author: ALAIMO, Chief Judge.

text:
    Johnnie L. JOHNSON, Petitioner, v. Ralph KEMP, Warden, Georgia Diagnostic and Classification Center, Respondent.
    Civ. A. No. CV 483-254.
    United States District Court, S.D. Georgia, Savannah Division.
    Aug. 8, 1985.

      Alice C. Stewart, Atlanta, Ga., for petitioner.
    Susan V. Boleyn, Asst. Atty. Gen., Atlanta, Ga., for respondent.
   ORDER

ALAIMO, Chief Judge.

The Eleventh Circuit Court of Appeals remanded this case with the instruction that this Court reconsider petitioner’s claim that he received ineffective assistance from his attorney during his capital sentencing hearing. Johnson was sentenced to death at the conclusion of that hearing. Having applied the analysis prescribed in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the Court continues in its original decision that Johnson received ineffective assistance at the hearing. Accordingly, a writ of habeas corpus as to Johnson’s capital sentence shall be granted.

FACTUAL BACKGROUND

On July 11, 1975, a Chatham County, Georgia, jury found petitioner, Johnnie Johnson, guilty of kidnapping, aggravated assault, rape and murder. The offense of rape and murder then carried maximum sentences of death. Upon receipt of the guilty verdicts on the capital offenses, the trial court commenced a sentencing hearing, at the close of which the jury would give its recommendation for or against imposition of a death sentence against Johnson.

The penal laws then effective in Georgia permitted a jury to impose a death sentence for murder and rape only if the offense involved some aggravating circumstance. See Ga.Code Ann. § 26-3102 (1978), recodified as O.C.G.A. § 17-10-31 (1982). Even if a jury were to find an aggravating circumstance, it could reject the death penalty. Id. In consideration of these provisions of the law, the trial judge instructed Johnson’s jury on the purpose of the presentence hearing, stating:

In this presentenee hearing, counsel for both sides will have the right to present to the jury additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions, pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any such prior criminal convictions or pleas.

Trial Transcript at 265 (hereinafter cited as “Trial”) (emphasis supplied).

Johnson’s appointed counsel, William P. Franklin, Jr., elected to offer no evidence at the sentencing hearing. After its deliberation, the jury concluded that both the rape and the murder were committed under aggravating circumstances. The jury recommended life imprisonment for the rape charge and a sentence of death for the murder. These recommendations became the sentence of the court. The conviction and sentence were affirmed on appeal. See Johnson v. State, supra n. 1. Johnson’s petition in state court for a writ of habeas corpus was denied. See Johnson v. Zant, 249 Ga. 812, 295 S.E.2d 63 (1982), cert. denied, 459 U.S. 1228, 103 S.Ct. 1236, 75 L.Ed.2d 469 (1983).

Having exhausted his state avenues of review, Johnson filed a petition for habeas corpus relief in this Court. The petition enumerated errors which allegedly tainted both the guilt and penalty phases of Johnson’s trial. Relief was granted in part and denied in part. The Court found no error in the guilt stage of the trial and upheld Johnson’s conviction. Having concluded, however, that Johnson received ineffective assistance of counsel at his presentence hearing, the Court granted the writ as to Johnson’s capital sentence. Both the state and Johnson appealed the ruling.

The Eleventh Circuit agreed that Johnson’s conviction should stand, and affirmed this Court’s Order in this respect. However, subsequent to this Court’s decision in Johnson, the Supreme Court, in Strickland v. Washington, supra, announced a new standard against which to test claims of ineffective assistance of counsel. The Eleventh Circuit, accordingly, vacated this Court’s ruling that Johnson had received ineffective assistance at his sentencing hearing and remanded the case for reconsideration of that claim in light of Strickland.

DISCUSSION

Consistent with the Remand Order, this Court’s reasoning begins with the opinion in Strickland v. Washington. In Strickland, the Supreme Court established a two-prong analysis applicable to ineffective assistance claims. The test is succinctly set out in the Strickland opinion:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

Strickland v. Washington, supra, 466 U.S. at —, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. To satisfy this stringent standard, the petitioner must show both deficient representation and resultant prejudice.

A. Effectiveness

Applying Strickland, the Court must first judge the quality of representation which petitioner received during his presentence hearing. Neither the state nor the defense offered any evidence during this hearing. Johnson’s attorney, William Franklin, stated that he investigated the possibility of calling witnesses in mitigation. As Franklin explained it, “[Jjohnson’s recent history left a great deal to be desired. And quite frankly, no one told me of any one who would be very helpful or helpful at all.” Transcript of State Habeas Corpus Hearing, held on January 7, 1982, at 42 (hereinafter cited as “State Hearing”). Rather than offering a case in mitigation, Franklin’s strategy at sentencing was to attempt to convince the jury that Johnson was not the triggerman and that he did not deserve the death penalty. Id. at 50.

Franklin’s performance at petitioner’s sentencing hearing must be measured against an “objective standard of reasonableness.” Strickland v. Washington, supra, 466 U.S. at —, 104 S.Ct. at 2065, 80 L.Ed.2d at 693; Tyler v. Kemp, 755 F.2d 741, 744 (11th Cir.1985). Review under Strickland is highly deferential, and the Court must indulge a strong presumption that the challenged conduct was reasonable. Strickland v. Washington, supra, 466 U.S. at —, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Counsel’s actions must be judged in light of the circumstances which prevailed when the actions were taken, rather than from the distorting perspective of hindsight. Id. In sum, a court must sustain an attorney’s action against a claim of ineffective assistance unless it determines that counsel acted outside the “wide range of professionally competent assistance.” Id. 466 U.S. at —, 104 S.Ct. at 2066, 80 L.Ed.2d at 695.

Cases applying Strickland establish that it may be within the “wide range of professionally competent assistance” for a defense attorney to offer no mitigating evidence during the sentencing phase of a capital trial. See Burger v. Kemp, 753 F.2d 930 (11th Cir.1985); Mitchell v. Kemp, 762 F.2d 886 (11th Cir.1985). However, a strategy of silence may be adopted only after counsel has made a reasonable investigation for mitigating evidence or a reasonable decision that makes particular investigations unnecessary. Strickland v. Washington, supra, 466 U.S. at —, 104 S.Ct. at 2066, 80 L.Ed.2d at 695; Mitchell v. Kemp, supra, 762 F.2d at 885.

The Court examines, first, the scope of Franklin’s investigation for mitigation evidence. Franklin testified that his search for favorable evidence did not extend beyond his discussions with the defendant and the defendant’s parents. State Hearing at 42. Yet, Johnnie Johnson stated in this Court that Franklin never asked him whether there were any witnesses who Johnson believed would be helpful. Transcript of Federal Habeas Corpus Hearing, held on December 9, 1983, at 78 (hereinafter cited as “Federal Hearing”). As Johnson put it, “[Franklin] was just interested in how much I had participated and to what degree.” Id. at 77-78. Similarly, Johnson’s mother, Lillian Veltre, and stepfather, Patrick Veltre, testified that Franklin neither requested their testimony nor asked them for names of persons who could testify as to their son’s character. State Hearing at 12 & 21. Johnson submitted with his petition for habeas corpus relief affidavits from 19 individuals known to Johnson and his parents who stated that, had they been asked, they would have given favorable testimony regarding Johnson’s character.

The “investigation” in which Johnson and the Veltres participated was hardly thorough. These persons consistently testified that Franklin never directed their attention to the need for mitigation evidence. The Eleventh Circuit addressed a similar situation in Tyler v. Kemp, supra. Defense counsel in Tyler offered no evidence during his client’s capital sentencing hearing, despite his client’s clean record and the extenuating circumstances which surrounded her crime. Tyler’s family members testified afterwards that they had volunteered no mitigation evidence because counsel had not told them that evidence of a mitigating nature was needed. Tyler v. Kemp, supra, 755 F.2d at 744-45. In granting the writ on ineffective assistance grounds, the court faulted counsel for having failed to utilize the sole available sources of mitigating evidence—the defendant’s family and former employer. Id. at 745. The same weakness characterizes Franklin’s efforts to collect mitigating evidence in the case at bar. On the basis of testimony at the habeas corpus hearings, this Court concludes, as it did previously, that Franklin’s investigation was not reasonably designed to uncover available mitigation evidence.

Such a limited search for evidence may pass muster under Strickland only if the limitations were reasonable in light of the circumstances which faced counsel. Strickland v. Washington, supra, 466 U.S. at —, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Habeas petitioner Mitchell, in Mitchell v. Kemp, supra, discouraged his attorney from conducting any background investigation which would involve the Mitchell family. In sustaining Mitchell’s capital sentence against a claim of ineffective assistance, the Eleventh Circuit noted that a capital defendant’s stated desire not to use character witnesses may limit the scope of the investigation required. Mitchell v. Kemp, supra, 762 F.2d at 890. The Circuit Court has also approved an attorney’s decision to abandon his investigation as fruitless where the defendant’s family members, expected to provide mitigation evidence, prove to be indifferent or unwilling. Id.; see also Messer v. Kemp, 760 F.2d 1080, 1091 (11th Cir.1985), and Fleming v. Kemp, 748 F.2d 1435, 1450 (11th Cir.1984) (stating that the reluctance of potential character witnesses to testify may justify counsel’s decision to call no mitigation witnesses).

Neither rationale explains counsel’s actions in the case at bar. Johnnie Johnson did not dissuade his attorney from seeking mitigation evidence. Franklin described Johnson as a passive client who deferred to his attorney’s judgments regarding trial strategy. State Hearing at 52. Johnson’s parents and other family members were also willing, yet untapped sources for mitigation evidence.

