source: Caselaw Access Project

license: Public Domain

text:
    John DEMJANJUK, Petitioner, v. Joseph PETROVSKY, Warden, et al., Federal Prison Medical Facility, Springfield, Mo., Respondents.
    No. C85-1226.
    United States District Court, N.D. Ohio, E.D.
    May 17, 1985.

      Mark O’Connor, Buffalo, N.Y., John J. Gill, David Eisler, Cleveland, Ohio, for petitioner.
    Gary D. Arbeznik, Asst. U.S. Atty., Cleveland, Ohio, Murray R. Stein, Office of Intern. Affairs, Alvin D. Lodish, Michael Wolfe, Bruce Einhorn, Office of Special Investigations, U.S. Dept, of Justice, Washington, D.C., for respondents.
   memorandum: opinion AND ORDER

BATTISTI, Chief Judge.

This matter is before the Court today on John Demjanjuk’s Petition for Writ of Habeas Corpus (filed April 25, 1985) challenging the April 15, 1985 certificate of extraditability.

I.

In October of 1983, the State of Israel requested the extradition of John Demjanjuk from the United States to stand trial in Israel for murder and other offenses alleged under the Nazis and Nazi Collaborators (Punishment) Law, sections 1-4, pursuant to an Arrest Warrant, issued by Judge A.M. Simcha of the Magistrates Court, Jerusalem, Israel on October 18, 1983. The request was based upon the Convention on Extradition between the Government of the United States of America and the Government of the State of Israel. T.I.A.S. 5476, 14 U.S.T. 1717 (entered into force December 5, 1963) [hereinafter the “Treaty”]. Acting on behalf of Israel, the United States government filed a Complaint in the Northern District of Ohio seeking the extradition of John Demjanjuk to Israel, on November 18, 1983. The extradition matter was assigned to this Court, as a matter related to the denaturalization proceedings against John Demjanjuk over which this Court presided. United States v. Demjanjuk, 518 F.Supp. 1362 (N.D.Ohio 1981), aff'd 680 F.2d 32 (6th Cir.1982) cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982), pursuant to Local Civil Rule 7.09(4)(c) (N.D.Ohio).

After the Court received extensive briefing by both the parties and the amicus curiae, the International Human Rights Group, the extradition hearing required by 18 U.S.C. § 3184 was held in two parts. On December 17, 1984, the question of whether a United States civilian court has subject matter jurisdiction in an extradition proceeding where the crimes alleged occurred during wartime, as well as several preliminary issues, was addressed. Matter of Demjanjuk 603 F.Supp. 1463, 1465 (N.D.Ohio 1984). On February 21, 1985, this Court found that it did have subject matter jurisdiction to hear and decide the extradition matter. Matter of Demjanjuk, 603 F.Supp. 1468, 1469 (N.D.Ohio 1985). On March 12, 1985, the hearing on all other issues was held.

On April 15, 1985, this Court issued an opinion which addresses the numerous issues of facts and law presented by the extradition request and certifies to the Secretary of State that John Demjanjuk is extraditable to the State of Israel. The certification states that the John Demjanjuk brought before the Court is the one named in the Israeli Extradition Request and that competent and sufficient evidence has been presented to sustain charges of “murder”, which are extraditable offenses pursuant to the Treaty. Order of April 15, 1985 at 51-52.

Petitioner John Demjanjuk argues that he is unlawfully imprisoned because the extradition court has acted “in violation of the Constitution, laws and treaties of the United States”. Petition for a Writ of Habeas Corpus by a Prisoner in Federal Custody at 2 (filed April 25, 1985) [Hereinafter “Habeas Petition”]. Petitioner argues that: jurisdiction over the extradition proceedings was taken contrary to the Constitution and, thus, the evidence of identity and probable cause was improperly before the Court, Habeas Petition at ii-iii, “the crime of genocide ... is outside the terms of the Treaty”, id. at iii, and petitioner is not properly charged, as required by 18 U.S.C. § 3184, id. at iii.

II. RECUSAL

Petitioner John Demjanjuk’s attorneys have orally requested that this Court recuse itself from hearing the petition for writ of habeas corpus. They argue that it would be improper or inappropriate for this Court to, in effect, review itself by examining the validity of the April 15, 1985 certification of extraditability. In addition, they contend that there would be an appearance of bias and impropriety for this Court to rule on the petition for writ of habeas corpus. Presumably, they base their argument on 28 U.S.C. § 455(a) which provides:

Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Petitioner’s request is denied.

First, petitioner’s argument has been expressly rejected by at least one circuit court in the context of a petition for a writ of habeas corpus attacking extradition proceedings. In David v. Attorney General of United States, 699 F.2d 411 (7th Cir.1983), David appealed the district court’s denial of his petition for writ of habeas corpus. Judge Foreman, of the Eastern District of Illinois, had certified David as extraditable under the French-Ameriean Extradition Treaty on charges of willful homicide and attempted willful homicide. Subsequently, Judge Foreman denied David’s habeas petition. In affirming the district court’s denial of the writ of habeas corpus, the Seventh Circuit found, inter alia, that Judge Foreman had not violated 28 U.S.C. § 455(a) by considering the habeas petition. The Seventh Circuit stated that a judge is not required to recuse himself from hearing a habeas petition which attacks an extradition hearing over which he presided. The Seventh Circuit found support for its decision in the procedures employed in actions brought under 28 U.S.C. § 2255 and in cases where a district judge is reversed, or has an order vacated, and the case is remanded to the judge for further proceedings. Id. at 416.

Second, while this case involves a petition brought pursuant to 28 U.S.C. § 2241 and the Rules Governing § 2255 Proceedings for United States District Court do not govern, Rule 4(a) of the § 2255 Rules and judicial precedent in cases involving § 2255 petitions for habeas corpus provide persuasive evidence that there is no impropriety in this Court’s accepting jurisdiction in this case. Rule 4(a) provides:

Reference to judge; dismissal or order to answer.
The original motion shall be presented promptly to the judge of the district court who presided at the movant’s trial and sentenced him, or, if the judge who imposed sentence was not the trial judge, then it shall go to the judge who was in charge of that part of the proceedings being attacked by the movant. If the appropriate judge is unavailable to consider the motion, it shall be presented to another judge of the district in accordance with the procedure of the court for the assignment of its business.

There are numerous eases where a trial judge in a criminal matter has decided a § 2255 proceeding in accordance with Rule 4 and has had his refusal to recuse himself upheld. Accord, e.g., Burris v. United States, 430 F.2d 399 (7th Cir.1970), cert. denied, 401 U.S. 921, 91 S.Ct. 909, 27 L.Ed.2d 824 (1970); Lucero v. United States, 425 F.2d 172, 173 (9th Cir.1970); Dukes v. United States, 407 F.2d 863 (9th Cir.1969); Briscoe v. United States, 129 U.S.App.D.C. 146, 391 F.2d 984 (1968); Mirra v. United States, 379 F.2d 782 (2nd Cir.1967), cert. denied, 389 U.S. 1022, 88 S.Ct. 593, 19 L.Ed.2d 667; United States v. Smith, 337 F.2d 49 (4th Cir.1964), cert. denied, 381 U.S. 916, 85 S.Ct. 1542, 14 L.Ed.2d 436; Simmons v. United States, 302 F.2d 71 (3d Cir.1962); Martin v. United States, 273 F.2d 775, 777 (10th Cir.1960), cert. denied, 365 U.S. 853, 81 S.Ct. 818, 5 L.Ed.2d 816 (1961); Carvell v. United States, 173 F.2d 348 (4th Cir.1949); see also Machibroda v. United States, 368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962). But see Holliday v. United States, 380 F.2d 270 (1st Cir.1967). These courts have reasoned that the trial judge’s familiarity with the facts and circumstances surrounding the original trial makes it desirable for him to deal with the § 2255 petitions. Burris, 430 F.2d at 402.

Section 2255 was inserted in the judicial code to avoid the unseemly practice of having attacks upon the regularity of trials made before a coordinate judge. Carvell, 173 F.2d at 348; Smith, 337 F.2d at 52 (quoting Parker, “Limiting the Abuse of Habeas Corpus", 8 F.R.D. 171, 172-73 (1949)). Section 2255 was designed to eliminate the intolerable situation in which another district judge would consider evidence outside the original trial record and be forced to weigh the testimony of the original trial judge against the word of a convicted felon. United States v. Edwards, 152 F.Supp. 179, 182 (D.D.C.1957).

Such factors are equally applicable in § 2241 habeas corpus proceedings initiated to attack a certificate of extraditability. This Court is familiar with the facts and circumstances surrounding the consideration of Israel’s extradition request and related judicial proceedings. The likelihood of being misled by false allegations as to what occurred is slight. Furthermore, if this Court determines the merit of Demjanjuk’s habeas petition, this District will avoid the unseemly spectacle of one district judge weighing the determination of a fellow district court judge against legal arguments and factual allegations made by an alleged felon.

Third, the Local Civil Rules for the Northern District of Ohio provide that cases “related” to cases already assigned to a judge should be assigned to that judge. Local Civil Rule 7.09. Judge Thomas Lambros determined that Demjanjuk’s habeas petition is related to Case No. 83-Misc. 349 (the extradition proceeding) and thus, that Local Rule 7.09(3) “mandates the assignment of this action to the judge who heard the original case." Order of April 25, 1985. Pursuant to the Local Rules of this District, the habeas petition is properly before this Court.

It is appropriate and reasonable for this Court to decide the habeas petition, in part because expeditious action is possible because of the Court’s prior experience in this matter. See Matter of Demjanjuk, 584 F.Supp. 1321 (N.D.Ohio 1984) (motion for recusal in extradition proceedings denied; “with nothing more, this Court’s rulings or action in previous related cases will not support a motion for recusal.”). It is in the interests of justice and friendly foreign relations to complete judicial examination of this extradition matter seasonably. With the filing of this Order, the matter will now be ripe for review by the Sixth Circuit Court of Appeals. 28 U.S.C. § 2253.

