author: MAHON, District Judge.

text:
    Booker LARY, Individually and as next friend of Shirley Lary v. John J. KAVANAUGH; Jaylon Fincannon; Texas Department of Mental Health and Mental Retardation.
    Civ. A. No. 4-82-79-E.
    United States District Court, N.D. Texas, Fort Worth Division.
    May 31, 1985.

      Edward Moore, Law Offices of Windle Turley, Dallas, Tex., for plaintiffs.
    Fred Weldon, Asst. Atty. Gen., Austin, Tex., for defendants.
   ORDER

MAHON, District Judge.

This lawsuit arises from the care and treatment of Shirley Lary, a 89 year old mentally retarded female who became pregnant and gave birth while enrolled at the Texas Department of Mental Health and Mental Retardation (TDMHMR) facility in Fort Worth. Plaintiff is Shirley Lary’s father and brings this suit on her behalf against John J. Kavanaugh, Commissioner of the TDMHMR, Jaylin Fincannon, Superintendent of the Fort Worth facility, both in their official and individual capacities and against the TDMHMR, alleging that the conditions at the Fort Worth facility violated Shirley Lary’s constitutional and federal statutory rights as well as state statutory rights. Plaintiff seeks compensatory and exemplary damages.

Defendants have filed a motion for summary judgment claiming that they are immune from liability under the Eleventh Amendment of the U.S. Constitution and that Defendants Kavanaugh and Fincannon, in their individual capacities, are entitled to the qualified immunity of state officials acting in the scope of their authority. Plaintiff has filed a response to which the defendants have replied. After carefully considering the briefs of the parties, the record and the applicable law, the Court comes to the following decision.

It is well established that the Eleventh Amendment bars suit against a State by a private party in federal court without that State’s consent. See e.g. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). Whether a State is a party to the action even though it is not named as a defendant depends on whether the state is the real, substantial party in interest. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945). In Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1973), the Supreme Court stated:

Thus the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment.

Id. at 663, 94 S.Ct. at 1356. Furthermore, this rule applies to all state claims brought in federal court regardless of how jurisdiction is asserted over that claim. Pennhurst State School & Hospital v. Halderman, 104 S.Ct. at 919 (“neither pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment”).

There is an important exception to the immunity granted states by the Eleventh Amendment. When a plaintiff sues a state official alleging a violation of federal law, a federal court may award prospective injunction relief but not retroactive monetary relief. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662. This exception, however, does not come into play here because plaintiff is only seeking monetary damages and not injunctive relief. Thus, plaintiff cannot avoid the application of the Eleventh Amendment.

The Court finds that given the relationship between the State of Texas and its TDMHMR, claims against the agency and its officials are in reality claims against the State and that any judgment against the TDMHMR will be satisfied from money in the state treasury. Thus, the State of Texas is the real, substantial party in interest in this lawsuit and as such, this lawsuit is barred by the Eleventh Amendment.

Nevertheless, plaintiff claims that the defendants waived their right to sovereign immunity by (1) engaging in an activity of paramount federal interest and (2) explicitly submitting to federal jurisdiction in a related case styled Lelsz v. Kavanagh, Civil Action No. S-74-95. The Court does not agree.

As to the first basis for waiver, plaintiff takes the position that the TDMHMR’s participation in the federally funded rehabilitation of developmentally disabled persons program, 42 U.S.C. § 6000, et seq., manifests a willingness by the State of Texas to promote and enforce federal interests and thus constitutes a waiver of Eleventh Amendment immunity. This reasoning was expressly rejected by the Supreme Court in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662, where the Court stated:

The mere fact that a State participates in a program through which the Federal Government provides assistance for the operation by the State of a system of public aid is not sufficient to establish consent on the part of the State to be sued in the federal courts.

Id. at 693, 94 S.Ct. at 1370.

As a second basis for waiver, plaintiff contends that in Lelsz v. Kavanagh, a suit to protect the class of mentally retarded people in Texas institutions, the same defendants submitted to federal jurisdiction by entering into a consent decree. However, in the Lelsz consent decree, it provided that:

Although plaintiff would probably have prevailed at trial upon most or many of their claims, there were legal obstacles in their path that they have averted by settling. Defendants were prepared to argue that a federal court was debarred either by the Eleventh Amendment or by “abstention” principles from ordering relief sought under state law.

Lelsz v. Kavanagh consent decree, p. 21. Thus, the defendants avoided a ruling on their Eleventh Amendment argument. The Court finds that such action on the part of the defendants does not amount to “unequivocally expressed” consent on the part of the State of Texas to constitute a waiver of the Eleventh Amendment. See Pennhurst State School & Hospital v. Halderman, 104 S.Ct. at 907.

In sum, the Court finds that the Eleventh Amendment effectively precludes this Court from adjudicating plaintiffs claims based on state law. Having made such a finding, the Court cannot simply dismiss the state law claims. The Eleventh Amendment is a “specific constitutional bar against hearing even federal claims that otherwise would be within the jurisdiction of the federal courts.” Id. at 919; see also Monaco v. Mississippi, 292 U.S. 313, 322, 54 S.Ct. 745, 747, 78 L.Ed. 1282 (1934). Therefore, dismissal of the entire case is necessary. Accordingly, the Court hereby ORDERS that plaintiffs complaint be DISMISSED with prejudice for such suit is barred by the Eleventh Amendment.


source: Caselaw Access Project

author: JOHN V. PARKER, Chief Judge.

license: Public Domain

text:
    Nathaniel LUSK v. Edward ROBERTS, et al.
    Civ. A. No. 83-0402-A.
    United States District Court, M.D. Louisiana.
    June 4, 1985.

      William W. Miles, New Orleans, La., for plaintiff.
    William R. Aaron, Asst. Parish Atty., Baton Rouge, La., for defendants.
    Peter T. Dazzio, Baton Rouge, La., third party defendant, Fidelity & Cas. Co. of New York.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN V. PARKER, Chief Judge.

Plaintiff, Nathaniel Lusk, brings this action against Officer Edward Roberts of the Baton Rouge Police Department, the City of Baton Rouge, the Chief of Police, the Baton Rouge City Police Department and the unnamed liability insurer for the City, alleging violations of 42 U.S.C. § 1983 and § 1985 by reason of an alleged illegal assault, arrest and detention. Jurisdiction over such actions is vested in this court by 28 U.S.C. § 1343(a)(3). Plaintiff also asserts pendent claims for damages under Louisiana law arising out of the same factual situation.

Defendants filed a third party complaint against Fidelity and Casualty Company of New York, the liability insurer for the City of Baton Rouge, who denied coverage and refused to defend. That claim was severed prior to trial. Following the presentation of plaintiff’s case, the court granted a directed verdict on all claims in favor of the Baton Rouge City Police Department and the Chief of Police and the City of Baton Rouge as to the civil rights claims only. Following the presentation of defendants’ case, the matter was taken under submission.

FINDINGS OF FACT

1. Plaintiff, Nathaniel Lusk, is a 44 year old black man, who because of a degenerative condition in both hips, must use full-length crutches to walk. On December 17, 1982 at 5:00 p.m., he and an acquaintance, Thomas Hayes, walked to a liquor store and laundromat, a common gathering place in the evenings. At the time that plaintiff arrived, there were approximately fifteen men gathered in front of the laundromat.

2. Plaintiff wished to use the pay phone located on the outside wall of the laundromat, but was waiting until it was unoccupied. While waiting, he drank a beer and visited with the other men.

3. At approximately 6:00 p.m., Officer Roberts was dispatched to the liquor store and laundromat pursuant to a report that a group of men were drinking and causing a disturbance. The complaint had been called in by Mrs. Flouselle Washington who lives behind the laundry. Roberts stopped his patrol car in front of the group and told them to leave. He did not notice plaintiff during this initial stop.

4. After Roberts left, plaintiff tried to call someone on the pay phone to pick him up, but the line was busy. Plaintiff then began walking towards two men in a truck parked in front of the liquor store, intending, he says, to ask for a ride home.

5. Meanwhile, Roberts doubled back and returned to find the plaintiff and approximately six other men in the general area where the crowd had been. He again told the crowd to disperse and all began to leave except plaintiff.

8. Officer Roberts informed plaintiff that he would also have to leave and that a complaint had been filed. Plaintiff became belligerent, cursed Roberts and informed him that he did not have to leave; Roberts called for a back-up unit.

7. Plaintiff then began to move backwards toward the truck and refused to turn around and face the truck as Roberts ordered; Roberts advised the plaintiff that he was under arrest. Plaintiff reached under his jacket with his right hand and Roberts, thinking that plaintiff was reaching for a weapon, grabbed plaintiff’s hand. The two tussled and fell to the ground. Roberts secured the plaintiff with handcuffs, stood him up, performed a quick pat-down search that produced no weapon and assisted the plaintiff to the police car.

Plaintiff testified that Roberts struck him in the back, kicked the crutch from his left side and twisted him around before they both fell to the ground. Plaintiff contends that he was not aware of Roberts’ presence until he was hit in the back. Plaintiff’s testimony is contradicted by that of his only factual witness, Thomas Hayes, who testified that plaintiff was telling Roberts that he had a right to use the phone when Roberts kicked plaintiff’s crutch causing him to fall. Plaintiff did not attempt to produce the two men sitting in the truck to support his story, although he knew their names and had spoken with them about the ease. The court finds that the testimony of Officer Roberts is the most credible as to the nature of the encounter.