An attorney may also limit his search for mitigation evidence on the basis of a reasonable decision that mitigation evidence would be ineffective or harmful. The Strickland Court concluded that a limited investigation was reasonable in that case because counsel had justifiably abandoned any hope of offsetting the “overwhelming” aggravating circumstances with evidence of his client’s general good character. Strickland v. Washington, supra, 466 U.S. at —, 104 S.Ct. at 2057, 2071, 80 L.Ed.2d at 684, 701. The Eleventh Circuit in Burger v. Kemp, supra, 753 F.2d at 936-40, considered that counsel had reasonably declined to offer mitigation evidence for fear of opening the door to adverse character evidence from the prosecution. See also Mitchell v. Kemp, supra, 762 F.2d at 890. These cases establish that, where an attorney determines that offering little or no mitigation evidence will be in his client’s best interests, he acts reasonably in foreshortening the search for such evidence.

The rationale of Strickland and Burger, in which counsel adopted affirmative no-evidence strategies, do not apply to the case at bar. Unlike counsel in Strickland, Johnson’s attorney made no decision, based on the weight of aggravating circumstances, that mitigation evidence would be ineffective. To the contrary, Franklin stated that he “certainly would have liked to have had some witnesses to present during both phases, especially the guilt phase.” State Hearing at 49. “Unfortunately,” Franklin complained, “there were none,” save Johnson’s parents. Id. This statement reveals that Franklin’s decision to offer no mitigation evidence resulted not from strategy but from default. In light of his belief that mitigation evidence might have been helpful, Franklin was obliged to conduct a reasonable search for such evidence. This search would have uncovered the mitigation witnesses whose affidavits are before the Court. Only after so apprising himself of the available mitigation evidence could Franklin have decided to make or forego a case in mitigation.

Nor is there any indication that Franklin decided to forego a case in mitigation to prevent rebuttal evidence from the prosecution. Johnson had no prior criminal record. The other evidence which might have been offered in rebuttal, such as Johnson’s drug use, had already been put before the jury during the state’s guilt-stage presentation. See Johnson v. Kemp, supra, 585 F.Supp. at 1505. Franklin indicated during his state habeas testimony that he had wanted to avoid reiteration of the state’s evidence against Johnson during the sentencing phase. State Hearing at 40. However, it is clear from a complete reading of Franklin’s testimony that the perceived lack of favorable evidence, rather than the danger of rebuttal, prompted Franklin to be silent during Johnson’s sentencing hearing.

Having for a second time thoroughly reviewed the record in this case, the Court discerns no reasonable explanation for counsel's near total failure to have sought evidence to offer in mitigation of Johnson’s sentence. This error was aggravated by counsel’s decision to ignore an important piece of mitigation evidence—his client’s theretofore unblemished criminal record. This Court previously recognized and continues to believe that a defendant’s clean criminal record can be strong evidence in mitigation of sentence. See Johnson v. Kemp, supra, 585 F.Supp. 1502. Johnson’s jury had been specifically instructed before the sentencing hearing that it could consider the defendant’s prior criminal record, or lack thereof, as additional evidence in aggravation or mitigation of punishment. Trial at 265. Yet, it is unclear from Franklin’s state testimony that he even investigated Johnson’s criminal record. Possibly Franklin discovered his client’s clean record but decided against offering this evidence during the sentencing hearing. Whatever the cause, the Court considers it error for counsel to have failed to put Johnson’s clean record before the sentencing jury. See Tyler v. Kemp, supra, 755 F.2d at 745 (considering counsel’s failure to put defendant’s clean criminal record before the jury as element of ineffective assistance).

In conclusion, Franklin’s performance during the sentencing portion of Johnson’s capital trial fell “outside the wide range of professionally competent assistance.” Counsel’s cursory investigation for mitigation evidence ill prepared him to select a sound strategy for the. sentencing hearing. Franklin’s failure to have offered his client’s clean criminal record in mitigation simply defies explanation. Perhaps this delict resulted from Franklin’s inexperience; he had never, before the Johnson case, participated in a capital trial. See State Hearing at 27-29. The recent decisions granting writs of habeas corpus in Tyler v. Kemp and King v. Strickland, 748 F.2d 1462 (11th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 2020, 85 L.Ed.2d 301 (1985), show that, in the trial of capital cases, inexperience often breeds error. See Tyler v. Kemp, supra, 755 F.2d at 746; King v. Strickland, supra, 748 F.2d at 1464. Whether caused by inexperience or by dereliction, Franklin’s preparation for and performance during Johnson’s sentencing hearing fell below the standard which Strickland establishes for effective representation.

B. Prejudice

Having concluded that counsel’s performance in this case fell below the Constitution’s standard for effective representation, the Court must next decide whether any prejudice resulted to the defendant. To satisfy Strickland’s prejudice prong, petitioner must show “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, supra, 466 U.S. at —, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. “A reasonable probability,” Strickland explains, “is a probability sufficient to undermine confidence in the outcome [of the proceeding].” Id.

This element of the Strickland analysis places a difficult burden on the reviewing court. As Justice Marshall recognized in his Strickland dissent, “it is often very difficult to tell whether a defendant convicted after a trial in which' he was ineffectively represented would have fared better if his lawyer had been competent.” Id. 466 U.S. at —, 104 S.Ct. at 2076, 80 L.Ed.2d at 708 (Marshall, J., dissenting). The Court must decide the strength of evidence which it only half knows. It must judge the probable effect of testimony without ever having seen the witnesses. It must then anticipate the case which might have been made in rebuttal. The Court has undertaken this task and concludes that petitioner has satisfied the Strickland prejudice requirement.

The potential gravity of counsel’s error in this case becomes apparent when one considers the function of the sentencing phase of a capital trial. The Eleventh Circuit recently commented upon this, stating:

[O]ne of the key aspects of the penalty trial is that the sentence be individualized, i.e., the jury’s discretion should be focused on the particularized nature of the crime and the characteristics of the individual defendant. Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 2940, 49 L.Ed.2d 859 (1976). In Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978), the court held that a defendant has the right to introduce virtually any evidence in mitigation at the penalty phase. The evolution of the nature of the penalty phase of a capital trial indicates the importance of the jury receiving adequate and accurate information regarding the defendant. Without that information, a jury cannot make the life/death decision in a rational and individualized manner.

Tyler v. Kemp, supra, 755 F.2d at 745. The strong language of Tyler suggests that prejudice might be presumed when an attorney’s incompetent performance results in his failure to offer any mitigating evidence during a capital sentencing hearing. See United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657, 667 (1984) (“There are ... circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.”). Presuming prejudice in this case, as permitted by United States v. Cronic, is tempting in view of the gravity of counsel’s error and the critical stage of the trial which the error affected. However, the Court declines to rely on such a presumption. See Blake v. Kemp, 758 F.2d 523, 533-34 (11th Cir.1985) (refusing to presume prejudice despite counsel’s complete failure to prepare for his client’s capital sentencing hearing).

A court’s conclusion as to the probable effectiveness of proffered mitigation evidence must be based on the totality of circumstances surrounding the petitioner’s participation in the crime and his claim for mitigation. See Strickland v. Washington, supra, 466 U.S. —, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. In Strickland, the defendant confessed to three gruesome murders. In challenging his capital sentence, the defendant faulted his counsel for having failed to offer mitigation witnesses who would have testified to the defendant’s general good character and to the emotional stress which plagued defendant at the time of the crimes. The Supreme Court found that defendant failed to satisfy his burden of proving prejudice, stating, “Given the overwhelming aggravating factors, there ... [was] no reasonable probability that the omitted evidence would have changed the conclusion that the aggravating circumstances outweighed the mitigating circumstances.” Id., 466 U.S. at —, 104 S.Ct. at 2071, 80 L.Ed.2d at 701. Similarly, in Messer v. Kemp, supra, the defendant confessed to having brutally murdered his young niece. The Eleventh Circuit characterized the evidence of Messer’s guilt, which included a confession to the police, as “overwhelming.” Messer v. Kemp, supra, 760 F.2d at 1084. In concluding that no prejudice resulted from the limited case offered in mitigation of sentence, the court remarked that the proffered mitigation evidence “[did] not even begin to tip the balance of aggravating and mitigating factors in favor of Messer.” Id. at 1091.

As Strickland and Messer indicate, the likelihood that prejudice will result from error at the sentencing phase of a capital trial depends largely on the strength of the state’s evidence of guilt. This feature of the prejudice analysis was critical to the Eleventh Circuit’s decision to vacate the capital sentence challenged in King v. Strickland, supra. The King court held that the petitioner had been prejudiced by a presentence presentation which included only one mitigation witness and a “weak” closing argument. King v. Strickland, supra, 748 F.2d at 1464. In distinguishing Strickland v. Washington, the Eleventh Circuit panel stated:

Washington was a case of clear guilt' based on confessions and pleas of guilt to three capital murder charges. King was convicted on circumstantial evidence which however strong leaves room for doubt that a skilled attorney might raise to a sufficient level that, though not enough to defeat conviction, might convince a jury and a court that the ultimate penalty should not be exacted, lest a mistake may have been made.

Id. The careful approach of King guides this Court because, as in King, circumstantial evidence established a most important element of the murder charge against Johnson—the element of intent.

The circumstantial evidence of Johnson’s intent to murder Suzanne Edenfield was mixed. The testimony of Johnson and Mary Lynn Harrod, the surviving victim, indicated that Jerry Sprouse, Johnson’s coindictee in this case, was the primary architect of the crime. Johnson testified in his own defense to his fearful acquiescence in Sprouse’s directions and to his ignorance of any plan to kill the girls. Harrod testified to no statements by Johnson which revealed his knowledge of any plan to commit murder. There was no evidence that Johnson held the gun at any time in the course of the evening. The testimony well-nigh conclusively showed that Sprouse, rather than Johnson, fired the shots which killed Edenfield and wounded Harrod. Finally, consistent testimony of Johnson and Harrod indicated that Johnson was under the influence of various drugs at the time of the offense.

