author: FRIENDLY, Circuit Judge:

text:
    ILIGAN INTEGRATED STEEL MILLS, INC., et al., Plaintiffs-Appellants, v. SS JOHN WEYERHAEUSER, her engines, boilers, etc., et al., Defendants-Appellees-Appellants.
    Nos. 196, 492, 493, Dockets 74-1553, 74-1574, 74-1677.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 13, 1974.
    Decided Dec. 3, 1974.

      David L. Maloof, New York City (Donovan, Donovan, Maloof & Walsh, New York City, of counsel), for plaintiff s-appellants.
    William Warner, New York City (Symmers, Fish & Warner, New York City, of counsel), for defendant-appellee-appellant Weyerhaeuser Co.
    M. E. Deorchis, New York City (LeRoy S. Corsa, Brian D. Starer, and Haight, Gardner, Poor & Havens, New York City, of counsel), for defendant-appellee-appellant New York Navigation Co., Inc.
    Before FRIENDLY, FEINBERG and GURFEIN, Circuit Judges.
   FRIENDLY, Circuit Judge:

In this action for cargo damage in the District Court for the Southern District of New York, cargo appeals from that part of the judgment which limited its claim against the ship, its owner, and the time charterer to $500 per package pursuant to § 4(5) of the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(5), perhaps only some $94,000, as against approximately $2,200,000 which represents the full amount of damage to cargo. The ship and its owner appeal from so much of the judgment as awarded the time charterer indemnity for all of its attorneys’ fees incurred in resisting cargo’s claims. The action, tried before the late Judge McLean, was disposed of in a thorough opinion by Judge Ward, 372 F.Supp. 859 (S.D.N.Y.1974), whose statement of the facts we incorporate by reference. Since we are substantially in agreement with Judge Ward’s opinion, we shall limit ourselves to a few observations.

It is not disputed that the cause of the virtual destruction of plaintiff’s shipment of 188 pieces of valuable machinery and parts for a steel mill was “a massive entry of seawater into the [ship’s] # 3 hold, which slowly permeated the fertilizer [stowed in that hold], formed a slurry, and finally burst through the [temporary] non-watertight bulkhead into the # 2 hold, inundating and destroying the Ili-gan cargo.” Id. at 863. The entry of seawater was due to a defect which had developed in “a pipe called a sanitary or soil line which drains from the crew’s toilets, exits the ship through an opening in the hull, and permits waste to be discharged outside the ship”, id. at 862. Resting on lugs over the opening of the pipe was a cover plate, called a clapper valve, which was below the level of the sea when the vessel was fully loaded; the plate was designed to swing open to allow the discharge of waste but then to close and, resisting the pressure of the ocean, prevent the entry of seawater. A damage survey after the vessel’s arrival in the Far East showed that the lugs were “completely corroded with rust, so that the valve was frozen in an open position, and the sanitary line pipe was corroded through, with a hole approximately 2" by Vk",” 372 F.Supp. at 863, through which water entered the # 3 hold. The district judge found that the ship and its owner had not sustained their burden of proving the exercise of due diligence to make the ship seaworthy under § 4(1) of COGSA, 46 U.S.C. § 1304(1), and that New York Navigation Company, the time charterer, had breached a contractual warranty to furnish a seaworthy ship — rulings from which these parties have not appealed. However, he limited the liability of the defendants to $500 per package under § 4(5).

Plaintiff’s principal contention in the trial court and on appeal, for the award of full damages against the ship and its owner, is based on what the judge called “a novel theory”, 372 F.Supp. at 865. It is premised on a factual claim that the owner was on notice of the defect before the voyage began. Building on this, plaintiff contends that the owner’s conduct constituted such gross negligence or wilful and wanton misconduct as to constitute an “unreasonable deviation” from the contract of carriage, and that such a deviation should “oust” the contract and deprive the carrier of the protection afforded by § 4(5). Since Judge Ward found that “plaintiff has not proved that Weyerhaeuser knew or must have known of the unseaworthy condition of the ship” prior to the trans-Pacific voyage, 372 F.Supp. at 865, he did not decide what result a contrary conclusion would have demanded. Although we do not consider the judge’s conclusions to be in error, even under this circuit’s standard for review, Mamiye Bros. v. Barber SS Lines, Inc., 360 F.2d 774, 776-778 (2 Cir.), cert. denied, 385 U.S. 835, 87 S.Ct. 80, 17 L.Ed.2d 70 (1966); Esso Standard Oil Co. v. S.S. Gasbras Sul, 387 F.2d 573 (2 Cir. 1967), cert. denied, 391 U.S. 914, 88 S.Ct. 1808, 20 L.Ed.2d 653 (1968); Cleary v. United States Lines Co., 411 F.2d 1009, 1010 (2 Cir. 1969), the question is likely to arise again. Since it has been thoroughly argued, we think it desirable, as an alternative ground of decision, to reject the legal theory advanced by the plaintiff.

Plaintiff’s argument, rearranged and supplemented to give it greater forcefulness, is essentially as follows: The cornerstone of the argument is The Will-domino, 272 U.S. 718, 725, 47 S.Ct. 261, 261-262, 71 L.Ed. 491 (1927), a pre-COG-SA case in which a ship left port with a grossly inadequate supply of coal, known to be so by the carrier, which necessitated a departure from her course. During the deviation the ship struck a reef or a submerged object which caused water to enter and damage the cargo. The Supreme Court held, speaking through Mr. Justice McReynolds, that when a loss occurred during an unreasonable deviation from the agreed course of the voyage, the ship “became liable as an insurer for any damage suffered by the cargo” and could not avail itself of the Harter Act, 27 Stat. 445 (1893), exception “for damage or loss resulting from faults or errors in navigation or in the management” of the vessel. A prior English case, Joseph Thorley, Ltd. v. Ortus S.S. Co., Ltd., [1907] 1 K.B. 660, 668 (C.A.), had similarly held that an unreasonable deviation from the intended path of the voyage deprived the ship of the benefit of exceptions in the bill of lading. Subsequently, after adoption of the English Carriage of Goods by Sea Act, 1924, which like COGSA was derived from the Hague Rules and the Brussels Convention, the House of Lords held in Stag Line, Ltd. v. Foscolo Mango & Co., Ltd., [1932] A.C. 328 (1931), that the Thorley principle continued to prevail despite the fact that Art. IV-5 of the English statute, the equivalent of § 4(5) of COGSA, on its face contained no exception for losses due to unreasonable deviation. Lord Atkin there stated:

I pause here to say that I find no substance in the contention faintly made by the defendants that an unauthorized deviation would not displace the statutory exceptions contained in the Carriage of Goods by Sea Act. I am satisfied that the general principles of English law are still applicable to the carriage of goods by sea except as modified by the Act: and I can find nothing in the Act which makes its statutory exceptions apply to a voyage which is not the voyage the subject of “the contract of carriage of goods by sea” to which the Act applies.

Id. at 340. Reaching the same conclusion, Lord Russell of Killowen said:

It was well settled before the Act that an unjustifiable deviation deprived a ship of the protection of exceptions. They only applied to the contract voyage. If it had been the intention of the legislature to make so drastic a change in the law relating to contracts of carriage of goods by sea, the change should and would have been enacted in clear terms.

Id. at 347.

Plaintiff’s next building stone is St. Johns N.F. Shipping Corp. v. S.A. Com-panhia Geral Commercial, 263 U.S. 119, 44 S.Ct. 30, 68 L.Ed. 201 (1923), which, like The Willdomino, preceded COGSA. Unlike the cases of geographical deviation discussed up to this point, here the vessel had breached its agreement to stow a cargo of barrels containing rosin under deck and they had to be jettisoned during a storm. The Court, again speaking through Mr. Justice McReynolds, said:

By stowing the goods on deck the vessel broke her contract, exposed them to greater risk than had been agreed and thereby directly caused the loss. She accordingly became liable as for a deviation, cannot escape by reason of the relieving clauses inserted in the bill of lading for her benefit, and must account for the value at destination.

Id. at 124 — 125, 44 S.Ct. at 31 (footnotes omitted).

The next element vital to the construction of plaintiff’s argument is Jones v. The Flying Clipper, 116 F.Supp. 386 (S.D.N.Y.1953), where Judge Weinfeld, drawing these lines of authority together, ruled that when the ship had breached its carriage agreement by transporting cargo on deck, which the St. Johns case forced the carrier to concede to be “a ‘deviation’ in law”, 116 F.Supp. at 387, the ship could not avail itself of § 4(5) of the COGSA. The final block supporting plaintiff’s argument, which it has not cited to us, was this court’s approval of The Flying Clipper in Encyclopaedia Britannica, Inc. v. S.S. Hong Kong Producer, 422 F.2d 7, 18 (2 Cir. 1969), cert. denied, 397 U.S. 964, 90 S.Ct. 998, 25 L.Ed.2d 255 (1970).

