most substantively, the requirement of a detailed statement helps insure the integrity of the process of decision by precluding stubborn problems or serious criticism from being swept under the rug.

Id. (Citations omitted.) Again, the courts have approached their review of claims that congressionally specified detail of environmental effects was lacking in an EIS with a view that Congress did not intend to mandate perfection, or intend “for an impact statement to document every particle of knowledge that an agency might compile in considering the proposed action.”

Present Environment

Plaintiffs contend that a most serious shortfall of the EIS is its lack of necessary baseline environmental studies upon which any reasoned decision on the environmental effect of the proposed sale must be based. Four specific omissions are asserted.

First, the statement does not include sufficient analysis of present air and water quality in the area. For the most part, plaintiffs are correct in this censure. While the statement does include an analysis of the impact of lease operations on water quality it does not describe the present quality of these environmental factors although it does contain a brief discussion of water quality degradation which previously occurred in the Mississippi Sound, Mobile Bay and along the Florida Gulf and of climatological and oceanographic conditions.

Second, the statement fails to assess each ecosystem as to its unique character, productivity, and the manner in which it operates. This attack is hypercritical. The statement discusses significant portions of the biological environment. Descriptions of the communities of Phytoplankton, Zooplankton, Benthic invertebrates and the active swimmers (Nekton) of the Gulf, embracing an analysis of factors affecting the distribution and abundance of Benthos and the location of significant Benthic communities, are included.

Third, the statement does not describe the operation of the Eastern Gulf ecosystem as a whole or the importance of the lease area to this ecosystem as a unit. While the EIS does contain general information about life in the Gulf there is a dearth of information explaining the interrelationship of localized biotic communities. No information is given as to the predicted effect on the whole if some part of the system were to be harmed.

Fourth, detailed geological data is absent from the statement. The statement does include a review of the geological history and present structural composition of the entire Gulf, with special attention to structures within the MAFLA sale area and a recognition of geologic hazards of MAFLA exploration and production. Additionally the EIS observes that tests necessary to determine shallow hazards, unstable bottom and mud waves are scheduled to be run after the sale, and that prior to approval of a drilling permit, the Geological Survey requires submittal of an operation plán that includes suitable safety procedures necessary to control anticipated hazards.

Environmental Impact

Section 102(2)(C)(i) and (ii) require that the EIS contain a detailed statement of the environmental impact of the proposed action and any adverse effects which cannot be avoided if such proposed action is taken. Plaintiffs do not argue that defendants have failed to include references to environmental effects. Indeed, the summary of the EIS states:

All tracts offered pose some degree of pollution risk to the environment and adjacent shoreline. The risk potential is related to adverse effects on the environment and other resource uses which may result principally from accidental or chronic oil spillage.

Rather, plaintiffs urge that the material included is inadequate to permit the proper evaluation of its probability or importance.

In a panoply of particularized criticism plaintiffs attack omissions and deficiencies in Interior’s preliminary studies. While it is true that the preEIS research was either inadequate or nonexistent in some specific areas, the significant environmental effects were recognized and presented in the final statement in a way which afforded the decisionmaker an opportunity to properly weigh them. NEPA’s procedural requirements do not exist to dictate form but to insure that judgments are no longer based on old values. This EIS clearly brings the significant long-term environmental hazards and detriments to peer status with the present need and economic costs considerations which formerly would have controlled decision-making. This being so, under the rule of reason it meets the minimum requirements of Section 102(2)(C)(i) and (ii).

Plaintiffs further assert that the EIS inadequately analyzes the effect of oil spills which carry a strong probability of reaching shore or other important natural resources. Here the attack is not upon the effect of omitting relevant material, but rather the manner of its inclusion. This EIS developed a matrix analysis for each tract in the proposed sale. The matrix is designed to predict the possible adverse impacts from structures and oil spillage based upon the tract’s distance from shore or another valuable resource. In addition to the predicted development structures, an assumed oil spill in each tract is analyzed on the basis of its potential magnitude and persistence and the tract’s proximity to high value resources (wildlife refuges and management areas, unique and highly productive areas, biota seaward of estuary/nursery areas, and beaches) and coastal activities (shipping, recreation, commercial fishing, sport fishing and ordinance disposal areas). A series of scales was devised that would yield a range of values designed to integrate the importance and proximity of each impact-producing factor. A relative environmental factor of 50 or more requires careful scrutiny, and, depending upon the significance and character of the resource that may be affected, the decisional spectrum concerning that tract’s inclusion can reach from withdrawing the entire tract, to offering the tract with special stipulations, to merely proceeding with the lease sale. A factor greater than zero but less than 50 predicts that the tract could be developed safely within existing standard practices and operating regulations without significant damage to the resource involved.

Plaintiffs contend that this matrix analysis is insufficient since the values assigned are arbitrary, that it is falsely assumed that all oil spills will be cleaned up within a few days and that the proximity values do not consider the possibility of oil spills which do not occur at drilling platforms. Plaintiffs point to the CEQ’s report on continental shelf development off the Atlantic Coast and in the Gulf of Alaska as employing a more satisfactory method of projecting the likelihood of oil spills reaching shore. This CEQ report included specific calculations as to 23 different possible oil spill sites, stating the probability of spills reaching shore at different times of the year.

Interior’s decision to project possible environmental damage from all tracts by the matrix approach, as opposed to the use of a more detailed analysis for a few select sensitive points, certainly does not evince a lack of good faith effort to afford the decisionmaker with the necessary quantitative information concerning the potential impact of oil spillage. Because no exact data exists until a spill occurs at a given location, any analysis of future oil spillage involves a degree of speculation. Therefore, every attempt to select quantitative values will be to some extent arbitrary. The use of relative proximity and importance scales to project adverse environmental impacts from all tracts is no more arbitrary than CEQ’s selection for analysis of 23 specific points out of the vast Atlantic Coast and Gulf of Alaska area they analyzed.

As to oil spill cleanup procedures, the statement indicates that through joint efforts the lessees hope to perfect an ability to begin oil spill cleanup operations within 12 hours at any point in the MAFLA area. In fact, a stipulation to this effect was included in each lease. However, post-statement developments indicate that a rigid 12-hour requirement for all points within the MAFLA sale area may be unrealistic. While this indicates the necessity for Interior to consider cleanup alternatives and further preventative measures, it cannot retroactively affect the sufficiency of the EIS.

Oil spills from locations outside tracts, while not dealt with by the matrices, are considered and discussed elsewhere in the statement.

Next it is asserted that the statement inadequately assessed the hazards of leasing those 81 tracts which lie in military warning areas. However, after coordination and consultation with the Department of Defense, 36 of the originally proposed 195 tracts were withdrawn, and after the draft environmental statement was prepared 12 more tracts were deleted. Additionally, the Secretary of Defense determined that military operations in all non-defense areas would result in only moderate hazard, or no hazard at all, to any possible oil development in the area.

A probability analysis of potential hazards from military operations in the remaining tracts was not prepared until after submission of the EIS. Plaintiffs contend that this procedure fails to satisfy NEPA because the analysis was not included with the impact statement nor was it subjected to the necessary comment and review procedures outlined by Section 102(2)(C) of NEPA. The statement did, however, note that this analysis had been requested and would be sent to the Secretary of Interior immediately upon receipt so that it could be considered in making a final determination on whether to lease the 35 tracts that might involve hazards. This procedure brought the information to the decisionmaker before he acted and also alerted other interested parties to the existence of the hazard. Given the specialized nature of the information, the unique expertise of the governmental agency involved, and the immediate need for the project to proceed, this course of action was not unacceptable.

Plaintiffs further complain that the statement fails to analyze the hazards relating to the 6 tracts which are located in salvo areas. While such military use will be discontinued prior to oil development, plaintiffs argue that the danger from previously dropped ordinance should have been analyzed. The statement did point out that the probability of accidental detonation was low since lease developers must determine bottom conditions before proceeding. The presence of any unexploded ordinance or sunken vessels is detectable through magnetometer surveys, by divers, or through the use of magnetic detection devices. The most important factor here is that the possible danger is stated and EIS readers have the benefit of the analysis of the Department of Defense to alert them to any possible conflict.

Although recognizing that the EIS includes a general discussion of the environmental problems that would result from pipeline construction, plaintiffs complain of the absence of analysis of the effects of pipeline location and construction and the impact of pipeline leakage on particular areas. While the EIS does not include an analysis of these matters, it does include a look at long-term effects of pipeline construction generally, mitigating measures that may be employed to prevent harm from such construction, and a special lease stipulation that reserves the right to require pipelines to be placed in designated areas or corridors. On leases in areas at depths above 200 feet, the pipelines of common carriers must be buried and only 18 of the 147 tracts lie partially or wholly beyond the 200 foot contour. This procedure is expected to minimize the adverse effects from these lines.

The EIS also reviews the effects in previous Gulf operations of gas leaks, oil spills and other pipeline accidents. It further suggests that if it is determined that official establishment of pipeline corridors will constitute a major federal action requiring preparation of an impact statement, then such will be prepared. Plaintiffs read this suggestion as an attempt to fragment the project, and, by gaining acceptance of some parts, compel acceptance of the whole. We do not agree that this is the thrust of Interior’s proposal. This project is an easily divisible one. In this continuously controllable project, the fact that a tract may prove productive would not mandate that an unsound method of delivering that production be utilized. We are not unmindful of the rule that the sufficiency of an EIS must be determined without reference to possible future action. Today’s statement, however, includes sufficient pre-statement analysis of possible environmental hazards from pipeline location, construction or leakage.