This guilt-phase evidence threw into some doubt Johnson’s intention to participate in Suzanne Edenfield’s murder. It suggested that Johnson took instruction from Sprouse without full awareness of Sprouse’s plan. It further indicated that Johnson’s judgment and ability to affect the course of events had been diminished by drugs. This exculpating evidence was insufficient to convince the jury to acquit Johnson of the murder. Standing alone, it did not dissuade the jury from imposing a death sentence. However, the Court believes it reasonably probable that the death sentence could have been avoided had the exculpating evidence been corroborated with evidence of Johnson’s good, nonviolent character and of his theretofore clean criminal record.

In its previous Order, this Court discussed the strength of the character evidence which petitioner has demonstrated was available in this case. See Johnson v. Kemp, supra, 585 F.Supp. at 1404-05. The 19 affidavits of would-be character witnesses portray Johnson as a person of good character and conduct, with no propensity for or history of violent behavior. Many of the affiants were aware of Johnson’s drug problem. See, e.g., affidavits of Paul Crawford, Mary Denise Dowart. These individuals, including friends and family, consistently stated that Johnson’s involvement in this tragedy was so contrary to his natural character that it could only have resulted from his use of drugs.

The testimony of these witnesses at the sentencing phase would have aided the petitioner in two ways. Like any mitigating evidence, it would have softened the state’s characterization of Johnson as a depraved killer. In doing this, the favorable evidence would have depicted the petitioner in a light which was hardly suggested by the guilt-phase evidence. Cf. Celestine v. Blackburn, 750 F.2d 353, 357 (5th Cir.1984) (no prejudice results where counsel omits during the sentencing phase evidence adequately developed during the guilt phase).

Moreover, the proffered mitigation evidence would have corroborated the exculpatory guilt-phase evidence and thereby made more plausible the inference that Johnson had no intention to participate in Suzanne Edenfield’s murder. The character testimony would have given credence to the evidence that Johnson’s participation in this crime resulted from the distorting effects of drugs rather than from depravity of his character. Evidence of his clean criminal record and his good, nonviolent character would have supported the inference that Johnson was not a party to Sprouse’s plan to commit this heinous murder. By bolstering the exculpatory evidence, the mitigation evidence would have created a discernable degree of additional doubt as to Johnson’s culpability for the murder. The Court cannot say with confidence that this additional quantum of doubt would not have affected the sentence which petitioner received. See King v. Strickland, supra, 748 F.2d at 1464 (“Circumstantial evidence cases are always better candidates for penalty leniency than direct evidence convictions.”).

Having considered the circumstances of Johnson’s case—the evidence of his guilt and the mitigating evidence—the Court believes it reasonably probable that competent counsel could have combined the exculpatory evidence with favorable character evidence to produce an effective case for leniency. Johnson has thus carried his burden under Strickland v. Washington of showing that prejudice resulted from his counsel’s deficient performance.

CONCLUSION

Petitioner has satisfied both the performance and prejudice prongs of Strickland v. Washington, thereby demonstrating that he received ineffective assistance of counsel during his capital sentencing hearing. The petition for writ of habeas corpus as to Johnson’s death sentence is, accordingly, GRANTED. His death sentence is vacated subject to a new sentencing hearing within a reasonable period of time in the manner provided for by O.C.G.A. §§ 17-10-30 to -44.

      . Accounts of Johnson’s offense and trial may be found in the Georgia Supreme Court's opinion upholding the conviction and sentence on appeal, Johnson v. State, 242 Ga. 649, 250 S.E.2d 394 (1978), and in the Orders of this Court and the Eleventh Circuit. See Johnson v. Kemp, 585 F.Supp. 1496 (S.D.Ga.1984), aff’d in part, vacated in part and remanded, 759 F.2d 1503 (11th Cir.1985).

      . The trial transcript was included as Volumes III and IV of the record presented to the Eleventh Circuit Court of Appeals in this case.

      . In reviewing counsel's effectiveness, the Court recognizes that it would be bound to follow any findings of historical fact made by the state habeas court unless those findings were clearly erroneous. See Solomon v. Kemp, 735 F.2d 395, 401 (11th Cir.1984), cert. denied, — U.S. —, 105 S.Ct. 940, 83 L.Ed.2d 952 (1985). The Butts County Superior Court Judge who denied Johnson’s habeas petition made no findings of fact regarding Franklin's performance. Rather, the court made a summary finding that Johnson's "allegation of ineffectiveness is without merit.” Johnson v. Zant, Habeas Corpus No. 5178 (Butts Co. Mar. 25, 1982) (exhibit 10 in Johnson v. Kemp). This finding of effectiveness is a mixed finding of fact and law, entitled to no presumption of correctness in this Court. See Solomon v. Kemp, supra, 735 F.2d at 401.

      . This quality of the evidence likely explains Franklin’s statement that he was surprised by Johnson’s having received a death sentence. See State Hearing at 52.

      . For his part, Sprouse was convicted of murder, kidnapping with bodily assault and two counts of aggravated assault. See Sprouse v. State, 242 Ga. 831, 252 S.E.2d 173 (1979). He received two death sentences, both of which were reversed on direct appeal. See id. On remand, a sentencing hearing was held, at the conclusion of which Sprouse was again sentenced to death. This sentence was also reversed on direct appeal. See Sprouse v. State, 250 Ga. 174, 296 S.E.2d 584 (1982). The Court has been informed that the surviving victim, Mary Lynn Harrod, now refuses to testify further in this matter. Federal Hearing at 99. Accordingly, it seems unlikely that the state will resentence the triggerman, Sprouse, who is currently serving a life sentence.

        . In reaching this determination, the Court considers that, where a jury cannot come to a unanimous decision to impose the death penalty, the judge must impose a sentence of life imprisonment. Miller v. State, 237 Ga. 557, 559, 229 S.E.2d 376 (1976). Thus, the outcome of Johnson’s sentencing hearing would have been changed had counsel convinced one juror that the death sentence was not warranted.


source: Caselaw Access Project

author: CEREZO, District Judge.

license: Public Domain

text:
    EXPLOSIVES CORPORATION OF AMERICA, Plaintiff, v. GARLAM ENTERPRISES CORPORATION and Federal Insurance Company, Defendants.
    Civ. No. 72-0001CC.
    United States District Court, D. Puerto Rico.
    Aug. 8, 1985.

      Salvador Antonetti, Fiddler, Gonzalez & Rodriguez, San Juan, P.R., for plaintiff.
    Charles A. Cordero, Cordero, Colon & Miranda, Old San Juan, P.R., for Garlam Enterprises Corp.
   OPINION AND ORDER

CEREZO, District Judge.

Roekcor, Inc. (Rockcor) formerly known as Rocket Research, Inc., a publicly held corporation incorporated in the State of Washington and having its principal place of business in that state, has been summoned before this court to substitute Explosives Corporation of America, (Expío) judgment-debtor and plaintiff herein, as its successor in interest. Rockcor was duly served with process on September 1, 1983 in Washington. After many continuances, an evidentiary hearing was set for June 28, 1984. On that date, however, the parties informed that there was no need for a hearing and submitted the issue by documentary evidence and legal memoranda.

The facts which originated the present controversy between the parties are as follows. As a result of a contract negotiated between Explosives Corporation of America (Expío), a subsidiary of then Rocket Research Corporation, and Garlam Enterprises Corporation (Garlam) for the presplitting and blasting operations required in the construction of a certain part of Las Américas Expressway in Puerto Rico, Ex-pío filed this lawsuit against Garlam and its surety, the Federal Insurance Company, on January 3, 1972 alleging breach of contract and requesting payment of $300,000 in damages. Garlam filed a counterclaim also alleging breach of contract and demanding $4,120,000 in damages. After four years of litigation the trial of the case was bifurcated and the issue of liability under the contract was tried without a jury on January 26-30, 1976. Prior to any decision on the issue of liability but after trial on that issue Excoa, Inc. (Excoa), Explo’s successor by merger, was dissolved by consent of its sole stockholder, Rocket Research Corp., on October 29, 1976. On that date certain lands known as the Preston property, which had belonged to Expío and then to Excoa by reason of the merger, were conveyed to Rocket Research Corp. in lieu of foreclosure of the mortgage given on October 8 to secure payment of a debt in the amount of $5,575,029.00 owed by Excoa to Rocket Research Corp. In a separate document the remaining assets of Ex-coa were transferred to Rocket Research Corp. in partial satisfaction of a debt Excoa had with Rocket Research Corp. Among the “property” so conveyed was “all of [Excoa’s] interest in and to that lawsuit pending in the United States District Court, [t]he District of Puerto Rico being Cause No. 1-72 entitled Explosives Corporation of America vs. Garlam Enterprises Corporation and Federal Insurance Company, General Insurance Company of North America, third party defendant.” Excoa’s dissolution, like Explo’s merger, was not notified to Garlam or to the court. Thereafter, on March 30, 1977, this Court, by Senior District Judge W.A. Bootle of the Middle District of Georgia sitting by designation, decided the issue of liability in favor of Garlam and against Expío.