Relying on this structure, plaintiff urges that we should expand the concept of “quasi deviation”, see 2 Carver, Carriage by Sea, §§ 750, 750A, 750B (12th ed. 1971), which entitles the shipper to treat the carriage contract as abrogated, thereby eliminating the damage limitation contained in § 4(5) of COGSA, to include gross negligence or wanton and wilful misconduct in tendering an unsea-worthy ship.

We think the principle of “quasi-deviation” is not one to be extended. As previously noted, even the holding that a deviation in the geographical sense voids limitations on the carrier’s liability seems inconsistent with the language of COG-SA. It has been justified in part by what is — or at least was — the especially serious effect of such a deviation on the shipper. As Lord Atkin explained in Hain S.S. Co. v. Tate & Lyle, 41 Com. Cas. 359, 55 L1. L.R. 159, 173 (1936), quoted in 1 Carver, supra:

No doubt the extreme gravity attached to a deviation in contracts of carriage is justified by the fact that the insured cargo-owner when the ship has deviated has become uninsured.

See to the same effect Gilmore & Black, Admiralty § 3.40 at 156 (1957), also questioning whether the premise with respect to marine insurance is true today, and The Citta di Messina, 169 F. 472, 474-475 (S.D.N.Y.1909) (“ ‘deviation’ is a term of art, belonging in the main to the law of marine insurance”, Hough, /.). Up to this point the concept of “quasi deviation” in the United States has recognized only one instance, deck stowage of cargo which the carrier had agreed to carry below deck, for which the carrier becomes liable in full as an insurer of the shipper’s cargo. Whatever may be thought of that principle, it is easy to administer and carriers know the risks.

In contrast, acceptance of plaintiff’s argument would mean that in almost all cases of loss due to unseaworthiness, in addition to the inquiry, directed by § 4(1) of COGSA, whether the carrier had used due diligence to make the ship seaworthy, with the burden cast on the carrier or other person claiming exemption under that section, shippers or, realistically, their insurers would demand a further inquiry into the degree of the carrier’s culpability, with enormous potential liability, as illustrated by this case, riding on the decision of the fact finder, protected in many circuits by the “unless clearly erroneous” rule, .see, e. g., Merritt v. Interstate Transit Lines, 171 F.2d 605, 608-609 (8 Cir. 1948); Imperial Oil Co. v. Drlik, 234 F.2d 4, 10 (6 Cir.), cert. denied, 352 U.S. 941, 77 S.Ct. 261, 1 L.Ed.2d 236 (1956); Pacific Tow Boat Co. v. States Marine Corp., 276 F.2d 745, 752 (9 Cir. 1960), and enjoying great weight even in this one. This is a quite different matter from introducing the concept of gross negligence on the limited issue of whether a geographical deviation was unjustifiable. See The Will-domino, supra, 272 U.S. at 725-728, 47 S.Ct. 261; The Waalhaven, 36 F.2d 706, 709 (2 Cir. 1929), cert. denied, 281 U.S. 747, 50 S.Ct. 352, 74 L.Ed. 1159 (1931). The difficulties that have been experienced in defining and applying varying degrees of negligence or even the concept of “wilful and wanton” are indicated in Prosser, Torts § 34 (4th ed. 1971). In the case of international air transportation, when it was desired that a limitation on liability should be lost by wilful misconduct, clear language appropriate to that end was used. Warsaw Convention, Art. 25, 49 Stat. 2 at 3000, 3020. If cases relating to pre-COGSA facts are relevant, as they unquestionably are, see Gilmore & Black, supra, § 3.25 at 127, Royal Insurance Co., Ltd. v. United States, 87 F.2d 714, 716 (2 Cir. 1937) is very much in point. Distinguishing cases such as The Willdomino where the known unseaworthiness made completion of the agreed voyage impossible without geographical deviation, we there held that the fact that the owner’s officers “determined to take a chance and needlessly risked new perils in the voyage” did not justify applying the doctrine of deviation so as to disregard provisions of the bill of lading with respect to giving notice of damage. In sum, loss due to an allegedly exceptional degree of negligence in furnishing an unseaworthy ship falls into Lord Diploek’s category of risks concerning which “it is more practical and economical from the point of view of insurance to spread the risk to the cargo in excess of a fixed limit among a number of cargo insurers rather than to concentrate it in the carrier’s [protection and indemnity] insurer.” Diplock, Conventions and Morals — Limitation Clauses in International Maritime Conventions, 1 J.Mar.L. & Comm. 525, 528-29 (1970).

We agree with and have nothing significant to add to Judge Ward’s disposition of Iligan’s other arguments against the ship and its owner, and also against the time charterer, New York Navigation Co., Inc., which had agreed to provide seaworthy ships for the transportation of Iligan’s machinery.

We likewise adopt the portion of Judge Ward’s opinion, 372 F.Supp. at 872, allowing New York Navigation to recover from the ship and its owner all the attorneys’ fees which it incurred in resisting Iligan’s claims. Although some of these concerned the effect of New York’s warranty of seaworthiness as against the lesser liability imposed by § 4(1) of COGSA and the necessity of having to field Iligan’s attempts to show that New York had not effectively incorporated the COGSA limitation, these were foreseeable consequences of the breach of the warranty of seaworthiness in the time charter. New York may also recover attorneys’ fees for resisting Ili-gan’s claims in this court. If the parties are unable to reach an agreement concerning the appropriate amount of those charges, they shall be fixed by the district court.

The judgment is affirmed and the cause remanded to the district court for the addition of a provision in the judgment conforming to the last two sentences of the preceding paragraph. The ship and its owner may recover their costs on appeal against Iligan. New York Navigation may recover three-quarters of its costs against Iligan and one-quarter against the ship and its owner.

      . Although Mr. Justice McReynolds cited no authority for holding unauthorized deck storage to be a “deviation”, this court had so held in The Sarnia, 278 F. 459 (2 Cir. 1921), cert. denied, 258 U.S. 625, 42 S.Ct. 382, 66 L.Ed. 797 (1922), mentioned in another portion of Mr. Justice McReynolds’ opinion. This was over a dissent by Judge Mack to the effect that, however the carrier’s actions were characterized, the contractual limitation of liability should not be displaced. See also Niles-Bement-Pond Co. v. Dampkiesaktieselskabet Balto, 282 F. 235 (2 Cir. 1922), where Judge Hough, a great admiralty judge, expressed the same view as Judge Mack’s in a case of overcarriage but felt compelled by The Sarnia to concur in a displacement of the damage limitation.

      . Relying on the language and structure of the statute, at least one court of appeals had rejected the reasoning of The Flying Clipper, holding that despite an unreasonable geographic deviation by the carrier its liability was limited to $500 pursuant to § 4(5). See Atlantic Mutual Ins. Co. v. Poseidon Schiffahrt, 313 F.2d 872, 874-875 (7 Cir.), cert. denied, 375 U.S. 819, 84 S.Ct. 56, 11 L.Ed.2d 53 (1963) (overcarriage of goods by shipper coupled with delay of one and one-half years in delivery). See also Nassau Glass Co. v. Noel Roberts, Ltd., 249 F.Supp. 116 (S.D.Fla. 1965) (on deck storage of plate glass). But see Searoad Shipping Co. v. E. I. Dupont de Nemours & Co., 361 F.2d 833, 835-836 (5 Cir.), cert. denied, 385 U.S. 973, 87 S.Ct. 511, 17 L.Ed.2d 436 (1966) (shipper liable in full as an insurer of the cargo where damage resulted from on-deck deviation).

      . Although § 4(5) reads as if it had independent force, COGSA “regulates the terms of ocean carriage by the indirect but highly efficacious device of dealing with the terms of the ocean bill of lading”, Gilmore & Black, Admiralty § 3.25 at 124 (1957).

      . With the limitations in § 4(5) available and generally prevailing, doubtless many such cases are settled by payment of part or all of the amount there provided, without action having been brought or at least without a trial.

      . Iligan advances one argument against New York Navigation’s entitlement to the per package limitation which is not discussed in Judge Ward’s opinion. This is that the contract between Iligan and New York Navigation states that it is to be governed by New York law and § 7-309(2) of the Uniform Commercial Code as adopted in New York allows a carrier to limit liability to a value stated in a bill of lading only when the carrier’s rates are dependent on value. Assuming that the argument was advanced below and thus is properly before us, it is without merit in light of UCC § 7-103, which reads:
      Relation of Article to Treaty, Statute, Tariff, Classification or Regulation
      To the extent that any treaty or statute of the United States, regulatory statute of this State, or tariff, classification or regulation filed or issued pursuant thereto is applicable, the provisions of this Article are subject thereto.


source: Caselaw Access Project

license: Public Domain

text:
    UNITED STATES of America, Appellee, v. Charles MESSINA, Appellant.
    No. 393, Docket 74-2066.
    United States Court of Appeals, Second Circuit.
    Argued Nov. 14, 1974.
    Decided Dec. 10, 1974.
    Certiorari Denied March 24, 1975.
    See 95 S.Ct. 1433.