The MAFLA sale is said to violate NEPA because it places the entire responsibility on the states to prevent environmental injury from construction of pipelines and onshore facilities. We are in accord with the district court’s finding that “an examination of the [EIS] and the supplemental documents reveals that while the states have a role to play in the planning of pipelines and onshore facilities, the federal agency has considered, and will continue to consider, these features.” The fact that the MAFLA leases contain a stipulation that pipelines be placed in corridors selected by the federal government gives the government a great deal of control over placement of pipelines and, consequently, over onshore facilities. Thus, Interior retains the opportunity to select less environmentally hazardous areas whenever some harm becomes possible. Their lease controls give them even greater supervisory powers. Additionally, the states of Mississippi, Alabama and Florida have been consulted on several occasions and encouraged to begin planning environmental safeguards for the construction and operation of onshore pipelines and facilities. These states have been forewarned by the EIS of the possible harm that may result from unrestricted construction and operation. Such efforts do not indicate any abdication of responsibility in violation of Interior’s NEPA obligations, rather they evince the agency’s fulfillment of NEPA requirements that the impact statement be subjected to “the comments and views of the appropriate State, and local agencies . . . , and that the Federal Government “make available to States . . . advice and information useful in restoring, maintaining, and enhancing the quality of the environment.”

An environmental statement “should disclose the history of success and failure of similar projects.” This requirement is also satisfied in the EIS now on review. Plaintiffs complain that the destruction caused to the Louisiana marshlands as a result of the construction associated with offshore development in the Western Gulf should have been analyzed. The statement acknowledges that such environmental harm has been suffered in Louisiana, but attributes the damage to construction of rig-access canals which will not be required for the present sale. Plaintiffs’ contention that pipeline construction was' also a significant contribution to the damage is precisely the sort of particularized controversy NEPA intended for an EIS to evoke. Its reasonable resolution by an informed decisionmaker is what the Act intended.

Cumulative Effect

CEQ guidelines, Interior regulations, Bureau of Land Management regulations and prior court decisions all require that federal agencies consider the cumulative effect of similar actions in making determinations under Section 102(2)(C). Plaintiffs assert that the EIS fails to analyze the cumulative effect of the MAFLA development on the Eastern Gulf. More particularly, they object to the lack of analysis of the cumulative effects of oil spillage from platforms or pipelines, the disposal of muds and oil spills and flushings resulting from increased tanker and barge traffic.

While the EIS does not analyze these factors, it does acknowledge that the increased number of platforms in the Gulf represents a potential increase in possible interference with shipping. It also approximates the number of additional platforms that will be needed, and notes that these platforms will cause spillage. The EIS estimates the annual spillage expected to result from tanker and barge accidents and operations. It specifically points out that the long-term effects of oil spillage from production in the entire Gulf are not clearly understood and that the cumulative effect of more structures and pipelines in the Gulf must be considered.

Sierra Club contends that the statement should have totalled the amount of oil spills which have already occurred from all oil drilling in the Gulf and determined from these figures how much more was probable. It further asserts that similar calculations should have been made for other pollutants, and that the statement should have included a mathematical analysis of the probability of collision and loss of land from pipelines being placed in marsh areas. These contentions boil down to questioning the degree of detail rather than the lack of it. While agreeing that these additional facts may have been useful to the Secretary in reaching a decision, we still conclude that the detail presented was sufficient to uphold the EIS.

Alternatives

Section 102(2)(C)(iii) of the Act requires environmental statements to present the alternatives to the proposed action. This discussion-of-alternatives requirement is intended to provide evidence that those charged with making the decision have actually considered other methods of attaining the desired goal, and to permit those removed from the decisionmaking process to evaluate and balance the factors on their own. A thorough consideration of all appropriate methods of accomplishing the aim of the proposed action is expected.

Interior devoted a 352-page volume solely to an analysis of alternatives. Plaintiffs have enumerated still other alternatives which they assert were more feasible but which received little or no attention.

Plaintiffs are critical of the statement’s failure to discuss federal exploration. We reject this criticism. The court below correctly observed: “[t]he short answer to plaintiffs’ argument is that federal exploration is not an alternative to the project, but merely another means of proceeding with the project so that the environmental consequences should be substantially the same in either case.” We agree that federal exploration would present substantially the same environmental hazards as permitting private developers to explore the tracts sold. An alternative which would result in similar or greater harm need not be discussed. Plaintiffs’ rejoinder to this response is that the separation of exploration from production is of great environmental importance since information gained from exploration might result in modification or cancellation of the sale. The rejoinder remains unpersuasive since the continuing control which leasehold restrictions provide, gives Interior an equivalent right to prevent and control ecological detriment.

We also note that plaintiffs did not object to Interior’s failure to consider federal exploration at any time prior to the final statement, nor did they adduce evidence that federal exploration would significantly decrease the possibility of environmental hazards. While we would not be understood as holding that every alternative which an opponent fails to mention before an EIS is finalized is waived, plaintiffs’ actions here are worthy of note in adjudging the statement’s adequacy as against the contention that federal exploration was of such significance that the statement is faulty because it was not considered.

Plaintiffs contend that the EIS’ rejection of the possibility of delay of the sale as an alternative was a “pro forma ritual,” which failed to comply with the requirement of NEPA that the environmental statement give “information sufficient to permit a reasoned choice of alternatives so far as environmental aspects are concerned.” Plaintiffs’ characterizations are inapt. The EIS discusses the feasibility of delay: (1) until new technology is available to provide increased environmental protection, (2) pending completion of studies .of potential environmental impacts, (3) pending development of land-use and growth plans onshore or (4) pending completed implementation of recommendations made in reports on outer continental shelf operating orders and regulations and amendment as necessary. These alternatives having been fairly presented, the choice was the Secretary of Interi- or’s.

Should the statement have explored the feasibility of selling additional tracts off the coasts of Louisiana and Texas prior to the MAFLA sale? Plaintiffs suggest that this alternative would have the advantage of securing much needed petroleum production while permitting basic underlying environmental studies of the MAFLA area to be completed pri- or to sale. The fact that these tracts are in the Western Gulf where production is presently taking place does not indicate that development of the additional tracts there would incur less hazards than development of the MAFLA tracts in the Eastern Gulf. Again, alternatives of equal hazard need not be considered.

Another “alternative” inadequacy is alleged to exist as to deletion of high hazard tracts. However, the statement points out that tracts identified by matrix analysis to have the highest relative potential of environmental risk could be deleted. It further calls to mind that while any such deletion would correspondingly reduce the potential overall environmental hazard of the proposed action, the sale would suffer a concomitant loss in estimated recoverable reserves of oil and gas which would have to be made up from another source. While this tract-deletion approach is somewhat generalized, it is detailed enough to satisfy the Congressional mandate that alternatives be considered.

In sum, we conclude that the statement did not lack that detailed statement of alternatives to the MAFLA sale which NEPA requires.

Cost-benefit Analysis

Section 102(2)(C)(iv) of the Act requires an analysis of “the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity.” The question this appeal urges is how specifically must this relationship be quantified, i. e., must a dollar and cent weighing of the costs and benefits of the proposed sale be set out in the EIS?

“NEPA does not demand that every federal decision be verified by reduction to mathematical absolutes for insertion into a precise formula.” Nevertheless, “an agency [must] search out, develop and follow procedures reasonably calculated to bring environmental factors to peer status with dollars and technology in their decisionmaking.” We note that regulations promulgated by Interior and by the Bureau of Land Management require quantification of costs and benefits where possible. However, every attempt to assign a dollar value to future effects of present actions necessarily involves prediction. Such opinion estimates can be most precise when the systems involved are simple. As they become more complex and interactive, the ability to forecast becomes more a guess and less a prediction.

The MAFLA development is in the complex, interactive category. The decisionmaker’s task nevertheless remains the same. It is not to total up dollars and cents in a sort of profit-loss ledger, but rather to consider the previously unconsidered by giving weight and consideration to the ecological costs to future generations in deciding whether present economic benefits indicate that the depletion of irreplaceable natural resources should proceed in the manner suggested, or at all. The use of a postulated economic equation to express these values is permissible and in many instances desirable, but it is not a sine qua non. The MAFLA statement, by giving the decisionmaker and other readers enough detail concerning all of these costs and benefits to permit reasoned evaluation and decision, meets the Section 102(2)(C)(iv) requirement that long-term environmental costs be weighed against immediate benefits.

Baseline Studies

Plaintiffs next allege that the defendants’ actions violated subsections A, B, and D of Section 102. Subsection A requires an agency to carry out systematic, interdisciplinary studies of the environmental impact which would result from exploration and development. More specifically, plaintiffs contend that defendants failed to satisfy Interior’s regulation 43 C.F.R. § 3301.4, which requires evaluation of the potential effect of the leasing program on the total environment, aquatic life, aesthetics, recreation and other resources in the area. However, the EIS does deal specifically with each of these items.

