author: EDWARD C. REED, Jr., District Judge.

text:
    Mike DAVIS and Dennis Davis, minors, by next friend Linda DAVIS, et al., Plaintiffs, v. CHURCHILL COUNTY SCHOOL BOARD OF TRUSTEES, Churchill County School District Superintendent Elmo Derrico, and Churchill County High School Principal Don Travis, Defendants.
    No. CV-R-85-269-ECR.
    Unite States District Court, D. Nevada.
    Aug. 21, 1985.

      Linda Davis, in pro. per., for Mike Davis and Dennis Davis.
    Marilyn O’Connor, in pro. per., for John O’Connor.
    Patricia Travis, for Wade Travis.
    Hallie Hitchcock, for John Hitchcock.
    Peggy Coverston, for Tim Coverston.
    Donald A. Lattin, Reno, Nev., for defendants.
   ORDER

EDWARD C. REED, Jr., District Judge.

On February 14, 1985, plaintiffs Mike Davis, John Hitchcock, Wade Travis, Tim Coverston, and John O’Connor were spectators at a Churchill County vs. Carson City junior varsity basketball game in the Churchill County High School gymnasium. The complaint alleges that two Carson City basketball players began to assault a Churchill County basketball player and that a fight then erupted between several students. The next day, after a meeting in his office, the Churchill County High School principal suspended Mike Davis, John Hitchcock and Wade Travis based upon their involvement in the fight for six days from school and from extracurricular activities for the remainder of the school year. Following the principal’s meeting and after parental requests, the three students were afforded several more hearings. The students were given a hearing before three Churchill County School District employees. This panel determined that Mike, John, and Wade took part in the fight at the basketball game and upheld the six-day suspension from school. The three students appealed this decision to the Churchill County School Superintendent. He also upheld the decision to suspend Mike, John, and Wade. The three boys were granted further review by a hearing of the Churchill County School Board. The Board also found that Mike, John, and Wade had participated in the fight and should be suspended. All of these hearings were closed to the public. The complaint in this action followed.

In their complaint, plaintiffs Mike Davis, Dennis Davis, Wade Travis, John Hitchcock, John O’Connor, and Tim Coverston allege that: (1) NRS § 392.467 unconstitutionally excludes hearings on student suspensions and expulsions from Nevada’s Open Meeting law; and (2) plaintiffs Mike Davis, John Hitchcock, and Wade Travis were denied their due process rights before being suspended.

Defendants now move this Court to dismiss plaintiffs’ complaint for lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted.

STANDING

Defendants argue that plaintiffs Dennis Davis, John O’Connor and Tim Coverston lack standing to bring this suit and, thus, this Court lacks subject matter jurisdiction.

For purposes of ruling on a motion to dismiss for want of standing, this Court must accept as true all material allegations of the complaint, and must construe the complaint in favor of the complaining party. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975).

This Court has no jurisdiction over a plaintiff who lacks standing. See Allen v. Wright, — U.S. —, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). In order to meet the constitutional standing requirements, a plaintiff must allege distinct personal injury that is fairly traceable to the challenged conduct and likely to be redressed by the requested relief. Id. 104 S.Ct. at 3325.

As to Dennis Davis, John O’Connor and Tim Coverston, there are few allegations made in the complaint to support standing. Under the heading “Parties” the complaint alleges that:

Dennis Davis is a spokesman and representative member for the student-minor class who is currently enrolled at Dayton High School in Lyon County, Nevada; John O’Connor is a spokesman and representative member for the student-minor class who is currently enrolled at E.C. Best Junior High School in Churchill County, Nevada;
Tim Coverston is a spokesman and representative member of the student-minor class who is currently enrolled at Churchill County High School.

The complaint also alleges that Tim Coverston and John O’Connor were spectators at the basketball game. The complaint fails to allege a single additional fact pertaining to Dennis, Tim, or John.

In an attempt to establish standing, plaintiffs have alleged in their opposition to defendants’ motion to dismiss that John O’Connor has been “threatened” with disciplinary action and Tim Coverston may be subjected to “possible” disciplinary action. Not only are there no facts in the complaint to support these allegations, the alleged injury must be more than “abstract” or “conjectural” or “hypothetical.” Id. quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S.Ct. 1660, 1665, 75 L.Ed.2d 675 (1983).

As to Dennis Davis, not only are there no allegations that he was at the basketball game which led to the disciplinary action and procedures complained of, but Dennis does not attend any school in Churchill County. All of the named defendants are Churchill County employees. Dennis fails to allege any facts of a distinct and palpable injury and there is no relief this Court could grant him.

Plaintiffs complaint is void of any facts which support findings that Dennis, Tim, or John suffered a judicially cognizable injury. Thus, this Court lacks jurisdiction over these three plaintiffs and defendants’ motion to dismiss them should be granted.

CONSTITUTIONALITY OF NRS § 392.467(3)

In their complaint, plaintiffs argue that the exemption of NRS § 392.467(3) from Nevada’s Open Meeting law unconstitutionally deprives plaintiffs of the benefits of an open meeting. Plaintiffs argue that NRS § 392.467(3) deprives students of equal protection by exempting student disciplinary hearings from Nevada’s Open Meeting law.