      Steven J. Hyman, New York City (Samuel B. Mayer, New York City, of counsel), for appellant.
    Ethan A. Levin-Epstein, Asst. U. S. Atty. (David G. Trager, U. S. Atty., E. D. N. Y., and Paul B. Bergman, Asst. U. S. Atty., of counsel), for appellee.
    Before MEDINA, FRIENDLY and GURFEIN, Circuit Judges.
   FRIENDLY, Circuit Judge:

Forty-four cartons of men’s Italian knit turtleneck sweaters, consigned by an Italian firm, DEPE, from Milan to Sue B. Fashions of New York City and valued at approximately $45,000, were stolen on November 25, 1973. On arrival at Lufthansa’s facilities at John F. Kennedy Airport, the cartons had been loaded on a truck, belonging to Lance Airfreight Company, which was then driven back to and parked at Lance’s loading dock at the U. S. Custom Service in Cargo Building 80 pending delivery later to the consignee. In the afternoon of November 25, a man appeared at the office of Bob’s Towing Service, pursuant to previous telephone arrangement, to pay $35 for the towing of the truck and execute documents to authorize the towing; two employees, Robert Bavaro and Robert Schmeltz, engaged the man in brief conversations, the first ascertaining the nature of the towing job and the second filling out the necessary papers. The man identified himself as a mechanic for Lance Airfreight and explained that the truck parked at Lance’s dock had to be towed to an American gasoline station in Brooklyn for repair. A driver, Kenneth Mantione, picked up the truck and towed it, as instructed, to the gasoline station in Brooklyn. Arriving there about 9:00 p.m., he met a man who told him where to place the truck and assisted him in positioning it. Bavaro, Schmeltz, and Mantione subsequently made photographic identifications of defendant Mes-sina as the man they had seen on November 25.

On the basis of these identifications FBI agent Jules and Port Authority Police Department detectives McKenna and Maiolo arrested Messina at his home pursuant to an arrest warrant on December 18, and Agent Jules advised him of his rights with respect to interrogation. They took him to the New York office of the FBI, where Agent Jules again advised him of his rights and he signed the FBI Advice of Rights form. The four men proceeded to the federal courthouse in the Eastern District of New York for Messina’s arraignment. According to Agent Jules, while awaiting this, Messi-na, after saying he wasn’t feeling well, stated he had nothing to do with the hijacking but wanted “to cooperate” and admitted he had been selling “some of these sweaters”. He said he had had five, obtained from a person known as Vinnie at a social club in Brooklyn. He added that two were still at his home and “If you want these sweaters, you can have them.”

The magistrate appointed the Legal Aid Society to represent Messina. Mr. Edward Kelly, a Legal Aid attorney, conferred with him. While he had no specific recollection of the events of December 18, Mr. Kelly testified that his practice was to advise clients not to make any statements to law enforcement officers without first consulting with counsel.

After Messina was released, Agent Jules informed Mr. Kelly not to worry about him since the agent was “going to drop him off at his home because he wasn’t feeling well.” Mr. Kelly made no comment but admitted in his testimony that he knew Jules was an FBI agent. During the journey, Messina and Detective Maiolo “were talking about Italy and where who came from and what.” Maiolo and Messina went up the stairs to the latter’s apartment. Messina gave Maiolo “a small shot” of whiskey and instructed his wife “Go get the sweaters”. She went into another room, came back and handed two sweaters to Messi-na, who gave them to Maiolo, saying “This is it, and I want to show you I am trying to help.”

Bernard Ruderman, sales manager of Sue B. Fashions, later identified the sweaters as bearing his firm’s “RN”, a registered number assigned by the Federal Trade Commission under the Wool Products Labeling Act, 15 U.S.C. § 68, see 16 C.F.R. §§ 300.3(a)(3), 300.4, and testified that the sweaters were of the same type as those in the stolen shipment.

After trial before Judge Weinstein and a jury in the District Court for the Eastern District of New York, at which Bavaro, Schmeltz, and Mantione again identified him, Messina was convicted on two counts of stealing and of possessing the 44 cartons of sweaters in violation of 18 U.S.C. § 659.

Messina mounts a vigorous attack upon the identifications, on which Judge Weinstein had conducted an extensive suppression hearing. Without going into burdensome detail, it suffices to say that the pre-arrest identification procedures included the obtaining of descriptions from the three witnesses, selection by Schmeltz from a large collection maintained by the Port Authority of a number of photographs generally resembling the man who had appeared at the office, the making of composite drawings by Mantione and Bavaro, and positive identifications by all three men from a spread of seven photographs. After arraignment there was a lineup, attended by Messina’s attorney, at which the three men, separately, chose Messina.

This case does not require us to add to the enormous literature on the application by this and other courts of the mandate in Simmons v. United States, 390 U.S. 377, 384, 88 S.Ct. 967, 971, 19 L.Ed.2d 1247 (1968), that “each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.” With respect to two of the witnesses, Schmeltz and Man-tione, the judge extracted statements at the suppression hearing that their identifications rested on their recollection of what they had seen in the office or at the gasoline station and not on what had happened in the interval. At the suppression hearing Bavaro was far less clear about this; at the trial he became more positive on the point and cross-examination on the basis of his earlier testimony failed to shake him. While one may indeed be skeptical over the ability of a witness thus to compartmentalize his memory, see United States v. Wade, 388 U.S. 218, 229, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), that point would become important only if the intervening procedures were impermissibly suggestive; here they were not. Our examination of the record has convinced us that the agents took considerable pains to avoid any acts or procedures which would be unnecessarily suggestive and that, with exceptions we do not deem significant, they succeeded. We are impressed, among other things, by the efforts of the agents to keep the witnesses from influencing each other. The only possible instance of collaboration we can find in the record (and we have some doubt that there was any collaboration even here) was the effort of Mantione and Bavaro to make composite drawings, an enterprise in which, in contradistinction to selections from a book of photographs or a lineup, collaboration would serve the interests of accuracy. Man-tione’s concession, after extensive cross-examination at the suppression hearing, that “If this man was going to the gas chambers, I would say I wasn’t positive”, strikes us an earmark of an honest and careful witness rather than as evidence of serious doubt.

Putting aside for the moment the argument that the visit to Messina’s home to obtain the sweaters subsequent to the arraignment violated Messina’s rights under the Sixth Amendment, we see no merit in the contention that Judge Weinstein erred in finding that the agents did not violate Messina’s Fourth Amendment rights. As he specifically found, Messina blurted out his offer to hand over the sweaters without the slightest suggestion from the agents. Compare United States v. Gaynor, 472 F.2d 899 (2 Cir. 1973); United States v. Duffy, 479 F.2d 1038 (2 Cir.), cert. denied, 414 U.S. 978, 94 S.Ct. 299, 38 L.Ed.2d 221 (1973); United States v. Kaylor, 491 F.2d 1127, 1131 (2 Cir. 1973). The agents were not obliged to interrupt Messina’s voluntary statements and caution him again that what he said might be used against him. United States v. Gaynor, supra, 472 F.2d at 900. Indeed we do not believe that the agents’ receipt of the sweaters was a search or seizure at all. There was no examination of Messina’s apartment; Detective Maiolo simply took what Messina had chosen to give. The episode lacked the element of an “intrusion” essential to the existence of a “search” and consequently of a “seizure” in connection with a “search”. See ALI, A Model Code of Pre-Arraignment Procedure § SS 210.-1(1) and (2) and Commentary at 160, Official Draft No. 1, July 15, 1972. Cf. Davis, Federal Searches and Seizures § 1.12 (1964); Ringel, Searches and Seizures, Arrests and Confessions § 167 (1972).

Somewhat more troubling at first blush is the claim that the failure of the agents to advise Messina’s lawyer of their intention to collect the sweaters violated his Sixth Amendment right “to have the Assistance of Counsel for his defence.” To be sure, Massiah v. United States, 377 U.S. 201, 207, 84 S.Ct. 1199, 1203, 12 L.Ed.2d 246 (1964), the cornerstone of Messina’s argument, held only “that the defendant’s own incriminating statements, obtained by federal' agents under the circumstances here disclosed [a post-indictment conversation between Massiah and a fellow conspirator who had decided to cooperate with the police and allowed a recording device to be installed in his automobile], could not constitutionally be used by the prosecution as evidence against him at his trial” (emphasis in original). But in United States v. Wade, supra, 388 U.S. at 226—227, 87 S.Ct. 1926, at 1932, the Court said that nothing decided or said in Massiah or other cases “links the right to counsel only to protection of Fifth Amendment rights,” that “in addition to counsel’s presence at trial, the accused is guaranteed that he need not stand alone against the State at any stage of the procedure, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial,” and that “[t]he presence of counsel at such critical confrontations, as at the trial itself, operates to assure that the accused’s interests will be protected consistently with our adversary theory of criminal prosecution.” Specifically the Court held that while the “analyzing of the accused’s fingerprints, blood sample, clothing, hair and the like,” apparently even after arraignment or indictment and the retention or appointment of counsel, were not “critical stages” demanding the presence of counsel, a different rule prevailed with respect to lineups — a principle later limited by Kirby v. Illinois, 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972), to lineups subsequent to a formal charge of a criminal offense. Except for the addition in Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967), decided along with Wade, that the taking of handwriting exemplars is not a “critical” stage of the criminal proceedings requiring the presence of counsel, the Court has not had further occasion to decide how far, if at all, Massiah extends beyond the taking of statements and lineups.