8. Roberts then drove the plaintiff to the local police substation where he was informed of his rights and the handcuffs were removed. Plaintiff was again placed in the back seat of the police car and was transported to the jail.

9. At the booking desk, plaintiff began to complain for the first time about pain in his knee. A nurse was called to examine him and found a loaded .32 cal. pistol concealed in his sock. Plaintiff explained that he was carrying the gun to kill stray dogs in a junk yard, where he and a friend were working earlier in the day.

10. The nurse found that plaintiff’s knee was slightly swollen, but noted no discoloration or abrasion. She kept the knee bandaged and provided plaintiff with ice packs and some medication for pain until he was bonded out of jail at 1:20 a.m.

11. Plaintiff was taken to the emergency room at the Baton Rouge General Hospital and then transferred to Earl K. Long Hospital. He was hospitalized for four days and had to wear an upper and lower cast, with his knee exposed, for six to eight weeks.

12. Plaintiff was diagnosed as having a “lateral tibial plateau fracture and injury to the left peroneal nerve resulting in a drop-foot deformity.” These injuries did not aggravate plaintiff’s pre-existing hip condition and the medical testimony revealed that the fracture has healed and should no longer be painful. While the peroneal nerve injury is not painful, it causes muscular weakness or a lack of muscular function and some discomfort. Plaintiff will, in all likelihood, need surgery on his knee in the future. The injuries do not affect the plaintiff’s employment prospects, however, due to his pre-existing hip condition.

13. Plaintiff was initially charged with resisting arrest, carrying a concealed weapon and resisting an officer. A trial was held in Baton Rouge City Court on March 10, 1983 on the charges of resisting an officer, Baton Rouge City Code, 13:7o, and carrying a concealed weapon, Baton Rouge City Code, 13:80. A judgment of acquittal was entered on all charges.

CONCLUSIONS OF LAW

1. Congress has provided 42 U.S.C. § 1983 and § 1985 as vehicles to seek monetary damages for a violation of one’s rights to be free from illegal arrests and detentions by a party acting under color of state law. Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961).

2. In arresting the plaintiff, Officer Roberts was clearly acting under “color of law” as defined by the jurisprudence. Monroe v. Pape, supra.

3. Officer Roberts alleges two grounds for the plaintiff’s arrest; the first is a violation of the charged offense, Baton Rouge City Code 13:70(b)(4), in that plaintiff was part of a crowd and refused to leave when ordered to do so by a law enforcement officer. Although not mentioned in defendant’s brief, Roberts testified that he arrested the plaintiff for creating a disturbance, which would have been a violation of Baton Rouge City Code 13:50, disturbing the peace.

4. Officer Roberts has also asserted the affirmative defense of qualified immunity. Public officials whose positions entail the exercise of discretion enjoy the special protection of a qualified immunity from personal liability in § 1983 damage actions. Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Once the defendant has asserted the qualified immunity and has established that any allegedly tortious conduct was undertaken pursuant to the exercise of his discretionary authority, the burden then shifts to the plaintiff to rebut this good faith defense. Saldana v. Garza, 684 F.2d 1159,1163 (5th Cir.1982), cert. denied 460 U.S. 1012, 103 S.Ct. 1253, 75 L.Ed.2d 481 (1983); Garris v. Rowland, 678 F.2d 1264, 1271 (5th Cir.), cert. denied, 459 U.S. 864, 103 S.Ct. 143, 74 L.Ed.2d 121 (1982). Plaintiff must establish that the defendant’s allegedly wrongful conduct violated clearly established law, with the focus on the objective reasonableness of the official’s acts. Harlow v. Fitzgerald, supra; Metlin v. Palastra, 729 F.2d 353, 356 (5th Cir.1984). Although defendant argues the pre-Harlow subjective standard, the qualified immunity defense will be considered according to the Harlow standard.

5. Officer Roberts was clearly acting within his discretionary authority when he arrested the plaintiff. Therefore the burden of proof shifted to the plaintiff to show that the defendant violated clearly established law.

6. The court must first determine that the validity of the statute in question is not in such doubt that it cannot be relied upon. Then the proper inquiry is whether a reasonable officer under similar circumstances would have had probable cause to believe that plaintiff committed the offense in question. The Fourth Amendment rule on warrantless arrests is “clearly established law.” If an arrest lacks probable cause for its support, it is, objectively speaking, in violation of clearly established law. Trejo v. Perez, 693 F.2d 482, 488 (5th Cir.1982). A peace officer who arrests someone with probable cause is not liable for false arrest simply because the innocence of the suspect is later proved. Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967).

7. Neither party has suggested that Baton Rouge City Code 13:70 is unconstitutional. It prohibits the “intentional opposition ... or obstruction of” an officer, “when the offender knows or has reason to know that the person arresting, seizing property or serving process is acting in his official capacity.” The term “obstruction” is defined as “congregates with others on a public street and refuses to move on when ordered by the officer.” Baton Rouge City Code 13:70(4). The local ordinance is a virtual “Chinese copy” of a state statute, L.S.A.R.S. 14:108, which Louisiana jurisprudence has upheld as constitutional, but has restricted application to its specific statutory language. In State v. Huguet, 369 So.2d 1331 (La.1979), the court held that despite the broad language of the “obstruction” portion of the statute, refusal to move when ordered by police is not a crime “unless it obstructs police in their official duties of making a lawful arrest, seizure, or service of process.” Id. at 1333. If the officer is not engaged in one of the three stated activities — attempting to seize property, serving process, or making a lawful arrest — then a person who opposes him cannot be guilty of a violation of § 108. State v. Nix, 406 So.2d 1355 (La.1981); State v. Lindsay, 388 So.2d 781 (La.1980); State v. Huguet, supra; Adams v. Thompson, 560 F.Supp. 894 (M.D.La.1983). The same interpretation should apply to the city ordinance since the wording is essentially identical. See State v. Jordan, 369 So.2d 1347 (La.1979). The court in State v. Huguet, supra, also noted that another statute, L.S.A.R.S. 14:103.1, which did make it a crime to refuse to disperse or move on when ordered to do so by a police officer, was declared unconstitutional in Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). Thus a reasonable law officer could not have a good faith belief that the local ordinance authorized arrest for refusal to move on when the officer was not acting in his official capacity, as defined by the ordinance — seizing property, serving process or making a lawful arrest. The court has the impression that Roberts assumed that the ordinance broadly authorized him to arrest plaintiff because plaintiff refused to move on when ordered to do so. In view of Cox v. Louisiana, supra, a reasonable law officer could not entertain a good faith belief that an ordinance authorizing a police officer to order people to “move on” and authorizing arrest of those who refuse could be a constitutional exercise of police power.

8. At the time that Officer Roberts informed the plaintiff that he was under arrest, prior to any contact between the two, Roberts was not in the process of attempting to seize property, serving process or making a lawful arrest, and no prudent person could have reasonably concluded that plaintiff was violating § 70, the local ordinance. The evidence shows that there was no probable cause for plaintiffs arrest under § 70 and an arrest on this basis violated clearly established law.

9. As previously mentioned, defendant testified that he arrested the plaintiff for disturbing the peace. This contention is not argued by the defendant in brief and the court can only assume that defendant is relying on Baton Rouge City Code 13:50(b), which was raised as a basis for the arrest in the Baton Rouge City Court proceedings, although plaintiff was not charged with that offense.

10. The charging of an offense is not a prerequisite to its use in justification of a warrantless arrest on other grounds. When a crime under which the arrest is made and a crime for which probable cause exists are in some fashion related, then there is no question but that there is a valid arrest. United States v. Atkinson, 450 F.2d 835, 838 (5th Cir.1971), cert. denied, 406 U.S. 923, 92 S.Ct. 1790, 32 L.Ed.2d 123 (1972); Trejo v. Perez, 693 F.2d 482 (5th Cir.1982). There is no requirement that the arresting officer have the un-charged offense specifically in mind at the time of the arrest. The inquiry is whether the conduct that served as the basis for the charge for which there was no probable cause could, in the eyes of a similarly situated reasonable officer, also have served as a basis for a charge for which there was probable cause. Trejo v. Perez, id. at 486.

11. The crimes of resisting an officer and disturbing the peace are sufficiently related that an objective officer may have charged the latter. The conduct that gave rise to the arrest was plaintiff’s refusal to leave; the conduct that might have permitted an arrest for disturbing the peace was plaintiff’s loud and belligerent conduct in response to Roberts’ order to leave.

12. There is no contention by either side that § 50(b) is unconstitutional. While portions of a similar state criminal statute, L.S.A.-R.S. 14:103 have been declared unconstitutional, State v. Brown, 282 So.2d 707 (La.1973); State v. Adams, 263 La. 286, 268 So.2d 228 (1972), neither § 103(a)(2) 5 as it currently reads, nor Baton Rouge City Code 13:50(b) have been declared unconstitutional. There is no clearly established law that the offense is unconstitutional.