On September 9, 1977 Garlam filed a motion for substitution of parties under Rule 25(c) stating that it had found out about Explo’s dissolution from answers to its interrogatory submitted in preparation for the hearing on damages and requesting that Expío be substituted by Rockcor, Inc. On November 10, 1977, however, Garlam filed an amended third-party complaint including Rockcor as a third-party defendant alleging that this corporation was Explo’s alter ego since 1971. Roekcor’s motion to dismiss the complaint for lack of personal jurisdiction was first denied by Judge Pesquera on July 22, 1979. On reconsideration, the motion was granted and judgment was entered on October 30, 1979 dismissing the complaint as to Rockcor. The Court then held that Rockcor was not “doing business” in Puerto Rico within the interpretation of International Shoe v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and could not be subjected to suit in this jurisdiction. An appeal of that judgment was dismissed for lack of jurisdiction under 28 U.S.C. Section 1291 on December 20, 1979. Thereafter, upon Garlam’s motion for reconsideration, the Court reviewed the matter once more and concluded that jurisdiction could not be asserted over Rockcor for purposes of the amended third-party complaint since its contacts with this forum occurred after the commencement of the action and to consider Explo’s contacts as binding on Rockcor would be tantamount to a determination that Rockcor was Explo’s alter ego since the beginning of this action. Nevertheless, the court considered the possibility of bringing Rockcor into the action in substitution of Expío as its successor in interest and determined that Rockcor’s involvements with the fo-. rum upon acquiring Explo’s interests in this proceeding would be sufficient for purposes of examining if Rockcor was Explo’s successor in interest and should be made a party in substitution of Expío. Given the circumstances of the case and the fact that Rockcor knew about the case having monitored the proceedings since it acquired Ex-plo’s interests in it, the Court in fairness to Garlam allowed it to move for substitution under Rule 25, Fed.Rules of Civ.Proc. It is Garlam’s motion for substitution and Rock-cor’s opposition thereto that are before us now for disposition.

In its motions opposing substitution under Rule 25 Rockcor insists that its acquisition of Excoa’s assets upon dissolution and its monitoring of this case since then are insufficient contacts with this forum to justify exercising personal jurisdiction over it. As explained in our Opinion and Order of November 16, 1982 the considerations involved to determine whether jurisdiction lies for purposes of filing a claim directly against a party are different from those involved in a determination on whether a party should substitute as its successor in interest the original party, against whom a claim was filed or judgment entered. Jurisdiction will not be premised on the mere acquisition of assets by the successor but on the existence of certain conditions which can make the purchaser of those assets a successor or an extension of the original party. As such, it will be liable for any obligations incurred by the original party within the forum. Jurisdiction would exist over the successor to the extent that there was jurisdiction over the original party.

Generally, “a purchasing corporation does not assume the liabilities of its predecessor unless (a) the purchaser expressly or implicitly agrees to assume liability; (b) the purchase is a de facto consolidation or merger; (c) the purchaser is a mere continuation of the seller; or (d) the transfer of assets is for the fraudulent purpose of escaping liability” Meisel v. M & N Modern Hydraulic Press Co., 97 Wash.2d 403, 645 P.2d 689, 690 (1982) citing 15 W. Fletcher, Cyclopedia of Law of Private Corporations, Secs. 7118-7123 (rev. ed. 1973). See also Hall v. Armstrong Cork, Inc., 103 Wash.2d 258, 692 P.2d 787, 789-790 (1984); Martin v. Abbott Laboratories, 102 Wash.2d 581, 689 P.2d 368, 384 (1984). This rule has been accepted by the majority of American jurisdictions. See Dayton v. Peck, Stow & Wilcox Co. (Pexto), 739 F.2d 690, 692 (1st Cir.1984) and Cashar v. Redford, 28 Wash.App. 394, 624 P.2d 194, 195 (1981).

Garlam contends that by acquiring all of Excoa’s interest in this lawsuit Rock-cor expressly assumed liability for the counterclaim. This contention is based on its interpretation of the word “interest” as encompassing both beneficial as well as adverse interests. It appears, however, from the contract itself, as well as from the deposition of Rockcor’s Chairman of the Board, Mr. George Sutherland, that this was not the meaning given to the term by the parties to the bill of sale. The “interest” in this lawsuit conveyed to Rockcor by the bill of sale was one of several properties conveyed in partial satisfaction of Ex-coa’s debts to Rockcor. This “interest” was one of Excoa’s assets at the time of the transaction. Clearly, what was transferred to Rockcor was Excoa’s right to collect from Garlam the amounts claimed by Expío in this lawsuit. Aside from the fact that we cannot ascribe property qualities to Garlam’s counterclaim against Ex-pío, other than as a property of Garlam, it is dubious that a creditor would accept a debt in payment of its credit. Rockcor did not expressly assume this liability and its acquisition of Excoa’s interest in this lawsuit cannot, by itself, justify imposing liability against it for the amounts due by Expío on the counterclaim. For the same reasons it cannot be said either that Rock-cor impliedly assumed that liability.

Garlam argues that upon acquiring all interests in this suit Rockcor accepted the terms of the subcontract between Ex-pío and Garlam. Quoting article XX of that agreement which provides that it would “bind the heirs, executors, administrators, successors, holding companies and assigns of the parties hereto” it claims that Rockcor became an “assign” of Expío and is now responsible for the latter’s breach in the performance of the contract. The quoted clause can only mean that persons within the categories mentioned can be held responsible for any breach of contract committed by the original parties to the contract. See 4 Corbin on Contracts, section 871, note 80, and cases cited therein, especially George v. Richards, 361 Pa. 278, 64 A.2d 811, 813 (1949). By acquiring all interests in this action, however, Rockcor did not acquire the contract as an “assignee,” which under the provisions of the same could not be assigned without Garlam’s written consent and which had been terminated upon Garlam’s taking over and completing the subcontractor’s work, but merely acquired an action for damages arising from an alleged breach of contract. Cf. 4 Corbin on Contracts, Section 886, as to assignability of such right of action. Rock-cor is not an “assignee” of the subcontract and is not liable in such capacity for Ex-plo’s breach. Neither was Rockcor a “holding company” of Expío within the strict meaning of such term. See 6A Fletcher Cyc.Corp. (Perm.Ed.) Section 2821.

Garlam does not allege that the dissolution of Excoa and the sale of its assets to Rockcor was in fact a merger or consolidation of that corporation with Rockcor. It claims, however, that by paying for and controlling this litigation, without notice to the court and under Explo’s name, it became a “mere continuance” of the dissolved corporation. Having acquired all of Excoa’s interests in this action Rockcor, as sole stockholder of a dissolved corporation, could, however, assume the costs and control of the litigation in order to protect Excoa’s interests. See RCWA Section 23A.28.250.

The “mere continuation” exception to the general rule that the purchaser of assets of a corporation is not liable for his predecessor’s liabilities “is less clearly defined than the other ... [exceptions].” Parson v. Roper Whitney, Inc., 586 F.Supp. 1447, 1450 (W.D.Wis.1984). It has been said that “ ‘[t]he key element of a ‘continuation’ is a common identity of the officers, directors and stockholders in the selling and purchasing corporation.’ ” Dayton, 739 F.2d 693, quoting from Leannais v. Cincinatti, Inc., 565 F.2d 437, 440 (7th Cir.1977). See also Cashar, 624 F.2d 196. Other factors such as continuation of the seller’s business practices and policies and “the sufficiency of consideration running to the seller corporation in light of the assets being sold”'have also been considered. Id. Although Rockcor and Excoa had certain officers and directors in common at the time of dissolution, complete identity did not exist in the person of the vice president of each of the corporations and in a number of directors of Rockcor who were not directors of Excoa. It may be argued that there was identity of ownership since Rockcor was the sole stockholder of Excoa and its shareholders indirectly owned Excoa. Nevertheless, to find that continuity exists merely because there was common management and ownership, without considering other factors, is to disregard the separate identities of the corporations without the necessary considerations which justify such an action. See 1 Fletcher Cyc. Corp., (Perm. Edition) section 43.20. Although common management and ownership are a crucial element in determining “continuation,” other factors must be considered in order to impose liability upon the successor. Aside from the fact that control of Excoa by Rockcor to such extent as to make the former an “alter ego” of the latter has not been proven, the doctrine of disregarding the corporate entity is distinct from the question of a successor’s liability, which is the issue presented by Garlam’s motion. See 1 Fletcher Cyc. Corp. (Perm.Ed.) Section 48. See also Meisel, 645 P.2d at 692 citing Harris, Washington’s Doctrine of Corporate Disregard, 56 Wash.L.Rev. 253, 253 n. 3 (1981), and 1 W. Fletcher, Private Corporations, Section 48, at 276 (rev. ed. 1974).

In this case the seller corporation dissolved and its trade name and operations were discontinued. Although Rockcor has expanded its business affairs, it is uncontroverted that it did not continue Excoa’s business of manufacturing and distributing explosive products. Garlam did not prove that the consideration paid for Excoa’s assets was insufficient. The evidence showed that at the time of its dissolution Excoa owed Rockcor approximately $5,600,000. Garlam alleged that the conveyance to Rockcor of the Preston property was made without fair consideration because no appraisal was made of the properties prior to the transfer.. Although it may be a good practice to require an appraisal before a certain property is conveyed in payment of debts, this, by itself, would not show lack of fair consideration. The evidence showed that several years later an appraisal was made and the value of the property was estimated at $550,000, approximately $140,000 more than the book value. In 1980, that is almost four years after the dissolution of Excoa, this property was sold for $1,120,000. Even if we consider this as the true value of the Preston property, we cannot determine that Ex-coa’s assets, the main asset being these lands, were worth more than the $5,600,000 owed by Excoa to Rockcor. Garlam did not dispute the existence of this debt nor its amount. On this record we cannot conclude that Rockcor is a “mere continuity” of Excoa.

Garlam also contends that the transfer of Excoa assets to Rockcor was for the fraudulent purpose of avoiding liability on its counterclaim. Citing a fifth exception to the general rule that a purchaser of a corporation’s assets does not thereby become liable for its debts, Garlam argues that Rockcor is not a “good faith” purchaser and should, therefore, be held responsible for Excoa's liabilities. This fifth exception applicable where “some of the elements of a purchaser in good faith [are] absent,” is encompassed within the fourth exception quoted above which involves a fraudulent transaction. See: Dayton, 739 F.2d at 692, n. 1. Section 19.40.040, RCWA quoted by Garlam in support of its contention that the transfer of Excoa’s assets to Rockcor was fraudulent, provides that “every conveyance made and every obligation incurred by a person who is or will be thereby rendered insolvent is fraudulent as to creditors without regard to his actual intent if the conveyance is made or the obligation is incurred without a fair consideration.”