However, there are decisions of lower courts that, after a criminal prosecution has been commenced and counsel has been retained, appointed or requested, consent to a search , given in the absence of counsel is invalid unless the record justifies a finding that the deprivation of the right was harmless beyond a reasonable doubt or, presumably, that the right to the assistance of counsel has been effectively waived. See United States ex rel. Daley v. Yeager, 415 F.2d 779, 783-784 (3 Cir. 1969), cert. denied, 397 U.S. 924, 90 S.Ct. 919, 25 L.Ed.2d 104 (1970);. cf. Tidwell v. Superior Court, 17 Cal.App.3d 780, 95 Cal.Rptr. 213 (1971). Assuming the correctness of these decisions, we do not think they call for reversal under the circumstances of this case. For one thing we do not believe, for the reason already stated, that here there was any search or seizure at all. If there was, Messina had given his consent before the criminal prosecution had begun and Sixth Amendment rights had attached under Kirby v. Illinois, supra, 406 U.S. at 690, 92 S.Ct. 1877, 32 L.Ed.2d 411. After that had happened, Messina had ample opportunity to tell his appointed counsel what he had offered. While there is no evidence that he did this, counsel’s advice not to talk to the agents was sufficient to warn against other forms of cooperation with them; the agents were not bound to make sure that Messina had told his counsel the full story of what he had agreed to do. His decision to fulfill his offer was doubtless wise since a refusal would simply have led the agents to obtain a warrant for a thorough search of his home, for which the photographic identifications, the volunteered statement, and a refusal to fulfill the offer would have afforded ample basis. Judge Weinstein was thus quite justified in finding that Messina “did this very deliberately, because he thought that he would be able to place himself in a better position in the prosecution of his case, and that he might be able to get the sympathy and the protection of the FBI agents and Police personnel.” Having decided, after receiving the advice of counsel, to go through with his own plan, which diverted the agents from obtaining a search warrant that was theirs for the asking and might have led to their obtaining even more damaging evidence, Messina is in no position to complain of their failure to do this.

We are not clear whether appellant’s counsel makes an additional argument against admission of the sweaters on the ground of irrelevancy. If so, it is without merit. Messina’s possession of the sweaters, produced by the very manufacturer for the very consignee who was the victim of the theft, and received at its approximate time, clearly made his participation “more probable than it would be without the evidence.” That is all that is needed. Proposed Federal Rules of Evidence, rule 401.

Affirmed.


author: ALDISERT, Circuit Judge.

text:
    BUCKLEY & COMPANY, INC., Petitioner, v. SECRETARY OF LABOR, Respondent.
    No. 74-1358.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 13, 1974.
    Decided Jan. 3, 1975.
    Le Roy Comanor, Comanor & Stein, Philadelphia, Pa., for petitioner.
    Carla A. Hills, Asst. Atty. Gen., Stephen F. Eilperin, Barbara L. Herwig, Dept, of Justice, Washington, D. C., for Secretary.
    Before ALDISERT, ADAMS and HUNTER, Circuit Judges.
   OPINION OF THE COURT

ALDISERT, Circuit Judge.

This petition for review of an order of the Occupational Safety and Health Review Commission requires us to decide if notice mailed to a superintendent of a garage and maintenance shop of a large construction company is proper notification to the corporate employer under § 10(a) of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 659(a). A divided Commission held that the notification to the superintendent satisfied the requirements of the Act. We disagree and set aside the order of the Commission.

The genesis of the citations and notices of proposed penalties was a February 21, 1972, accident resulting in the death of one of Buckley’s employees. Edward Glass, Buckley’s Office Staff and Safety Officer, duly reported the accident to F. L. Fostyk of OSHA’s Philadelphia Area Office. In his report Fos-tyk entered the location of the accident as 1800 S. 34th Street, Philadelphia, Pa. —the maintenance shop — and the address of the employer as 1317 South Juniper Street, Philadelphia, Pa.

An initial inspection of the maintenance shop by an OSHA compliance officer followed, resulting in Buckley’s being cited for one serious violation and ten other violations. A de minimis notice was also issued. Although the regional office knew the address of the employer, it sent the citations and de minimis notice by certified mail to “Buckley & Company, Incorporated, 1800 South 34th Street, Philadelphia, Pennsylvania.”

Each citation explained: “The issuance of a citation does not constitute a finding that a violation of the Act has occurred unless there is a failure to contest as provided for in the Act or, if contested, unless the citation is affirmed by the Occupational Safety and Health Review Commission.” Included in the mailing of the citations was a “Notification of Proposed Penalty” addressed to “Mr. Albert L. Proia, Superintendent, BUCKLEY & COMPANY, INCORPORATED, 1800 South 34th Street, Philadelphia, Pennsylvania 19145.” The notification stated that “the aforesaid Citation(s), this Notification, and the proposed assessment shall be deemed to be the final order of the Occupational Safety and Health Review Commission and not subject to review by any court or agency, unless, within 15 working days from the date of receipt of this notice, you notify the official named below in writing that you intend to contest the Citation or this Notification of Proposed Penalty before the Review Commission.”

Because Buckley neither gave notice of contest nor notified OSHA that it had abated the violations, a follow-up inspection took place. This resulted in the issuance of a new citation and notification of proposed penalty, and, because Buckley had failed to abate certain items of the original citation, a notification of proposed additional penalties. Again, these papers were sent to the South 34th Street maintenance shop and not to the corporate offices on Juniper Street. Once all the proposed penalties became final, Buckley’s assessment totaled $3,135.00.

On July 5, 1972, Louis Weiner, Regional Solicitor of the Department of Labor, wrote to the corporation at its Juniper Street address, relating its past correspondence with Mr. Proia at the South 34th Street address and making what he described as a “final demand” for payment of the $3,135.00. Following receipt of this letter, representatives of Buckley called a Labor Department attorney at which time they stated that the Weiner letter was the “first notice of the proposed penalties.” Buckley attempted to contest the imposition of the penalties, alleging that its notice of contest was timely because the earlier notifications to Proia were not sufficient notice to the corporation. The Secretary moved to dismiss Buckley’s notice of contest because the outstanding citations and penalties had become final and unreviewa-ble. 29 U.S.C. § 659(a) and (b). An administrative law judge denied the Secretary’s motion reasoning:

that service of the Citations and Proposed penalties on Respondent’s employee at the storage and maintenance shop did not constitute service on Respondent under the Act.

After the Secretary was granted leave to file an interlocutory appeal to the Commission, a majority of the Commission set aside the ruling of the administrative law judge. This appeal followed.

Section 10(a), in pertinent part, provides:

If, after an inspection or investigation, the Secretary issues a citation under § 9(a), he shall, within a reasonable time after the termination of such inspection or investigation, notify the employer by certified mail of the penalty, if any, proposed to be assessed under § 17 and that the employer has fifteen working days within which to notify the Secretary that he wishes to contest the citation or proposed assessment of penalty.

Thus, the precise issue is whether the mailings addressed to Proia, superintendent of a maintenance shop and garage of Buckley, were proper notification to the corporate employer of the “penalty proposed to be assessed.” Commissioner Van Namee found “it both necessary and appropriate to follow the service requirements as set forth in the Federal Rules under the circumstances of this case. This necessitates a decision as to whether the Secretary has comported with the requirements of Rule 4(d)(3) of the Federal Rules which governs service of process upon a corporation such as the Respondent.” Commissioner Cleary concurred, being of the view that “any mailing to an employer that is reasonably calculated to give the employer notice of the citation, penalty, or both” was sufficient, and that the “use of the personal service requirements of the Federal Rules of Civil Procedure is unnecessary to reach this result.” Commissioner Van Namee was impressed by Proia’s representation that he was superintendent of the worksite, that he acted as Buckley’s representative during the OSHA inspection, and that he participated in the closing conference conducted by the compliance officer.

We find the reasoning of the chairman of the Commission more persuasive. In dissent, Chairman Moran emphasized that “[i]t is clear that no official of the corporate respondent with authority to spend corporate funds either (a) to pay the proposed penalty, or (b) to abate the alleged violation, or (c) to contest the enforcement proceedings, received notice of either citation until long after both of them had become default judgments.” We believe that the relevant intent of Congress in enacting § 10(a) was to provide notice to those corporate officials who have the precise authority delineated by Commission Chairman Moran. If we were to interpret § 10(a) otherwise, then we would frustrate one of the principal purposes of the Act — abatement of hazardous conditions. 29 U.S.C. § 651(b)(1).