13. The next inquiry is whether a reasonable officer under similar circumstances would have had probable cause to believe that plaintiff had committed the offense of disturbing the peace. Trejo v. Perez, 693 F.2d 482 (5th Cir.1982). The evidence shows that plaintiff began cursing when Roberts told him that he would have to leave. That some disturbance occurred is substantiated by Mrs. Washington’s testimony that she heard a loud noise and then saw plaintiff being placed in the police car, although it is not clear whether she heard plaintiff’s response or the noise ensuing from the officer’s action in taking plaintiff into custody. Even the testimony of Thomas Hayes substantiated that plaintiff made some response to Roberts’ order.

14. It is settled law, however, that cursing in the presence of a police officer is generally considered protected speech under the First Amendment to the United States Constitution and Article 1 § 7 of the Louisiana Constitution, which protect the right of freedom of speech, unless the words used are “fighting words,” which are words that “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” City of New Orleans v. Lyons, 342 So.2d 196 (La.1977); White v. Morris, 345 So.2d 461 (La.1977); State in Interest of W.B., 461 So.2d 366 (La.App. 2d Cir.1984). When such words are directed at a police officer, a stronger showing is necessary that the words tend to incite the addressee to an immediate breach of the peace, since a police officer is trained (or should be) to exercise a higher degree of restraint than the average citizen. City of New Orleans v. Lyons, supra; White v. Morris, supra.

15. No evidence was presented to show that plaintiff’s words tended to incite an immediate breach of the peace and the evidence presented would not allow a reasonable officer to believe that plaintiff violated § 50(b). The clear and present danger necessary in order to justify the state's interference with the plaintiff’s right to speak freely has not been shown. See City of New Orleans v. Lyons, supra.

16. Defendant has not suggested any other basis for plaintiff’s arrest and it is not the court’s function to suggest one. Defendant has not raised the second part of the good faith immunity defense as established by Harlow — the existence of extraordinary circumstances showing that he neither knew nor should have known of the relevant legal standard. Plaintiff has proven that he was arrested without probable cause and thereby deprived of a right under the Constitution.

17. Since there was no probable cause for his arrest, plaintiff was entitled to resist the unlawful arrest and to use reasonable force in doing so, under either federal, United States v. Di Re, 332 U.S. 581, 68 S.Ct. 222, 92 L.Ed.2d 210 (1948) or state law, White v. Morris, supra; Adams v. Thompson, supra, and he is entitled to the damages sustained as a result of the arrest. Much was made of the defendant’s belief that plaintiff was searching for a gun after being placed under arrest. However, this relates to the issue of whether Officer Roberts used excessive force in making the arrest. Concluding that the arrest was illegal, the court does not reach the question of excessive force. The plaintiff had a right to resist and plaintiff’s conduct in doing so was reasonable — bearing in mind that plaintiff did not actually attempt to use the pistol which was concealed in his sock.

18. Plaintiff is also entitled to recover for his pendent state law claim of assault and battery. The physical attack on a private citizen by a police officer, absent a valid arrest, constitutes a battery. Norrell v. City of Monroe, 375 So.2d 159 (La.App. 2d Cir.1979); Malone v. Fields, 335 So.2d 538 (La.App. 2d Cir.1976). The officer’s use of physical force to overcome plaintiff’s resistance renders the City of Baton Rouge liable for damages, as the officer’s employer.

19. Plaintiff was unlawfully deprived of his freedom due to the unlawful arrest and detention and is entitled to an award of $10,000.00 for this experience. Plaintiff also suffered a fractured tibia and peroneal nerve injury resulting in a drop-foot deformity which can be minimized by the use of a brace or a corrective shoe device. Plaintiff will most likely require surgery on his knee in the future to achieve stability. For the physical and mental injuries which resulted from the assault and battery, plaintiff is entitled to an award of $15,-000.00.

20. Plaintiff is also entitled to an award for past medical expenses in the amount of $523.99, and the estimated cost of future surgery in the amount of $5,000.00 or a total of $5,523.99.

21. Plaintiff requests punitive damages under his § 1983 claim. Punitive damages may be assessed in a § 1983 action when the defendant’s conduct is shown to be motivated by evil motive or intent or when it involves reckless or callous indifference to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). The evidence shows that Officer Roberts may have acted overzealously, but does not support an award for punitive damages. Plaintiff’s request is DENIED.

22. Plaintiff has also prayed for attorney’s fees and he is entitled to them under § 1988. Johnson v. Georgia Highway Express, Inc., 488 F.2d 714 (5th Cir.1974). Counsel shall submit the information required by Johnson v. Georgia Highway

Express, supra, in order that attorney’s fees may be assessed.

Judgment will be entered accordingly.

      . Baton Rouge City Code 13:70, at the time of plaintiffs arrest read as follows:
      Sec. 70. Resisting an officer.
      (a) "Resisting an officer" defined. It shall be unlawful to resist an officer. "Resisting an officer” is the intentional opposition or resistance to, or obstruction of, an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property, or to serve any lawful process of court order, when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
      (b) Obstruction defined. The phrase "obstruction of' as used herein shall, in addition to its common meaning, signification and connotation mean:
      (1) Flight by one sought to be arrested before the arresting officer can restrain him and-after notice is given that he is under arrest.
      (2) Any violence toward or any resistance or opposition to the arresting officer after the arrested party knows of or should have known of the officer’s official status and of his intention to effect the arrest.
      (3) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
      (4) Congregates with others on a public street and refuses to move on when ordered by the officer. (Ord. No. 3948, § 1, 9-27-78)

      . Baton Rouge City Code 13:80, at the time of plaintiffs arrest read as follows:
      Sec. 80. Illegal carrying of weapons.
      It shall be unlawful for any person to illegally carry a weapon.
      Illegal carrying of weapons is:
      (1) The intentional concealment of any firearm, or other instrumentality customarily used or intended for probable use as a dangerous weapon, on one’s person; or
      (2) The ownership, possession, custody or use of any firearm or other instrumentality customarily used as a dangerous weapon, at any time by an enemy alien; or
      (3) The ownership, possession, custody or use of any tools, or dynamite or nitroglycerine, or explosives, or other instrumentality customarily used by thieves or burglars at any time by any person with the intent to commit a crime; or
      (4) The manufacture, ownership, possession, custody or use of any switch blade knife, spring knife or other knife or similar instrument having a blade which may be automatically unfolded or extended from a handle by the manipulation of a button, switch, latch or similar contrivance.
      (5) The provisions of this section, except paragraph (4) of this section, shall not apply to sheriffs and their deputies, state and city police, constables and town marshals, or persons vested with police power when in the actual discharge of official duties. (Ord. No. 3948, § 1, 9-27-78)

      . La.R.S. 14:108 reads as follows:
      108. Resisting an officer.
      A. Resisting an officer is the intentional opposition or resistance to or obstruction of an individual acting in his official capacity and authorized by law to make a lawful arrest or seizure of property or to serve any lawful process or court order when the offender knows or has reason to know that the person arresting, seizing property, or serving process is acting in his official capacity.
      B. (1) The phrase "obstruction of’ as used herein shall, in addition to its common meaning, signification, and connotation mean the following:”
      (a) Flight by one sought to be arrested before the arresting officer can restrain him and after notice is given that he is under arrest.
      (b) Any violence toward or any resistance or opposition to the arresting officer after the arrested party is actually placed under arrest and before he is incarcerated in jail.
      (c) Refusal by the arrested party to give his name and make his identity known to the arresting officer.
      (d) Congregation with others on a public street and refusal to move on when ordered by the officer.
      (2) The word "officer” as used herein shall include deputy sheriffs and municipal police officers.
      C. Whoever commits the crime of resisting an officer shall be fined not more than five hundred dollars or be imprisoned for not more than six months, or both.

      . Baton Rouge City Code 13:50(b) states:
      Sec. SO. Disturbing the peace.
      It shall be unlawful for any person to disturb the peace. “Disturbing the peace” is the doing of any of the following acts in such a manner as would foreseeably disturb or alarm the public, or create any dangerous or violent conditions. ..

      (b) Address toward another person language which is threatening, profane, obscene, or derisive, and which in the manner uttered has a tendency to incite an ordinary addressee to violent retaliatory action and a breach of the peace.

      . The transcript of the trial in Baton Rouge City Court indicates that the prosecution tried to elicit testimony from Officer Roberts that plaintiffs language posed a threat of causing difficulty with other people in the vicinity. Officer Roberts responded that the only threat was that someone else may have become involved, but later testified that no one else was present and the crowd had dispersed. His testimony did not indicate that the words tended to incite an immediate breach of the peace.


text:
    OGDEN OIL COMPANY v. SERVCO, A DIVISION OF SMITH INTERNATIONAL, INC.
    Civ. A. No. 83-1145-A.
    United States District Court, M.D. Louisiana.
    June 4, 1985.

      Deborah C. Parker, Baton Rouge, La., for plaintiff.
    M. Lizabeth Talbott, New Orleans, La., for defendant.
   JOHN V. PARKER, Chief Judge.

This diversity case presents difficult, res nova issues involving the Louisiana Oil Well Lien Act, L.S.A.-R.S. 9:4861 et seq. Defendant has moved for summary judgment; both sides have submitted multiple briefs and the issues have been orally argued. The court apologizes to counsel and litigants for the length of time involved in coming forward with this opinion but, as noted, the issues are difficult and a searching examination of all Louisiana jurisprudence has been undertaken. The ultimate question to be resolved is which of two innocent creditors of the defaulting mineral lessee should suffer.