III. WRITS OF HABEAS CORPUS IN EXTRADITION CASES

The decision of a judge or magistrate in an extradition case is not itself appealable. Collins v. Miller, 252 U.S. 364, 40 S.Ct. 347, 64 L.Ed. 616 (1920); Shapiro v. Ferrandina, 478 F.2d 894, 901 (2d Cir.1973); Jimenez v. Aristeguieta, 290 F.2d 106 (5th Cir.1961). Rather, the alleged felon may only attack the extraditability decision collaterally, through a writ of habeas corpus. Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1924); Shapiro, 478 F.2d at 901.

An extradition proceeding is in the nature of a preliminary hearing, Merino v. United States Marshal, 326 F.2d 5, 12 (C.D.Cal.1963); the government need only establish that competent and adequate evidence shows that the accused has committed the offenses charged pursuant to Treaty, 18 U.S.C. § 3184. It is not the purpose of an extradition hearing to determine the accused’s guilt. Collins v. Loisel, 259 U.S. 309, 316, 42 S.Ct. 469, 472, 66 L.Ed. 956 (1922). Rather, after the alleged felon has a hearing, where he is given the opportunity to establish why he is nonextraditable in the requested country, he still can have his day in court, when he can prove his innocence in a trial in the courts of the requesting country. Habeas corpus proceedings cannot take the place of a direct appeal, Fernandez, 268 U.S. at 312, 45 S.Ct. at 542, and are not a means for rehearing what the § 3184 judge has already decided, id.

Thus, the scope of review of an extradition decision through habeas corpus proceedings is very limited.

Habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offence charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence warranting the finding that there was reasonable ground to believe the accused guilty.

Fernandez, 268 U.S. at 312, 45 S.Ct. at 542; Accord, Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913); Grin v. Shine, 187 U.S. 181, 23 S.Ct. 98, 47 L.Ed. 130 (1902); Prushinowski v. Samples, 734 F.2d 1016, 1018 (4th Cir.1984); Shapiro, 478 F.2d at 901; Jimenez v. Aristeguieta, 311 F.2d 547, 555 (5th Cir.1962).

IV. NO ORDER TO SHOW CAUSE NECESSARY

Title 28 U.S.C. § 2243 provides that a court entertaining an application for a writ of habeas corpus

shall forthwith award the writ or issue an order directing the respondent to show cause why the writ should not be granted, unless it appears from the application that the applicant or person detained is not entitled thereto.

Under this provision, a district court has a duty to screen out a habeas petition which should be dismissed for lack of merit on its face. Allen v. Perini, 424 F.2d 134, 141 (6th Cir.1970). Accord Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir.1970) (a habeas petition “should set out substantive facts that will enable the court to see a real possibility of constitutional error”.)

In the instant case, it appears from the application for a writ of habeas corpus that John Demjanjuk is not entitled thereto. When the application is considered in conjunction with the motions, the files and the records in the extradition case and the Order of April 15, 1985, it appears conclusively that Demjanjuk is entitled to no relief. Thus, there is no need for consideration of a return on the writ. 28 U.S.C. § 2243. In this case, the allegations do not involve factual matters outside the extradition proceedings’ records or beyond the knowledge of this Court. Requiring a return from the Government would not contribute to the resolution of issues or the achievement of justice. Accord Allen, 424 F.2d at 142.

V. HABEAS PETITION DENIED

As will be shown below, the issues raised by Demjanjuk’s habeas petition have been considered in depth and ruled on by this Court during the extradition proceedings. Matter of Demjanjuk, 603 F.Supp. at 1469, 1473-79 (subject matter jurisdiction); Order of April 15, 1985 at 18-27 (Israel’s assertion of jurisdiction in conformity with United States jurisdictional principles and international law), 28-35 (“murder” charges within the Treaty), 3-17 (identification) and 35-41 (“competent and adequate evidence” or “probable cause” to believe respondent committed the acts charged). Petitioner Demjanjuk has presented no new arguments or information that would cause this Court to reconsider its findings and legal conclusions.

First, petitioner again asserts that this Court lacked jurisdiction in the extradition proceedings because the crimes alleged are “war crimes” and occurred outside of the territorial jurisdiction of Israel. Habeas Petition at 3-6, 8-9, 9-10. Petitioner attempts to distinguish away the precedent and legal reasoning used by this Court in finding that it had jurisdiction to determine whether petitioner is extraditable. Again, petitioner’s arguments are misplaced. Indeed, the Court is disturbed that petitioner blatantly misconstrues this Court’s prior opinions. Petitioner states that “the Genocide Convention cannot confer subject matter jurisdiction over the petitioner.” Habeas Petition at 9. Of course, petitioner is correct. But the contention is irrelevant— the Court does not rely on the Convention in determining that it has subject matter jurisdiction over the extradition proceedings. This Court has already fully explored all of petitioner’s arguments pertaining to subject matter jurisdiction. Matter of Demjanjuk, 603 F.Supp. 1468, 1469 (N.D.Ohio 1985); 603 F.Supp. 1473-1479 (N.D.Ohio 1985). Nothing has been presented to change the earlier decisions.

Second, petitioner argues that the Court changed the terms of the Treaty by finding him extraditable for “genocide”. Habeas Petition at iii, 7-8. He states that

By asserting acceptance of Universal jurisdiction over the Murder of Jews, the extradition court supplied terms to the United States-Israel Extradition Treaty, in plain contravention of its governmental role, Cherokee Tobacco, supra, Ambiable Isabella, supra. By doing so, it unlawfully supplied a casus omissus in the treaty.

This Court did not fill a gap in the Treaty and did not find petitioner extraditable for genocide. Indeed, the Court specifically found petitioner extraditable only for multiple charges of “murder”, crimes for which petitioner is charged under the Israeli statute. Order of April 15,1985 at 29-35. The Court found that Demjanjuk is charged with murder, pursuant to sections 1(b) and 2(f) of the Israeli statute, that these charges are recognized as crimes under Article II of the Treaty, id. at 30, and that, pursuant to Article III, petitioner is legally extraditable to Israel. Id. at 32. Petitioner’s argument fails.

Third, petitioner contends that “no evidence was presented to the extradition court that petitioner was Ivan Grozny”. A habeas court cannot find for the petitioner because of lack of probable cause if any evidence as to probable cause exists. The issue of identifying the accused felon is not even properly before a habeas court. Supra at 576. In light of the numerous, detailed eyewitness accounts which identify John Demjanjuk as a Treblinka guard and set forth with great particularity descriptions of multiple murders he is alleged to have committed, Order of April 15, 1985, at 4-17, 35-41, petitioner’s claim that “petitioner’s connection with the identity or the genocidal crimes of Ivan Grozny was ... never demonstrated by even a scintilla of evidence”, Habeas Petition at 9, is frivolous and offensive.

Lastly, petitioner merely asserts, without any substantiation, that the document on which basis petitioner is sought does not charge him, as required by 18 U.S.C. 3184, id. at iii, and claims that the documents contained within the Israeli Extradition Request are not properly certified, id. at 2. The finding that petitioner was properly “charged” by Israeli authorities with extraditable offenses within the meaning of the treaty is not reviewable on habeas corpus. Matter of Assarsson, 687 F.2d 1157, 1160 (8th Cir.1982); Matter of Assarsson, 635 F.2d 1237, 1240-42 (7th Cir.1980). Were this habeas court to look at the merits of petitioner’s argument, however, the Israeli Extradition Request does contain both a Request to Issue Warrant of Arrest, presented to the Magistrate Court in Jerusalem (October 18, 1983) and a Warrant of Arrest, issued by Judge A.M. Simcha of the Magistrate Court (October 18, 1983) which set forth the charges against Demjanjuk. Pursuant to 18 U.S.C. § 3184 and the Treaty, this is sufficient. The Treaty does not include as a prerequisite to extradition the filing of formal charges and an extradition court need not find that an accused felon is charged in the same manner as would be required by United States criminal law nor need it review compliance with foreign criminal procedure. Accord Assarsson, 635 F.2d at 1242, 1244; see also Grin, 187 U.S. at 190-94, 23 S.Ct. at 102-03.

Petitioner presents no argument or evidence to substantiate his claim that the certification of documents is improper, nor did he do so at the March 12, 1985 Extradition Hearing. See Transcript of March 12, 1985 Hearing at 111-25, 126-29, 164-166. Furthermore, questions of certification and authentication are not properly before a habeas court. Were this Court to examine the question again, however, it would still find the documents properly certified and authenticated. Order of April 15, 1985 at 4.

CONCLUSION

Petitioner has in no way met his burden of showing that he is in custody in violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(e)(3). Accord Allen v. Perini, 424 F.2d 134, 138 (6th Cir.1970).

The application for writ of habeas corpus is hereby denied.

The effect of certification of extraditability is stayed until June 4, 1985 at 10:00 a.m. D.S.T. to afford the parties the opportunity to apply for whatever relief they deem appropriate.

IT IS SO ORDERED.

      . John Demjanjuk's counsel filed a Petition for a Writ of Habeas Corpus by a Prisoner in Federal Custody in the Northern District of Ohio on April 25, 1985. The petition was assigned to the Honorable Thomas D. Lambros under the random assignment system which is the standard operating procedure in this District. L.Civ.R. 7.07. Judge Lambros transferred the petition to this Court as a “related matter”, pursuant to Local Civil Rule 7.09(3).
      Rule 7.09(3) provides that:
      Subsequent proceedings in civil cases and in criminal cases (including petitions under 28 U.S.C. Section 2255) shall be assigned to the judge who heard the original case.