The “good faith” aspect of the exception is included in the Washington’s statute defining “fair consideration” thus:

Fair consideration is given for property, or obligation,
(1) When in exchange for such property, or obligation, as a fair equivalent therefore, and in good faith, property is conveyed or an antecedent debt is satisfied, or
(2) When such property, or obligation is received in good faith to secure a present advance or antecedent debt in an amount not disproportionately small as compared with the value of the property, or obligation obtained. RCWA Section 19.40.030 (emphasis ours).

It is undisputed that upon its dissolution immediately following the transfer of its assets to Rockcor, Excoa was an insolvent corporation. As stated above, however, neither the true value of Excoa’s assets was shown nor that its assets were worth more than Excoa’s indebtedness to Rock-cor. The validity of that debt has never been questioned. Garlam argues, notwithstanding, that Rockcor did not purchase Excoa’s assets in good faith when it “stripped” its subsidiary of all its assets to the prejudice of innocent creditors such as itself and when it did not notify Garlam its intention to dissolve Excoa. In addition, it claims that Rockcor cannot be considered a purchaser in good faith since it caused to be filed deceptive articles of dissolution with the Washington State authorities. The case of Harrison v. Puga, 4 Wash.App. 52, 480 P.2d 247 (1971) cited in support of Garlam’s contention that a stockholder who strips a corporation of all assets transfers the same to its own account and becomes liable for the debts of the corporation is inapplicable to the instant situation which involves a successor liability claim. In that case, the transfer of the corporation’s assets to the stockholder was made without any apparent consideration and with the stockholder’s clear intent to disregard the corporation’s separate entity by treating its assets as his own. By contrast, evidence of corporate disregard has not been presented in this case. Moreover, Rockcor’s acquisition of Excoa’s assets was in its capacity as creditor of the corporation, in payment of debts whose validity has not been disputed.

To establish “good faith,” as used in section 19.40.030 of the Washington revised statutes, the party carrying the burden of proof must show one or more of the following three factors by substantial evidence:

(1) an honest belief in the propriety of the activities in question;
(2) no intent to take unconscionable advantage of others; and
(3) no intent to, or knowledge of the fact that the activities in question will hinder, delay, or defraud others. Sparkman and McLean Co. v. Derber, 4 Wash.App. 341, 481 P.2d 585, 591 (1971), quoting Tacoma Association of Credit Men v Lester, [72 Wash.2d 453], 433 P.2d 901, at 904 (Wash.1967).

Although the burden of proof is initially upon the party alleging fraud, under certain circumstances this burden has been found to shift to the purchaser to prove the good faith of his transaction with an insolvent. Sparkman v. McLean, 481 P.2d at 591. One such circumstance has been held to be where the same individuals control two or more businesses which are dealing together. Id., see Tacoma Association, 433 P.2d at 904-905. Although we have previously stated that control of Excoa by Rockcor to a degree which would justify disregarding the separate entity of these corporations has not been shown and is not in issue, sufficient control existed as would justify requiring Rockcor to prove good faith in the transaction. See Tacoma Association, 433 P.2d at 904-905.

Rockcor’s Chairman of the Board, Mr. George Sutherland, stated in an affidavit submitted in evidence that the decision to dissolve Excoa was unrelated to this case and that it took place before any judgment had been rendered in favor of Garlam, at a time when the corporation expected Expío to prevail against Garlam. In his deposition, Sutherland expressed that same view and further stated that one of the purposes of the transaction was to benefit from certain tax consequences resulting from Excoa’s liquidation. This was the reason for culminating the same before the end of the fiscal year, which ended on October 31, 1976. Evidence more contemporary to the transaction, a letter of October 8,1976 to Rockcor’s Vice President and Treasurer at the time, Mr. Robert G. Sanderson, from the corporation’s financial counselor shows that this was, in fact, considered in making the decision to dissolve Excoa.

There is nothing in the record to dispute the Sutherland statements and the Court cannot pass upon the credibility of this witness, the parties having waived the hearing and submitted the issue on the documentary evidence alone.

Citing Rainier National Bank v. McCracken, 26 Wash.App. 498, 615 P.2d 469, 474-475 (1980), Garlam alleges that sufficient “badges or indicia of fraud” exist to conclude that the conveyance of Excoa’s assets to Rockcor was fraudulent. These “badges” of fraud are, according to Garlam, the insolvency of Excoa, the lack of consideration for the conveyance, the relationship between the contracting parties, the pendency of this suit, the secrecy or concealment of the transaction, departure from the usual method of business and the transfer of Excoa’s entire estate. See Rainier National Bank, 615 P.2d at 474. Although some but not all of these circumstances are present in this case, the transaction has not been shown to be fraudulent. This is so in light of Rockcor’s evidence showing honest belief that Expío would prevail in its claim against Garlam and that its motivations in the transaction were not related to this suit. It cannot be overlooked that Garlam’s credit, if any, was but a contingent claim at the time of the transaction. Moreover, it cannot be stated that Rockcor tried to take “unconscionable advantage” of others by securing its multimillion credit, something Garlam could have done also by attaching property of Expío to secure payment of the judgment ultimately entered. Rockcor having showed “good faith” in the transaction with Excoa, and lack of a fair equivalence in the value of the properties conveyed in satisfaction of the debt not having been shown by Garlam, it must be concluded that fair consideration was given for the conveyance and that the same was not fraudulent within the meaning of section 19.40.040, RCWA.

None of the exceptional circumstances for imposing liability upon a purchasing corporation for the debts of its predecessor having been shown, the Motion for Substitution of Parties is hereby DENIED.

SO ORDERED.

      . On November 16, 1982 an order was issued adopting the Special Master's findings on the issue of damages and judgment in favor of Garlam was entered on that date for the total sum of $2,423,177.00 without costs, pre-judgment interest or attorney's fees.


author: SPENCER WILLIAMS, District Judge.

text:
    AIR LINE PILOTS ASSOCIATION, INTERNATIONAL, Plaintiff, v. TRANSAMERICA AIRLINES, INC., Defendant.
    No. C 85-2803 SW.
    United States District Court, N.D. California.
    Aug. 8, 1985.

      Michael E. Abram, Jay P. Levy-Warren, James L. Linsey, Cohen, Weiss & Simon, New York City, JamesR. Ritchie, Henning, Walsh & Ritchie, San Francisco, Cal., for plaintiff Air Line Pilots Ass’n, Intern.
    Fisher & Phillips, Ned A. Fine, San Francisco, Cal., and Robert J. Berghel, William F. Kaspers, James J. McDonald, Jr., Atlanta, Ga., for defendant Transamerica Airlines, Inc.
   ORDER GRANTING DEFENDANT’S MOTION TO DISMISS

SPENCER WILLIAMS, District Judge.

The matter is before the court on defendant Transamerica Airlines, Inc.’s (hereafter “Transamerica”) motion to dismiss plaintiff Air Line Pilot Association, International’s (hereafter “ALPA”) complaint in its entirety for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted. At the conclusion of the hearing on this motion, the court dismissed without prejudice the first count of plaintiff’s complaint. The court requested supplemental briefing on and took under advisement that portion of the motion which pertained to the second count of the complaint.

In the second count, plaintiff contends that defendant’s creation of a separate airline subsidiary “subverts and impairs the representative standing, collective bargaining rights and legitimate effectiveness of ALPA to represent Transamerica’s pilots ..., and violates rights of ALPA and Transamerica’s pilots to a collective bargaining relationship free of influence, interference, or coercion by defendant.” ALPA contends that this conduct violates the Railway Labor Act (hereafter “RLA” or “the Act”), 45 U.S.C. § 152, Third and Fourth, which, respectively, prohibit interference with the designation of representatives and give employees the right to organize and bargain collectively without interference from a carrier. The issue is whether this claim presents a simple representation dispute, committed to the exclusive jurisdiction of the National Mediation Board (“NMB”) pursuant to 45 U.S.C. § 152, Ninth, or whether the claim encompasses factors other than representation which this court has jurisdiction to entertain at this time. After careful consideration of all the arguments and evidence before the court, it is hereby ordered that defendant’s motion to dismiss the second cause of action is GRANTED.

FACTS

Transamerica is a charter airline engaged in the business of providing air transportation service in interstate and foreign commerce. Plaintiff ALPA is the duly authorized exclusive collective bargaining representative of the airline pilots employed by Transamerica. For many years, plaintiff and defendant have made and maintained collective bargaining agreements.

The RLA requires that the parties before the court “exert every reasonable effort to make and maintain agreements concerning rates of pay, rules and working conditions and to settle all disputes' ... in order to avoid any interruption to commerce.” 45 U.S.C. § 152, First. Before disputing parties covered by the Act may resort to self-help, they are required to exhaust a procedure set out in the Act. Initially, the parties must attempt by good faith conferences to reach agreement. 45 U.S.C. § 152, Second. If the conferences fail, the parties may invoke the services of the NMB, 45 U.S.C. § 155, First, which is required to use its best efforts to bring them to agreement. If the NMB determines that a settlement through mediation is not possible, it must endeavor to induce the parties to arbitrate their controversy. Id. If either party refuses to arbitrate, the NMB notifies the parties that its mediatory efforts have failed; the parties then enter a 30-day cooling off period, after which time they may resort to self-help. Id.