Both sides agree that the facts are undisputed. Plaintiff, Ogden Oil Company, is a corporate citizen of Mississippi with its principal office in that state and defendant, Servco, a division of Smith International, Inc., is a corporate citizen of California with its principal office in that state. In 1977 Shell Oil Company obtained an oil, gas and mineral lease on a tract of land in sections 49, 50 and 57 (the Comite Field) in East Baton Rouge Parish, Louisiana, and 1982 Shell assigned the lease to Workover One, Inc., which secured a state permit to drill for minerals at a well site commonly identified as the Petit No. 1. On October 8, 1982, Workover One assigned all of its right, title and interest in the lease to Workover One Alliance Group, a partnership. During the period of November and December, 1982, the defendant, Servco, furnished oil field drilling related equipment, supplies, labor and other services to Workover One totaling $145,476.54. Work-over One having failed to pay, Servco ceased furnishing such supplies and equipment and on April 7, 1983, more than ninety days following the last performance of labor or services, Servco recorded a lien affidavit in the mortgage records of the Parish of East Baton Rouge.

In the meantime, Workover One contracted with plaintiff, Ogden Oil, to furnish a workover rig for use at Petit No. 1. Ogden’s rig was apparently moved to the well site in mid-March, 1983 and on April 4, 1983, after Workover One had failed to pay Ogden some $250,000.00 representing labor, services, supplies and equipment furnished, Ogden began to rig down for removal of its equipment. On May 16, 1982, after Ogden’s equipment had been removed from the well site, Servco secured a writ of sequestration from this court authorizing seizure of Ogden’s workover rig. The sequestration was subsequently released and Ogden brought this action against Servco alleging wrongful seizure of the rig and claiming some $130,000.00 as damages for the period during which the rig remained under seizure.

The issue presented by Servco’s motion for summary judgment is whether Ogden’s workover rig was subject to the lien or privilege granted to Servco by the Oil Well Lien Act. If the property was subject to the lien then obviously the seizure was lawful and Servco is entitled to summary judgment. Servco argues that Ogden’s workover rig was “located on the lease” and thus is subject to its privilege; Ogden argues that its rig was not “located on the lease” at anytime that Servco was furnishing labor, materials or services and that the rig is not subject to the privilege.

Since La.R.S. 9:4861.2 provides that it is unlawful for any person to remove property to which a privilege under § 4861 has attached and further provides that the privilege may nevertheless be enforced against any property which has been removed from the site “wherever the same may be located,” it is apparent that Ogden’s removal of the rig did not defeat the privilege, assuming that it had lawfully attached. The privilege is created by La.R.S. 9:4861 which, prior to its amendment by Act 949 of 1984, read as follows:

§ 4861. Privilege for labor, services or supplies. Any person who performs any labor or service in drilling or in connection with the drilling of any well or wells in search of oil, gas or water, or who performs any labor or service in the operation or in connection with the operation of any oil, gas or water well or wells, has a privilege on all oil or gas produced from the well or wells, and the proceeds there of inuring to the working interest therein, and on the oil, gas or water well or wells and the lease whereon the same are located, and on all drilling rigs, standard rigs, machinery, appurtenances, appliances, equipment, buildings, tanks, and other structures thereto attached or located on the lease, for the amount due for labor or service, in principal and interest, and for the cost of preparing and recording the privilege, as well as ten per cent attorney’s fees in the event it becomes necessary to employ an attorney to enforce collection. Any person who does trucking, towing, or barging, or who makes any repairs or furnishes any fuel, drilling rigs, standard rigs, machinery, equipment, material or supplies for or in connection with the drilling of any well or wells in search of oil, gas or water, and for or in connection with the operation of any oil, gas, or water well or wells, whether or not a producing well is obtained and whether or not such materials, machinery, equipment, services and supplies are not incorporated in or become a part of the completed oil, gas or water well, has a privilege on all oil or gas produced from the well or wells and the proceeds thereof inuring to the working interest therein and on the oil, gas or water well or wells and the lease whereon the same are located, and on all drilling rigs, standard rigs, machinery, appurtenances, appliances, equipment, buildings, tanks arid other structures thereto attached for drilling, equipment and operation of the well or lease, for the amount due for such trucking, towing, barging, repairs, fuel, drilling rigs, standard rigs, machinery, equipment, material, or supplies, in principal and interest, and for the cost of preparing and recording the privilege, as well as ten per cent attorney’s fees in the event it becomes necessary to employ an attorney to enforce collection thereof. This privilege is second in rank only to the privilege granted in favor of laborers.

Thus, the statute grants a lien or privilege to any person who. performs labor or services and to any person who furnishes trucking, towing, barging, repairs, fuel, drilling rigs, standard rigs, machinery, equipment, material or supplies, and the privilege extends to “all oil or gas produced from the well or wells ... and on the oil, gas or water well or wells and the lease whereon the same are located, and on all drilling rigs, standard rigs, machinery, appurtenances, appliances, equipment, buildings, tanks and other structures thereto attached for drilling, equipment and operation of the well or lease.” Since Ogden Oil’s workover rig was “thereto attached” to the Petit No. 1 drill site for drilling the well, Servco claims its privilege attached to the rig even though Servco had ceased furnishing materials and supplies more than three months before Ogden Oil moved its rig onto the site. Ogden Oil argues that the statute should be strictly construed so as to limit the privilege to equipment and machinery on the lease at the time that the services are performed.

Louisiana jurisprudence is of little assistance and in this diversity action the court must construe and apply Louisiana law as best it can, predicting how a Louisiana court would resolve the issue. Commonwealth Life Insurance Co. v. Neal, 521 F.Supp. 812 (M.D.La.1981), aff’d 669 F.2d 300 (5th Cir.1982).

Both sides agree that as to movable property the privilege authorized by § 4861 becomes effective and attaches without recordation. See Section 19, Article 19, Louisiana Constitution of 1921, continued as a statute by Section 16, Article 14, Louisiana Constitution of 1974. See also Continental Casualty Co. v. Associated Pipe and Supply Co., 447 F.2d 1041 (5th Cir.1971). Thus, the provision of Section 4862 that, “If a notice of such claim or privilege ... is filed for record and inscribed ... within ninety days ...” (increased to 180 days by Act 374 of 1983) means that such recordation or registration effects only the ranking, not the existence of the privilege. “The clear implication is that if you chose not to record you will lose that special ranking of your privilege but not the lien.” Continental Casualty Co. v. Associated Pipe and Supply Co., 310 F.Supp. 1207, 1218 (E.D.La.1969), aff’d 447 F.2d 1041 (5th Cir.1971). See also Altom v. Mt. Vernon Oil and Gas Co., 174 La. 775, 141 So. 457, 460 (1932) which considered a predecessor oil well lien statute (Act 171 of 1928), “[T]he registry of the claim is not intended as prima facie proof of its amount, but only to give the lien precedence over any subsequent mortgage or lien on the property,” and Beacon Gasoline Co. v. Sun Oil Co., 455 F.Supp. 506, 509 (W.D.La.1978), “[Rjecordation within 90 days of completion of services is not necessary to preserve the privilege against third persons.” But Cf. Mercantile Nat’l Bank v. J. Thos. Driscoll, Inc., 194 La. 935, 195 So. 497 (1940) and Western Wireline Services, Inc. v. Pecos Western Corp., 377 So.2d 892 (La.App. 4th Cir.1979) holding that registration is required in order for the privilege to effect immovable property. Since no immovable property is involved in this litigation and no lien or privilege except Servco’s has been asserted in this litigation, we have no ranking issue and Servco’s failure to register its claim within the ninety day period prescribed by Section 4862 is of no significance in determining whether the privilege attaches to Ogden Oil’s workover rig.

Although no Louisiana court has addressed the precise issue before this court, the Louisiana jurisprudence has clearly established that (1) the lease on which the well is located defines the area subject to the privilege, P.H.A.C. Services, Inc. v. Seaways International, Inc., 393 So.2d 117 (La.App. 1st Cir.1980) aff’d 403 So.2d 1199 (La.1981). See also, J.S. Abercrombie Co. v. Lehulu Oil Co., 181 La. 644, 160 So. 126 (1935) where the privilege was restricted to a sublease; (2) the privilege does not attach to the landowner’s property, Tracy v. Hewitt, 92 So.2d 757 (La.App.2d Cir.1957); Odom v. McClanahan, 196 So. 382 (La.App.2d Cir.1940); (3) the privilege attaches to all property listed in the statute, regardless of ownership of the property, Blankenship v. Stovall, 159 So. 477 (La.App.2d Cir.1935); and (4) the statute “does not require a contract or any contractual relationship between the furnisher of the materials and the owner, operator, producer or driller of the oil well.” Oil Well Supply Co. v. Independent Oil Co., 219 La. 936, 54 So.2d 330, 331 (1951). See also, Sklar v. Oil Incomes, Inc., 133 F.2d 512 (5th Cir.1943) and JHJ Limited 1 v. Chevron U.S.A., Inc., 580 F.Supp. 6 (M.D.La.1983).