Plaintiffs contend that Interior’s plans to gain more detailed information concerning the hazardous geologic conditions of the ocean floor after the sale do not satisfy the requirement that the statement “must stand the test alone — i. e., in and of itself it must either meet the requirements of NEPA or fail.” However, in a project such as this where developers sign leases and conduct separabie operations over a period of months and years, and where restrictions in those leases give the agency the ability to constantly control and adjust future action, this continuing control must be considered in determining the reasonableness of the impact statement. The MAFLA sale is a unique form of federal action. It does not involve a single undertaking or a project which becomes a fait accompli the day the decision to proceed is made. Because it contemplates numerous, successive lessor-lessee relationships involving activities over many areas and over many years, the agency’s continuing opportunity for making informed adjustments has a major effect upon our evaluation of the sufficiency of the materials contained in the EIS itself.

The future ability to control development for ecological reasons is not given judicial recognition in a NEPA evaluation for the first time here. In Gulf Oil Corp. v. Morton, 493 F.2d 141, 144 (9th Cir. 1973), the Ninth Circuit held that the Outer Continental Shelf Lands Act and NEPA authorize “the Secretary [of Interior] to suspend operations under existing leases whenever he determines that the risk to the marine environment outweighs the immediate national interest in exploring and drilling for oil and gas.” More specifically, the court held that the Secretary could properly suspend offshore oil and gas leases for a period sufficient to permit Congress to consider termination of those leases for environmental reasons. This Circuit, in Canal Authority of State of Florida v. Callaway, 489 F.2d 567, 577 (5th Cir. 1974), has cited Gulf Oil Corp. v. Morton for the proposition that “temporary administrative action to meet previously unconsidered environmental dangers may be appropriate if it furthers the public policy expressed by Congress in the National Environmental Policy Act (NEPA), 42 U.S.C.A. § 4321 et seq., even if it involves a temporary cessation of a project previously approved by Congress.” Here, the right to exercise future control is directly contractual and even broader than the right which was judicially declared there.

Plaintiffs urge that no deference be given to stipulations, regulations and orders because the EIS fails to point out that they contain no provision for inspection of pipelines, that since 1971 there has been a jurisdictional dispute between the Geological Survey and Interior’s Office of Pipeline Safety concerning who would monitor offshore pipelines, and that the result has been an absence of monitoring functions by either agency. Secondly, they point out that the stipulation requiring onsite cleanup equipment within 12 hours has not been placed in the order concerned with control and removal of discharged oil, and in fact, has been recognized by agency officials to be “arbitrary and impracticable.” These are classic examples of errors and confusion which future controls can best eliminate. Surely every EIS should strive for perfection, but the realist would not fail to recognize that it seldom results. What we hold today is that where shortcomings in a major federal action can be corrected or minimized when and if they surface, the EIS upon which such action is authorized may meet NEPA’s objectives with some less detail and analysis than would otherwise be required.

DECISION TO PROCEED

Supplementary to their assertions of statement inadequacy plaintiffs attack the Secretary of Interior’s decision to proceed with the sale. In view of our determination that the procedural requirements of Section 102 were satisfied, we look to see whether the secretary’s decision, based upon the information contained in the EIS, was arbitrary, capricious or an abuse of discretion. However, our review does not include consideration of the merits of the actual decision to go forward with the sale. “[I]t is the court’s function to insure that the mandate of the statute has been carried out and that all relevant environmental effects of the project [are] given appropriate consideration by the [secretary].” NEPA intended that courts and federal agencies collaborate to insure attainment of the Act’s goals, not that a court substitute its discretion for that of the executive as the decision-maker.

This court may reject the secretary’s substantive decision only if it was reached procedurally without a full, good faith, individualized consideration and balancing of environmental factors; or if, according to the standards set forth in Sections 101(b) and 102(1) of NEPA, it is “[shown that] ‘the actual balance of costs and benefits that was struck was arbitrary or clearly gave insufficient weight to environmental value.’ ” The decision to proceed in this instance was not shown to be in clear disregard of the evidence contained in the EIS, nor does it appear arbitrary, capricious or an abuse of discretion.

The judgment appealed from is

Affirmed.

      . The acronym MAFLA is derived from Mississippi, Alabama and Florida. The estimated reserves to be developed on this sale area are 1.5 to 2.4 billion barrels of oil and 1.8 to 2.9 trillion cubic feet of gas. This would require from 700 to 1,120 wells, from 75 to 125 platforms and from 480 to 800 miles of pipeline. It is estimated that the proposed leases may produce 270,000 to 443,000 barrels of oil and .34 to .52 billion cubic feet of gas per day after development and production stabilizes.

      . Sierra Club v. Callaway, 499 F.2d 982, 992 (5th Cir. 1974); Environmental Defense Fund, Inc. v. Corps of Engineers (Tennessee-Tombigbee-Waterway), 492 F.2d 1123, at 1131 (5th Cir. 1974). More than “hindsight and sophisticated editing” is required to carry this burden. National Forest Preservation Group v. Butz, 485 F.2d 408, 412 (9th Cir. 1973).

      . Section 101(a) provides:
      See Environmental Defense Fund v. Tennessee Valley Authority, 468 F.2d 1164, 1174 (6th Cir. 1972).

      . Iowa Citizens for Environmental Quality, Inc. v. Volpe, 487 F.2d 849, 851 (8th Cir. 1973); Atlanta Gas Light Co. v. FPC, 476 F.2d 142, 150 (5th Cir. 1973); Environmental Defense Fund v. Corps of Engineers (Gillham Dam), 470 F.2d 289, 296-97 (8th Cir.), cert. denied, 409 U.S. 1972, 93 S.Ct. 675, 34 L.Ed. 661 (1972); Calvert Cliffs’ Coordinating Comm., Inc. v. AEC, 146 U.S.App.D.C. 33, 449 F.2d 1109, 1114-15 (1971).

      . EDF v. Corps of Engineers (Tombigbee), supra, 492 F.2d 1123, at 1131. See also Carolina Environmental Study Group v. AEC, 510 F.2d 796 (D.C.Cir., 1975). Trout Unlimited v. Morton, 509 F.2d 1276, (9th Cir., 1974).

      . See Sierra Club v. Froehlke, 486 F.2d 946, 950 (7th Cir. 1973); EDF v. Corps of Engineers (Gillham Dam), supra, 470 F.2d 289 at 295-96; Calvert Cliffs’ Coordinating Comm., Inc. v. AEC, supra, 449 F.2d 1109, at 1114-15.

      . Section 102(2)(C) provides:
      Include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on—
      (i) the environmental impact of the proposed action,
      (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented,
      (iii) alternatives to the proposed action,
      (iv) the relationship between local short-term uses of man’s environment and the maintenance and enhancement of long-term productivity, and
      (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

      . EDF v. Corps of Engineers (Tombigbee), supra, 492 F.2d 1123, at 1136.

      . Monroe Cty. Conservation Council, Inc. v. Volpe, 472 F.2d 693 (2nd Cir. 1972); accord, Committee of Nuclear Responsibility v. Seaborg, 149 U.S.App.D.C. 385, 463 F.2d 783 (1971); National Helium Corp. v. Morton, 455 F.2d 650, 656 (10th Cir. 1971); Calvert Cliffs’ Coord. Comm., Inc. v. AEC, supra, 449 F.2d 1109, at 1114.

      . Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, supra, 449 F.2d 1109, at 1122.

      . Save Our Ten Acres v. Kreger, 472 F.2d 463, at 467 (5th Cir. 1973).

      . See, e.g., EDF v. Corps of Engineers (Gillham Dam), 342 F.Supp. 1211, 1217, aff’d 472 F.2d 289 (8th Cir. 1972).

      . EDF v. Corps of Engineers (Tombigbee), supra, 492 F.2d 1123, at 1136.

      . Because of a realization of its uniqueness, special attention is accorded to the Florida Middle Ground region. The presence of other aquatic preserves unique to Florida is also mentioned.

      . The statement provides that high-resolution geophysical data covering all tracts to be offered for sale will be purchased and analyzed by government geophysical personnel and that this data will be available prior to sale to support both pre- and post-sale lease management activities.

      . A sample matrix for one tract looks like this:

      . The importance scale ranges from 0 (no adverse effect) to 100 (complete destruction), while the proximity scale ranges from 0.0 (a tract beyond 10 miles) to 1.0 (a tract containing a valuable resource). The resulting environmental impact factor is a number derived by multiplying importance (IM) by proximity (PR).

      . Natural Resources Defense Council, Inc. v. Morton, 148 U.S.App.D.C. 5, 458 F.2d 827 (1972), which involved the sale of oil and gas leases on some 80 tracts of submerged lands, primarily off eastern Louisiana, referred without criticism, to that impact statement’s use of a matrix system very similar to the one utilized in this case.

      . These areas are used for such activities as testing guns, rockets, bombs, guided munitions, and other arms and conducting gunnery practice, electronic counter-measure activities, and acoustic and electronic-mine neutralizing operations.

      . Sierra Club v. Froehlke, 359 F.Supp. 1289, 1341 (S.D.Tex.1973), rev’d on other grounds, 499 F.2d 982 (5th Cir. 1974).