A fair reading of the record indicates that shop superintendent Proia, the Buckley employee who may be considered responsible for the circumstances leading up to the violations, was the very person to whom the notice was sent. After the OSHA inspector pointed out to Proia that the purpose of the follow-up inspection was to determine whether the original violations had been abated, Proia was heard to say, “Oh God, Lord help me, I can’t stand another citation.” If the test of adequate notice is the probability that appropriate corporate officials will receive notice, it is as reasonable to conclude that Proia would attempt to cover up any derelictions as it is to conclude that he would forward the citations to his superiors. Moreover, while there was evidence that shop superintendent Proia acted as Buckley’s representative and participated in the closing conference, this does not justify a conclusion that he had authority to undertake the kind of corporate response the notice provisions of the Act were designed to trigger — contest of the citation or proposed penalty, expenditure of funds to abate the condition giving rise thereto, or payment of the penalty.

In sum, we perceive the Congressional intent to be a requirement that notification must be given to one who has the authority to disburse corporate funds to abate the alleged violation, pay the penalty, or contest the citation or proposed penalty. As to this corporate employer, this means, at the very least, a notice to the officials at the corporate headquarters, not the employee in charge at the particular worksite.

The order of the Commission dismissing Buckley’s notice of contest will be set aside.

      . In pertinent part this rule provides: “Service shall be made ... (3) Upon a corporation ... by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process

      . Serious Violation

      1. “Employee, without appropriate protective clothing, was arc welding inside a steel tank, which had to be entered through a manhole, and no means were provided for quickly removing him in case of an emergency, nor was an attendant with a preplanned rescue procedure stationed at the tank manhole to observe the welder.
      “In addition, employee was using oxygen to supply an air line respirator, which was not approved by the U.S. Bureau of Mines for oxygen use.”

        Non-Serious Violations

      1. Certain fans lacked appropriate guards.
      2. Lack of grounding outlets for hand-held electric tools at work bench.
      3. Ground prongs broken off plugs on certain portable tools.

        4. Lack of sufficient access and working space around arc weld machine switch and light switch panels.
      5. Lack of, or improperly adjusted work rests for grinding machines.
      6. Floor stand grinder had excessive angular exposure of grinding wheel periphery and sides.
      7. No standard railing on a flight of stairs to balcony locker room.
      8. Key not removed from ignition of fork truck while unattended.
      9. Hazardous pile of machine parts.
      10. Oxygen cylinders not properly separated from fuel-gas cylinders.
      11. Citation issued March 15, 1972, not kept posted as required.

        De Minimis Notice

      1. First aid supplies not approved by consulting physician.


author: PER CURIAM:

text:
    Louis POLANCO, Petitioner-Appellant, v. W. J. ESTELLE, Director, Texas Department of Corrections, Respondent-Appellee.
    No. 74-2928
    Summary Calendar.

    United States Court of Appeals, Fifth Circuit.
    Jan. 22, 1975.
    Rehearing and Rehearing En Banc Denied Feb. 21, 1975.

      William T. Armstrong, Staff Counsel for Inmates, TDC Eastham Unit, Mark S. Ward, Weldon, Tex., for petitioner-appellant.
    John L. Hill, Atty. Gen., John M. Barron, Larry York, Joe B. Dibrell, Randall S. Boyd, Paul R. Gavia, Asst. Attys. Gen., Austin, Tex., for respondent-appel-lee.
    Before COLEMAN, DYER and RO-NEY, Circuit Judges.

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

   PER CURIAM:

Polanco was convicted of possession of heroin and sentenced to 35 years imprisonment. Polanco v. State, 475 S.W.2d 763 (Tex.Cr.App.1971).

In this petition for writ of habeas corpus, petitioner contends the heroin was seized in an unauthorized search because the warrant was issued on an affidavit insufficient as to the informant’s reliability, citing Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964).

The Aguilar test is two-pronged. Before issuing a warrant upon an affidavit reciting the tip of an unnamed informer, a magistrate “must be informed of the underlying facts and circumstances (1) from which the informant has concluded that the person to be searched is engaged in criminal activities, and (2) from which affiant has concluded that the informant is credible or his information reliable.” United States v. Hill, 500 F.2d 315, 318 (5th Cir. 1974). When the informant’s information is corroborated in the affidavit by the independent observations of police officers, however, the affidavit would be sufficient to justify issuance of the warrant. Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969); Eaton v. United States, 409 F.2d 1355 (5th Cir.), cert. denied, 396 U.S. 891, 90 S.Ct. 183, 24 L.Ed.2d 166 (1969). See also Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).

In this case, the police corroborated the details of the informant’s tip by surveillance from which it was learned that “numerous people known to be drug addicts and pushers go to [the] trailer, stay a few seconds and then go into the ball park, and an object believed to be heroin was exchanged for money and then the customer would leave. Based upon our observations, [the owner of the trailer] is keeping his narcotics in a small utility shed belonging to his trailer space and inside the trailer too.”

Regardless of the sufficiency of the affidavit as to the informer’s reliability, the facts revealed by the police surveillance furnished independent corroboration of the informant’s tip sufficient to establish probable cause. Gonzales v. Beto, 425 F.2d 963 (5th Cir.), cert. denied, 400 U.S. 928, 91 S.Ct. 194, 27 L.Ed.2d 189 (1970). We agree with District Judge Roberts that “in judging probable cause magistrates are not to be confined by restrictions on their use of common sense. United States v. Ventresca, 380 U.S. 102, 108, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965).”

The petition for writ of habeas corpus was properly denied.

Affirmed.


author: GIBBONS, Circuit Judge.

text:
    UTILITY CONTRACTORS ASSOCIATION OF NEW JERSEY, INC., et al., v. Adrian R. TOOPS, etc., et al. Appeal of LOCAL 122 OF the UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF the PLUMBING & PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, No. 74-1130. Appeal of LOCAL 236 OF the UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF the PLUMBING & PIPEFITTING INDUSTRY OF the UNITED STATES AND CANADA, AFL-CIO, No. 74-1131. Appeal of LOCAL NO. 69 (LOCAL 14) OF the UNITED ASSOCIATION OF JOURNEYMEN & APPRENTICES OF the PLUMBING & PIPEFITTING INDUSTRY OF the UNITED STATES & CANADA, AFL-CIO, Appellant in No. 74-1132.
    Nos. 74-1130 to 74-1132.
    United States Court of Appeals, Third Circuit.
    Argued Nov. 21, 1974.
    Decided Dec. 31, 1974.

      Richard K. Rosenberg, Rosenberg & Waldman, Glen Rock, N. J., for Utility Contractors Association of New Jersey, Inc.
    Joseph M. Stone, Washington, D. C., for National Utility Contractors Association, Inc.
    James R. Zazzali, Lawrence A. Whipple, Jr., Zazzali & Zazzali, P. A., Newark, N. J., for Laborers’ Local Union No. 472 and Deisler, Sorg, Perro, Joseph Figuero, Justo Figueroa, Carlos Nieves, DiLoi-veira, Fernandes, G. Screws, Price, and Wideman.
    Robert J. Connerton, Arthur M. Schiller, Jules Bernstein, Washington, D. C., for Laborers’ Local Union Nos. 172 and 509.
    Fox & Fox, I. Harry Sobol, Newark, N. J., for New Jersey Association of Plumbing-Heating-Cooling Contractors, Inc. amicus curiae.
    Frank H. Pykon, Dunn & Pykon, Newark, N. J., for Local No. 236 of the United Association of Journeymen and Apprentices of the Plumbing and Pipefit-ting Industry of the United States and Canada, AFL — CIO.
    John A. Craner, Ronald J. Nelson, Craner, Brennan & Nelson, Elizabeth, N. J., for Local 122 of the United Association of Journeymen & Appentices of the Plumbing & Pipefitting Industry of the United States and Canada, AFL-CIO.
    Daniel J. Hussey, David Friedland, Friedland & Friedland, Jersey City, N. J., for Local 69 (Local 14) of the United Association of Journeymen & Apprentices of the Plumbing & Pipefitting Industry of the United States and Canada, AFL-CIO.
    Before ADAMS, GIBBONS and WEIS, Circuit Judges.
   OPINION OF THE COURT

GIBBONS, Circuit Judge.

The appellants in these consolidated appeals are three New Jersey locals of the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, AFL-CIO. They appeal from a consent decree entered against other defendants in the district court, which was entered as a final judgment as to the consenting parties pursuant to Rule 54(b) Fed.R.Civ.P. The plaintiffs are the Utility Contractors Association of New Jersey, Inc., a state-wide organization of employers in the utility construction industry, seven such employers, the National Utility Contractors Association of which the New Jersey Association is a member, three New Jersey locals of the Laborers’ International Union of North America, several officers of those locals, five black and five hispanic members of the Laborers’ Union. The plaintiff employers utilize the services of Laborers’ Union members in laying pipe. The defendants are six New Jersey municipalities, the plumbing inspectors of those six municipalities, and the three defendant Plumbing and Pipefitting locals.