Ogden Oil argues that, considering Louisiana’s uniform jurisprudence to the effect that lien statutes should be strictly construed by the courts and may not be extended by implication or analogy to any situation not explicitly contemplated by the statute creating them, see e.g., Southern Savings Association v. Langford Land Company, 872 So.2d 713 (La.App. 4th Cir.1979) writ denied 374 So.2d 659 (La.1979), this court should not construe the statute to apply prospectively to rigs and other equipment brought to the lease site after the claimant has ceased furnishing labor, supplies, materials, equipment and machinery.

The answer to that argument is that the statute itself extends the privilege to “all oil or gas produced from the well or wells, and the proceeds thereof inuring to the working interests therein,” although § 4861.1 protects a purchaser of oil or gas or the proceeds thereof in the absence of written notice of a claim having been delivered to the purchaser. Thus, it is plain that the statute itself extends prospectively since production is normally the end of the drilling process. The statute also extends to all “machinery, equipment, material or supplies” in connection with the drilling of any well “or in connection with the operation of any oil, gas or water well.” Adoption of the construction advocated by Ogden Oil would result in very difficult application of the statute, since each claimant would be required to establish that he furnished labor services, supplies, materials or equipment at a time when the particular property against which the claim is made was located upon the site — a task well-nigh impossible in many instances.

In Mercantile Nat. Bank v. J. Thos. Driscoll Inc., supra, the Supreme Court held that one lien filed by a supplier on one open account for materials and supplies furnished to multiple wells on seven different leases was sufficient and that the supplier “was not obliged ... to file separate liens for the respective amounts claimed against each well under each lease.” id. 195 So. at 503. This liberal, non-technical construction of the statute does not favor the narrow interpretation advanced by Ogden Oil. Although the Oil Well Lien Statute is not a model of clarity, it seems plain that the legislature intended no artificial barriers to be interposed and that all property and equipment used in the drilling or operation of any well would be subject to the privilege in favor of those who furnished labor, materials, supplies or equipment. Had the legislature intended to restrict the application of the privilege solely to machinery and equipment located on the lease at the time supplies, materials, etc. were furnished, it could have easily said so and the broad, all encompassing language used in the statute clearly indicates a contrary intent.

Accordingly, I conclude that Ogden Oil Co. having already suffered because Workover One failed to pay it for use and operation of its workover rig, must now also suffer because of the attachment of Servco’s lien for labor, services, materials and supplies furnished prior to the time that Ogden Oil Company’s rig was placed upon the lease. Since § 4866 specifically grants the right to enforce any privilege arising under § 4861 by writ of sequestration without the necessity of furnishing security therefor, it is apparent that Servco did not wrongfully sequester the Ogden Oil workover rig.

Since there are no disputed issues of material fact and, under Louisiana law, Servco is entitled to judgment as matter of law, Servco’s motion for summary judgment is hereby GRANTED and there will be judgment in favor of Servco dismissing this action.

      . Section 4861.2 prohibiting removal and providing for enforcement of the privilege after removal, was added by Act 100 of 1956 which legislatively overruled the case of Idom v. Moss, 32 So.2d 411 (La.App.2d Cir.1947).

      . The 1984 amendment extended the privilege to flow lines or gathering lines attached to the well and any pipeline owned by the producer, operator or contract operator.


author: ENRIGHT, District Judge.

text:
    Raphael ESTRADA-FIGUEROA, Plaintiff, v. Alan C. NELSON, et al., Defendants.
    No. Civ. 85-0085-E.
    United States District Court, S.D. California.
    June 4, 1985.

      Peter N. Larabee, San Diego, Cal., for plaintiff.
    Robert Plaxico, Asst. U.S. Atty., San Diego, Cal., for defendants.
   MEMORANDUM DECISION

ENRIGHT, District Judge.

BACKGROUND

Plaintiff, a Mexican national, brings this action pursuant to the provisions of the Administrative Procedure Act, 5 U.S.C. §§ 701-706 (1982), the Immigration and Nationality Act, 8 U.S.C. §§ 1101-1503 (1982), and the Declaratory Judgment Act, 28 U.S.C. § 2201-2202 (1982), seeking review of the determination by the Immigration and Naturalization Service (hereinafter “INS”) denying him permission to reapply for admission to the United States.

Plaintiff has a long history of involvement with the INS. His first documented illegal entry into this country was in 1974. He was apprehended by the INS and permitted to voluntarily depart the country in April of 1976. During his residence in the United States, plaintiff married a permanent resident alien. There is one child from that marriage.

Plaintiff again entered the United States illegally in May of 1976 and was apprehended by the INS authorities on August 2, 1976 after being arrested for force-able sexual abuse. At the time he was apprehended, plaintiff was apparently using a false Alien Registration Receipt Card, which he told authorities he had purchased in Los Angeles for $200. Although plaintiff was not prosecuted on the underlying criminal charge, a deportation hearing was held and plaintiff was deported on August 13, 1976. At the time of this involuntary deportation, plaintiff was warned that reentry without permission would constitute a felony.

Plaintiff entered the country illegally again in January of 1977 and was apprehended by INS authorities after being arrested by Salt Lake City police for a traffic violation and shoplifting. Plaintiff agreed to voluntarily depart the country rather than undergo a formal deportation hearing.

Plaintiff effected yet another illegal entry in September of 1977; this time he was not apprehended until May of 1979. At that time plaintiff indicated that he and his wife were on the Medi-Cal welfare plan. He was permitted to voluntarily depart on October 19, 1979.

At some point after this date, plaintiff returned to the United States illegally and he was not apprehended until December 1, 1982. At that time, plaintiff requested a deportation hearing. That hearing was held on December 23, 1982, during which plaintiff admitted that he had entered the United States without inspection. He was permitted to voluntarily depart by March 12, 1982.

On November 25, -1982, plaintiff’s wife, in an effort to secure legal residence for plaintiff in the United States, filed a visa petition seeking to accord plaintiff immediate relative status under 8 U.S.C. § 1151(b)(1982). That petition was forwarded by the INS to the U.S. Embassy in Mexico and, according to plaintiff, plaintiff now has a visa granting him permission to enter this country. The government argues, however, that in addition to the visa, it was also necessary for plaintiff, in light of his previous involuntary deportation, to secure the consent of the Attorney General of the United States for application for admission into this country pursuant to the requirements of 8 U.S.C. § 1182(a)(17) (1982) and its implementing regulation, 8 C.F.R. § 212.2(a) (1984).

Plaintiff made the appropriate application for permission to apply for reentry, but it was denied by the INS in a decision dated December 5, 1983. In his ruling, James J. O’Keefe, the INS District Director, denied that application based upon plaintiff’s history of repeated illegal entries and his action in obtaining a false Alien Registration Receipt Card. Plaintiff appealed this determination to the Associate Commissioner for Examinations in Washington, D.C. On June 6, 1984, the Associate Commissioner affirmed the decision of the District Director and dismissed plaintiff’s appeal.

Plaintiff brought the present case to appeal that decision. At this juncture, defendant moves the court to dismiss plaintiff’s complaint or, in the alternative, for summary judgment. Plaintiff has filed a cross-motion for summary judgment.

DISCUSSION

Plaintiff challenges defendant’s denial of plaintiff’s application for permission to reapply for admission to the United States on two bases. First, he argues that the INS misinterprets the relevant section of the Immigration and Nationality Act; second, he contends that the agency abused its discretion in its application of the regulation to the facts of his case.

Looking first to the validity of the implementing regulation, the relevant section of the Immigration and Nationality Act, Section 212(a)(17), 8 U.S.C. § 1182(a)(17) (1982), requires that the following class of aliens shall be excluded:

[ajliens who have been arrested and deported ... and who seek admission within five years of the date of such deportation or removal, unless prior to the embarkation or reembarkation at a place outside the United States or their attempt to be admitted from foreign contiguous territory the Attorney General has consented to their reapplying for admission.

This statute has been implemented by a regulation issued by the INS which provides in pertinent part:

(a) Evidence ... Any alien who does not present proof of more than five successive years of absence from the United States which is satisfactory to the consular or immigration officer, or who has not remained outside the United States for this requisite period, must apply for permission to reapply under this part.

8 C.F.R. § 212.2(a) (1984).

It is plaintiffs contention that the regulation adds a requirement, not contemplated by the statute, that the applicant seeking permission to apply for readmission must have been outside of the United States for five successive years following involuntary deportation. Plaintiff argues that, to the contrary, all the statutory language requires is that plaintiff wait until five years after he has been deported, regardless of where he is residing in the interim. Because plaintiff was deported in August of 1976, he concludes that he does not need the Attorney General’s permission to reapply for admission to the United States as more than five years have passed since the involuntary deportation.

This court finds that the government’s position, that the applicant must have remained outside the United States for five successive years after the involuntary deportation in order to avoid the application requirement, is the correct one. The implementing regulation is valid as written.

Section 1182(a)(17) of Title 8 of the United States Code, the statutory basis for the regulation, was amended effective December 29, 1981 by Public Law 97-116, 95 Stat. 1611, to restrict the applicability of Section 1182(a)(17) to aliens who seek to reapply for admission within five years of deportation. Previously, the section had provided that all involuntarily deported aliens, not just those deported within the last five years, had to make application for permission to reapply.