      . This extradition case originally was assigned to this judge consistent with standard district court procedure, as stated in the Local Civil Rules of this district. At the time the government filed its Complaint, this Court had Demjanjuk’s First Motion to Vacate Judgment in the denaturalization proceeding under advisement. Local Civil Rule (N.D.Ohio) 7.09(4)(c) (Assignment of Cases other than by Lot) provides, in relevant part:
      (4) Cases related to cases already assigned to a judge shall be assigned or transferred to said judge. Related cases are defined as follows:
      (c) Civil cases are deemed related when a filed case (i) relates to property involved in an earlier numbered pending suit, (ii) involves the same issue or issues of fact or grows out of the same transaction or subject matter as a pending civil suit, ... (emphasis added.)
      Since the extradition case involves some of the same parties and arose out of some of the same events as the denaturalization proceedings, it was assigned to this judge.
      In November of 1983, Demjanjuk's First'Motion to Vacate was denied. United States v. Demjanjuk, 103 F.R.D. 1 (N.D.Ohio 1983).

      . See infra at 574-575.

      . Prior to the adoption of § 2255, since evidence outside of the record was heard at the habeas corpus petition hearing, the trial judge at times became a witness, by deposition or otherwise, at that hearing.


author: HAIGHT, District Judge.

text:
    AUSTRACAN (U.S.A.) INC., Plaintiff, v. NEPTUNE ORIENT LINES, LTD., Defendant and Third-Party Plaintiff, v. CONSOLIDATED RAIL CORP., Third-Party Defendant.
    No. 81 Civ. 4755-CSH.
    United States District Court, S.D. New York.
    April 23, 1985.
    On Motions to Reargue and Amend June 7, 1985.

      McHugh, Leonard & O’Conor, New York City, for plaintiff; Douglas A. Franklin, New York City, of counsel.
    Walker & Corsa, New York City, for Neptune Orient Lines, Ltd.
    Michael J. Siris, New York City, for Con-sol. Rail Corp.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge.

In this admiralty action alleging partial loss of a shipment of canned tuna, plaintiff consignee moves for summary judgment pursuant to Rule 56, F.R.Civ.P., against defendant and third-party plaintiff ocean carrier.

Many of the relevant facts are not disputed. Plaintiff Austracan (U.S.A.) Inc. (hereinafter “Austracan”), whose office is in New York City, is an importer of canned goods. In October 1980, Austracan contracted to purchase a shipment of 1,350 cartons of tuna from Judric Seafoods Company of Hong Kong. At the same time, Austracan contracted to sell these 1,350 cartons to Quality Foods Corporation of the Virgin Islands, at a price of $46.00 per carton, F.O.B. New York.

The shipment moved by sea from Manila, the Philippines (where it was shipped by Judric Canning Corporation) to Oakland, California, and thence by rail from Oakland to Port Elizabeth, New Jersey. The ocean carrier was defendant and third-party plaintiff Neptune Orient Lines, Ltd. (“Neptune”), whose vessel NEPTUNE TOPAZ performed the voyage. The rail transportation from Oakland to Port Elizabeth was performed by third-party defendant Consolidated Rail Corp. (“Conrail”). Neptune tendered defense of the action to Conrail, which has thereafter carried the laboring oar of the defense, including briefing and arguing the case on behalf of Neptune. Neptune’s agent at Manila was Overseas Agency Services (“OAS”). Under date of October 25, 1980, and on Neptune’s behalf, OAS issued a Combined Transport Bill of Lading which, under the printed caption “Description of Packages and Goods,” contained this typed material:

PIER-TO-HOUSE “SHIPPER’S WEIGHT”
1 CONTAINER (20 FAR) SAID TO CONTAIN 18,000 KLS 25.65 CBM
1,350 CARTONS PACKED 6/66.5 OZ. TINS
PER CARTON OF CHUNK LIGHT TUNA IN BRINE PRODUCT OF THE PHILIPPINES QUALITY BRAND LABEL LOADED ON BOARD NEPTUNE TOPAZ V-24S OCTOBER 25, 1980
SHIPPER’S LOAD COUNT AND SEAL

Under its contract with Judric, Austracan set up a letter of credit in Judric’s favor, with payment to be made by the bank upon presentation of specified documents, including an on board negotiable bill of lading. Following loading of the cargo on the NEPTUNE TOPAZ, these documents were in fact presented, and payment made under the letter of credit. The shipping documents were then forwarded to Austracan. No one at Austracan had an opportunity to examine the bill of lading before payment under the letter of credit was made.

Austracan contends that the phrase “pier-to-house” appearing on the bill of lading is generally understood in the field of ocean carriage to mean that the ocean carrier receives the goods in the form of cartons, or pallets, or some other “break-bulk” form. The ocean carrier then loads or “stuffs” the packages thus received into a container for ocean carriage. At the port of destination, the ocean carrier delivers the container without unloading or “stripping” it, and it is delivered to the consignee’s “house,” that is, the consignee unloads or “strips” the container at its premises. Affidavit of William McCuen, in support of plaintiff’s motion, at ¶ 4. In the case at bar, the designated place of delivery was “New York,” at the end of the combined sea/rail transportation. Neptune, as ocean carrier, remained responsible under the bill of lading contract for the rail portion of the combined transport. Austracan was the consignee under the bill of lading.

Conrail contends for a different meaning of the notation of “pier-to-house” carriage. According to Conrail, the notation means that the carrier’s customer (shipper or consignee) arranges for delivery of the container to the ocean carrier’s facility at the port of loading, and the carrier transports the container to the customer’s warehouse or facility at the port of discharge. Under Conrail’s construction of the phrase, the shipper stuffs and seals the container, and then delivers it to the ocean carrier’s facility for carriage to the consignee’s “house.” Affidavit of Daniel S. Gonzales, in opposition to plaintiff’s motion, at ¶ 6.

Whether these conflicting affidavits create a “genuine issue” as to a “material fact,” Rule 56(c), F.R.Civ.P., I consider infra. But it appears to be common ground that, in fact, the shipment in question was stuffed into a container and sealed at the premises of the shipper, Judric Canning Corporation, and delivered to Neptune’s Manila pier in that condition.

Defendants offer evidence, not contradicted on this motion, that the dock facility at Manila where OAS received the container had no scales or other equipment for weighing containers. Gonzales affidavit at ¶ 8.

There is evidence that on December 1, 1980, the container holding the cartons of tuna had arrived at Conrail’s facility in Port Elizabeth, and was examined by a United States Customs Service inspector on that date. Affidavit of Benjamin C. Jefferson, Director of the Newark, N.J. area of United States Customs, in opposition to motion, and attached letter report of January 29, 1982. On December 2, Emanuel Cheatham, a truck driver employed by E.R.A. Trucking Company Inc., was directed to go to Port Elizabeth with a tractor and pick up the container for transportation to a warehouse at Pier 40, North River, for delivery of its contents into the warehouse. When Cheatham found the container, he saw that it had no seal upon it. Cheatham brought this to the attention of the Customs Inspector and Conrail representatives at the terminal. The Customs Inspector “looked inside the container,” Cheatham affidavit at ¶ 6, and a new seal, Conrail No. T24446, was affixed to the container. Cheatham then drove the container directly to the Gordon Warehouse on Pier 40. The area of Pier 40 where the Gordon Warehouse and E.R.A. Trucking’s offices are located is surrounded by a security fence, manned at all times by security guards. Cheatham left the container, still sealed, in that secured enclosure, to be unloaded by Gordon Warehouse personnel subsequently.

Gordon’s warehouse is a bonded customs warehouse. Accordingly the Customs Service maintains a Customs Inspector on the premises during business hours. On December 4, warehouse personnel unloaded the container, under the supervision of Customs Inspector Paul Fliegel. Fliegel’s duty was to note the condition of the seal on the container before unloading, and to verify the quantity of cargo imported into the warehouse. Fliegel’s reports, attached as exhibits to the affidavit of Michael Cilenza, the warehouse manager, reflect that the Conrail seal was intact on December 4, and that upon unloading it was discovered that the container was 258 cartons short of the bill of lading quantity of 1,350 cartons.

In these circumstances, plaintiff claims for the loss of 258 cartons at the resale value of $46 per carton.

DISCUSSION

This shipment is governed by the Carriage of Goods by Sea Act (“COGSA"), 46 U.S.C. §§ 1300-1315 (1976). Under the statute, a consignee such as Austracan establishes a prima facie case for recovery from the carrier by proving (1) delivery of the goods to the carrier in good condition and (2) outturn by the carrier in damaged condition. When the consignee proves its prima facie case, the burden shifts to the carrier to show that the loss or damage falls within one of the COGSA exceptions to liability set forth in 46 U.S.C. § 1304(2) (1976). Westway Coffee Corp. v. M.V. NETUNO, 675 F.2d 30, 32 (2d Cir.1982), and cases cited.

Here we deal with a case not of damage but of partial loss. Austracan’s prima facie case would consist of proof of delivery of a specified number of cartons to the carrier, followed by an outturn of less than that number.

The first question is therefore whether a genuine issue requiring trial exists as to that unquestionably material fact, the number of cartons that were placed in this container.

Austracan contends that the numbers of cartons stated in the bill of lading constitute “prima facie evidence of the receipt by the carrier of the goods as therein described,” 46 U.S.C. § 1303(4); that it was entitled to rely on the numbers of cartons stated in the bill of lading, which was negotiated to it in consideration of payment under the letter of credit; and that the carrier is estopped from claiming that the missing cartons of tuna were not in the container when Neptune took possession of them.

Neptune contends that plaintiff has failed to prove delivery of the full number of cartons to the carrier, and thereby has failed to establish a prima facie case. Neptune further contends that the estoppel theory does not apply to a case involving sealed containers.