      . Natural Resources Defense Council, Inc. v. Morton, 337 F.Supp. 170, 172 (D.D.C.1972).

      . This practice was rejected in San Antonio Conservation Soc’y v. Texas Highway Dep’t, 446 F.2d 1013, 1023-24 (5th Cir. 1971), cert. denied, 406 U.S. 933, 92 S.Ct. 1775, 32 L.Ed.2d 136 (1972).

      . Section 102(2)(C).

      . Section 102(2)(F).

      . Natural Resources Defense Council, Inc. v. Grant, 355 F.Supp. 280 (E.D.N.C.1973).

      . 40 C.F.R. 1500 6(a).

      . 36 Fed.Reg. 19343.

      . 37 Fed.Reg. 15018.

      . E. g., Scientists’ Institute for Public Information, Inc. v. AEC, 156 U.S.App.D.C. 395, 481 F.2d 1079, 1086-87 (1973); Jones v. Lynn, 477 F.2d 885, 891 (1st Cir. 1973).

      . Calvert Cliffs’ Coordinating Comm., Inc. v. AEC, supra, 449 F.2d 1109, at 1114; Trout Unlimited v. Morton, supra, 509 F.2d at 1282, (9th Cir., 1974).

      . EDF v. Corps of Engineers (Tombigbee), supra, 492 F.2d 1123, at 1135.

      . Alternatives considered were: (1) modify the sale; (2) withdraw the sale with needed energy to be replaced by (a) conservation, (b) conventional oil and gas supplies, (c) coal, (d) synthetic sources of gas and oil, (e) hydroelectric power, (f) nuclear power, (g) energy imports, (h) other energy sources, (i) combination of alternatives; or (3) delay the sale until new technology is developed and/or until pending environmental studies are completed.

      . One of their attorneys did talk with Interi- or officials prior to trial concerning whether the feasibility of federal exploration had been considered.

      . Calvert Cliffs’ Coordinating Comm., Inc. v. AEC, supra, 449 F.2d 1109, at 1128.

      . NRDC v. Morton, supra, 458 F.2d 827, at 836.

      . Plaintiffs offered no evidence concerning the relative possibilities.

      . The frontier area of the Eastern Gulf also was chosen for exploration with the hope of insuring that Outer Continental Shelf production is maintained at least at its present rate. Interior contends that lead time is essential to the Department for a full evaluation of frontier area and for lessees to explore and begin production in such areas if these areas are to be producing at the time other areas have begun to pass their peak production. The commencement of such a new cycle is said to be essential to the future maintenance of a domestic fossil fuel supply. Interior maintains that the MAFLA area is a reasonable frontier for the next exploration since it is adjacent to the existing area and thus facilitates the interchange of personnel, equipment and facilities.

      . Sierra Club v. Lynn, 502 F.2d 43, 61 (5th Cir. 1974).

      . Subsection 102(2)(B) has been held satisfied by a good faith attempt to weight and weigh ecology along with economics in reaching a decision. EDF v. Corps of Engineers (Tombigbee), supra, 492 F.2d 1123, at 1133. See also, Trout Unlimited v. Morton, supra, 509 F.2d 1276, (9th Cir., 1974).

      . 36 Fed.Reg. 19343.

      . 37 Fed.Reg. 15018.

      . EDF v. Corps of Engineers (Tombigbee), supra, 492 F.2d 1123, at 1130, 1136-7, note 23.

      . Additionally, Interior regulations governing oil and gas lease operations in the Gulf of Mexico (30 C.F.R. §§ 250.1 through 250,100), and related Orders and Leasing Regulations (43 C.F.R. §§ 3100.03 through 3130.4-5) should be considered in concert with the impact statement itself since these regulations and orders must be complied with by the lessee throughout the life of the lease just as fully as lease stipulations. Noncompliance with such restrictions, based upon known rather than predicted facts, can result in forfeiture of the lessee’s rights and thus foreclose any further activity within that tract until those requirements are satisfied.

      . Section 5(a)(1), 43 U.S.C. § 1334(a)(1).

      . Section 102, 42 U.S.C. § 4332.

      . Save Our Ten Acres v. Kreger, supra, 472 F.2d 463, at 467.

      . NRDC, Inc. v. Morton, supra, 458 F.2d 827 at 838.

      . Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971).

      . Sierra Club v. Froehlke, supra, 486 F.2d 946 at 952. See also Save Our Ten Acres v. Kreger, supra, 472 F.2d 463 at 466; Jicarilla Apache Tribe of Indians v. Morton, 471 F.2d 1275, 1281 (9th Cir. 1973); EDF v. Corps of Engineers (Gillham Dam), supra, 470 F.2d 289 at 300; Calvert Cliffs’ Coordinating Comm., Inc. v. AEC, supra, 449 F.2d 1109, at 1115; accord.


source: Caselaw Access Project

author: WISDOM, Circuit Judge: RIVES, Circuit Judge

license: Public Domain

text:
    Irby J. ROBERTSON, Sr., Plaintiff-Appellee, v. DOUGLAS STEAMSHIP COMPANY, Defendant-Appellant.
    No. 74-1032.
    United States Court of Appeals, Fifth Circuit.
    March 28, 1975.
    Rehearing and Rehearing En Banc Denied June 17, 1975.

      Ralph E. Smith, Daniel J. Caruso, New Orleans, La., for defendant-appellant.
    William S. Vincent, New Orleans, La., for plaintiff-appellee.
    Before RIVES, WISDOM and COLEMAN, Circuit Judges.
   WISDOM, Circuit Judge:

Douglas Steamship Company, the defendant-appellant, appeals a district court judgment on a jury verdict that awarded a total of $150,000 damages to Irby J. Robertson, a longshoreman who was injured while working on one of Douglas’ vessels. The jury awarded the longshoreman $138,000 in basic damages and $12,000 as compensation for losses due to inflation or the decreased purchasing power of money. We affirm the judgment of the district court with respect to the basic award of $138,000 and we reverse with respect to the $12,000 inflation compensation award.

I.

In November 1970, Irby J. Robertson, a longshoreman employed by Atlantic and Gulf Stevedores, Inc., was injured in two accidents that occurred while he was working in the Port of New Orleans aboard the M/V Inchoma, a vessel owned by the Douglas Steamship Company. The first accident occurred on November 8 when a cargo batten pulled loose while Robertson’s gang attempted to stretch a safety net across the hatch where they were working. The cargo batten struck Robertson in the head and left him stunned for several minutes. Dr. Samuel Romano, a physician retained by the stevedore company, examined Robertson and treated him for contusion of the scalp.

On November 10, the day Robertson returned to work, he was injured again. While he was helping to build a landing platform, a large number of sacks, each filled with 100 pounds of chemical fertilizer, fell on him. The first sack that fell knocked him down into a crouched position so that his knee jammed into his stomach and his body doubled into a knot; the other sacks piled on top of him. Robertson again reported to Dr. Romano-. He complained of a contusion above his left eye as well as various pains in his neck, ribs, knee, and ankle.

From November 10, 1970, until January 11, 1971, Robertson remained under Dr. Romano’s care on an outpatient basis. On January 11, Dr. Romano discharged Robertson and certified him fit to resume work. Thereafter Robertson made numerous visits to Dr. Romano and complained of various pains related to his injuries. Dr. Romano referred Robertson to a neurosurgeon and to an orthopedic consultant for examination. Neither specialist was able to discover the objective cause of Robertson’s pain. Accordingly, Robertson was discharged and received no further treatment from Dr. Romano after June 23, 1971.

In October 1971, the longshoremen were preparing to strike against their employers. Robertson anticipated that he would run short of cash. On his own initiative and without advice of counsel, Robertson settled with Douglas and executed a general release for $2,000. About two months later, Robertson began to suffer epigastric distress in the upper abdomen. Robertson entered Flint-Goodridge Hospital on January 19, 1972 where he was treated for an alleged ulcer-type condition. He was discharged on February 11, but his condition later deteriorated and he was readmitted to the hospital on April 14. Exploratory surgery revealed a fibrous attachment between the transverse colon and the right lobe of the liver. Because the surgeon was interested in the upper rather than the lower abdomen, he did not examine the peritoneal area. He testified however, that Robertson’s continuing downhill medical progression led him to believe that the patient was suffering from some condition that he was unable to diagnose.

On August 11, 1972, Robertson entered Touro Infirmary. There his condition was diagnosed as a very rare disease, idiopathic retroperitoneal fibrosis, a scarring of the peritoneal lining in the lower abdomen. The surgeons operated to free the ureter from the fibrous tissue of the peritoneal lining. Robertson’s condition further deteriorated and he underwent a second operation, this time to have an osphyotomy tube implanted in the right kidney to prevent drainage. Robertson has undergone extensive hospitalization in connection with this condition and will probably require future hospitalization. His medical expenses to the time of trial amounted to $20,000.

Robertson brought this suit in federal district court and it was tried to a jury. As noted, the jury found his damages amounted to $138,000, but awarded him an additional $12,000 to compensate for losses attributable to inflation. Douglas moved for a judgment notwithstanding the verdict or, in the alternative, for a new trial. . The Company appeals the district court’s denial of these post-trial motions.