ALPA and Transamerica commenced negotiations over the terms of a new collective bargaining agreement in March 1984. Unable to reach agreement, they jointly invoked the NMB’s assistance and have been engaged in mediation sessions since July 1984. On March 27, 1985, plaintiff filed its complaint in which it seeks injunctive and other relief against defendant for alleged violations of the RLA, 45 U.S.C. §§ 151 et seq.

In count I of its complaint, ALPA alleges that Transamerica, together with its corporate parent, “formulated and commenced to implement a plan to compel Transamerica’s pilots to operate in accordance with rates of pay and working conditions to be imposed by Transamerica whether or not they would be agreed to by ALPA.” Transamerica and its parent allegedly created Trans International Airline, a subsidiary, to achieve this goal. ALPA contends that although Transamerica entered into collective bargaining negotiations, it has refused to bargain in good faith and to exert every reasonable effort to make and maintain disputes and to settle disputes in a manner consistent with the requirements of 45 U.S.C. § 152, First. Because the court determined that it had no jurisdiction to entertain this claim prior to the exhaustion of the RLA’s dispute resolution procedures, defendant’s motion to dismiss this count of the complaint was granted without prejudice.

In the second count of the complaint, ALPA alleges that defendant’s course of conduct, particularly the creation of Trans International Air, violates 45 U.S.C. § 152, First and Fourth, by subverting and impairing “the representative standing, collective bargaining rights, and legitimate effectiveness of ALPA to represent Transamerica’s pilots.” Essentially, ALPA believes that defendant together with its corporate parent established Trans International Air, a charter airline which allegedly operates in Transamerica’s marketplace, so that work which would otherwise be done by ALPA members will be performed by Trans International pilots. Defendant contends that the court lacks jurisdiction to entertain this claim as it raises a representation dispute committed wholly to the NMB.

ANALYSIS

The issue for the court to decide is how to properly characterize plaintiff’s second claim. As will be discussed infra, the Second Circuit has affirmed the dismissal for lack of subject matter jurisdiction of a substantially similar claim brought by ALPA in another proceeding. Plaintiff contends, however, that the Ninth Circuit authorities in Labor Management Relations Act (hereafter “LMRA”) and in an RLA case demonstrate that the exercise of subject matter jurisdiction over plaintiff’s second cause of action is appropriate.

In seeking to have the second count of the complaint dismissed for lack of subject matter jurisdiction, defendant argues that ALPA’s claim arises under 45 U.S.C. § 152, Ninth, which provides in relevant part:

If any dispute shall arise among a carrier’s employees as to who are the representatives of such employees designated and authorized in accordance with the requirements of this chapter, it shall be the duty of the Mediation Board, upon request of either party to the dispute, to investigate such dispute ...

Defendant contends that ALPA itself demonstrated that its claim raises a representation dispute when it filed with the NMB a petition for classification of carrier status, seeking a ruling on whether Transamerica and Trans International constitute a single carrier and whether ALPA has the right to bargain on behalf of pilots employed by Trans International.

In addition, defendant argues that the claims raised by ALPA here are nearly identical to those it raised in ALPA v. Texas Int’l. Airlines, 656 F.2d 16 (2d Cir. 1981). In Texas Int’l., ALPA was the collective bargaining representative of the pilots of Texas International. The corporate parent of Texas International established New York Air, a separate, non-union airline subsidiary. ALPA alleged that this corporate restructuring constituted an effort to defeat the existing collective bargaining agreement between ALPA and Texas International. This conduct was alleged to violate Texas International’s statutory duties

“(1) to ‘treat with” ALPA as the exclusive representative of (Texas International's pilots, § 2, Ninth; (2) to maintain the collective bargaining agreement, § 2, First; (3) to allow representatives to be designated without interference, influence, or coercion, § 2, Third; (4) to refrain from interference in the organization of the employees, § 2, Fourth; and (5) to refrain from attempting to unilaterally change rates of pay, rules, and working conditions, § 2, Seventh, § 6.”

Id. at 18. Thus, ALPA’s claim here that the creation of Trans International violates 45 U.S.C. § 152, Third and Fourth, essentially tracks claims ALPA made in Texas Int’l

The district court’s dismissal of ALPA’s claims was affirmed by the Second Circuit, which noted at the outset that the case presented neither a pure representation dispute under 45 U.S.C. § 152, Ninth, nor a pure interference claim under 45 U.S.C. § 152, Third and Fourth. No traditional representation dispute existed because there was no rival union and there had been an application to nor a certification by the NMB. Nonetheless, the court held where a representation dispute appears on the face of a complaint, the court must dismiss the action in light of 45 U.S.C. § 152, Ninth. Acknowledging that courts traditionally play a narrow role in enforcing the RLA, the Second Circuit concluded that “(n)either the framework and history of the RLA nor the cases authorizing judicial intervention under the Act”, Id. at 24, establish that subject matter jurisdiction over this claim exists.

Were Second Circuit authority controlling here, this court clearly would lack subject matter jurisdiction over the claim before it. It is plaintiff’s contention that under Ninth Circuit authority, which does control, subject matter jurisdiction does lie.

One argument that plaintiff makes in support of its position that the court possesses jurisdiction over this claim is based cases arising under the LMRA.

In Bhd. of Teamsters, Local No. 70 v. California Consolidators, Inc., 693 F.2d 81 (9th Cir.1982) (per curiam), plaintiff filed an action under section 301(a) of the LMRA, 29 U.S.C. § 185(a), seeking a declaratory judgment that a trucking firm was bound by the union’s collective bargaining agreement with a pool car distributor because the two entities constituted a single employer. The Ninth Circuit reversed the district court, which had found that it lacked jurisdiction because the National Labor Relations Board had exclusive jurisdiction over the single employer issue.

Employing the two step analysis adopted by the Supreme Court in South Prairie Construction Co. v. Local 627, Int.’l Union of Operating Engineers, 425 U.S. 800, 96 S.Ct. 1842, 48 L.Ed.2d 382 (1976) (per curiam), the Ninth Circuit determined that questions whether two entities are bound by a collective bargaining agreement “comprise two subsidiary issues”, California Consolidators, 693 F.2d at 82. The court held that a district court “may decide under § 301 whether two companies constitute a single employer, (b)ut a single employer conclusion fails to determine that the employees form a single or an appropriate bargaining unit.” Id. at 83 (citations omitted). The court held that under § 301 district courts have jurisdiction to decide whether employers constitute a single employer but do not have jurisdiction to determine the second part of the issue, the appropriateness of the bargaining unit. See also Northwest Administrators v. Con Iverson Trucking, Inc., 749 F.2d 1338 (9th Cir.1984) (court generally has no jurisdiction to decide representational issues in NLRA cases, but under § 301 it does have jurisdiction to determine whether one company was a successor or alter-ego to another which could be bound by an agreement the other entered, and if so, to determine whether the successor or alter-ego ever effectively repudiated the collective bargaining agreement).

Plaintiff argues that the same two-step analysis must govern in this RLA case and that California Consolidators, South Prairie, and Northwest Administrators demonstrate that, at a minimum, this court has jurisdiction to consider the first part of the inquiry, i.e., whether Transamerica and Trans International constitute a single employer.

While it certainly is true there are parallels between the RLA and other labor statutes, such parallels “should be drawn with the utmost care and with full awareness of the differences between the statutory schemes.” Chicago and N.W R. Co. v. United Transportation Union, 402 U.S. 570, 579 n. 11, 91 S.Ct. 1731, 1736 n. 11, 29 L.Ed.2d 187 (1971). See also Bhd. of R.R. Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 383, 89 S.Ct. 1109, 1118, 22 L.Ed.2d 344 (1969) (although cases arising under the NLRA are useful in construing the RLA, they cannot be “imported wholesale in the railway labor arena” and analogies must be drawn “circumspectly, with due regard for the many differences between the statutory schemes”).

Even assuming arguendo that the second count of ALPA’s complaint raises an issue which should be analyzed under the two-part analysis originally set out in South Prairie, the RLA differs from the LMRA in ways which would make the exercise of jurisdiction over any part of ALPA’s second claim improper.

Section 301 of the LMRA expressly confers jurisdiction upon federal courts to enforce contracts; that jurisdiction extends to determinations of whether a particular employer is bound by a collective bargaining agreement. In contrast, the RLA contains no corollary to § 301; rather, as will be discussed infra, questions of contract interpretation constitute minor disputes which must be submitted to final and binding arbitration and are subject to limited judicial review only after such an arbitration award has been rendered. See 45 U.S.C. § 153. Therefore, the fact that the court possesses jurisdiction to adjudicate the single employer question in NLRA eases does not indicate that it also has jurisdiction to make the same determinations in RLA cases. The statutory framework of the RLA demonstrates that Congress intended that, with few exceptions, questions of contract interpretation not be brought before the courts until binding arbitration has occurred.

Plaintiff’s second argument evolves from Butte, Anaconda & Pacific Ry. v. Bhd. of Locomotive Firemen and Enginemen, 268 F.2d 54, 58 (9th Cir.), cert. denied, 361 U.S. 864, 80 S.Ct. 122, 4 L.Ed.2d 104 (1959). In Butte, the railway established a new switching and loading yard and ascertained that its employees, who were represented by the union, were willing to perform at the new yard under work rules different from those in existence at its other yard. The railway then served upon the union a notice proposing amendments to the labor agreements, and the parties commenced negotiations on the proposed work rule changes. When the union did not agree readily to the changes the railway desired, the railway announced that the work at the new yard would be done by employees of its corporate parent. The. union threatened to strike, and the railway sued to enjoin the threatened strike.

The district court dismissed, the action and the court of appeals affirmed. One of the issues before the circuit was whether the controversy presented a major or a minor dispute under the RLA. Plaintiff contends that in the course of its discussion of the major/minor dispute issue, the Ninth Circuit demonstrated that this court has jurisdiction over single employer questions in RLA cases. For the following reason, the court disagrees.