COGSA provides at §§ 1303(3) and (4), in pertinent part:

“(3) After receiving the goods into his charge the carrier, or the master or agent of the carrier, shall, on demand of the shipper, issue to the shipper a bill of lading showing among other things—* * *
“(b) Either the number of packages or pieces, or the quantity or weight, as the case may be, as furnished in writing by the shipper.
“(c) The apparent order and condition of the goods: Provided, That no carrier, master, or agent of the carrier, shall be bound to state or show in the bill of lading any marks, number, quantity, or weight which he has reasonable ground for suspecting not accurately to represent the goods actually received, or which he has had no reasonable means of checking.
"(4) Such a bill of lading shall be prima facie evidence of the receipt of the carrier of the goods as therein described in accordance with paragraphs (3)(a), (b), and (c), of this section:____”

Under § 1303(4), the bill of lading in this case constitutes prima facie evidence of Neptune’s receipt of 1,350 cartons. Neptune attempts to avoid that statutory effect by pointing to the typed phrases “said to contain” and “shipper’s load count and seal.” Prior cases uniformly reject that effort. “It has been long established that the weight listed on a bill of lading is prima facie proof of receipt by the carrier of that weight regardless of attempted reservations like ‘said to weigh,’ 'shipper’s load and count,’ and ‘contents of packages are shipper’s declaration.’ ” Westway Coffee Corp. v. M.V. NETUNO, supra, at 675 F.2d 32 (citing cases).

In Westway the plaintiff quantified its claim on the basis of lost weight, while Austracan does so on the basis of lost numbers of packages; but the statutory scheme does not distinguish between the two. Spanish American Skin Company v. The Femgulf, 242 F.2d 551, 554 (2d Cir.1957) (“... the recitation of both number of bundles and weight in the bill of lading furnished prima facie proof of receipt by the carrier of skins of both the number and weight recited____”).

Neptune points out that the disclaimers or reservations rejected by the courts in certain cases appeared in fine print, whereas those at bar are typed. I am cited to no case holding that this makes any difference, and I see no reason why it should. The effect of the owner’s recitations of numbers and weights in the bill of lading, and the method available to the carrier for avoiding liability for false information given by the shipper, are explicitly set forth in the statute. Phrases such as “said to contain” avail the carrier nothing, whether they are in fine print, typing, or medieval calligraphy.

Prior cases are equally clear concerning the carrier’s option if, as to the quantity or weight stated by the shipper, “he has reasonable ground for suspecting” the accuracy, or “he has had no reasonable means of checking.” The carrier must, in those circumstances, refrain from listing quantity or weight in the bill of lading, or bear the consequences. Westway Coffee Corp., supra, states the rule at 33:

“Once the carrier lists the weight of the goods (which normally will be readily verifiable by the carrier), he represents that he has no reasonable ground for suspecting that the weight of the goods actually received varies from the listed weight and that he has reasonable means of checking the weight, 46 U.S.C. § 1303(3)(c) (1976). This is enough for a prima facie showing of receipt of the listed weight. 46 U.S.C. § 1303(4) (1976).”

Most prior authority on these points deals with breakbulk cargoes. Containers, the product of a new technology, do not always fit readily into concepts fashioned by COGSA in 1936. Westway Coffee Corp. was a container case; but, as noted, the cargo plaintiff sued on the basis of lost weight; and, in the Second Circuit’s view, weight “will normally be readily available by the carrier,” id. at 33, even if the cargo is containerized. However, in the case at bar, plaintiff sues for a specific number of lost cartons; and in Royal Typewriter Co. v. M/V Kulmerland, 483 F.2d 645, 647 n. 4 (2d Cir.1973), the court said:

“When packages are stowed in a container which is then locked and sealed, as is the practice, the number of packages is not verifiable. Under COGSA, 46 U.S.C. § 1303(3)(c), the bill of lading need not show a quantity which the carrier ‘has had no reasonable means of checking.’ ”

This observation was perhaps not necessary to the decision, which held that in the circumstances a container constituted a “package" for purposes of the $500 limitation in section 1304(5).

The ocean carrier in Westway Coffee Corp. argued to the district court that it could not, as a practical matter, open the containers and inspect their contents. Judge Sand rejected the argument as irrelevant “because this case involves the presence of the missing cargo, not its condition, and because defendant had the alternative of weighing the containers to verify that they contained the consigned cargo.” 528 F.Supp. 113 (S.D.N.Y.1981) at 117 n. 5. Accepting in the instant case Neptune’s statement that it lacked facilities to weigh containers at its Manila pier, there is authority for the proposition that section 1303(3)(c) required the carrier in those circumstances to refrain from including weights in the bill of lading. Woodhouse Drake & Carey (Trading) Inc. v. S.S. “Hellenic Challenger, 472 F.Supp. 31, 33-34 (S.D.N.Y.1979) (Weinfeld, J.), cited with approval by the Second Circuit in Westway Coffee Corp., supra, at 32.

But the plaintiff in Woodhouse, like plaintiff in Westway, sued for lost weight, not lost items; and the cargo in Wood-house was not containerized. The case at bar raises practical questions which, to my knowledge, have not been previously confronted. Within the scheme of COGSA, what is the ocean carrier’s obligation when faced with a sealed, locked container whose contents he cannot examine, presented for shipment at a pier lacking facilities to weigh it?

Plaintiff’s position, I gather, is that the carrier cannot under established authority save himself with phrases such as “said to contain”; and that his only option in such circumstances is to refuse to describe the shipment either by quantity or weight in the bill of lading. ' What effect so noncommittal a document would have on its utility as a negotiable instrument of title in commerce is problematical. Indeed, it is a problem recognized and left undecided by the Ninth Circuit in the frequently cited case of Portland Fish Co. v. States Steamship Co., 510 F.2d 628, 634 (9th Cir.1974) (on rehearing):

“On rehearing, several ocean carriers have moved for leave to file briefs amicus curiae. However, it appears that the issues sought to be raised in such briefs concern the possible effect of our decision on the ocean transportation of containerized cargoes—those in sealed ‘packages’ not normally opened and inspected by the carrier at the time he issues a bill of lading. The motions are denied. Since the case before us involves solely a bulk shipment subject to piece count, the questions thus raised will have to wait another day for decision. We intimate no opinion on them.”

The issues are interesting and important; but I need not plumb these uncharted waters to their depths because OAS, Neptune’s agent at the loading port, typed another phrase on the bill of lading. It is the phrase which leads all the rest. It says: “pier-to-house.”

I find on the evidence before me that “pier-to-house” has a recognized trade meaning. It is that meaning set forth in the McCuen affidavit: the ocean carrier receives the goods in breakbulk form at the pier, and loads or “stuffs” the packages thus received into a container for ocean carriage.

This is the definition appearing in a Government publication, A Shipper’s Guide to Stowage of Cargo in Marine Containers, U.S. Department of Transportation, Maritime Administration (1982). The booklet acknowledges the assistance of a formidable number of leading industry-representatives. I do not hesitate to take judicial notice of its contents under Rule 201(b)(2), F.R.Evid. A “pier-to-house” shipment is described as follows (at p. 140):

“A shipment which is loaded into a container at the pier or terminal then exported directly to the consignee’s designated area for unloading.”

A “house-to-pier” shipment is described (Id. at p. 136):

“Designates a cargo which is loaded into a container by the shipper in an area under his supervision. When the cargo is exported, it is unloaded at the foreign pier destination."

The phrase “house-to-house” is defined by referring the reader to “door-to-door,” which is defined as:

“Through transportation of a container and its contents from consignor to consignee.” Id. at pp. 134, 136.

These commercial definitions have begun to find their way into caselaw. In Smythgreyhound v. M.V. “Eurygenes,” 1980 A.M.C. 2270 (S.D.N.Y.1980) (not officially reported), rev'd on other grounds, 666 F.2d 746 (2d Cir.1981), Judge Goettel had occasion to state at 2274:

“This is particularly true where the shipment is ‘house to house,’ that is, where the goods are packed by the shipper in his factory or warehouse, carried overland by truck or rail, placed aboard a ship, unloaded at the port of destination, and then carried overland by rail or truck to the consignee, where the container is opened.”

In Koppers Co. Inc. v. S.S. “Defiance,” 542 F.Supp. 1356, 1358-59 (D.Md.1982), Judge Kaufman gives this discussion:

“On the face of the bill of lading there was stamped the designation ‘Pier to Pier Traffic.’ That designation requires handling of the cargo by the carrier before its loading on and after its discharge from the vessel, and differs from the designation ‘House to House Traffic’ on a bill of lading. The latter calls for the shipper to pack the container at the shipper's facility and to deliver the packed container to the carrier at the port of departure for further loading aboard a vessel and shipment to the port of destination. At such port, the container, shipped as ‘House to House Traffic,’ is unloaded from the vessel and taken to a container yard, from which it is picked up by an outside trucking company for hauling to the ultimate consignee. By way of contrast, under the ‘Pier to Pier’ designation, the cargo itself is delivered to the carrier at the port of departure, where it is put into a container, loaded onto a vessel and shipped to its port of destination. On arrival at such port, the container is unloaded from the vessel and taken to the container yard, and from the container yard is taken to a facility within the terminal (such as Shed No. 4) to be ‘stripped.’ The process of stripping involves the removal of the cargo from the container. The cargo is then repackaged, if necessary, and loaded on one or more trucks for the balance of its journey to the ultimate consignee. An additional fee over and above that charged for ‘House to House Traffic’ is paid to the carrier by the shipper for a ‘Pier to Pier’ shipment, to cover the cost of the additional services to be rendered.”