The legislative history behind this amendment makes it clear that the purpose of the amendment was to streamline procedures, reduce paperwork, and enhance efficiency by eliminating the requirement that those deported more than five years earlier need make application. Since applications by those who had remained outside the United States more than five years were routinely granted, the need for them to seek permission was eliminated. The congressional report states:

Section 4(1) amends section 212(a)(17) to remove the requirement that an alien, who was previously deported or removed from the United States, must obtain the Attorney General’s consent before entering the United States more than five years after the date of the deportation or removal____ The Department of Justice has indicated that generally aliens who are otherwise admissible and have remained outside the United States for a substantial period of time without returning illegally are routinely granted permission to reenter. There is little useful purpose served by retaining the current provision and there would be a direct economy by eliminating the need to adjudicate consent application for aliens who have remained outside the United States for five years or longer.

H.R.Rep. No. 264, 97th Cong., 1st Sess., reprinted in 1981 U.S.Code & Cong.Admin.News 2577, 2589 (emphasis added).

As the italicized language illustrates, the rationale for changing the requirement from a blanket one covering all involuntarily deported aliens to a requirement that only those deported within the last five years need apply was that those aliens deported more than five years ago, who had not reentered illegally were routinely ■granted permission to reapply. In an attempt to streamline administrative procedures, Congress eliminated the requirement that had existed as to those who fell within the category for which permission to reapply was routinely granted. There is no suggestion in the legislative history that Congress was attempting to liberalize the application policy.

Thus, this court concludes that the INS regulation is valid. A regulation, to be valid, must be consistent with the statute under which it is promulgated. United States v. Larionoff, 431 U.S. 864, 873, 97 S.Ct. 2150, 2156, 53 L.Ed.2d 48 (1977). In interpreting the will of Congress in passing a particular statute, the legislative history is a persuasive source of congressional intent. Id. at 873-78, 97 S.Ct. at 2756-59. In this case, the regulation is consistent with the statute and the intent of Congress as expressed through the legislative history.

Given the conclusion that the INS’ regulation is valid, plaintiff must have remained outside the United States for five years subsequent to his deportation in order to avoid the requirement that he seek permission for the Attorney General to reapply for admission. This he has not done. As a result, he must seek the discretionary approval of the Attorney General. Because this approval was denied, the only remaining question for this court is whether that denial was an abuse of discretion.

It is well-established that the standard of review which this court must apply to the administrative determination denying plaintiff's application for leave to reapply for admission to the United States is whether that ruling is an abuse of the agency’s discretion. See, e.g., Dragon v. I.N.S., 748 F.2d 1304, 1305, 1306 (9th Cir.1984); Murillo-Aguilera v. Rosenberg, 351 F.2d 289, 290 (9th Cir.1965). Upon reviewing that ruling, this court concludes that the agency’s decision was not an abuse of discretion. The INS considered and weighed all the relevant facts, including the fact that plaintiff’s wife and child resided in the United States, and found that this positive fact was outweighed by the negative facts of plaintiff’s repeated disregard for the immigration laws. There is no basis for concluding that this balancing was abusive.

CONCLUSION

Upon due consideration of the parties’ memoranda and exhibits, the arguments advanced at the hearing, and for the reasons set forth herein, the court grants the defendant's motion for summary judgment. Plaintiff’s cross-motion for summary judgment is, accordingly, denied.

      . In finding consistency between the statutory language and the regulation, the court notes that the statute requires that the previously deported person reapply for admission "prior to the embarkation or reembarkation at a place outside the United States or ... from foreign contiguous territory.” This plainly envisions that the alien has not previously returned to this country illegally. It is also noteworthy that the case law, although not discussing the specific argument raised by plaintiff herein, has tacitly assumed that the statute means that the alien must not reenter the United States without permission during the five year period. See, e.g., Munoz-Santana v. United States I.N.S., 742 F.2d 561, 562 (9th Cir.1984); Luna v. I.N.S., 709 F.2d 126, 127 (1st Cir.1983).

      . Plaintiff has argued that there are factual issues which remain in the case, for example, whether plaintiff was actually receiving Medical benefits at the time of his May 1979 apprehension and whether plaintiff was actually in possession of a false Alien Registration Receipt Card at the time of his August 1976 involuntary deportation. The government has submitted evidence to demonstrate that these facts were true, however, and plaintiff has not come forward with any evidence to create an issue of fact as required under Federal Rule of Civil Procedure 56(e). Thus, even if these facts were material to the resolution of the present motion, which they are not, plaintiff has not made a showing sufficient to prevent the grant of summary judgment against him.


author: CASSIBRY, Senior District Judge:

text:
    ZIM ISRAEL NAVIGATION CO., LTD., Plaintiff, SPECIAL CARRIERS, INC., M/V Acadia Forest, Defendants. LASH CARRIERS, INC., Plaintiff, v. M/V EN GEDI, Her Engines, Tackle, Apparel, etc., Zim Israel Navigation Company, Ltd., Defendants. ZIM ISRAEL NAVIGATION CO., LTD., Plaintiff, v. PETROLEOS MEXICANOS S.A., Defendant. HASSNEH INSURANCE CO., LTD., Hamagen Insurance Co., Ltd., Yardenia Insurance Co., Ltd. and Biderman Insurance Co., Ltd., Plaintiffs, v. MV EN GEDI, Zim Israel Navigation Co., Ltd., MV Acadia Forest and Lash Carriers, Inc., Defendants.
    Civ. A. Nos. 82-418, 82-419, 82-3452 and 83-349.
    United States District Court, E.D. Louisiana.
    June 5, 1985.

      James L. Schupp, Jr., Hugh R. Straub, New Orleans, La., for Zim Israel Nav.
    John J. Broders, George R. Alvey, Jr., New Orleans, La., for Lash Carriers.
    Rene S. Paysse, New Orleans, La., for Hassneh Ins., et al.
    J. Barbee Winston, Edward F. LeBreton, III, New Orleans, La., for Petróleos Mexicanos.
   MEMORANDUM OPINION

CASSIBRY, Senior District Judge:

These consolidated cases involve a collision in the Gulf of Mexico on January 25, 1982, between the M/V EN GEDI, owned by Zim Israel Navigation Co., Ltd. (“Zim Israel”), and the M/V ACADIA FOREST, owned by LASH Carriers, Inc. (“LASH”). Both vessels were damaged as a result of the collision, and the respective owners filed claims and counterclaims against one another. In addition, Zim Israel filed suit against Petróleos Mexicanos, S.A. (“PE-MEX”), the owner of the M/T JOSE COLO-MO. Although the JOSE COLOMO was not involved in the actual collision, it is alleged that the vessel contributed to the casualty by embarrassing the navigation of the EN GEDI, the ACADIA FOREST, or both.

After a trial on the issue of liability, the court held that the collision was caused solely by the ACADIA FOREST without fault on the part of the EN GEDI or the JOSE COLOMO. The court now enters the following findings of fact and conclusions of law in support of its judgment.

FINDINGS OF FACT

1. The EN GEDI, an Israeli flag bulk carrier owned by Zim Israel, is approximately 196 meters in length, 27 meters in breadth, and 23,573 gross tons. On the evening of January 25, 1982, the EN GEDI was bound for Israel from Elmo, Louisiana with a load of yellow corn. After an uneventful passage to the head of passes on the Mississippi River, the EN GEDI had transited the Southwest Pass, and reached the Southwest Pass sea buoy where the bar pilot left the vessel. According to the EN GEDI’s deck bell book, the vessel departed from the sea buoy at 2106 hours. The EN GEDI’s master, Captain Leopold Spiegelman, ordered full ahead sea speed, and, after a slight deviation, set a course of 180 degrees into the Gulf of Mexico.

2. A safety fairway extends below the Southwest Pass sea buoy into the Gulf of Mexico. The fairway provides mariners with a secure route through the various offshore oil and gas structures located in the Gulf. From the sea buoy, the two-mile-wide fairway continues for approximately six miles and then bifurcates, forming an inverted “Y”, with one branch extending southeast and the other southwest. The fairway does not constitute a designated traffic scheme and its use is entirely voluntary.

3. As the EN GEDI proceeded in the fairway, a vessel was sighted astern, on the EN GEDI’s starboard quarter. This vessel proved to be the JOSE COLOMO, a Mexican flag liquid gas tanker, owned by PEMEX. The JOSE COLOMO is approximately 158 meters in length, 24 meters in breadth, and 15,819 gross tons.

On the night of the collision, the JOSE COLOMO was bound for Tampa, Florida with a partial cargo of liquefied ammonia. The JOSE COLOMO left the Southwest Pass sea buoy to her starboard side at approximately 2110 hours. The master of the JOSE COLOMO, Captain Ramoa Jimenez Lopez, testified at deposition that he increased his vessel’s speed from dead slow to full ahead maneuvering speed. Captain Jimenez estimated that at the time his vessel passed the sea buoy, the EN GEDI was less than one mile ahead and appeared to be on an identical course with the JOSE COLOMO of 180 degrees due south. The JOSE COLOMO subsequently overtook and passed the EN GEDI on the latter vessel’s starboard side.

4. At about the time they saw the JOSE COLOMO, the navigators of the EN GEDI also noted the white masthead and range lights of the ACADIA FOREST bearing on the EN GEDI’s port bow at approximately a forty degree angle. Captain Spiegelman estimated that at the time she was first sighted, the ACADIA FOREST was 3.5 nautical miles away from the EN GEDI. The ACADIA FOREST’s navigation lights indicated that the vessel was proceeding northwest and was in a crossing relationship with both the EN GEDI and the JOSE COLOMO.