The complaint, in four counts, charges that the Plumbing and Pipefitting locals, whose membership is overwhelmingly white, conspired with the plumbing inspectors, who are members of Plumbing and Pipefitting locals, and with the municipalities, to cause the adoption of allegedly discriminatory municipal building codes. These codes required that pipe to be laid in any trench between the curb line of the street and the building line be laid by licensed plumbers and that such codes be enforced by criminal sanctions. The complaint further charges that the effect of the codes and their enforcement is to deprive the members of the Laborers’ Union locals, who are substantially black and hispanic, of work which they are capable of performing, which their employers want them to perform, which is identical with the work they perform outside the curb line, and which they have traditionally performed in the past.

The first count of the complaint alleges that the enforcement of the building codes denies blacks and other minority group members the equal protection of the law guaranteed by the fourteenth amendment, the Civil Rights Act of ! 1964, 42 U.S.C. § 2000e [sic], and applica- ■ ble New Jersey statutes. The second . count alleges that the conspiracy violates 42 U.S.C. § 1985. The third count alleges the violation of 42 U.S.C. § 2000d. , The fourth count alleges a violation of § 1 of the Sherman Antitrust Act, 15 U.S.C. § 1.

The complaint seeks both injunctive relief and damages. It asks that the individual plaintiffs be designated as class action representative plaintiffs, that the plumbing inspector defendants be designated as class action representative defendants for all similarly situated municipal plumbing inspectors in New Jersey, and that the named municipalities be designated as class action representative defendants for all New Jersey municipalities. Pursuant to Rule 23(c)(1) Fed.R.Civ.P. the plaintiffs applied for an order, entered on November 13, 1972, designating all municipalities of New Jersey (there are 567 such municipalities) as a proper class of defendants, and the individually named municipalities as class representatives. A notice to this effect was sent to each' New Jersey municipality pursuant to Rule 23(c)(2). In response eight of the municipalities sent letters to the Clerk of the United States District Court opting out of the class.

Meanwhile, settlement negotiations proceeded between the plaintiffs and the class action representatives of the municipalities. These resulted in a compromise in which a consent judgment would be entered dismissing all demands for money damages against all New Jersey municipalities, declaring that pipelaying work outside buildings is labor not requiring a plumbing license and ordering that all building code ordinances inconsistent with that declaration be amended by adopting the language:

“Anything in this Code, or any other ordinance, rule, regulation or enactment of the (insert name of municipality) or any of its personnel notwithstanding, no individual or corporation shall be required to obtain a permit or license in order to engage in the occupation of laying or installing pipe or conduit of any nature outside of buildings and inside property lines.” (Appendix at 141a).

Notice of the proposed compromise was mailed to all New Jersey municipalities pursuant to the court’s order and Rule 23(e) Fed.R.Civ.P.

The court’s order, which was included in the mailing, provided that an order embodying the settlement would be entered if objections were not forthcoming within twenty days. No municipality objected. The appellants did object, contending that the settling defendants had not adequately considered the public health and safety. After hearing these objections the district court concluded that the defendant municipalities were best able to judge these considerations. Moreover, the district court found that the proposed consent decree neither afforded relief against, nor adjudicated any rights or obligations of the non-settling defendants, and that they had no standing to object to a compromise between other parties. The court entered the consent decree and ordered that it be entered as a final judgment.

These appeals followed. We dismiss them.

The appellants Plumbers and Pipefit-ters locals have discharged a shotgun blast at the procedures which led to the consent decree and at its claimed substantive defects. Nowhere, however, are we informed what gives them standing as appellants to seek to overturn an injunction which does not bind them and interferes with no legal relationship between them and the settling parties. This small point of appellate procedure has not often been litigated, probably because it is so elementary. The leading authority is Judge Staley’s opinion for this Court in Milgram v. Loew’s, Inc., 192 F.2d 579, 586 (3d Cir. 1951), cert. denied, 343 U.S. 929, 72 S.Ct. 762, 96 L.Ed. 1339 (1952):

“The second question before us is the motion of plaintiff to dismiss the appeal of the intervening defendants. The district court found no unlawful conduct on their part, and as to them, dismissed the complaint without costs. The sole problem for our consideration is whether these intervenors have been legally aggrieved in any way by the decree entered below. It is settled law that even a party cannot appeal from a decision which is not adverse to him. Stearns-Rogers Mfg. Co. v. Brown, 8 Cir., 1902, 114 F. 939; Atles v. United States, 3 Cir., 1931, 50 F.2d 808, 78 A.L.R. 435. The decree of the district court was not directed at the intervening defendants. Where an injunction is granted, one cannot generally appeal from the order unless he is directly or indirectly restrained from the performance of some act. See 4 C.J.S. Appeal and Error § 183. The intervening defendants contend, however, that the decree adversely affects them because it will result in the admission of plaintiff’s theater to a first run status in competition with them.
It may very well be that the effect of the decree will be to injure the in-tervenors economically. But they can hardly contend that they have a legal right to be free from competition. The injury from competition is generally damnum absque injuria. Prior to the entry of the district court’s decree, each of the distributor-defendants would have been free to license films on first run to plaintiff, and no legally protected interest of the other first run exhibitors would have been invaded. We cannot discern how the inter-venors have now acquired greater rights merely because the distributor-defendants here have combined not to license first runs to plaintiff, and have now been enjoined from so doing. We think plaintiff’s motion to dismiss the appeal of the intervening defendants should be granted.”

In addition to the cases cited by Judge Staley, see, e. g., Farmers’ Loan and Trust Co. v. Waterman, 106 U.S. 265, 1 S.Ct. 131, 27 L.Ed. 115 (1882); Fuqua v. Bidwell, 281 F.2d 753 (6th Cir. 1960); Teamsters Local No. 523 v. Keystone Freight Lines, 123 F.2d 326, 330 (10th Cir. 1941). The appellants have no legal interest in the ordinances, either as originally drawn or in the form required by the consent order. While the practical effect of the amendment to the building codes is to make the laborers eligible to perform work originally reserved to plumbers and thus injure them economically, this is damnum absque injuria. The financial benefit to the appellants resulting from the prior ordinances did not confer any legal right to insist upon a continuance of the status quo. In the absence of this lawsuit, had any of the municipalities chosen voluntarily to change its building code, the appellants’ monetary interests would not have conferred legal standing to prevent such governmental action.

Therefore, since the judgment of the district court does not affect any enforceable rights of the appellants, the appeals will be dismissed.

      . Assuming the truth of the allegations of the complaint, the ordinance resulted from illegal relationships. We do not think their alleged status as conspirators gives them standing as appellants. Alternatively, if the conspiracy allegations are false, appellants have no particular interest in the ordinances at all.

      . The factual situation here should be contrasted with that in Equal Employment Opportunity Commission v. American Telephone and Telegraph Company, 506 F.2d 735 (3d Cir. 1974), where the union objected to a consent decree because it affected the contractual rights between it and the employer-defendant. We are mindful that ordinarily a consent decree affecting third party rights should not be entered without affording such parties an opportunity to be heard. The moving papers of the appellants did not suggest any facts which if established would have shown interference with their rights. Thus an evidentiary hearing was unnecessary.


author: VAN DUSEN, Circuit Judge.

text:
    Lawrence E. HODGE, Appellant, v. Ernestine HODGE.
    No. 74-1376.
    United States Court of Appeals, Third Circuit.
    Argued Dec. 3, 1974.
    Decided Jan. 6, 1975.

      Alexander A. Farrelly, Maria Tanken-son Hodge, Birch, de Jongh & Farrelly, Henry L. Feuerzeig, Charlotte Amalie, St. Thomas, V. I., for appellant.
    Clarice A. Bryan, Charlotte Amalie, St. Thomas, V. L, for appellee.
    Before SEITZ, Chief Judge, and VAN DUSEN and ROSENN, Circuit Judges.
   OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

This is an appeal from an adjudication of contempt and the modification and enforcement of certain terms of a divorce decree. The decree, which was filed on May 23, 1973, by Judge Young, of the District Court of the Virgin Islands, granted a divorce to both parties “on a ‘no fault’ basis.” The decree gave both parties “equal legal custody of the child,” with “physical custody” in the wife and “reasonable rights of visitation” in the husband. The court ordered the husband to pay $100. per month alimony and $15.00 per week child support. Further, the wife was to have rent-free occupancy of one of two downstairs apartments located in the house which the parties had owned during their marriage as tenants by the entireties. Both husband and wife were to share equally debt service, taxes, and other costs of maintaining the jointly-held property.