Footnote 2 accompanying this text states:

“One can also seemingly arrange for different combinations of preloading and post-discharge services, known as ‘Pier to House’ or ‘House to Pier.’ ”

I am aware of the affidavit offered by Mr. Gonzales of OAS to the effect that “pier-to-house” carriage means that the “shipper stuffed and sealed this container and delivered it to [the ocean carrier’s] facility for carriage to consignee’s ‘house.’ ” His suggested definition flies in the face of all authority. When the shipper stuffs and seals the container prior to delivery to the ocean carrier, the first word that appears in the hyphenated, modal description is “house.” When the ocean carrier receives a breakbulk cargo and stuffs it into a container, the first word that appears is “pier.” On this record, I can give no credence to the self-serving definition contained in the Gonzales affidavit. His affidavit does not give rise to a genuine issue of fact requiring trial.

Appearance of the phrase “pier-to-house” on the bill of lading in suit is significant, notwithstanding the apparently conceded fact that this container was stuffed at the shipper’s “house,” and not at Neptune’s “pier.” Austracan, the consignee and purchaser in good faith of the bill of lading, knew nothing of this. Cf. American Trading Co. v. The Harry Culbreath, 187 F.2d 310, 312 (2d Cir.1951). What this bill of lading said to someone in Austracan’s position was that Neptune received 1,350 cartons of tuna at its Manila pier, stuffed them into a container for ocean shipment, and then sealed the container. If that is not an accurate description of what occurred, Neptune has no one but its agent, OAS, to thank.

Furthermore, under familiar authority Neptune is estopped from denying the contents of the bill of lading. Demsey & Associates v. S.S. “Sea Star,” 461 F.2d 1009, 1015 (2d Cir.1972); Elgie & Co. v. S.S. “S.A. Nederburg, 599 F.2d 1177, 1180 n. 6 (2d Cir.1979); Portland Fish Co. v. States Steamship Co., supra, at 510 F.2d 631, and cases cited.

On the facts of this case, I hold that Austracan has made the requisite prima facie proof of delivery of 1,350 cartons of tuna to Neptune; and that Neptune is estopped from denying the delivery of that quantity into its hands for carriage.

Turning now to events at the port of discharge, I hold that Austracan is also entitled to a finding at this time that 258 cartons disappeared while the shipment was in the carrier’s custody, that is to say, during the combined sea/rail transport. The original seal was observed to be missing at the Conrail yard. The resealing of the container at that yard, its prompt removal by truck to a secured warehouse facility, and the intact condition of the Conrail seal when counting of the cartons occurred two days later, precludes any possibility of tampering and pilferage after the consignee’s trucker received the container from the carrier’s custody.

Neptune seeks to promote a triable issue of fact on this aspect of the case by means of the affidavit of Mr. Jefferson, the United States Customs Director for Newark. The difficulty is that, on the key issue, Jefferson’s affidavit constitutes inadmissible hearsay. Jefferson consulted Customs’ “records” concerning the container in question. Jefferson’s letter of January 29, 1982, incorporated in his affidavit, recites in pertinent part:

“The examining Inspector noted on entry WH 81-1073996 that no seal was affixed to the container and then performed his wharf sample examination. The examining officer noted no discrepancies at this time and hence did not file any discrepancy or theft reports. Upon completion of his examination, the Customs Inspector released the container to the bonded cartman. The container was then resealed with Conrail seal T24446.”

Rule 56(e) requires that affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” Jefferson cannot testify as to what the unnamed Customs Inspector at the Conrail facility actually did. But it is important to know what he actually did, because unless during the course of what Jefferson describes as a “wharf sample examination” (which is not defined, but sounds less than thorough) the Inspector performed a careful and complete count of all cartons in the container, he would not be in a position to testify that all 1,350 cartons were in the container when it left the carrier’s custody.

Defendants offer no affidavit from the Inspector himself. However, plaintiff offers the affidavit of Cheatham, the truck driver, who states on personal knowledge that it is the practice where a seal is found to be missing (which was unquestionably the fact here) for the Customs Inspector to note that fact; make a “brief inspection” of the container, and reseal it. Affidavit at ¶ 5. Cheatham says that on the occasion in question, the Customs Inspector “looked inside the container” and then affixed a new seal. Id. at ¶ 6. I draw the inference that the Customs Inspector did not count all the cartons in the container during this “brief inspection.” There is no admissible evidence in the record from which I could draw a contrary inference.

I conclude that plaintiff has made out a prima facie case of delivery of 1,350 cartons and outturn of 258 cartons less. Further, Neptune neither makes nor suggests a showing that the loss falls within a COG-SA exception to liability.

Austracan is also entitled to summary judgment on the issue of damages. In the circumstances of this ease, the amount of the loss is properly proved by the contemporaneous contract for resale entered into between Austracan and Quality Food Corporation. Internatio, Inc. v. M.S. “Taimyr, 602 F.2d 49, 50 (2d Cir.1979). As that case indicates, a contemporaneous contract for resale furnishes the most accurate measure of damages suffered by a commodities importer-exporter and trader such as Austracan. That resale price preserves the trader’s quantum of damages in a falling market, and limits them in a rising market.

In a continuing effort to promote a genuine issue of material fact requiring trial, Neptune argues that Austracan might have been able to have “replaced the non-delivered goods out of his own inventory, or ‘covered’ from some other source” (brief at 27); from this it is argued that Austracan may be entitled to only the wholesale value of the non-delivered goods. Illinois Central Railroad v. Crail, 281 U.S. 57, 50 S.Ct. 180, 74 L.Ed. 699 (1930) is cited for this proposition. Crail, which the Second Circuit cited and discussed in Internatio, Inc., supra, dealt with the claim of a coal dealer who, at the time of receipt of the short shipment, had not resold any of the coal. The proof also showed that he maintained a large stock of coal for resale, and that the complained-of shortage did not interfere with the maintenance of his usual stock. 281 U.S. at 62. This case bears no meaningful factual resemblance to the case at bar; nor is it inconsistent with the Second Circuit’s rule in Internatio, Inc., which concerned, as does the case at bar, a commodities trader.

Defendants complain in their brief (at 27) that Austracan did not furnish detailed information about the contract of resale until this motion was made, following a certain amount of discovery. But the opposing papers raise no factual issue as to the genuineness of the documentary proof; nor, apart from conclusory arguments, is a need for any specific additional discovery demonstrated.

CONCLUSION

For the foregoing reasons, plaintiff’s motion for summary judgment against defendant Neptune Orient Lines, Ltd. is granted.

The Clerk of the Court is directed to enter judgment in favor of plaintiff Austracan (U.S.A.) Inc. and against defendant Neptune Orient Lines, Ltd. in the amount of $11,868.00, with interest from December 2, 1980 at 9% per annum, and costs (exclusive of attorney’s fees) in an amount to be taxed by the Clerk.

The parties have- not addressed in this motion Neptune’s third-party complaint against Conrail. As to that question, I intimate no view. Counsel for these parties are directed to address letters to the Court, within fourteen (14) days of the date of this Order, setting forth their views on that issue; whether settlement of that aspect of the ease may be achieved; and, if not, the steps necessary to prepare the case for resolution by the Court.

It is SO ORDERED.

ON MOTIONS TO REARGUE AND AMEND

In a Memorandum Opinion and Order dated April 23, 1985, familiarity with which is assumed, the Court granted Austracan’s motion for summary judgment and directed the entry of judgment against NOL in a stated amount. The Clerk complied on May 2,1985. Defendants NOL and Conrail now move for reargument of the opinion and order of April 23, 1985. Austracan moves pursuant to Rule 59(e), F.R.Civ.P., to amend the judgment so as to make it enforceable against NOL and Conrail jointly and severally. This opinion resolves those motions.

On the motion of NOL and Conrail to reargue, oral argument is denied. Upon consideration, I adhere to the prior opinion and order, except as modified in response to Austracan’s motion under Rule 59(e).

I reject Conrail’s argument that the reasonableness of the acceptance of the bill of lading in this case presents a triable issue of fact. Still less does it require as a matter of law, as Conrail also contends,- a judgment in favor of NOL and Conrail.

I accept in principle the contention that reliance upon the descriptions contained in a bill of lading must be “reasonable.” In practice, what is “reasonable” depends upon the circumstances of each case.

In the case at bar, the party which accepted the bill of lading and caused payment to be made to the consignor was not the plaintiff consignee. Rather, it was the Hong Kong & Shanghai Banking Corp., with whom plaintiff had established a letter of credit in favor of the seller-consignor, Judric. Thus the reasonableness of the reliance to be evaluated is that of the bank. The distinction is important because a considerable body of law has grown up concerning the rights and obligations of banks which participate in that important facilitator of commercial transactions, the letter of credit. In Marino Industries v. Chase Manhattan Bank, N.A., 686 F.2d 112, 115 (2d Cir.1982), the Second Circuit said generally:

“The parties to the commercial contract bring in a third party—the bank—to finance the transaction for them. The bank’s sole function is the financing; it is not concerned with or involved in the commercial transaction. This restriction simplifies the bank’s role and enables it to act quickly and surely. Because the bank is not involved in the commercial transaction, however, all its rights and duties are set out in and defined by the letter of credit. The bank is not expected or required to be familiar with or to consider the customs of, or the special meaning or effect given to particular terms in, the trade. ” (emphasis added).

The bank’s obligation under the letter of credit is to pay out if the documents presented" comply strictly with the specifications in the letter of credit. The letter of credit at bar specified a number of documents. I am concerned with what the letter said about the bill of lading. On that subject, the letter of credit said this:

“Shipment to be effected in 20 foot pier to house containers onboard ocean bladings our order notify accountee indicating the number of this credit freight prepaid special instructions forming integral part this instrument partshipments not permitted palletized shipment prohibited.”

The bill of lading presented to the bank complied with these requirements. It recited that the cargo had been shipped in a 20 foot, pier to house container. It was an onboard bill of lading. The notify party was correct. Freight was marked prepaid. There were no partial or palletized shipments.