On this appeal, Douglas Steamship urges three grounds for reversal: first, it contends that the evidence at trial is insufficient to support a finding that Robertson’s condition was caused by either accident aboard the M/V Inchoma; second, that the jury instructions concerning the concept of mutual mistake and the release were incorrect; third, that the instructions concerning the effect of inflation and the decrease in purchasing power of money were incorrect.

II.

At trial, Judge Rubin required the jury to present its verdict in the form of answers to interrogatories. One of these interrogatories asked whether “the M/V Inchoma [was] unseaworthy on November 8 or November 10 or on both dates in a manner that proximately caused Mr. Robinson’s (sic) injuries.” The jury answered affirmatively. This interrogatory directed the jury’s attention to two questions of fact: the unseaworthiness of the vessel and the causal relationship between the vessel’s unseaworthiness and the injuries allegedly sustained by the plaintiff. Douglas contends that the evidence adduced at trial is insufficient to support the jury’s finding that Robertson’s condition, eventually diagnosed as idiopathic retroperitoneal fibrosis, was attributable to either or both of these accidents.

The thrust of Douglas’ argument is that the plaintiff’s expert medical testimony was not sufficiently certain to support the jury’s conclusion. In assessing the defendant’s burden in attacking the verdict, we note first that the trial judge concluded that the evidence was sufficient to allow the case to go to the jury. Moreover, he also concluded that the evidence was sufficient to require the denial of Douglas’ motions for judgment notwithstanding the verdict and for a new trial.

The trial court has the initial responsibility and authority to correct erroneous jury verdicts. “When the ends of justice require it, a federal trial judge has the power and the duty to set aside a jury’s verdict, to grant a new trial, or to grant a judgment notwithstanding the verdict.” Stewart v. Gilmore, 5 Cir. 1963, 323 F.2d 389. But the trial judge cannot and here did not substitute his view of the facts for the jury’s finding. This Court sitting en banc, in a careful and extensively researched opinion by Judge Ainsworth, established the test to be applied in determining the sufficiency of the evidence to submit a case to the jury when there has been a motion for a judgment notwithstanding the verdict. The Court declared:

On motions for directed verdict arid for judgment notwithstanding the verdict the Court should consider all of the evidence — not just that evidence which supports the non-mover’s ease— but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different .conclusions, the motions should be denied, and the case submitted to the jury. . . . However, it is the function of the jury as the traditional finder of the facts, and not the Court, to weigh conflicting evidence and inferences, and determine the credibility of witnesses.

Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365, 374-75.

In the case at bar, the relevant evidence consisted of sophisticated medical testimony concerning an extremely rare disease, the causes of which have not been conclusively established by medical science. Since the causes of this rare disease are not entirely known, Robertson’s expert witnesses were unable to state with certainty that the traumatic injuries sustained in the November 1970 accidents caused the plaintiff’s present condition. Robertson’s experts, however, offered their professional opinion that some causal connection between the accidents and the plaintiff’s present condition was likely.

Dr. Marks of Louisiana State University Medical School, testified that the present state of medical knowledge prevented his saying with certainty that the accident definitely caused the disease. He noted, however, that one possible cause of retroperitoneal fibrosis is an abnormal release of material from fatty tissue. Dr. Marks testified that such a release can be caused by a simple tortional strain, such as that commonly suffered from a heavy weight falling on one’s back; a direct blow to the abdomen is not a necessary element in the causation of such a release. Dr. Marks said that “when a specific, reasonably severe injury occurs . . . some degree of disruption of tissues was possible, and within a reasonable period of time this type of condition developed, I think it would be very difficult not to relate the two in a circumstantial manner.” Finally, he stated that, in his opinion, there was a “logical association” between the accident and the disease, meaning that they were in fact “causally related in some manner.”

Dr. Marks was not the only expert who testified as to causation. Another expert, Dr. Schlegel, testified that “trauma in a patient like Mr. Robinson (sic) •may be an explanation for his retroperitoneal fibrosis, because he has such an unusual reaction to trauma in his connective tissue.”

No expert testimony supports the view that Robertson’s accident could not, theoretically, have caused the disease. The only substantial basis for doubt, apart from that inherent in the present limits of medical knowledge, stems from the fact that the disease was not diagnosed at an earlier stage when Robertson was initially treated. Although the lack of an early diagnosis has common sense credibility as proof that the disease did not exist at the time of diagnosis, and thus could not have been caused by an even earlier accident, the medical experts who testified at trial were unanimous in stating their belief that retro-peritoneal fibrosis simply cannot be diagnosed at an early stage.

Although Dr. Schlegel now believes that the condition was present at the time of Robertson’s operation at FlintGoodridge, he testified that there was no reason for the surgeons to suspect the proper diagnosis at that time, because there was no obstruction of the ureters, which is the key to diagnosis. He said that, in the absence of such an obstruction, retroperitoneal fibrosis would be one of the last things a diagnostician would consider with respect to a patient’s “vague abdominal symptoms”. All of the experts concurred in this view. Moreover, despite Robertson’s inarticulate expression of his symptoms, it must be conceded that he complained of the same epigastric distress throughout his treatment. This fact suggests that, although diagnosis was not feasible, the same condition existed and deteriorated during this period.

There is always some degree of uncertainty when a litigant seeks to establish causation by expert testimony. One well accepted authority states:

Where opinion evidence is relied on to establish the causal link a question of sufficiency may also arise in deciding whether the opinion has been expressed in terms definite enough to support the needed conclusion. If a qualified witness gives it as his opinion that the causal relation did exist or probably did exist, there is not much question about the legal sufficiency of the testimony. But cautious or hostile witnesses are often unwilling to go so far, and there are serious questions and variant rulings about the sufficiency of such expressions as “may have caused”, “possibly caused,” and the like.

2 F. Harper & F. James, The Law of Torts § 20.2, p. 1117-1118 (1956).

Douglas would have us rule that an expert must state categorically that a given result came from a particular cause. But there are situations in which medical experts cannot testify dogmatically as to cause and effect. Justice may also be served when expert witnesses testify candidly, cautiously, and avoiding dogmatic conclusions when the causal relationship between an accident and an injury is a question of fact for the jury to decide.

Our close review of the record in the light of Boeing v. Shipman convinces us that the trial judge correctly denied the defendant’s post-trial motions.

III.

Douglas’ second assignment of error attacks the trial court’s instructions to the jury concerning the validity of the release and the issue of mutual mistake, on the ground that the trial court’s jury instructions should have conformed to Louisiana law, not to general maritime law. Douglas contends that Louisiana law is applicable because the release had “no exclusive maritime purpose” and “was intended only to put to rest the controversy between Robertson and Douglas.” The flaw in Douglas’ argument rests in its failure to acknowledge that the controversy between Robertson and Douglas is based on rights secured to Robertson as a longshoreman protected by maritime law. It is well-established that questions related to substantive rights created in admiralty, such as the validity of a seaman’s release or the effect of mutual mistake, must be determined in accordance with general maritime principles rather than state law. See Garrett v. Moore-McCormack Company, 1942, 317 U.S. 239, 63 S.Ct. 246, 87 L.Ed. 239; Pope & Talbot, Inc. v. Hawn, 1953, 346 U.S. 406, 74 S.Ct. 202, 98 L.Ed. 143. Cf. Stevens, Erie R.R. v. Tompkins And The Uniform General Maritime Law, 64 Harv.L.Rev. 246 (1950). As the Supreme Court said of the longshoreman injured in Pope & Talbot, supra, “he was injured on navigable waters while working on a ship to enable it to complete its loading for safer transportation of its cargo by water. Consequently, the basis of [his] action is a maritime tort, a type of action which the Constitution has placed under national power to control in ‘its substantive as well as procedural features’ ”. 346 U.S. 409, 74 S.Ct. 205.

Gulfwide contends that state law should be applicable because a longshoreman’s contacts with the sea are less substantial than those of a seaman, and less significant than the longshoreman’s contacts with his onshore community. This argument is wide of the mark. For purposes of determining the applicability of general maritime law, a longshoreman injured in the course of his duties stands in the same position as a seaman with respect to “the traditional remedies of the sea.”

IV.

The trial court instructed the jury that the release must be set aside if it was executed as a result of mutual mistake concerning a material fact. Douglas contends that the instruction is erroneous, even if general maintenance law is applicable, because it did not accurately state the general maritime law concerning mutual mistake. We hold that the instructions were sufficiently accurate to inform the jury correctly on the relevant law and to form a basis for its verdict.

A mistake with regard to diagnosis has long been recognized as cause for setting aside a seaman’s release. “A release induced by the diagnosis given by the employer’s doctor should not prevent the award of additional maintenance when the diagnosis is shown to be erroneous, even though it may have been quite honestly made.” Bonici v. Standard Oil Co., 2 Cir. 1939, 103 F.2d 437, 439. See also Wooten v. Skibs A/S Samuel Bakke, 4 Cir. 1970, 431 F.2d 821.