Disputes under the RLA are classified either as major or minor disputes. Major disputes, which involve attempts to form collective bargaining agreements and/or change rates of pay, rules or working conditions, are resolved through the conference, mediation, and arbitration process described above. Minor disputes, which involve grievances directed to the meaning or proper application of a particular provision in an agreement, are to be resolved through arbitration which is binding upon the parties and final. See Elgin J. & E.R. Co. v. Burley, 325 U.S. 711, 724, 65 S.Ct. 1282, 1290, 89 L.Ed.2d 1886 (1945).

In RLA cases where injunctions prohibiting a strike are sought, such as Butte, it is necessary as a threshold matter to determine whether a dispute is major or minor. The Norris-LaGuardia Act prohibits the issuance of an injunction in an RLA case involving a major dispute, but a strike may be enjoined when a minor dispute occurs.

It is for this reason that the Butte court began its analysis with an examination of whether the dispute before it was major or minor. In so doing, the court rejected the railway’s contention that a major dispute had concluded when the union rejected that railway’s proposal, the railway withdrew its section 6 notice, and the switching operations at the new yard were transferred to employees of the railway’s parent.

In discussing the railway’s last assertion—that the transfer of jobs terminated the dispute—the court stated:

It may be assumed ... that where an independent shipper, not acting in concert with a carrier, determines to perform its own switching service on its own property, section 6 mediation proceedings involving a dispute relative to such service are necessarily terminated.
Here, however, the carrier is the wholly-owned subsidiary of the shipper ... The two have common principal officers and the unified purpose of serving the ultimate best interests of the shipper. Under these circumstances the act of Anaconda in taking over the switching service, to be performed by employees represented by another union, must be regarded as the act of the carrier. Otherwise, a carrier by interrelation with its shipper would always have it within its power to circumvent the mediation provision of the RLA.

Id. at 59-60.

Plaintiff argues that this passage demonstrates that this court has jurisdiction to consider the single employer question under the RLA. It argues that Transamerica, like the carrier in Butte, acted in concert with its corporate parent to use the device of separate corporations to avoid its bargaining and representation obligations under the Act.

The court rejects plaintiff’s argument for two reasons. First, the factual setting in Butte was not similar to the one before this court. The court in Butte was not addressing the question whether a court has jurisdiction to consider whether two employers are bound by a collective bargaining agreement signed by one of them; instead, the court was addressing the separate issue of whether the major dispute had terminated, leaving only a minor dispute and depriving the court of jurisdiction to issue an injunction. In the course of its discussion, the court did determine that the conduct of one employer could be attributed to another, but it did so only because a threshold jurisdictional question was raised by defendant’s assertion that the dispute the court was examining was a minor one.

The situation before the court in this instance does not present the same question. The resolution of the single employer question here is not a necessary precondition to the determination whether the court has jurisdiction over the case; rather, the single employer question is the ultimate issue which plaintiff seeks to have the court determine. This question simply was not before the Butte court.

Second, the passage quoted above does not constitute the holding of Butte. It merely is dicta. Because the factual situation there was so different, this dicta provides little or no guidance to this court.

In sum, the question whether this court has jurisdiction over plaintiff’s second count has never been addressed directly in the Ninth Circuit. In view of the careful and convincing analysis of this issue which the Second Circuit undertook in Texas Int’l. and the unmistakable congressional intent, evident in 45 U.S.C. § 152, Ninth, to have representation issues in RLA cases resolved exclusively by the NMB, the court finds that dismissal of plaintiffs second count is mandated.

IT IS THEREFORE ORDERED that defendant’s motion to dismiss the second count of the complaint is GRANTED.

      . Section 301(a) provides in relevant part:
      Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce ... may be brought in any district court of the United States having jurisdiction over the parties ...
      29 U.S.C. § 185(a).


author: FELDMAN, District Judge.

text:
    Charles WEST v. CHEVRON U.S.A., INC., Y & S Marine Company, and XYZ Insurance Company. William Larry DEAN v. CHEVRON OIL COMPANY, Ocean Transportation Systems, Inc., XYZ Insurance Company and the M/V Redeemer, her engines, tackle, furniture & all appurtenances et cetera, in rem.
    Civ. A. No. 84-1244, 84-5227.
    United States District Court, E.D. Louisiana.
    Aug. 8, 1985.

      A. Remy Fransen, Jr., of Wiedeman & Fransen, New Orleans, La., for plaintiffs Charles West and William Larry Dean.
    Michael McAlpine and John Peuler of Johnson & McAlpine, New Orleans, La., for Ocean Transp. System.
    George B. Jurgens, III, Louis Simon, II, Kennedy J. Gilly, Jr., and Michael R.C. Reiss of Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, La., for Chevron USA, Inc.
   OPINION

FELDMAN, District Judge.

Once again the Court plunges into the murky waters of choice of law—this time, to resolve whether Admiralty law or state law through the Outer Continental Shelf Lands Act applies to an accident on the Outer Continental Shelf off the Coast of Louisiana. If Admiralty law applies, then plaintiffs may sail smoothly on to pursue the merits of their case. If Louisiana law applies as surrogate federal law through the Lands Act, then plaintiffs have abruptly run aground. Prescription will bar their claims against Chevron.

This matter comes before the Court on Defendant Chevron’s motion for summary judgment dismissing plaintiffs’ claims against it on the ground that prescription has run on their claims. The undisputed material facts giving rise to this motion are unremarkable.

Plaintiffs sued Chevron to recover damages for personal injuries they allegedly sustained when they were dropped from a personnel basket onto a vessel, the M/V REDEEMER. The personnel basket ran from a fixed offshore platform on the Outer Continental Shelf off the Coast of Louisiana to the vessel, which hovered in the area of the platform. Chevron owned the platform. It also time-chartered the vessel, which was used to transport employees from the structure on which workers slept to the structures on which they worked. At the time of the incident, plaintiffs were being transferred in the basket from the fixed platform to the vessel.

Transfer of the basket back and forth was accomplished by means of a crane. The crane was affixed to the platform. A Chevron employee operated the crane. Workers were transferred by standing on the base of the basket. They held on to the netting sides of the basket as the crane swung the basket over the side of the platform and lowered it onto the deck of the vessel.

The incident in question occurred on April 23,1982. Plaintiff Charles West filed suit on March 13, 1984. He filed a supplemental and amending complaint on September 12, 1984. Plaintiff William Larry Dean filed suit on October 29, 1984. The suits were consolidated on December 5, 1984.

The issue on which this motion turns is whether Admiralty law or state law as surrogate federal law through the Outer Continental Shelf Lands Act applies to plaintiffs’ claims against Chevron. Considering the memoranda, supplemental memoranda and supporting exhibits submitted by the parties, the arguments of counsel during oral argument and the law applicable to this case, the Court grants Chevron’s motion for summary judgment and holds that state law through OCSLA governs plaintiffs’ claims. They are, therefore, prescribed.

The analysis begins with Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 493, 93 S.Ct. 498, 34 L.Ed.2d 454 (1972) and its progeny, even though Executive Jet dealt with the scope of admiralty jurisdiction and the instant case deals with choice of law. Choice of law questions in eases such as the one before the Court “traditionally have been analyzed in jurisdictional terms ... because ‘once admiralty jurisdiction is established, then all of the substantive rules and precepts peculiar to the law of the sea become applicable' ”. In Re Dearborn Marine Service, Inc., 499 F.2d 263, 277 n. 27 (5 Cir.1974).

Under Executive Jet and its progeny, the Court focuses on two inquiries: 1) the locality of the wrong; and 2) maritime nexus to the wrong. In examining the locality of the wrong the Court must look at the place the injury occurred, that is: the place where the alleged negligence took effect, rather than where the act of negligence occurred.

In this case, it is undisputed that the negligence took effect and the injury occurred on the vessel M/V REDEEMER, a vessel on navigable waters. It thus is clear that the locality prong of the Executive Jet test is met in this case. That conclusion does not, however, end the Court’s inquiry.

Under Executive Jet, the Court must decide whether the requisite maritime nexus is also present. It is that inquiry which focuses attention on the difficult dimension of the issue raised. And it is that inquiry which centers on a fundamental policy consideration: How expansive a view should courts take of what Admiralty law should reach?

The test of maritime nexus is whether the negligence bears a significant relationship to traditional maritime activity. Executive Jet, 93 S.Ct. at 504. Helaire at 1042. In assessing whether the negligence bears a significant relationship to traditional maritime activity, the Court addresses four considerations: 1) the functions and roles of the parties involved; 2) the types of instrumentalities involved; 3) the nature and cause of the accident and the type of injury; 4) traditional concepts of the role of .admiralty law. Kelly v. Smith, supra. Considering each of these factors in light of the facts of this case, the Court is compelled to conclude that maritime nexus is lacking in this case. The negligence fails to bear a significant relationship to traditional maritime activity even though the injuries happened on a vessel in navigable waters.

Functions and Roles of the Parties

It is undisputed that plaintiffs were the quintessential platform workers. At the time of the incident, they were being lifted in a personnel basket manipulated by a platform-based crane from Chevron’s platform to the vessel M/V REDEEMER. The vessel hovered between 2 and 130 feet away from the platform at the time of transfer.

Chevron wore two hats in this case; that of platform owner and that of time charterer of the vessel. The activity in which it was engaged at the time of the accident, however, was non-maritime—the operation of a platform-based crane.

Plaintiffs seize on the fact that Chevron was the time-charterer of the vessel. They strenuously argue that, as such, Chevron had the status of vessel owner. Plaintiffs, with admirable enterprise, further liken themselves to passengers or cargo being transported on a vessel or a vessel-equivalent across navigable waters. They urge that Chevron therefore owed them a duty of safe egress from the basket and ingress onto the Redeemer.