Conrail and NOL make much of the point that, through the error of NOL’s agent, the bill of lading also included the phrases “said to contain” and “shipper’s load count and seal.” This is said to be inconsistent with the meaning of the required phrase “pier to house.” So it is. See April 23, 1985 opinion at slip op. 13-16. But it does not follow that this inconsistency, created by NOL’s own fault, brands the bank’s acceptance of the bill of lading as unreasonable. The bill of lading conformed to the letter of credit, in the sense that it said what the letter required. The bill of lading can be said to be non-conforming only by reason of the additional language inserted by NOL. The bank acted unreasonably only if it was required in law to consider and understand the inconsistencies inherent in these particular ocean transportation terms, and, on the basis of such consideration and understanding, to decline payment under the letter of credit. I decline to reach such a conclusion because, as Marino Industries instructs, the bank issuing a letter of credit “is not expected or required to be familiar with or to consider the customs of, or the special meaning or effect given to particular terms in, the trade.”

I need not reach a contrary result because the letter of credit was made subject to the Uniform Customs and Practices for Documentary Credits (1974 revision). It is true that Article 17 of the UCP provides:

“Shipping documents which bear a clause on the face thereof such as ‘shipper’s load and count’ or ‘said by shipper to contain’ or words of similar effect, will be accepted unless otherwise specified in the credit.”

I construe this provision to mean that, absent any relevant prohibition in the credit, such phrases in shipping documents do not in and of themselves render the documents unworthy of acceptance. Defendants stretch that principle far beyond its apparent purpose when they argue that a bank, confronted by a bill of lading which conforms with the specific requirements of the credit, is nonetheless obligated to perceive and be paralyzed by inconsistencies arising out of the erroneous inclusion by the ocean carrier of particular trade terms.

Finally on this subject, it is the doctrine of estoppel which forecloses NOL from denying the contents of the bill of lading it prepared. Estoppel is an equitable doctrine. If the loss must fall upon one of the parties to the commercial transaction, it is fair that it fall upon the party whose error created the problem.

The other contentions made on the motion for reargument do not require discussion.

Plaintiff’s motion to amend the judgment is granted. The record evidence compels the conclusion that the loss occurred while the shipment was in Conrail’s custody. Therefore plaintiff need not rely on the “last carrier” doctrine, although I agree that the doctrine is applicable under the cases cited by Austracan in its brief at 6-7 and its letter of May 2, 1985 at 2-3.

There is no substance to the argument of NOL and Conrail that the Jefferson affidavit, dealt with in the prior opinion at 586, creates a triable issue on this aspect of the case. Accepting arguendo that the documents referred to by Jefferson in his affidavit constitute non-hearsay business records, they fail to establish the fact at issue: whether or not the examining inspector made a sufficiently accurate count to determine if any of the cartons that had been shipped in the container were missing. The inspector could tell us whether or not he did that, but there is no statement from him. The documents referred to by Jefferson do not state explicitly that the inspector made such a count of the cartons. Nor may so precise a count be inferred from the documents and the customs procedures which apparently underlie them. The regulation upon which defendants particularly rely, 19 C.F.R. § 151.2(a)(1), says only that “[district directors are specially authorized to examine less than one package of every ten packages, but not less than one package of every invoice____” In the context of the present question—whether the inspector counted every single one of the cartons in the container—that regulation hurts defendants more than it helps them.

CONCLUSION

For the foregoing reasons, the motion of NOL and Conrail for reargument is denied.

The motion of plaintiff Austracan to amend the judgment is granted. The Clerk of the Court is directed to enter judgment in favor of plaintiff Austracan (U.S.A.) Inc. and against defendant and third-party plaintiff Neptune Orient Lines, Ltd. and third-party defendant Consolidated Rail Corporation, jointly and severally, in the amount of $11,868.00, with interest from December 2, 1980 at nine (9) percent per annum, and costs, exclusive of attorney’s fees, in an amount to be taxed by the Clerk.

It is SO ORDERED.

      . I leave for another day the questions that would arise if the carrier of a shipper-stuffed and sealed container does not erroneously describe it in a negotiable bill of lading as a "pier-to-house" shipment; or if the plaintiff is the shipper, who knows the description is wrong. Such circumstances, if they arise in future container cases, may arguably cause phrases such as "said to contain” or "said to weigh” to rise like Lazarus from the death of adverse precedent. But this is not such a case. Neptune also relies on the Powerene Act, 49 U.S.C. § 101, which relieves the carrier from the conclusive effect of quantities or weights stated in bills of lading when such disclaimers are used. But the Powerene Act by its terms applies only to shipments originating in the United States. It has been repeatedly held that the Powerene Act does not apply to shipments originating outside the United States. As to such shipments, the carrier is bound by its representations concerning on-board quantities. Elgie & Co. v. S.S. "S.A. Nederburg," supra, at 1180; Portland Fish Co. v. States Steamship Co., supra, at 631-32; Sand, D.J., in Westway Coffee Corp., supra, at 117 n. 7. See abo, T.J. Stevenson & Co., Inc. v. 81,193 Bags of Flour, 629 F.2d 338, 372 (5th Cir.1980). Defendants argue that the Second Circuit decided Elgie wrongly. They must make that argument there, not here.

      . In a supplemental submission (letter dated May 29, 1985), plaintiff argues that the "on board” nature of the bill of lading furnishes a separate and independent basis for liability. Reference is made to Olivier Straw Goods Corp. v. Osaka Shosen Kaisha, 47 F.2d 878 (2d Cir.1931) and subsequent cases.
      I do not find these authorities of particular assistance in the case at bar. They stand for the proposition that recitation in a bill of lading that the goods have been placed on board the vessel, when in fact they have not, constitutes so gross a breach that it may be likened to a deviation in the voyage, thereby depriving the carrier of any defenses the bill of lading might otherwise have conferred. The case at bar deals not with a failure to load, but rather with the effect to be given the bill of lading's description of cargo concededly placed on board. The estoppel and letter of credit cases cited in text and in the Court’s prior opinion furnish more guidance in such circumstances.


author: BROOKS, District Judge.

text:
    John H. MAIKRANZ and Kelly Maikranz, Plaintiffs, v. UNITED STATES of America and Robert G. Kibbey, Jr., Special Agent, Defendants.
    No. EV 84-301-C.
    United States District Court, S.D. Indiana, Evansville Division.
    April 26, 1985.

      John Maikranz, Kelly Maikranz, pro se. U.S. Atty., Indianapolis, Ind., for defendants.
   MEMORANDUM ORDER

BROOKS, District Judge.

This matter comes before the Court upon a motion to dismiss a petition to quash summonses filed on behalf of the defendants to this cause of action, the United States of America and Robert G. Kibbey, Jr., Special Agent. The action was brought by the plaintiffs to quash six (6) Internal Revenue Service summonses issued to Citizens National Bank, The Farmers and Merchants Bank of Ft. Branch, First National Bank of Winslow, Ft. Branch Federal Savings & Loan Association, American National Bank, and United Mine Workers Federal Credit Union of Marion, Illinois. In the motion, the defendants contend that action on the first four of those summonses is barred by the doctrine of sovereign immunity and that the sixth summons is beyond this Court’s jurisdiction. Thus, the only summons on which the merits must be adjudicated is the fifth such summons (involving American National Bank). The motion was filed January 21, 1985, and no response has been filed by the plaintiff who filed this action pro se. Nevertheless, the Court deems the motion ripe for ruling because the deadline for response has long since elapsed.

Regarding the first four of the summonses, the Court finds the plaintiffs failed to comply with Section 7609(b)(2)(B). That section provides:

If any person beings a proceedings under subparagraph (A) with respect to any summons, not later than the close of the 20-day period referred to in subparagraph (A) such person shall mail by registered or certified mail a copy of the petition to the person summoned and to such office as the Secretary may direct____

Notice of the first four summonses was given to the plaintiffs on October 23, 1984. The instructions accompanying the summons copies provided to the plaintiffs specified that a copy of any petition to quash must be mailed by certified or registered mail to the issuing IRS agent within twenty (20) days of the date notice was given. The plaintiffs did not mail a copy of the petition to quash to the issuing agent until November 14, 1984, the 22nd day after such notice was given. This failure to comply strictly with Section 7609(b)(2)(B) results in a finding by this Court that the defendants have not waived their sovereign immunity and that the petition to quash those summonses must be dismissed. Fogelson v. United States, 579 F.Supp. 573 (D.C.Kan.1983); McTaggart v. United States, 570 F.Supp. 547 (E.D.Mich.1983); Yocum v. United States, 586 F.Supp. 317 (N.D.Ind.1984).

The sixth summons issued was to the United Mine Workers Federal Credit Union, a credit union with its principal place of business at Marion, Illinois. This Court’s power to quash an IRS summons is limited and exclusive pursuant to Section 7609(h)(1). The Court is not empowered to quash a summons issued for a person or entity not residing in its jurisdiction. Masat v. United States, 745 F.2d 985 (5th Cir.1984).

The only summons properly before the Court for adjudication was issued to American National Bank. The Court finds the complaint in the instant case fails to set forth any allegations which would constitute a legally sufficient challenge to an IRS summons. There is no doubt but that the IRS is empowered to issue such summons, even in light of Fourth Amendment protections. United States v. Powell, 379 U.S. 48, 85 S.Ct. 248, 13 L.Ed.2d 112 (1964). The plaintiffs’ constitutional rights are not implicated in any way by compliance with an IRS summons seeking bank records. United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). Neither does an IRS summons violate protections extended by the Fifth Amendment, as alleged by the plaintiffs. Fisher v. United States, 425 U.S. 391, 96 S.Ct. 1569, 48 L.Ed.2d 39 (1976). Plaintiffs further assert that an IRS summons cannot issue as a means of obtaining evidence for a pending criminal case. Acknowledging the truth of this assertion, the Court also cannot find any allegation of any such pending criminal proceedings and no allegation that the IRS has made a Justice Department referral involving these plaintiffs. As such, there is no violation of Section 7602 as would damage these plaintiffs. It is also apparent that absent such a Justice Department referral, the IRS is empowered to issue summonses like those in the instant case for the purpose of investigating potential criminal liability of a taxpayer. 26 U.S.C. § 7602(b).