Douglas attempts to distinguish the case at bar on the ground that a physician other than Dr. Romano treated Robertson and thus Robertson cannot be said to have relied entirely on Dr. Romano’s diagnosis when he signed the release. As authority for its position, Douglas relies on language from another Second Circuit case: “[w]hen a seaman has made a settlement after full investigation and with independent advice, we can see no ground for holding it invalid.” Sitchon v. American Export Lines, Inc., 2 Cir. 1940, 113 F.2d 830, 832. In Sitchon, Judge Augustus Hand noted that the plaintiff had in fact been examined by two disinterested physicians relative to his injury and had sought legal advice before settlement. We find the reasoning of Sitchon inapplicable here because the record shows that Robertson’s independently retained physician treated him exclusively for hypertension, a condition in no way related to his accident. There is no evidence in the record that Robertson consulted his personal physician regarding his injuries or that he relied on that physician’s diagnosis in making a settlement; the mere fact that Robertson could have obtained such an opinion if he desired it is irrelevant in the absence of proof that he did obtain it or rely on it.

Douglas points out that a panel of this Court has recently refused to set aside a longshoreman’s release under similar facts in Strange v. Gulf & Southern S.S. Co., 5 Cir. 1974, 495 F.2d 1235. We think that Strange must be distinguished. In that case, the Court said:

The record facts and the applicable authorities do not sustain the challenge based on mutual mistake. There would be little security in the settlement of a personal injury claim if the binding effect of such a settlement depended upon the certainty of the extent and the outcome of the injuries involved. It is the very consequences of these uncertainties which the parties seek to foreclose by settlement and to take their chances on their outcome.

495 F.2d 1235, 1237. While it is true that a release should not be set aside for mutual mistake concerning the extent and outcome of injuries, which are necessarily future rather than present facts, it does not follow that a release should not be set aside for mutual mistake concerning the nature of the injuries, which is a present fact. The legal distinction must rest on the medical difference between diagnosis and prognosis.

A longshoreman who signs a release may have to take his chances that a properly diagnosed condition was the subject of an overly optimistic prognosis and that his injuries may be more serious and extensive than originally thought. However, the law does not require him to take his chances when the diagnosis is itself erroneous and he is suffering from a disease entirely different in nature from that diagnosed. In Robertson’s case, there is evidence in the record that the accident caused the injury now identified as idiopathic retroperitoneal fibrosis. Because the diagnosis did not uncover this disease, Robertson signed the release with the understanding that the nature of his injury consisted of superficial injuries to his neck, back, and limbs. The injury that was later discovered demonstrated a mistake of fact that went not merely to the extent and outcome of his injury, but indicated that he was the victim of an injury entirely different in nature from that diagnosed. This difference supports a finding of mutual mistake of a material fact.

The trial court instructed the jury that “if the parties were not mistaken at the time — if they both acted on the basis of Mr. Robinson’s (sic) condition at the time, there was no mistake, even though his condition later changed.” We think that the instructions taken as a whole fairly represent the applicable law relating to mutual mistake. The jury’s verdict reflects its finding that the parties entered into the release in reliance on a mutual mistake of fact.

V.

The jury awarded Robertson a total of $150,000. Consistent with the trial court’s instructions, the jury divided this award into two parts: the amount of basic damages, which it computed as $138,000, and the amount sustained as a result of loss of future wage increases or inflation or decrease in the purchasing power of money, which it computed as $12,000. Douglas challenges the inflationary compensation award on the ground that such an adjustment, to compensate for the effects of projected inflationary trends, is too speculative to be included as an element of damages. Although some confusion has existed as to the propriety of an award to compensate for inflation, that confusion has now been dissolved by this Court’s recent en banc decision in Johnson v. Penrod Drilling Co., 5 Cir. 1975, 510 F.2d 234, and in Starnes v. Penrod Drilling Co., 5 Cir. 1975, 510 F.2d 234. Despite the inflationary trend now existing in this country, the court noted in Penrod that “we still cannot so surely discern the shadow of inflation as a coming event as to warrant requiring its inclusion in a present rule for calculating future damages.” For the reasons stated in Penrod, we must reverse the district court’s award of $12,-000 as compensation for the future effects of inflation.

Affirmed in part and reversed in part.

RIVES, Circuit Judge

(concurring specially):

As to the reversal of the $12,000.00 inflation compensation award, I am, of course, bound by this Court’s recent en banc decision in Johnson v. Penrod Drilling Co., 5 Cir. 1975, 510 F.2d 234, and in Starnes v. Penrod Drilling Co., 5 Cir. 1975, 510 F.2d 234.

As to the affirmance of the basic award of $138,000.00, I rely upon the rationale suggested by the Supreme Court in Sentilles v. Inter-Caribbean Corp., 1959, 361 U.S. 107 at 109, 110, 80 S.Ct. 173, 4 L.Ed.2d 142 even though Sentilles was a Jones Act case. I adhere to the view expressed in my dissenting opinion in Boeing Company v. Shipman, 5 Cir. 1969, 411 F.2d 365, and therefore think that the standard for judging the sufficiency of the evidence to require submission of a case to a jury in F.E. L.A. cases, Jones Act cases, and all other jury cases is the same constitutional standard. I think that the evidence in this case as recited in the majority opinion met the constitutional standard. I therefore specially concur.

      . The eye witnesses were unable to agree on the precise number of sacks that hit Robertson, but some estimates set the number at more than one hundred.

      . The proposition urged by the defendant is not entirely clear because it seems to us internally inconsistent:
      The prevailing view is that opinion testimony of expert medical witnesses, with respect to causation, is admissible if it states that the cause produced, probably produced, or might have produced the result. An expert medical witness must testify that, in his professional opinion, the result in question came from the cause alleged. It is not enough that he testify that the result probably came therefrom. ... If the medical experts had testified that the injuries of November 8 and 10, 1970, could have brought about Robertson’s condition, or if they had indicated the possibility of a causal relationship, the jury might well have concluded that Robertson’s condition did so result.
      Appellant’s brief, pp. 12-13 (footnotes omitted, emphasis added). The rule stated in the second and third sentences of this passage is incorrect. The proper test is stated in the first and fourth sentences, and the expert evidence adduced at trial clearly satisfies the requirements of that test.

      . 1A Benedict, On Admiralty § 13, p. 1-24 (7th ed., 1973). Cf. W. J. McCahan Sugar Refining & Molasses Co. v. Stoffel, 3 Cir. 1930, 41 F.2d 651. The events underlying this controversy took place before the enactment of the 1972 Amendments to the Longshoremen’s and Harbor Workers’ Act. For an account of those amendments, See 1972 U.S.Code Cong. & Admin.News, p. 4698 et seq.

      . It must also be remembered that the party who attempts to rely on a maritime release has the burden of proving its validity. Superior Oil Co. v. Trahan, 5 Cir. 1963, 322 F.2d 234. See also 1 Edelman, Maritime Injury And Death, § IX, p. 442 (1960); Zoldan v. American Export Isbrandtsen Lines, Inc., S.D. N.Y.1969, 302 F.Supp. 388; Law v. United Fruit Co., 2 Cir. 1959, 264 F.2d 498; Hume v. Moore-McCormack Lines, Inc., 2 Cir. 1941, 121 F.2d 336.

      . The record also reveals that Robertson, a man of limited intellectual capacity and educational attainments, did not have advice of counsel when he signed the release.


author: J. JOSEPH SMITH, Circuit Judge:

text:
    KAMA RIPPA MUSIC, INC., Plaintiff-Appellant, v. Ms. Melanie SCHEKERYK, Defendant-Appellee, and Ms. Melanie Schekeryk and Peter Schekeryk, Individually and d/b/a Amelanie Music, Defendants. Melanie SCHEKERYK, Counterclaimant-Appellee, and Ms. Melanie Schekeryk and Peter Schekeryk, Individually and d/b/a Amelaine Music and Two People Music, Counterclaimants, v. KAMA RIPPA MUSIC, INC., Counterdefendant-Appellant, and Kama Sutra Music, Inc. and Buddah Records, Inc., Counterdefendants.
    No. 472, Docket 74-2153.
    United States Court of Appeals, Second Circuit.
    Argued Jan. 6, 1975.
    Decided Feb. 10, 1975.

      Fred J. Halsey, Jr., New York City (Emil, Kobrin, Klein & Garbus, New York City, Martin Garbus, Renee J. Roberts and Thomas D. Selz, New York City, of counsel), for plaintiff-appellant.
    Sandor Frankel, New York City, for defendant-appellee.
    Before SMITH, OAKES and TIMBERS, Circuit Judges.
   J. JOSEPH SMITH, Circuit Judge:

Kama Rippa Music, Inc., a plaintiff seeking specific performance of its recording agreement with a popular songwriter and performer, appeals from an order of partial summary judgment against it. By memorandum opinion of June 17, 1974, the United States District Court for the Southern District of New York, Whitman Knapp, Judge, entered on July 18, 1974 an order and judgment summarily granting the defendant artist-composer, Ms. Melanie Schekeryk— better known as “Melanie” — the declaratory and injunctive relief requested in two counterclaims. Thus, finding that Kama Rippa had failed to pay royalties to Melanie within the time limitations established by the parties’ contract, the court declared that the rights to compositions submitted by Melanie under the contract had reverted to her and enjoined Kama Rippa from representing that it retains any interest in these compositions or trying to collect royalties on them. Federal jurisdiction over the claims is based on diversity of citizenship, 28 U.S.C. § 1332, with New York law governing by prior contractual agreement of the parties; and this court’s jurisdiction with related claims pending in the district court relies upon the district court’s express determination of no just reason for delay and its express direction to enter final judgment on its order, as required by Fed.R.Civ.P. 54(b). The appellant offers three independent grounds for overturning Judge Knapp’s order: The court misconstrued the parties’ contractual obligations; the appellant’s failure to fulfill its part of the agreement is excused due to impossibility of performance; and the court’s declaration that Kama Rippa had forfeited the composition rights ignores fundamental equitable considerations. We conclude that the district court committed none of the alleged errors in its adjudication of the two counterclaims, and affirm the judgment below.