In July 1973, the wife filed a motion for modification of the decree and clarification of visitation rights. That motion was assigned for hearing to Judge Hoffman, of the Municipal Court of the Virgin Islands, sitting by designation in the district court. The motion was set down for hearing on September 26, 1973, to allow the taking of additional testimony. When neither the husband nor the attorneys for either party appeared for the September 26, 1973, hearing, the matter was continued to November 21, 1973. As a result of the November 21 hearing, an order was filed December 5, 1973, finding the husband in contempt for failure to pay both alimony and child support, and ordering increased payments to be made covering current and past due amounts in order to eliminate the arrearages. No substantial change in the situation of the parties was found to warrant any modification in the amounts of alimony or child support awarded by the May 23 decree. Another hearing was set for December 10, 1973; that hearing led only to further continuances. The case was scheduled for February 25, 1974, to accommodate the husband’s attorney, but his inability to appear led to another continuance until March 6, 1974. Upon notification of the March 6 date, the husband’s attorney immediately requested a continuance until April to accommodate his trial schedule. This request was denied in a letter dated February 26, 1974. The letter also suggested that the husband retain other counsel should his attorney remain unable to appear on March 6. This the husband declined to do, choosing to appear without counsel at the March 6 hearing and refusing either to testify or to cross-examine any witnesses. On the basis of the testimony at the hearing and an affidavit filed by the husband, the court orally announced its orders. Judge Hoffman determined that the husband was in contempt for continuing nonpayment of alimony and child support. No sanction was imposed for the contempt; the court merely required that payments be made in accordance with the December 5 order. The trustee whom the court had appointed to collect rents and pay the mortgages on the jointly-held property was ordered to make arrangements for selling the property. The husband’s monetary obligations under the divorce decree were to be deducted from his share in the proceeds of the sale. The court also suspended the husband’s rights of visitation pending his payment of alimony and child support. No reduction was ordered in the amount of alimony or child support, as requested by the husband.

Notice of appeal to the court of appeals was filed in the district court on March 11, 1974. Judge Hoffman’s written order was filed March 14, 1974. The appeal was thus premature. See Moore, Federal Practice, II 204.14 at 981-82 (2d ed. 1973). So long as the order is an appealable one and the non-appealing party is not prejudiced by the prematurity, however, the court of appeals should proceed to decide the case on the merits, rather than dismiss on the basis of such a technicality. Foman v. Davis, 371 U.S. 178, 181, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Hamilton v. Stillwell Van and Storage Co., 343 F.2d 453 (3d Cir. 1965).

We will consider the husband’s allegations that the district court fatally erred in adjudging him in contempt and abused its discretion both in enforcing and in refusing to modify the May 23, 1973, divorce decree, as altered by the December 5, 1973, order.

I.

The husband asserts that the finding of contempt cannot stand because he was denied assistance of counsel by Judge Hoffman’s refusal to continue the March 6, 1974, hearing until April. The matter of granting a continuance is within the discretion of the trial judge. United States v. Scott, 460 F.2d 45, 47 (3d Cir. 1972); United States v. Greenberg, 419 F.2d 808, 809 (3d Cir. 1969). The refusal to grant a continuance is not, without more, a denial of the right to counsel even though the refusal prevents a party from being represented by a particular attorney because of that attorney’s other professional commitments. United States v. DiStefano, 464 F.2d 845, 846 n. 1 (2d Cir. 1972); United States ex rel. Bronzell v. Rundle, 410 F.2d 371, 372 (3d Cir. 1969).

The Supreme Court of the United States, in Ungar v. Sarafite, 376 U.S. 575, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964), considered a claim that denial of a motion for a continuance deprived the defendant in a contempt hearing “of his constitutional right to engage counsel and to defend against the charge.” Id. at 589, 84 S.Ct. at 849. The Court concluded that “[tjhere are no mechanical tests for deciding when a denial of a continuance is so arbitrary as to violate due process. The answer must be found in the circumstances presented in every case, particularly in the reasons presented to the trial judge at the time the request is denied.” Id. No denial of due process was found where the defendant, an attorney charged with criminal contempt for certain court room remarks, was given five days’ notice to hire counsel and prepare a defense.

The husband in the case now before this court received 10 days’ notice that the continuance had been denied and that he should obtain other counsel. As in Ungar, the evidence of contempt— nonpayment of moneys owing under the decree and ability to pay — “was fresh, the witnesses and the evidence readily available, the issues limited and olear-cut. . . . ” Id. at 590, 84 S.Ct. at 850.

The rule in this circuit, enunciated in United States ex rel. Carey v. Rundle, 409 F.2d 1210 (3d Cir. 1969), cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127 (1970), is that “although the right to counsel is absolute, there is no absolute right to a particular counsel.” Id. at 1215. Carey held that the trial court had neither abused its discretion nor denied the defendant due process by failing to grant a third continuance so that the defendant could retain private counsel. The court noted that it was “desirable” for a defendant to “obtain private counsel of his own choice;” however, “that goal must be weighed and balanced against an equally desirable public need for the efficient and effective administration of justice.”

The case now before the court presents both interests identified in Carey. Both at the March 6 hearing and on appeal, the husband asserted a right to be represented by particular counsel. This attorney was the second to represent the husband in the case, and had appeared on the husband’s behalf at only three hearings, all of which had been adjourned. Moreover, several matters relating to the case had not been handled personally by the attorney of choice, but by other attorneys in the office. No reason appears why one of these attorneys could not have represented the husband on March 6; the issues involved were not complex, either legally or factually.

On the other hand, expeditious settlement of disputes relating to divorce decrees is essential to preserve the rights of the parties, particularly where, as here, the actual payment of sums owing is subject to manipulation by one of the parties. From the effective date of the decree, June 1, 1973, to the entry of the order appealed from, March 14, 1974, the husband had paid only $120.00 in child support; he had paid no alimony. The husband had also failed to make any of the mortgage payments ordered by the decree. As a result of this non-compliance, the jointly-held property was subject to foreclosure, which threatened the loss of the parties’ substantial equity. An immediate sale of the property was possible and could avoid this loss, to the advantage of both parties. March 6, 1974, hearing, N.T. 25, 28. In addition, there was testimony that the wife and child were facing financial hardship. The case had been scheduled and rescheduled 10 times. Order of March 14, 1974, at 1 — 2. The nonappearance of the husband’s attorney at the February 25 hearing demonstrated that there could be no certainty he would appear even if the requested continuance were granted. In light of the economic necessities and the prior delays, we have concluded, after careful consideration of the record, that the need to settle speedily the rights of the parties clearly outweighed whatever interest the husband had in being represented by a particular attorney. The continuance was properly denied. See United States v. Weathers, 431 F.2d 1258 (3d Cir. 1970); United States ex rel. Baskerville v. Deegan, 428 F.2d 714 (2d Cir. 1970); United States v. Restaino, 405 F.2d 628 (3d Cir. 1968), cert. denied, 394 U.S. 904, 89 S.Ct. 1012, 22 L.Ed.2d 216 (1969).

The husband’s affidavit, dated March 4, 1974, which was before the court at the March 6 hearing, put into issue his ability to pay. We find, however, ample support in the record for the court’s conclusion that the continued nonpayment constituted contempt. Poe v. Poe, 409 F.2d 40, 44 (3d Cir. 1969). The husband makes no claim that he has made payments ordered by the decree. Indeed, the affidavit itself clearly reveals his non-compliance with the December 5 order to pay $30.00 per week in child support.

The court having authority to enforce the decree through its contempt power, Bergen v. Bergen, 439 F.2d 1008 (3d Cir. 1971), and there being no denial of the right to counsel or other due process right, the judgment of contempt will be affirmed.

II.

The husband also alleges that the court abused its discretion in refusing to modify the alimony award ordered in the May 23, 1973, decree. The burden is on the party urging modification to “allege such a substantial and continuing change of circumstances since the entry of the original decree as to make continued enforcement of that decree unfair.” Viles v. Viles, 316 F.2d 31, 34 (3d Cir. 1963). At the November 21, 1973, hearing, Judge Hoffman found that “despite the variances and discrepancies that counsel for Mr. Hodge has brought forth,” N.T. at 123, modification of the alimony award was unwarranted. We find nothing in the record which indicates either that the husband carried his burden under Viles or that the district court erred in failing to modify the award. See Poe v. Poe, 409 F.2d 40, 44 (3d Cir. 1969).

III.

In addition, the husband attacks certain modifications of the decree as abuses of discretion. Among these are the hours of visitation established by the March 14, 1974, order, and the order that sums owing under the decree be deducted from the husband’s proceeds when the jointly-held property is sold. The calculation of the amount owed as child support is also challenged.