The Court finds that the summons issued to American National Bank is proper and that the petition to quash the summons must be dismissed for failure to state a claim upon which relief may be granted.

Accordingly, the Court finds that petition to quash the IRS summonses issued to Citizens National Bank, The Farmers and Merchants Bank of Ft. Branch, First National Bank of Winslow, and Ft. Branch Federal Savings & Loan Association is not cognizable because the defendants have not waived their sovereign immunity pursuant to the strict requirements of Section 7609(b)(2)(B); the Court further finds that the petition to quash the IRS summons issued to the United Mine Workers Federal Credit Union of Marion, Illinois, is not properly before the Court because it lacks jurisdiction over that entity; and the Court finds that plaintiffs’ complaint as to the IRS summons issued to American National Bank fails to state a claim upon which relief may be granted. The complaint herein is hereby DISMISSED.

IT IS SO ORDERED.


author: MIHM, District Judge.

text:
    Rosemary COATES and Marcian Coates and Adam Coates, minors, by Rosemary Coates, their mother and next friend, Plaintiffs, v. UNITED STATES of America, Defendant.
    No. 83-1191.
    United States District Court, C.D. Illinois, Peoria Division.
    May 6, 1985.

      Gary Clark, Allen, Clark, Cullinan & Harn, Peoria, 111., for plaintiffs.
    L. Lee Smith, Asst. U.S. Atty., Peoria, 111., for defendant.
   MEMORANDUM OPINION

MIHM, District Judge.

This is an action for damages flowing from the death on July 15, 1982 of Terry Coates, husband and father of the Plaintiffs. Suit is brought pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq, being based upon § 2674. Jurisdiction of this Court is based upon 28 U.S.C. § 1346(b) and venue is properly asserted under 28 U.S.C. § 1402(b). Colorado law applies.

FINDINGS OF FACT

On the day Terry Coates drowned, he was camping with his wife and two children in an area of Rocky Mountain National Park known as the Aspenglen Campground. He was, on that day, 36 years of age, healthy, and employed by the Peoria Public Schools. He had begun as a teacher with the school district and had, by virtue of additional schooling and effective performance, moved up into an administrative position. The evidence showed that Terry Coates was an accomplished handyman, performing many of the routine duties of maintenance and repair around his home. In addition, he completely remodeled the family basement, doing all but the most basic plumbing in order to convert it to a family room. He also made furniture for the home. He built the patio, repaired the family cars, and did everyday yard work and housework. He also was actively involved with his children, helping them with their school work and taking opportunities to teach them through the family’s recreational activities. This latter activity included teaching the children biology while they were on camping trips.

Theirs was a family of avid campers, and in July of 1982 they planned the longest camping trip they had ever taken, going to Rocky Mountain National Park in Colorado. Upon their arrival at the camp they paid the fee, which was assessed by the United States for camping, and were assigned a location in the Aspenglen Campground.

At this point, the Court will attempt to create a word picture of that area in Rocky Mountain National Park relevant to an understanding of the events which occurred on the day of Terry Coates’ death.

At the top of a steep mountainous incline is the Lawn Lake Dam (the dam), which is situated within the park but owned by the Farmers Irrigation Ditch and Reservoir Company. Near the dam and proceeding down the side of the mountain is a water channel known as the Roaring River Drainage. At the base of the Drainage there is a large, relatively flat meadow area which is known as Horseshoe Park. Although the terrain of Horseshoe Park itself is substantially flat, the elevation of the west end is higher than that of the east end so that the park is tilted downward in the direction of Aspenglen Campground. At the lower east end of Horseshoe Park is a second dam, known as Cascade Dam, which is approximately 40 feet wide and located about one-half mile from the Aspenglen Campground. The campground itself is downstream from the Cascade Dam, sitting at an elevation lower than that of Horseshoe Park. It consists of two separate areas; the first a “mainland” area consisting of a parking lot and walk-in campsites, and the second being an island of still lower elevation, connected to the mainland by a footbridge.

On the morning of July 15, 1982, the tent of Terry Coates and his family was pitched in a mainland campsite at the Aspenglen Campground. Sometime before 6:30 a.m. that morning, the Lawn Lake Dam had failed and a garbage man, observing the rushing water, notified the ranger station which served that portion of the park. The following events all occurred within a period of slightly more than one hour. Park rangers were alerted to the potentially dangerous situation and, within approximately 20 minutes of the report of the dam’s failure, Ranger Schultz was dispatched to warn the “walk-in” (mainland) campsites. At 6:50, he entered the campsite and, within 15 minutes, had warned several of the campers, but not all of them assigned to that area. He did not, however, tell .them that a dam had failed or that a flood was approaching; rather, he suggested, apparently without urgency, that it might be wise for campers to evacuate the area. Neither Terry nor Rosemary Coates received any warning from Ranger Schultz, although they did have second-hand information that campers were being warned to leave the area. At that time, they could see what Rosemary Coates described as a “little water,” but nothing to warn them of the actual situation. This was approximately 7:15. The Coates had planned to leave the Aspenglen Campground that day anyway. While Rosemary Coates woke the children and prepared to leave, Terry Coates went to the parking area, got his camera from the ear, and began taking pictures. After she had packed up, Mrs. Coates heard a loud noise, saw a rush of water, and began to move to high ground with the children. She had no knowledge at that point of where her husband was. It is, however, apparent that he had returned to the car because his camera was later found there. The testimony shows that witnesses saw Terry Coates and Bridget Dorris, who also died in the flood, crossing the footbridge to the island portion of the campground.

While the decision to warn was being made and the subsequent events were unfolding, the water, freed from Lawn Lake Dam, was moving down the Roaring River Drainage and entering the west end of Horseshoe Park. This situation was known to the park rangers by approximately 6:45. As more and more water entered the park, it inevitably flowed to the lower end, putting increasing pressure on Cascade Dam. At about 7:40 a.m., Cascade Dam failed, sending a flood of water into the Aspenglen Campground. Terry Coates was drowned by those flood waters as they passed through the campground.

Although the testimony indicates a good deal of ranger activity during the course of these events, the Court finds by a preponderance of the evidence that the conduct of the Defendant was negligent in the following respects: (1) The Defendant failed to post an observer at the Cascade Dam to monitor the flood waters and their impact on the dam; (2) they failed to have a ranger in Aspenglen Campground at all times during the flood; (3) they failed to give adequate warning of the danger resulting from the failure of the dam to Terry Coates; and (4) they failed to maintain or implement a plan for dealing with emergencies, such as the one involved here.

On the issue of damages, the Court finds that Terry Coates’ widow and two minor children sustained a pecuniary loss, as a result of his death, in the amount of Eight Hundred Thousand Dollars ($800,000). Since the time of his death, Rosemary Coates and her children have received Social Security survivor benefits from the Social Security Administration. At the time of trial, the amount paid to them, collectively, was $10,259. Because of her remarriage in January of 1985, Rosemary Coates is no longer eligible to receive benefits; Marcian and Adam, however, will continue to receive payment until each has attained the age of 18. Extrapolating from the current rate of payment and making reasonable projections, it appears that Marcian is entitled to an additional $9,036 and Adam to an additional $13,806.

Failure to Inspect

Turning to the failure of the Lawn Lake Dam, which was the precipitating event, the Court finds that, although the dam is located within the boundaries of the Rocky Mountain National Park, it was, in fact, built in 1902 by the Farmers Irrigation Ditch and Reservoir Company and is still owned by them pursuant to an easement granted them by the Government. Although the federal Government had never formally inspected the dam, it was inspected in 1975, 1977, and 1978 by a Colorado State Engineer. It was scheduled for federal inspection in 1982 on a date later than July 15. The most probable cause of the dam’s collapse was rapid erosion caused by water seeping through a breach in the junction of an inlet pipe and a valve. Since it appears that such erosion would be extremely rapid, it is unlikely that a normal inspection of the dam would have disclosed the defect unless that inspection took place within a few hours prior to its failure.

It may well be that, as Plaintiffs allege, Lawn Lake Dam was a ticking bomb. Inspection by the federal Government may or may not have revealed critical structural defects, including the one which appears to have been the most probable cause of the dam’s failure on July 15, 1982. The record in this case is such that the Court finds Plaintiffs have not shown by a preponderance of the evidence that the federal Government’s failure to inspect was a proximate cause of the death of Terry Coates. Failure to Have a Plan in Place

Rocky Mountain National Park has been preserved by the federal Government, as have all of the national parks, from the incursions of a technological society. It is made available to lovers of parks and those who enjoy ranging freely through what nature has offered in that section of the country. For those who wish to utilize these preserved enclaves, the Government exacts a monetary fee, thereby creating a specific legal relationship between itself and those who have paid for this special privilege. Because these national parks are outdoors and, therefore, subject to extreme and sometimes unexpected weather changes, structural failures such as the one at issue here, other flash floods, and major fires which occur, changes may be sudden and dramatic (because of acts of God or foibles of man). Therefore, the Government, in creating this relationship with citizens, also creates a duty for itself to develop orderly procedures for dealing with emergencies. It is imperative to have a plan in place because in such situations there is little time for reflection. Priorities should be established before an emergency arises; otherwise personnel are unprepared to deal with them.