5. The ACADIA FOREST, a Liberian flag ship owned by LASH, is approximately 261 meters in length, 32 meters in breadth, and 33,231 gross tons. On the night of the collision, the ACADIA FOREST was bound for St. Rose, Louisiana from Balboa, Spain. At approximately 2000 hours, the master of the ACADIA FOREST, Captain Rolf C. Barth, contacted the Southwest Pass pilot station to report his vessel’s estimated time of arrival at the Southwest Pass sea buoy. The ACADIA FOREST proceeded towards the sea buoy through the southeast leg of the safety fairway on a course of 326 degrees. At 2100 hours, Captain Barth reduced speed from full ahead sea speed to full ahead harbor speed. As she proceeded, the ACADIA FOREST was positioned approximately in the middle of the safety fairway. Captain Barth testified that at 2113 hours, he observed the red side lights and white masthead and range lights of the EN GEDI and the JOSE COLOMO bearing on the ACADIA FOREST’s starboard bow. The lights of the two vessels indicated they were in a crossing relationship with the ACADIA FOREST. Captain Barth ordered his vessel’s speed decreased to half ahead, but made no alterations in the ACADIA FOREST’s course of 326 degrees.

At approximately 2119 hours, an unsuccessful attempt was made to contact the two southbound ships by radio on VHF channel 16. A few seconds later, the Southwest Pass pilot station informed the ACADIA FOREST of the names of these vessels. Captain Barth then called the JOSE COLOMO by name to confirm her course and intentions. In the ensuing radio exchange, the navigators aboard the JOSE COLOMO confirmed that the tanker was continuing on a due south heading of 180 degrees. Captain Barth conceded at trial that he never called the EN GEDI by name, and the evidence indicates that no radio communication with the EN GEDI was ever accomplished. The evidence further indicates that the EN GEDI’s bridge radio monitored VHF channel 16 at all pertinent times.

6. Initially, the ACADIA FOREST did not unduly alarm those navigating the EN GEDI because the lights and position of the LASH vessel indicated a typical crossing situation in which the EN GEDI was the privileged vessel. Furthermore, as explained more fully below, the ACADIA FOREST was the burdened vessel and required to keep clear of the EN GEDI. Thus, Captain Spiegelman maintained his vessel’s course and speed in the expectation that the ACADIA FOREST would alter her course to the right. However, as time passed and the distance between his vessel and the ACADIA FOREST decreased with no change in the relative bearing of either vessel, Captain Spiegelman became increasingly concerned.

Captain Spiegelman testified that approximately three minutes prior to the casualty, the ACADIA FOREST was 1.5 miles away from the EN GEDI on a direct collision course. Spiegelman sounded a one whistle blast to indicate his intention to turn right, and then altered the course of the EN GEDI five to ten degrees starboard. Captain Spiegelman contends that at this point in time, he was unable to alter the course of his vessel any further because the JOSE COLOMO was abreast of the EN GEDI and approximately 600 feet to starboard. Captain Jimenez of the JOSE COLOMO disagrees with this contention and asserts that the lateral distance separating the JOSE COLOMO and the EN GEDI during the overtaking was, at the closest point, about one half mile. Thus, the JOSE COLOMO interests argue that the JOSE COLOMO overtook and passed the EN GEDI at a distance which gave the EN GEDI ample maneuvering room. Furthermore, the JOSE COLOMO had drawn clear ahead of the EN GEDI before the risk of collision became imminent. This contention is supported by the ACADIA FOREST’s log book which shows the JOSE COLOMO to have crossed the bow of the ACADIA FOREST a full two minutes prior to collision.

I conclude that the JOSE COLOMO properly overtook the EN GEDI and presented no embarrassment to the navigation of that vessel. The evidence, when viewed in its entirety, supports the JOSE COLOMO’s version of the overtaking. Furthermore, even if the JOSE COLOMO was close aboard the EN GEDI three minutes prior to collision, I agree with the expert testimony of Master Mariner Robert C. Chamberlin that under these circumstances, the JOSE COLOMO’s best course of action was to promptly clear the area and to maintain her course and speed. This she did.

7. After overtaking the EN GEDI, the JOSE COLOMO continued down the safety fairway on a heading of 180 degrees. The JOSE COLOMO passed the ACADIA FOREST port to port without incident. Although Captain Barth of the ACADIA FOREST testified that the presence of the JOSE COLOMO influenced his decisions, there was no evidence that the JOSE COLOMO committed any act or omission which embarrassed the navigation of the ACADIA FOREST. The ACADIA FOREST had been apprised of the JOSE COLO-MO’s intentions by radio communication prior to the port-to-port passage between the two vessels.

8. Two minutes before the collision, Captain Barth reduced the speed of the ACADIA FOREST to dead slow ahead, but continued to hold his course of 326 degrees. Meanwhile, the EN GEDI sounded five short whistle blasts, the danger signal, and flashed a series of light signals with an Aldis lamp to the ACADIA FOREST. Still the ACADIA FOREST persisted in her course. One minute before the collision, Captain Spiegelman sounded a one-whistle blast and ordered the bulk carrier’s helm hard right. The EN GEDI responded to the right rudder and turned quickly to starboard. However, at virtually the same moment, the ACADIA FOREST turned hard left, cancelling the EN GEDI’s avoiding maneuver. Captain Barth ordered the ACADIA FOREST’s engine full astern, but collision was imminent and inevitable. The bow of the ACADIA FOREST struck the EN GEDI’s port side just past her number four hatch at about a ninety degree angle.

CONCLUSIONS OF LAW

1. This is an admiralty and maritime action within the meaning of Rule 9(h) of the Federal Rules of Civil Procedure. The court has jurisdiction pursuant to 28 U.S.C. section 1333, and venue is proper in the Eastern District of Louisiana.

2. The International Regulations for Preventing Collisions at Sea, 1972, are applicable to this case. 33 U.S.C.A. § 1602 (West 1978) (hereinafter referred to as “Rules”).

3. From the time the two vessels sighted one another until collision, a crossing situation existed between the ACADIA FOREST and the EN GEDI. Likewise, until the JOSE COLOMO passed ahead of the ACADIA FOREST, a crossing situation existed between the ACADIA FOREST and the JOSE COLOMO. Both southbound vessels were to the ACADIA FOREST’s starboard side, and therefore, under Rule 15, the ACADIA FOREST was the burdened vessel and had a duty to keep out of the way of the EN GEDI and the JOSE COLOMO. Further, under Rule 16, the ACADIA FOREST was obligated to “take early and substantial action to keep well clear.” Under the facts of this case, it is evident that the ACADIA FOREST violated both these rules and breached her duty to the EN GEDI. The fact that the bow of the ACADIA FOREST rammed into the EN GEDI’s port side, alone, bears stark witness to this conclusion.

4. The ACADIA FOREST also violated Rule 8 by failing to take effective and early action to avoid the collision. Captain Barth’s testimony shows that he was aware, from the time he first sighted the EN GEDI, that the two ships were in a crossing situation so as to involve a risk of collision. Furthermore, under Rule 7, the collision continued to be evident to the ACADIA FOREST because there was a constant relative, bearing with the approaching EN GEDI.

The ACADIA FOREST had both the time and the sea room to avoid this collision by altering her course to starboard, permitting a safe port-to-port passage with the EN GEDI. A full six minutes prior to collision, nothing obstructed the ACADIA FOREST from making a radical turn to the right or even from making a full circle to the right. However, the ACADIA FOREST navigated as if she were the privileged vessel and maintained her course and speed from the time the EN GEDI was first sighted until just two minutes prior to collision. Even then she merely reduced engine speed to dead slow ahead rather than turning to starboard or stopping her engines entirely. Had she done so, even at this late stage, it is probable that the collision could have been avoided. In any event, Captain Barth’s order to port one minute later was precisely the wrong move as it negated the effect of the EN GEDI’s proper starboard turn, and caused the two vessels to collide. The ACADIA FOREST, through her captain’s acts and omissions, violated every applicable rule of the road as well as the principles of good seamanship. In short, the ACADIA FOREST was negligent and her negligence was a proximate and legal cause of this maritime casualty.

5. The ACADIA FOREST offers a number of arguments to explain her actions and to attempt to cast liability on the JOSE COLOMO and the EN GEDI. Captain Barth testified that he held his course and did not turn to the right because he assumed that the EN GEDI and the JOSE COLOMO would turn to port so as to effect a starboard-to-starboard passage between the two southbound vessels and the ACADIA FOREST. This assumption was based upon his experience in this area of the Gulf of Mexico and his opinion that the safety fairway constituted a narrow channel, and therefore, the various obligations imposed by the Rules were altered.

First, there was no clear proof at trial that it is customary for vessels to pass starboard to starboard within the safety fairway. Therefore, I conclude that no such custom, having any legal significance, existed on the day of the collision. Furthermore, even if such a custom did exist, the Rules governed once the crossing relationship developed. Second, there is absolutely no foundation for the assertion that the safety fairway altered the effect of the Rules or created special circumstances justifying deviation from their strictures. The two-mile-wide fairway, which lies in the open waters of the Gulf of Mexico, is simply not a narrow channel. The fairway is part of a system established to provide shipping lanes free of oil structures. The fairway does not constitute a designated traffic scheme and its use is entirely voluntary. Vessels using the fairway do not acquire any special rights nor do their obligations under the Rules change.