The Court rejects plaintiffs’ characterization of the roles of the parties. The Court recognizes that courts have deemed non-vessels such as helicopters that ferry workers back and forth from shore to offshore drilling structures to be functionally vessel-equivalents to establish the requisite maritime flavor to an accident. But this Court is not persuaded that a personnel basket operated from a platform-based crane, and which was used to transfer workers at most something over a hundred feet, performs a sufficiently similar function or is of the same genre. Therefore, the Court rejects plaintiffs’ assertion that they have passenger status by virtue of being transferred in the basket.

Similarly, the Court rejects plaintiffs’ contention that they were passengers because their destination was a vessel on which they would be transported across navigable waters to another platform. Plaintiffs have failed to bring to the Court’s attention any case which takes so broad a view of who is a passenger and when a vessel’s duty to passengers or intended passengers commences. To accept plaintiffs’ argument would be to conceptually ignore the centerpiece of this puzzle: the fixed platform activities (which are non-maritime) that cannot be unbundled from the events at issue.

Instrumentalities

Likewise, the critical instrumentalities involved in this case are peculiarly non-maritime. As noted, they are a platform-based crane that operated a personnel basket. There is nothing uniquely maritime about these instrumentalities. In so finding, the Court does not ignore the presence of the vessel at the scene of the accident. But the vessel was a passive factor, and the fact of its fortuitous involvement does not change the result here. That plaintiffs were injured when they landed on the vessel was mere happenstance; if the injuries had occurred on the platform, state law would clearly apply. It is precisely the fortuity of the location of an accident that led the Supreme Court to shift the analysis of jurisdictional issues away from a pure locality test to a test of locality plus maritime nexus. The Court acknowledged that “there has existed over the years a judicial, legislative and scholarly recognition that, in determining whether there is admiralty jurisdiction over a particular tort or class of torts, reliance on the relationship of the wrong to traditional maritime activity is often more sensible and more consonant with the purposes of maritime law than is a purely mechanical application of the locality test.” Executive Jet, 93 S.Ct. at 501.

It is important that courts not lose sight of this policy consideration. Further, as the Court already has mentioned, it is not persuaded that the personnel basket performed a function which renders it a vessel-equivalent. This case therefore is distinguishable from Ledoux.

Nature and Cause

The nature and cause of the accident were platform, not vessel-related. It is undisputed that the cause of the accident was the allegedly negligent operation of the platform-based crane by a Chevron employee. Since there was no “causal operational relation” between the vessel and plaintiffs’ resulting injuries as noted in Lanasse v. Travelers Insurance Company, 450 F.2d 580, 584 (5 Cir.1971), the Court cannot properly characterize the cause of the accident and injury as “vessel-related”. What is pivotal here is the fact that the injury was caused by clearly non-vessel operations.

Plaintiffs cannot magically transform platform negligence into vessel-related negligence by characterizing themselves as cargo or passengers, or, as we have seen, by seizing on the fact that Chevron time-chartered the vessel on which plaintiffs fortuitously landed. While the Court recognizes that vessels owe certain duties, including a duty of safe ingress and egress to persons who actually are passengers or who are imminently about to become passengers, it cannot accept plaintiffs’ self-characterization as passengers or cargo or their characterization of the personnel basket as a vessel or vessel-equivalent. Plaintiffs’ reasoning would expand a vessel’s duty to the point of absurdity. Under plaintiffs’ reasoning, they became “passengers” and the vessel’s duty arose while they were still on the platform, and at the moment they were about to enter the personnel basket.

Type of Accident or Injury

Nor was the type of accident or injury in this case peculiarly maritime. The accident and resulting injuries could have been sustained on a platform or land-based rig as well. As previously noted, the landing of plaintiffs on the vessel was mere happenstance. It is helpful to underscore that. If they had been going from the vessel to the platform rather than from the platform to the vessel, they might have landed on the platform instead, and sustained the same injuries.

Traditional Concepts of the Role of Admiralty Law

Finally, the traditional concepts of the role of admiralty law compel this Court to hold that state law through OSCLA rather than Admiralty law, governs plaintiffs’ claims against Chevron. The purpose of Admiralty law is to safeguard the understandable national interest in uniformity of law and remedies for those facing the hazards of waterborne transportation. Kelly v. Smith supra. But that national interest simply is not implicated in this case. Plaintiffs were not facing hazards peculiar to waterborne transportation when they were lifted and moved in a basket attached to a crane mounted on a fixed platform from the platform to a vessel hovering between 2 to 130 feet away.

The Court further emphasizes that the Supreme Court, beginning with Executive Jet and Foremost Insurance Company v. Richardson, 457 U.S. 668, 102 S.Ct. 2654, 73 L.Ed.2d 300 (1982), and more recently in Herb’s Welding v. Gray, — U.S. —, 105 S.Ct. 1421, 84 L.Ed.2d 406 (1985), has taken a restrictive view of what is maritime and what falls within Admiralty jurisdiction. The Supreme Court seems to be saying that expansive notions of what is in the Admiralty are viewed with disfavor. In Herb’s Welding, for example, the Supreme Court pointed out that “The Fifth Circuit’s expansive view of maritime employment is ... inconsistent with our prior cases under the 1972 Amendments to the LHWCA. The expansion of the definition of navigable waters to include rather large shoreside work areas necessitated an affirmative description of the particular employees working in those areas who would be covered. This was the function of the maritime employment requirement. But Congress did not seek to cover all those who breathe salt air. Its purpose was to cover those workers on the situs who are involved in the essential elements of loading and unloading____” 105 S.Ct. 1421, 1427 (1985). This Court heeds the signal of the Supreme Court, and believes it is a healthy sign. In this case, the great weight of the relevant factors militates against application of Admiralty law. To rule otherwise, in this context, would require too expansive a view of what belongs in Admiralty.

To summarize, nothing about plaintiffs’ injuries or the accident itself except the fortuity of its culmination on the deck of a vessel exudes maritime flavor. Nothing calls into play the unique interests of Admiralty. Neither the risks to which plaintiffs were exposed, nor Chevron’s alleged breaches were peculiarly Admiralty-related. The risks and breaches did not involve the duty of a vessel-equivalent to her passengers.

Considering all of these factors, the Court finds that the requisite maritime nexus is lacking in this case. The Court therefore holds that state law, applied as surrogate federal law through the Outer Continental Shelf Lands Act, applies to plaintiffs’ claims against Chevron.

The Court recognizes that its application of state law through OCSLA in this setting might be viewed as an extension of OCSLA beyond the precise physical limits of the fixed offshore platform. In this Court’s view, however, the personnel basket attached to the crane affixed to the platform was itself an extension of the platform. In all events, nothing in the legislative history of OCSLA suggests that Congress intended for OCSLA to be limited to the four corners of the platform. Indeed, other courts have refused to limit the application of OCSLA to the precise physical limits of the fixed offshore platform.

Having determined that state law through OCSLA applies to plaintiffs’ claims against Chevron, the Court is obliged to dismiss these claims on grounds of prescription. The applicable prescriptive period under Louisiana law is one year. Plaintiffs brought suit more than one year after the accident and injury.

Accordingly, Chevron’s motion for summary judgment dismissing plaintiffs’ claims against it is GRANTED.

      . They present, however, another of those "perverse and casuistic borderline situations” that led the Supreme Court to supplement the locality test of maritime tort jurisdiction with a maritime nexus requirement. See Executive Jet Aviation, Inc. v. City of Cleveland, Ohio, 409 U.S. 249, 93 S.Ct. 493, 498, 34 L.Ed.2d 454 (1972).

        . See also Helaire v. Mobil Oil Co., 709 F.2d 1031 (5 Cir.1983), in which the court, without comment, used this jurisdictional analysis to resolve the choice of law question.

      . In Re Dearborn, supra; Kelly v. Smith, 485 F.2d 520 (5 Cir.1973); Harville v. Johns-Mansville Products Corp., 731 F.2d 775 (11 Cir.1984). Helaire, supra.

      . They apparently seek to characterize themselves as cargo or passengers through two routes. First, they urge that the very fact of their being transferred in the personnel basket from the platform to the vessel is tantamount to their being transported like cargo or passengers across navigable waters. Additionally, they argue that they were passengers of the M/V REDEEMER by virtue of the fact that they were being transferred to the Redeemer to be transported in that vessel.

      . Cf.: Ledoux v. Petroleum Helicopters, Inc., 609 F.2d 824 (5 Cir.1980).

      . Had they landed on the platform rather than on the vessel, Wallace v. Texaco, 681 F.2d 1088 (5 Cir.1982) makes clear that state law through OCLSA would apply. "Because Wallace was injured on a fixed platform on the outer continental shelf, his cause of action is governed by the Outer Continental Shelf Lands Act, 43 U.S.C. § 1331 et seq.”

      . A different result would be reached if plaintiffs actually had been passengers on a vessel or an instrumentality performing the function traditionally performed by a vessel on navigable waters. See e.g.; In Re Dearborn supra for its treatment of the platform worker Monk’s claims against the owner of the vessel on which he was injured as distinguished from its treatment of his claims against the platform owners. In the case before this Court, however, plaintiffs were not being transported across navigable waters in a sense that implicates maritime concerns.

      . Cf. In Re Dearborn, supra; Oliver v. Aminoil, USA, Inc., 662 F.2d 349 (5 Cir.1981); Bible v. Chevron Oil Co., 460 F.2d 1218 (5 Cir.1972) cert. den. 409 U.S. 984, 93 S.Ct. 325, 34 L.Ed.2d 248 (1972); Bertrand v. Forest Corp., 441 F.2d 809 (5 Cir.1971) cert. den., 404 U.S. 863, 92 S.Ct. 106, 30 L.Ed.2d 107 (1971).

      . LSA C.C. Art. 3536.