We have been unable to discover in the record any findings by the trial judge to justify the change in the husband’s visitation rights, reflected in paragraph 4 of the March 14 order. Cf. Viles v. Viles, 316 F.2d 31 (3d Cir. 1963). At the December 10, 1973, hearing (p. 11), the trial judge concluded that the provisions of the May 1973 decree concerning visitation should “continue.” No evidence was produced at the March 6, 1974, hearing to support any change in that conclusion. Since the trial judge stated on March 6, 1974 (p. 32), that “visitation rights shall not continue” until the husband “has liquidated the arrears,” it appears that the March 14 modification of visitation rights was punitive. Under these circumstances, denial of visitation rights is not justified where, as here, the record indicates that the primary purpose is to punish a parent for failure to pay support money for his child. See, e. g., Com. ex rel. Lotz v. Lotz, 188 Pa. Super. 241, 244, 246, 146 A.2d 362, 363-364 (1958), aff’d, 396 Pa. 287, 152 A.2d 663 (1959); 88 A.L.R.2d 148, 163-164 and 204-205; Clark, Domestic Relations, 590, cf. 507 — 10 (1968).

The power of the court to modify the May 23, 1973, order and to order the sale of the jointly-held property is conceded. We are unable to detect any abuse of this power in the orders of the court, which find ample support in the record. To the extent that there is any doubt about. the correctness of the amount owing for child support, we find that the husband waived his right to challenge that amount by failing to controvert the testimony at the March 6, 1974, hearing. As a court of equity, the district court has the power to order the deduction of sums owing by appellant under the court’s decrees from the appellant’s share of the proceeds of any sale of the real property now held by the parties as tenants in common.

IV.

We will determine motions filed by ap-pellee under date of August 13, 1974, as follows:

(1) The motion that additional docket entries be added to appellant’s designated record and be contained in the record on appeal is granted.
(2) The motion to include in the record on appeal correspondence relating to matters occurring after the March 14, 1974, judgment is denied.
(3) The motion that appellant reimburse appellee for transcripts pursuant to Rule 10(b), F.R.App.P., is denied, without prejudice to its renewal in the district court in accordance with F.R. App.P. 39(e).
(4) The motion that the court-appointed trustee not accept appellant’s offer to buy the jointly-held property pending further order of the district court is denied, without prejudice to such an application being made to the district court in the first instance.

For the foregoing reasons, the district court order of March 14, 1974, will be affirmed, except that paragraph 4 of that order shall be vacated and visitation rights shall be governed by the May 23, 1973, Memorandum Opinion (p. 4) and Decree until the district court makes a further order on such subject, supported by appropriate findings based on a proper record. The mandate shall issue forthwith.

      . The decree converted ownership of the house to a tenancy in common.

      . Judge Louis Hoffman, of the Municipal Court of the Virgin Islands, was assigned to sit in the District Court of the Virgin Islands, Division of St. Thomas and St. John, to hear matrimonial matters by the Chief Judge of the Third Judicial Circuit of the United States, pursuant to 48 U.S.C. § 1614(a).

      . Both parties have changed counsel during the course of these proceedings. The wife has been represented by three different attorneys at various times, the husband by two different attorneys.

      . The December 5, 1973, order provided, inter alia:

      “ . . . the Court makes the following findings of fact and conclusions of law:
      1. The Plaintiff has failed in the following respects to comply with the decision of Judge Warren H. Young, dated May 23, 1973;
      a. To pay the $15.00 a week payments required for the support of the child, which for 28 weeks totals $420.00, minus one $60.00 payment.
      b. To pay the $100.00 a month alimony payments from June through October, totaling $500.00.
      2. That the Plaintiff is in contempt of Court for failing to make such payments.
      3. That the Plaintiff will be allowed to purge himself of the contempt by making payments of $200.00 each month, applied retrospectively to November 1, 1973, $100.00 of which will be applied towards the current payments and $100.00 towards the arrears of $500.00.
      With regard to the support of the child, Plaintiff must make a payment of $30.00 each week, to be applied to a November 27, 1973 starting date, $15.00 of which will go towards the regular current support payments and $15.00 towards the arrears of $360.00.”

      . The December 10, 1973, hearing was scheduled for taking testimony as to the rental value of the apartments located in the jointly-held property, to establish the amounts paid on the mortgages by both parties, and to determine the husband’s rights of visitation with the parties’ child, Ann. However, the only result of the hearing was arranging for the husband to have custody of Ann for a weekend.

      . The case was first adjourned to January 14, 1974, but, due to Judge Hoffman’s illness, it was postponed first to January 28, 1974, and then to February 25, 1974.

      . The March 6 date was set for the convenience of the wife’s attorney, since the husband’s attorney failed to indicate a desired date for the adjourned hearing.

      . The wife testified that she had received only $120. in child support since the December 5 order, although she was supposed to receive $30. per week under that order. The husband’s affidavit stated that he had paid $60.00 per month in child support since October “in accord with the Decree and judgment of divorce.” The husband does not claim, therefore, to have complied with the December 5, 1973, order.

      . This in-court order was modified by the court, sua sponte, in the written order filed March 14, 1974, to allow six hours of visitation on Saturdays.

      . Even where the desired counsel possesses special expertise, a court may, consistent with due process, refuse a continuance to accommodate counsel’s trial schedules. “The Sixth Amendment right to counsel does not include the right to a lawyer whose other engagements prevent a speedy trial.” United States v. DiStefano, 464 F.2d 845, 846 n. 1 (2d Cir. 1972).

      . Although the husband claims, at page 11 of his brief, that the court made no finding of willfulness, at page 15 of the brief he alleges that the court found both husband and wife in “equally willful” violation of the decree. See November 21, 1973, hearing, N.T.. 123 (“each of these parties has failed to comply with Judge Young’s decree . . . in a flagrant manner . . . ”).

      . The December 5 order was within both the power of the court and the proper scope of its discretion. See Viles v. Viles, 316 F.2d 31, 34 (3d Cir. 1963).

      . The husband points out that the wife’s net, rather than gross, earnings are approximately $5,600.00 per year. In the decree of May 23, 1973, the court found that her gross was about $5,000.00. The husband also claims that he has been unable to pursue his part-time business of making screens since his shop, located in the jointly-held property, is no longer accessible to him. Thus he contends the differential between his earnings and the wife’s earnings is less than $3,000.00, while the decree was premised upon a differential of at least $5,000.00. Taking into account the whole of the testimony, however, we note that there are offsetting discrepancies and we agree with Judge Hoffman that these discrepancies do not indicate a change in the wife’s needs sufficient to require modification of the decree. Viles v. Viles, 316 F.2d 31, 35 n. 3 (3d Cir. 1963).
      The husband also urges that the alimony award be reduced to offset the imputed income which the wife is receiving by virtue of remaining in the larger, upstairs apartment, rather than moving into a smaller, downstairs apartment, as ordered by the May 23, 1973, decree. We note that such a reduction is within the power of the court. Poe v. Poe, 409 F.2d 40, 44 (3d Cir. 1969). However, after consideration of the record, we have concluded that the refusal of the court to reduce the award is within its sound discretion. Id. No abuse of discretion appears.

      . See note 9, supra.

      . The husband challenges, inter alia, that part of this order which requires him to reimburse the wife for unpaid mortgage payments required of him by the May 1973 Memorandum Opinion and Decree. We reject this contention.

      . We recognize that visitation programs such as that followed in the December 11, 1973, decree appear to have merit, but the absence of findings to support the above-mentioned paragraph 4, combined with the indica-' tion that the terms of such paragraph 4 were punitive, required the vacation of that paragraph.

      . In the Lotz case, the court explained the rationale of this principle as follows:
      “ . . . mere failure to support is not grounds for refusing visitation rights.
      “A thorough review of the record in this case does not reveal sufficient evidence to warrant the termination of appellee’s visitation rights. It is against public policy to destroy or limit the relation of parent or child. [Citing cases.]
      “A parent has seldom been denied the right of visitation. The cases in which visitation rights of a parent have been limited or denied have been those in which severe mental or moral deficiencies of the parent have constituted a real and grave threat to the welfare of the child. [Citing cases.] The courts have granted visitation rights to parents even in those circumstances where the parent has ignored the children for a long period of time. [Citing cases.]
      “Certainly if the court can remove a child from the custody of its parents, it can, for the welfare of the child, conversely order custody or visitation with a parent.
      “Visitation rights of a parent not in custody have long been a matter of concern to the law of this Commonwealth. They must be carefully guarded for when parents are separated and custody is placed in one of the parents, there exists a danger that the parent having custody of the child may use his or her advantageous position to alienate the other parent from the affections of the child.”
      146 A.2d 363-364.
      See also Com. ex rel. Meta v. Cinello, 217 Pa.Super. 94, 95, 268 A.2d 135, 136 (1970).

      . See also note 12, supra.

      . The district court record shows that transcripts (3 volumes) of testimony taken on these dates were filed in the district court on 7/12/74: November 21, 1973, December 10, 1973, February 25, 1974, and March 6, 1974. Such transcripts appear to have been necessary for the determination of this appeal. However, Rule 39(e) provides that such costs “shall be taxed in the district court.”