I. BACKGROUND OF THE DISPUTE

In May, 1968, Melanie signed a contract (“Songwriter’s Agreement”) with Kama Rippa under which Melanie would deliver musical compositions to Kama Rippa, which would publish them and divide the resulting royalties with Melanie. Various riders were soon appended to the agreement and one figures prominently in this appeal. This rider to paragraph six, set forth in the margin, makes payment of royalties to Melanie “of the essence,” limits the excuses for failure to make timely payment to acts of nature and the like, and penalizes unexcused failures of this sort by a .reversion to Melanie of the full rights to the compositions.

Within a few months, Melanie contracted with another member of “The Kama Sutra Group,” Buddah Records, to record various of her compositions for release by Buddah. By May, 1971, sufficient friction had developed between the parties to induce Melanie to sign with Paramount Records; Melanie’s settlement with Buddah, however, allowed the latter to retain the rights relating to any recordings to date.

Melanie also undertook about that time to settle her further obligations to Kama Rippa under the Songwriter’s Agreement. The resultant “Letter Agreement” of August, 1971, required Melanie to deliver 20 musical compositions and to “record” within two years of the agreement at least three of the 20. Joint Appendix at 201A. In addition, if Melanie did not meet her recording obligation, she would pay Kama Rippa liquidated damages of $25,000 per unfinished recording, and Kama Rippa would be obliged to treat such payments “as full compensation and the sole remedy for any failure by Melanie Schekeryk to record musical compositions in accordance with the provisions of this Agreement.” Id. at 202A. The Letter Agreement established Melanie’s rights in the 20 compositions by reference to the Songwriter’s Agreement and another agreement (not of immediate interest), “including, without limitation, any causes of action or counterclaims that they [Melanie and her publishing partnership] may have arising out of same.” Id.

A signal that trouble lurked on the horizon came in February, 1973, when Kama Rippa neglected to pay Melanie her share of the royalties due, under the Songwriter’s Agreement, “on or about each February 15th.” After an insistent letter by Melanie, Kama Rippa did meet its February obligations in March. By August 15, the next due date, however, the parties’ differences had surfaced all too clearly and Kama Rippa’s deferral of payment had no element of accident in it. The events culminating in the litigation now in part before us began with a series of letters from Kama Rippa to Melanie. These charged that Melanie had breached the Letter Agreement by recording but not also releasing three songs. Kama Rippa met Melanie’s disclaimer of any such obligation by withholding the royalties due in August. Melanie sent written notice to Kama Rippa of its tardiness as the predicate (prescribed by the rider to paragraph six of the Songwriter’s Agreement) to pursuing her remedies for untimely payment. On August 31, Kama Rippa filed suit in federal district court for specific performance of Melanie’s alleged obligation to release three songs. Melanie accompanied her general denial of the complaint with numerous counterclaims and moved for summary judgment on various of the latter. In mid-September, Kama Rippa reiterated its still-undecided claim in a suit filed in New York state court and successfully invoked N.Y.Civ. Prac.R. 6212(a) (McKinney 1963) to obtain a court order attaching almost its entire indebtedness to Melanie. Subsequently, Kama Rippa justified its refusal to pay Melanie in terms of its inability to defy a court order — this attachment secured on Kama Rippa’s own motion. When the state court finally vacated its order on technical grounds, Kama Rippa mailed off a check to Melanie for the sum owed. But the 30-day grace period after which forfeiture of composition rights would, if properly invoked, transpire had already long since run. And the district court, while deferring a ruling on the complaint until after an evidentiary hearing, found that forfeiture had indeed been properly invoked by Melanie’s counterclaims and, accordingly, granted her the requested declaratory and injunctive relief.

II. CONSTRUCTION OF CONTRACTUAL OBLIGATIONS

Kama Rippa maintains that Melanie’s right to the royalties guaranteed her under the Songwriter’s Agreement is contingent upon performance of her duties under the subsequent Letter Agreement. The district court did not so find and Kama Rippa attributes this to the court’s allegedly erroneous refusal to consider evidence extrinsic to the written agreements in determining their meaning.

The appellant attempts to establish this basis for reversal with various arguments so vague and amorphous as to engender doubts about Kama Rippa’s own confidence in their substance. The apparent thrust of its “Point I” is that the district court ignored the interdependence of the Songwriter’s Agreement and Letter Agreement in construing them. This argument fails for its fictitious characterization of the district court’s analysis, which plainly did reconcile the two agreements in arriving at the conclusion that Kama Rippa’s duty to pay royalties and Melanie’s to “record” three songs — whatever that may ultimately be determined to require — were not mutually dependent. See Joint Appendix at 422-424A. The ultimate good sense of the district court’s reconciliation of the two agreements, moreover, should be apparent from the most cursory consideration of the Letter Agreement’s provisions, quoted supra, that liquidated damages would be the “sole” remedy for Melanie’s breach of her obligation to “record” three songs and that Melanie’s rights in the 20 new compositions include all claims arising out of the Songwriter’s Agreement.

“Point II” of the appellant’s brief, that Kama Rippa was wrongfully denied the opportunity to present extrinsic evidence to explain ambiguous contractual language, also rests upon a specious characterization: that the agreements contain ambiguities requiring clarification by extrinsic evidence. Kama Rippa quite extensively cites authority for considering extrinsic evidence of subjective intent to plumb the meaning of ambiguous language. See, e. g., Eskimo Pie Corp. v. Whitelawn Dairies, Inc., 284 P.Supp. 987 (S.D.N.Y.1968). It neglects to isolate, however, any ambiguity besetting the critical language in the Letter Agreement discussed immediately above or, with minor exception, the all-important rider to paragraph six. Kama Rip-pa’s attempt to clothe this argument in innocent trappings, moreover, should not be allowed to obscure its effort to vary, rather than elucidate, the terms of an agreement by extrinsic evidence — an activity which courts have repeatedly refused to indulge. See, e. g., Pink v. American Surety Co. of New York, 283 N.Y. 290, 296, 28 N.E.2d 842 (1940). The district court acted correctly, therefore, in excluding evidence offered to prove custom and usage in the industry, for Kama Rippa offered it to belie the clear objective intent of the provision authorizing forfeiture rather than to shed light on any ambiguities in the provision.

Nor does the heterogeneous mix of attacks on the judgment collected under Kama Rippa’s “Point III” bring the validity of the district court’s construction of the parties’ contractual obligations into serious question. Thus, the court’s reliance on eases indicating that the language in a rider takes precedence over the printed parts of the contract resists the appellant’s attempt to limit the cases cited to their specific facts. Of the three cases noted by the court, Kratzenstein v. Western Assurance Co., 116 N.Y. 54, 22 N.E. 221 (1889); Robertson v. Charles Frohman, Inc., 198 App.Div. 782, 191 N.Y.S. 55 (1st Dept. 1921), appeal dismissed, 233 N.Y. 530, 135 N.E. 905 (1922); Collins v. Knuth, 51 App.Div. 188, 64 N.Y.S. 549 (2d Dept. 1900), only Robertson could even arguably be so distinguished. In addition, the appellant’s objection fails to grapple with the numerous other cases which the court very properly might have cited for support. See, e. g., Chadsey v. Guion, 97 N.Y. 333 (1884); Feldman v. Fiat Estates, Inc., 25 A.D.2d 750, 268 N.Y.S.2d 949 (2d Dept. 1966). Similarly insubstantial is the appellant’s challenge to the court’s consideration of the parties’ conduct as a guide in construing the agreements. In concluding its analysis that Melanie’s right to receive royalties was independent of her duty to “record,” the court sought to dispel “any lingering doubt” about this holding by reconstructing the parties’ “practical interpretation” of their duties. Shortly before the expiration of the 30-day grace period, Kama Rippa obtained the court order attaching its indebtedness to Melanie; and Kama Rippa paid off the debt on the day that the attachment became ineffective. Joint Appendix at 424A. Although the parties’ apparent construction of the agreement, as evidenced by this conduct, would not necessarily bind the court, it is obviously information which a court seeking to resolve any ambiguities in a contract would rightly wish to consider. Brooklyn Public Library v. City of New York, 250 N.Y. 495, 500-501, 166 N.E. 179 (1929). In the instant case, Kama Rip-pa’s conduct strongly suggests that it understood that its duty to pay royalties was independent of Melanie’s to “record,” and the district court could properly marshal this evidence of practical interpretation to support its construction of the parties’ obligations.