Such appears to be the case here. Many well intentioned and otherwise well trained rangers were inadequately prepared to cope with the breach in Lawn Lake Dam. It appears, for example, that the rangers did not even know how much water was being held back by the dam. Elementary lapses, obvious with the clarity of hindsight, could have been avoided through the development of orderly procedures for warning and evacuating people in the park in the event a crisis arose. There was a duty to plan, the Government failed to develop a plan, and the Court here finds that that failure to have a plan in place was a proximate cause of the death of Terry Coates.

Failure to Warn

The events of July 15, 1982 were not atypical of emergencies. The situation was an evolving one and, particularly in the absence of a plan, there is a need to assimilate, correlate, and synthesize occurrences so as to make decisions in a reasonable fashion. Therefore, the Court’s analysis must track as closely as possible decisions which would be reasonably made by persons at the time of the occurrence. The Court believes that Lawn Lake Dam had burst by 6:23 a.m. This resulted in the constant flow of a substantial stream of water down the side of the mountain. It would be unreasonable not to know that this water would hit the bottom with high velocity and would probably back up to the west of the trail area. The first major mistake made by the rangers was to assume that Horseshoe Park could absorb all of the water. At some point that belief became unreasonable and it should have become apparent that Cascade Dam was a focal point of the flood waters. In fact, poised as it was above the campground area, Cascade Dam was the key to what would occur downstream. It was absolutely critical that there be someone there to monitor what was happening at Cascade Dam and be prepared to act immediately.

There had been attempts earlier that morning to warn persons in the walk-in sites. Ranger Schultz had been dispatched to warn campers of the possibility of a flash flood. He was apparently given no indication of who was to be warned and with what sense of urgency the message was to be conveyed. It appears that, on his own, he also notified people in the island camp sites. The evidence shows that he told some that they had one to one and one-half hours to leave. It is clear that his tone was not one of urgency and that the information he conveyed was insufficient to alert them to the potential magnitude of the emergency. It seems obvious to the Court that the ranger’s desire not to cause panic had to be balanced against the need to motivate the campers to clear the area in an expeditious manner. Moreover, Schultz did not warn those campers who were not presently in the immediate area, nor did he consider that others might have been hiking or exploring in these areas even though they did not actually have tents there. The exercise of reasonable care mandated, at a minimum, the issuance of careful and complete warnings to all of the people who were camped in or otherwise using areas of the park which were downstream from Lawn Lake Dam. The failure to issue these warnings constitutes negligence and, the Court here finds that that negligence was a proximate cause of the death of Terry Coates.

Damages

The first issue to be considered here is that of comparative negligence. Many of the same factors which the Court has just discussed with respect to the Government also apply to Terry Coates. This is not a situation which happened all at once; it evolved. While it is true that he was never given direct notice of the potential flooding caused by the breach in the dam, Terry Coates and his wife did receive indirect notice from another camper concerning possible flooding. There was, as well, an increased level of activity within the campsites occasioned by people moving, albeit slowly, to evacuate the area. There was a general low level of information about the flood and at some point, the environment of the campground began to change. In fact, Terry Coates was sufficiently impressed with the awesomeness of the rising waters to take pictures. The pictures which he had taken establish clearly that, by reason of his own observation, Terry Coates had knowledge that the water was rushing in and that the water level was rising. He did not have much information, but the Court believes that it was enough to require him to take some reasonable steps for his own safety.

There are substantial discrepancies between the descriptions of the physical situation in the campground in the depositions of Wayne Haymon and Mrs. Thomas, the mother of Bridget Dorris, the other decedent. The deposition of Wayne Haymon described a situation of escalating seriousness, including an increase of noise, a rising level of churning, angry water, and a change in the nature and appearance of the water from clear to muddy. Mrs. Thomas, on the other hand, tendered a report which minimized the potential for danger and, seemingly, excused the decedents’ failure to leave the area more quickly. The Court is inclined to give greater credence to Mr. Haymon’s deposition because it has a ring of truth and, more importantly, much of what he says is corroborated elsewhere in the record. The Court fears that, under the circumstances, Mrs. Thomas may have suffered substantial residual guilt as a result of her daughter’s tragic death. Wayne Haymon had no personal interest in the litigation (either directly or indirectly), and there is no indication of any motivation for subliminal and unintentioned shading of the facts. The Court finds that Terry Coates had notice (albeit inadequate), had time to remove himself safely from the endangered area, and took inadequate steps to protect himself.

The Court has found that the actual pecuniary loss sustained by Rosemary Coates and her children was $800,000, and now holds that the negligence attributable to the United States Government is 60% of the total negligence which occurred in this case, and that attributable to Terry Coates is 40%. Therefore, the total liability of the Government to the Plaintiffs is Four Hundred Eighty Thousand Dollars ($480,000).

CONCLUSIONS OF LAW

The Government has argued that the United States is entitled to offset that portion of Social Security payments made to Rosemary Coates and the children which were contributed by the Government. They concede that the amount which was actually contributed by Terry Coates and his employers is a collateral source and, therefore, is not appropriately considered as offset. The Government cites the case of Steckler v. United States, 549 F.2d 1372 (10th Cir.1977) which is apparently the only case applying Colorado law to the issue of offsetting a Federal Tort Claims Act judgment with Social Security benefits. In that case, the Court of Appeals upheld, as proper, the offsetting of that amount of Social Security benefits which was not attributable to the direct contributions of the employee and his employers.

The Plaintiffs counter by first noting that the Social Security Fund is a separate fund from the general treasury and they argue that all amounts contributed by all workers and all employers to the fund are collateral sources. As support for this position, they cite Smith v. United States, 587 F.2d 1013 (3rd Cir.1978). In that case, the court performed rather extensive analysis of the approach used by other circuit courts of appeals in dealing with the collateral source doctrine and its application to the Federal Tort Claims Act. Generally, federal courts seem to hold that there is a distinction between those benefits which come from unfunded general revenues and those which come from a “special fund supplied in part by the beneficiary or a relative upon whom the beneficiary is dependent.” Two of the cases considered were Steckler v. United States, supra, and United States v. Harue Hayashi, 282 F.2d 599 (9th Cir.1960), which dealt specifically with the application of the doctrine to Social Security benefits. In Harue Hayashi the court specifically held that Social Security survivor benefits are “collateral” to an FTCA recovery, finding that:

“The money which goes into this fund is provided by a system of excise taxes on employers and income taxes on employees, designed to be actuarially sound and self-supporting.”

Again, in Steckler, the court dealt with Social Security payments and their analysis concluded that, because the Government has supplemented the fund when necessary, some burden should rest on a plaintiff to establish, if possible, that portion contributed by the Government so as to permit offset of other portions as collateral sources.

The court in Smith then states its agreement with the Ninth Circuit in Harue Hayashi that:

“Where state law recognizes the ‘collateral source’ doctrine, Social Security benefits should not be deducted from a recovery under the Federal Tort Claims Act. FTCA recoveries come out of general revenues; Social Security benefits are funded almost entirely from employee and employer contributions ... The Government here did not argue that a FTCA recovery must be reduced by that portion of Social Security benefits attributable to the Government’s contribution out of general revenues. Nevertheless, we are constrained to note our disagreement with the Tenth Circuit in Steckler, supra, and decline therefore to adopt its approach. We believe that the Government’s payments are so minimal and so difficult to trace that such an approach would be impracticable.”

The Court believes that this is a more realistic analysis of this issue and finds that, since it is virtually impossible to ascertain accurately the portion of the payments contributed by the Government, Steckler, considered in its entirety, is not fundamentally inconsistent with the holding in Smith. It is, therefore, held that the Social Security payments made to Rosemary Coates and her children should not offset the damage award made to them in this Order.

There were also several legal findings made during the pretrial stages which the Court now incorporates as a part of this Opinion.

Because the Defendant in this case is the United States, some special procedural determinations were necessary. Title 28 U.S. C.A. § 2674 subjects the Government to liability in the same manner and to the same extent as a private person under like circumstances. The choice of law decision is governed by 28 U.S.C.A. § 1346(b) which provides that the liability of the United States will be determined by the law of the place where the act or omission occurred. Therefore, the applicable standard to be used in assessing the Government’s liability is that of a private landowner operating a campground in Colorado.

A landowner in the State of Colorado is charged with the obligation to discover dangers and take relevant precautions and to warn of those dangers which he knows or should know exist to the same extent that any reasonable man in view of the probability or foreseeability of injury to persons on the land would be required to do. Mile High Fence Company v. Radovich, 175 Colo. 537, 489 P.2d 308; Hartzell v. United States, 539 F.2d 65 (10th Cir.1976). One factor in ascertaining the existence and extent of the landowner’s duty and conduct is the plaintiff’s status as trespasser, licensee or invitee. Mile High Fence Company v. Radovich, supra. Because the Plaintiffs paid a monetary fee for the privilege of camping in Rocky Mountain National Park, a special relationship was created which required the United States to treat them as licensees.

The Court concluded that the version of comparative negligence which has been adopted by Colorado and set out in Colora do Revised Statutes, § 13-21-111, permits recovery by a plaintiff whose negligence is less than that of the defendant, but requires that his damages be reduced by the percentage of negligence attributable to him.

Finally, the Court holds that the conduct of the United States in this case is not covered by the statutory exceptions to tort liability set out in the Tort Claims Act, 28 U.S.C.A. § 2680(a)(h). The Government’s failure to develop an adequate emergency plan and failure to give adequate warning to all campers is not comprehended in the conduct which Congress intended to protect through enactment of that section of the Tort Claims Act. United States v. S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines), — U.S. -, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984); Hylin v. United States, 715 F.2d 1206 (7th Cir.1983); Universal Aviation Underwriters v. United States, 496 F.Supp. 639 (D.C.Colo.1980).

For all of the reasons set forth in this Memorandum Opinion, judgment is hereby entered on behalf of Plaintiffs in the amount of Four Hundred and Eighty Thousand Dollars ($480,000) on this 6th day of May, 1985.