In sum, there is nothing in the law or evidence to support Captain Barth’s assumption that the EN GEDI and the JOSE COLOMO would turn to port and effect a starboard-to-starboard passage with the ACADIA FOREST. In fact, Rule 17 required the southbound vessels to maintain course and speed and expressly forbids a turn to port under the circumstances of this case.

6. Both the EN GEDI and the ACADIA FOREST attempt to cast liability on the JOSE COLOMO. As to the EN GEDI, the JOSE COLOMO was governed by Rule 13 when, proceeding in the same direction as the EN GEDI, she moved to overtake. As the overtaking vessel, the JOSE COLOMO was required to keep out of the way of the EN GEDI who was obliged to maintain her course and speed. See Rule 13 and Rule 17(a)(i). Under the facts and circumstances of this case, the JOSE COLOMO was not required to reach an agreement with the EN GEDI prior to overtaking her. Further, the JOSE COLO-MO had no reason or obligation to anticipate the ultimate danger to the EN GEDI presented by the ACADIA FOREST. Like the EN GEDI, the JOSE COLOMO was entitled to assume that the ACADIA FOREST, as the burdened vessel, would conform to the Rules. See The JAVA, 81 U.S. (14 Wall.) 189, 199, 20 L.Ed. 834 (1871); Union Oil Co. v. The SAN JACINTO, 409 U.S. 140, 146, 93 S.Ct. 368, 372, 34 L.Ed.2d 365 (1972). Finally, if the EN GEDI assessed the ACADIA FOREST to pose a threat to her navigation and deemed it necessary to move starboard during the overtaking, she should have sounded the danger signal immediately. See Rule 34(d). The EN GEDI’s own evidence establishes that the danger signal was not given until the overtaking was near completion and the JOSE COLOMO was sufficiently out of the way.

In sum, I conclude that the JOSE COLO-MO complied with her obligations under the Rules and properly overtook the EN GEDI.

7. As between the JOSE COLOMO and the ACADIA FOREST, a crossing situation existed in which the former vessel was entitled to maintain her course and speed. See Rule 15 and Rule 17(a)(i). Again, the ACADIA FOREST was the burdened vessel and required to keep out of the JOSE COLOMO’s way. The JOSE COLOMO fully discharged her duty to the ACADIA FOREST and obeyed the applicable Rules as well as the principles of good seamanship. She gave more than adequate notice of her intention to continue on a heading of 180 degrees. Finally, contrary to the ACADIA FOREST’s contention, the speed of the JOSE COLOMO was proper at all relevant times.

8. The ACADIA FOREST argues that the collision was caused by the navigational faults of the EN GEDI. These faults are said to include failure to comply with local custom by navigating down the eastern border of the safety fairway, failure to comply with the narrow channel restrictions embodied in Rule 9, failure to comply with Rule 14 concerning head-on situations, failure to observe a safe speed in violation of Rule 6, failure to maintain a proper lookout in violation of Rule 5, failure to monitor the VHF radio in violation of the Vessel Bridge-To-Bridge Radiotelephone Act, and failure to take proper action to avoid the accident. Many of these contentions may be dealt with summarily, while others require slightly more analysis. However, none of them, either alone or together, have any merit.

9. The ACADIA FOREST argues that the EN GEDI was negligent in that she navigated down the eastern border of the safety fairway contrary to the local custom, the principles of good seamanship, and general prudence. First, there was no evidence presented by the ACADIA FOREST which establishes such a custom. Second, there was some evidence which indicated that it was customary to travel down the eastern border of the fairway, as the EN GEDI did, because of the presence of a dump site on the western border. Thus, this ground for negligence on the part of the EN GEDI is without foundation.

10. As discussed previously, the safety fairway does not constitute a narrow channel. Even the ACADIA FOREST’s expert witness at trial, Captain Kenneth C. Torrens, did not dispute this conclusion. Thus, the special rules for navigating a narrow channel do not apply in this case.

11. There is no doubt that the ACADIA FOREST and the EN GEDI were in a crossing relationship from the time they sighted one another until collision. The ACADIA FOREST’s contrary assertion that this was a meeting situation is rejected.

12. The suggestion that the EN GEDI navigated at an unsafe speed is likewise rejected. All witnesses described the night of the collision as clear with visibility excellent and seas calm. Furthermore, the only vessels in the vicinity at any pertinent time were the three involved in this litigation. After considering all relevant factors, I conclude that the speed of the EN GEDI was safe and proper.

13. On the night of the collision, the. EN GEDI was properly manned by competent personnel. Her navigators maintained a proper lookout at all times and correctly appraised the relationship of their vessel with respect to the ACADIA FOREST, both visually and by radar. I have already found that the EN GEDI’s bridge radio monitored VHF channel 16 at all pertinent times. Although the EN GEDI did not attempt to communicate with the ACADIA FOREST by radio, I find that such communication was unnecessary under the facts and circumstances of this case, and therefore, the EN GEDI did not breach her statutory duty under the Vessel Bridge-To-Bridge Radiotelephone Act. See 33 U.S.C.A. §§ 1201-1208 (West 1978); 33 C.F.R. § 26.04(b) (1984), quoted in Empresa Lineas Maritimas Argentinas, S.A. v. United States, 1979 A.M.C. 2607, 2615.

The EN GEDI communicated her intentions and concerns by Aldis lamp and whistle signals. In addition, the EN GEDI displayed all the proper navigational lights, and, in fact, the navigators aboard the ACADIA FOREST testified that they saw the red and white navigation lights of the EN GEDI. Thus, on this clear night, visual contact was more than adequate as a form of communication. Radio contact would not have provided the ACADIA FOREST with any information she did not already possess. Furthermore, there is some question as to whether radio communication would have altered the ACADIA FOREST’S course in any case. Even when the ACADIA FOREST was informed by the JOSE COLOMO of her intent to proceed due south, the ACADIA FOREST held her position without giving way.

14. The EN GEDI acted properly under the Rules as the privileged vessel in a crossing situation by maintaining her course and speed. She was entitled to assume that the ACADIA FOREST would likewise obey the Rules and keep clear. When it became evident that the ACADIA FOREST was not going to keep clear, the EN GEDI sounded the proper whistle signals and turned to starboard in an attempt to avoid the collision. Even the ACADIA FOREST’S expert witness agreed that a left turn was neither appropriate nor valid for the EN GEDI in view of Rule 17(c). In sum, the EN GEDI acted in full compliance with the Rules and according to the principles of good seamanship.

15. Finally, the ACADIA FOREST argues that she was placed in extremis by the EN GEDI and the JOSE COLO-MO, and that, therefore, any navigational faults on her part should be excused. There is no doubt that the situation presented on the night of January 25, 1982 was one of extreme circumstances. However, the situation was created, and the collision caused, solely by the fault of the ACADIA FOREST and her navigators.

SUMMARY

The collision between the ACADIA FOREST and the EN GEDI was caused solely by the ACADIA FOREST without fault on the part of the EN GEDI or the JOSE COLOMO. The cargo claim in this consolidated litigation has been settled. The personal injury claim was severed at trial and the consolidation revoked as to that case. Subsequently, the personal injury claim was also settled. The only remaining issue is the amount of damage sustained by the EN GEDI as a result of the collision. This issue will be referred to Magistrate Fonseca for disposition. The Clerk of the Court shall withhold entry of final judgment until the damages have been ascertained.

      . Although Special Carriers, Inc. is the named defendant in the suit brought by Zim Israel, LASH answered the complaint and defended the suit. LASH is the registered owner of the ACADIA FOREST, and there is no dispute about LASH’s ultimate responsibility for any judgment rendered in this litigation.

      . The clock on board the JOSE COLOMO was set twenty minutes ahead of central standard time. Thus, the vessel’s navigation log indicates passing the sea buoy at 2130 hours. All time references in this opinion are based on central standard time.

      . In describing the course of the ACADIA FOREST, I have used the times as reported in her deck log book. The clock on board the ACADIA FOREST was evidently two minutes faster than that aboard the EN GEDI; thus, the EN GEDI’s log shows the collision to have occurred at 2123 hours, while the ACADIA FOREST’s log shows 2125 hours.

      . Rule 15 provides as follows:
      When two power-driven vessels are crossing so as to involve risk of collision, the vessel which has the other on her own starboard side shall keep out of the way and shall, if the circumstances of the case admit, avoid crossing ahead of the other vessel.

      . Rule 8 provides, in relevant part, as follows: Any action taken to avoid collision shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.
      If there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that it is made in good time, is substantial and does not result in another close-quarter situation.

      . Rule 7 provides that risk of collision "shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change.”

      . In most, if not all, instances, the ACADIA FOREST levels the same charges of negligence against the JOSE COLOMO. My resolution of these contentions applies equally to the JOSE COLOMO.

      . Rule 17(c) provides as follows:
      A power-driven vessel which takes action in a crossing situation in accordance with subparagraph (a)(ii) of this Rule to avoid collision with another power-driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.