As the district court found, Kama Rip-pa’s obligation to make royalty payments under the Songwriter’s Agreement and Melanie’s to “record” three songs under the Letter Agreement are independent of one another. Melanie’s possible breach of her duty, the subject of proceedings pending in the district court, would not excuse Kama Rippa’s failure to perform its duty. The court’s exclusion of extrinsic evidence was warranted in view of the objective clarity of the instruments. Since resolution of this interdependence claim placed no material issue of fact in genuine dispute, summary judgment was appropriate in this respect. Fed.R.Civ.P. 56(c).

III. IMPOSSIBILITY

The appellant also seeks to justify its late payment on grounds of force majeure: Payment was “impossible,” in the contractual sense, 6 A. Corbin, Contracts § 1325 (2d ed. 1962), because it would involve violation of a court order. Since this court order, an attachment of Kama Rippa’s indebtedness to Melanie, was procured by Kama Rippa itself, a defense of impossibility is as audacious as it is frivolous.

The party pleading impossibility as a defense must demonstrate that it took virtually every action within its powers to perform its duties under the contract. 407 East 61st Garage, Inc. v. Savoy Fifth Avenue Corp., 23 N.Y.2d 275, 281-282, 296 N.Y.S.2d 338, 343-344, 244 N.E.2d 37 (1968); Cameron-Hawn Realty Co. v. City of Albany, 207 N.Y. 377, 381, 101 N.E. 162 (1913); Standard Oil Co. of New York v. Central Dredging Co., 225 App.Div. 407, 410, 233 N.Y.S. 279, 282 (3d Dept.), aff’d mem., 252 N.Y. 545, 170 N.E. 137 (1929). To recognize impossibility where, as in the ease before us, the party pleading the defense has intentionally incapacitated itself from performing would defy this case law and all good sense. Cf., Spanos v. Skouras Theatres Corp., 364 F.2d 161, 168-169 (2d Cir.) (en banc), cert. denied, 385 U.S. 987, 87 S.Ct. 597, 17 L.Ed.2d 448 (1966). In allowing a party to attach its own indebtedness, therefore, the New York legislature could not have intended that the party exploit the court’s order of attachment to avoid its contractual obligations.

The district court correctly held that Kama Rippa could not bootstrap an attachment order imposed on Kama Rip-pa’s own motion into a contractual defense of impossibility. The attachment of its indebtedness to Melanie thus in no way excused the appellant’s failure to pay Melanie her share of the royalties on time.

IV. THE INEQUITY OF FORFEITURE

The appellant’s two remaining defenses invoke equitable considerations in its behalf. First, Kama Rippa contends that the district court cannot, under accepted principles of restitution law, order forfeiture until Melanie' compensates Kama Rippa for its expenditures on the musical compositions, the subject matter of the restitution sought. When the court denied this claim in ruling on the appellant’s post-trial motions — the time at which the appellant first presented this argument — it relied upon the appellant’s mischaracterization of the relief ordered: Restitution law is inapplicable, the court held, because its order granted specific performance rather than restitution. Joint Appendix at 495A. Concededly, this resolution of the claim may be unsatisfactorily semantic. A more compelling consideration, though, is Kama Rippa’s collection to date of significant sums of money rewarding its efforts and expenditures in developing the compositions into valuable property. Whatever the proper designation for the relief ordered, therefore, Kama Rippa’s claim would not be recognized because it relies upon alleged facts lacking support in the record.

The appellant’s second invocation of the equities is more generic but no more convincing. Kama Rippa is protected from forfeiture, it argues, by equity’s strong distaste for imposing so harsh a remedy for breach. But while equity does traditionally disfavor forfeitures, it does not license judicial eradication of rights, such as Melanie’s to secure a reversion, clearly vested by the contracting parties as part of their bargain. Cf., Kern River Co. v. United States, 257 U.S. 147, 155, 42 S.Ct. 60, 66 L.Ed. 175 (1921). In addition, since equity’s distaste for forfeitures is almost certainly matched by its repugnance for petitioners beseeching its aid with “unclean hands,” 2 J. Pomeroy, Equity Jurisprudence § 400 (5th ed. 1941), there should be little question that the plea to equity of a party which attaches its own indebtedness as a ploy to avoid its contractual duties will fall upon deaf ears.

The appellant’s objections to the district court’s judgment as equitably unsound are without merit. Since Kama Rippa’s arguments that its late payment of royalties to Melanie was excused by her alleged breach of the Letter Agreement or by impossibility of performance also fail, we affirm the district court’s summary judgment.

Affirmed.

      . The payment of royalties when due are of the essence. Accordingly, if Publisher fails to account and pay royalties in accordance with this Paragraph [Six of the Songwriter’s Agreement, calling for payment at six-month intervals] and such failure and default continues following thirty (30) days written notice of such failure and default, this -agreement shall terminate and all rights in and to the compositions theretofore covered shall revert to the Writer. This provision may be specifically enforced. However, notwithstanding anything to the contrary above, if performance of Publisher’s obligation under this Agreement is delayed .or becomes impossible or impractical by reason of any act of God, fire, earthquake, strike, labor disturbance, civil commotion, acts of government, its agencies or officers, any order, war (whether or not officially declared) regulation, ruling or action of any labor union or association of composers or employees affecting Publisher or the industry in which it is engaged or delays in the delivery of material and supplies, or for any similar or dissimilar reason Publisher may, upon notice to writers, suspends [sic] its obligations including its obligations to make payments hereunder for the duration of such delay, impossibility, impractability [sic], as the case may be.
      Joint Appendix at 198A.

      . On a motion for an order of attachment the plaintiff shall show, by affidavit and such other written evidence as may be submitted, that there is a cause of action and the one or more grounds for attachment provided in section 6203 [sic 6201] that exist and the amount demanded from the defendant above all counterclaims known to the plaintiff.

      . The state Supreme Court for New York County, Markowitz, J., vacated the attachment order because the sum attached ($75,-000) fell short of Kama Rippa’s acknowledged indebtedness to Melanie (approximately $80,-000). Joint Appendix at 238-239A.

      . Typical of the non sequiturs upon which Kama Rippa builds its arguments is its reliance here on cases affirming that documents “that form part of a single transaction and are designed to effectuate the same purpose be read together,” Gordon v. Vincent Youmans, Inc., 358 F.2d 261, 263 (2d Cir. 1965), for authority that the obligations established in the several documents are necessarily mutually dependent.

      . The single incident of ambiguity noted by Kama Rippa is the languge “or dissimilar reasons” in the rider to paragraph six, see note 1 supra, at the end of the list of acts of nature and the like which would excuse untimely payment of royalties. To give effect to the spirit of the provision, the court, Joint Appendix at 423A n. 5, felt it necessary to disregard the phrase — a tack supported by New York contract law. First National Bank of East Islip v. National Surety Co., 228 N.Y. 469, 472-473, 127 N.E. 479 (1920); Potthoff v. Safety Armorite Conduit Co., 143 App.Div. 161, 163, 127 N.Y.S. 994, 995 (2d Dept. 1911); Auerbach v. Mr. & Mrs. Foster’s Place, 128 Misc. 875, 220 N.Y.S. 281, 285 (Manhattan Mun.Ct., 4th Dist. 1927). See generally, 3 S. Williston, Contracts § 619, at 1782-1784 (rev. ed. 1936 S. Williston & G. Thompson eds.). Alternatively, the court might have assimilated the clause to the remainder of the provision by invoking ejusdem generis and, hence, construing this final and most generic term in a series in light of the more specific terms preceding it. Cf. Bers v. Erie R. R., 225 N.Y. 543, 546, 122 N.E. 456 (1919). The result under this latter analysis would duplicate the court’s — a further confirmation of the validity of the court’s construction.

      . The ostensibly lawful purpose of the self-imposed attachment would appear to be to facilitate acquiring jurisdiction. Cf., McLaughlin, Supplementary Practice Commentary, N.Y. Civ.Prac. § 6201 (McKinney Supp. 1974-75).

      . Thus, the parties’ Co-Publishing Agreement executed at the time of the Songwriter’s Agreement to detail the financial aspects of the relationship, established, Supplemental Appendix of Appellee at 3a:
      5. Publisher agrees to and shall pay to the Participant, after recoupment of all advances made by Publisher to Participant hereunder, fifty (50%) percent of the net income actually received and derived from the musical composition from the aforementioned territory, except as herein otherwise specifically provided. Net income for the purposes of this Agreement shall be gross receipts less:
      (A) Royalties and other sums payable to the authors and/or composers of the musical compositions, and/or other parties, if any, which are to be paid by Publisher directly to such authors and/or composers.
      (B) Specific mutually agreed upon exploitation expenses.
      (C) Costs of printing, engraving, arranging and editing printed editions of the musical compositions.
      (D) The costs of making demonstration records, however said costs shall not exceed One Hundred Twenty Five ($125) Dollars per musical composition for which a demonstration record is made.
      (E) Ten (10%) percent of the gross receipts derived from the musical compositions to cover Publisher’s administrative charge for such items as bookkeeping, handling and other general administrative costs, including the cost of lead sheets and copyright registration fees.
      (F) The costs of the foreign collection or other fees actually charged by a collection agent who renders services with respect to the musical compositions subject hereto (provided that such collection fees shall not be in excess of those customarily imposed on music publishers throughout the industry) and any charges of any sales agents employed to sell any printed editions made of a composition subject hereto.