In support of their motion to dismiss this cause of action, defendants argue that closing student disciplinary hearings to the public does not deprive plaintiffs of any constitutional rights. Defendants first assert that even without the exemption in NRS § 392.467(3) plaintiffs had no right to a public hearing before the Churchill County School Board under Nevada’s Open Meeting law. Defendants misread the statute. A public body is only permitted to close a meeting when it considers alleged misconduct after a motion is made specifying the nature of the business. NRS § 241.030(2). As no such motion was made, NRS § 241.030(1) did not permit the School Board to close the meeting. Thus, plaintiffs arguably had a right to an open hearing under the open meeting statute.

Accordingly, we turn to defendants’ second argument. Defendants argue that Nevada has a reasonable basis to exempt student disciplinary hearings from Nevada’s Open Meeting law and, thus, did not deprive plaintiffs of equal protection. Under NRS § 392.467(3), plaintiffs had no right to an open hearing.

This Court could find no cases holding that students are a suspect class which would require us to view Nevada’s statute with strict scrutiny. In fact states are “permitted to regulate a minor’s exercise of [his or] her constitutional rights in a manner that would not be permissible in the case of an adult in light of the special consideration that minors need.” American College of Obstetrics v. Thornburgh, 737 F.2d 283, 296 (3rd Cir.1984) (the court considered the constitutional right to an abortion). In this case, there is even less support for recognizing these students as a suspect class. Here, the right at issue, the right to an open meeting, is not a constitutional right, but rather a statutorily created right. Some states do not even have an open meeting law such as Nevada’s. Accordingly, as a non-suspect classification, we apply a rational basis test to Nevada’s statute.

“In the absence of a classification that is inherently invidious or that impinges upon fundamental rights, a state statute is to be upheld against an equal protection attack if it is rationally related to the achievement of legitimate governmental ends.” G.D. Searle & Co. v. Cohn, 455 U.S. 404, 408, 102 S.Ct. 1137, 1141, 71 L.Ed.2d 250 (1982). Treating student-disciplinary hearings differently does not automatically constitute a violation of equal protection. See Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976); California Ass’n of Physically Handicapped v. FCC, 721 F.2d 667, 670 (9th Cir.1983), cert. denied, — U.S. —, 105 S.Ct. 121, 83 L.Ed.2d 63 (1984). In closing student disciplinary hearings to the public, the 1977 legislative history indicates that the Nevada legislature was concerned about the privacy of the juveniles involved in such suspension or expulsion hearings. Nothing prohibits the student from recording the hearing and later releasing the recording. The concerns which prompted the Open Meeting law are inapplicable to a student disciplinary hearing. By closing such hearings, the opportunity for the public to be fully informed is preserved by the student releasing any information he or she chooses. At the same time, the privacy rights of a student involved in a disciplinary hearing are protected. Exempting student disciplinary hearings from Nevada’s Open Meeting law is reasonable. Thus, Nevada did not violate equal protection under the rational basis test. Defendants’ motion to dismiss as it relates to plaintiffs’ claims for relief based upon NRS § 392.467(3) being unconstitutional should be granted.

DUE PROCESS

Plaintiffs allege that prior to their six-day suspensions, defendants failed to provide them with due process. Defendants argue that plaintiffs received even greater procedural rights than are constitutionally mandated.

Because suspension from school implicates a protected interest, a student facing suspension is entitled to some kind of notice and afforded some kind of hearing. Goss v. Lopez, 419 U.S. 565, 579, 95 S.Ct. 729, 738, 42 L.Ed.2d 725 (1974). The due process clause affords high school students facing brief suspensions only “rudimentary precautions against unfair or mistaken findings of misconduct and arbitrary exclusion from school.” Id. at 581, 95 S.Ct. at 740.

In support of their argument that plaintiffs’ due process rights were not violated, defendants submitted affidavits. These affidavits constitute matters outside the pleadings which require that the motion to dismiss be treated as a motion for summary judgment, and that the parties be given an opportunity to submit all material made pertinent to such a motion. Fed.R. Civ.P. 12(b). Therefore, as to the claims of violations of plaintiffs’ due process rights, the motion to dismiss those claims shall be treated as a motion for summary judgment in accordance with Fed.R.Civ.P. 12(b) and 56.

The Court notes that the procedures outlined in defendants’ supporting affidavits satisfy the rudimentary precautions for a student’s six-day suspension. See Goss v. Lopez, 419 U.S. at 582, 95 S.Ct. at 740 (holding that in an informal discussion with the disciplinarian the student be given an opportunity to explain his version of the facts after being informed what he is accused of doing and the basis of the accusation). In short suspension situations, the Supreme Court expressly refrained from construing due process to require an opportunity to secure counsel, to confront and cross-examine witnesses, or to call witnesses.

CONCLUSION

IT IS, THEREFORE, HEREBY ORDERED that defendants’ motion to dismiss the complaint as to plaintiffs Dennis Davis, John O’Connor, and Tim Coverston is GRANTED.

IT IS FURTHER ORDERED that defendants’ motion to dismiss plaintiffs’ claims that NRS § 392.467(3) is unconstitutional is GRANTED.

IT IS FURTHER ORDERED that defendants’ motion to dismiss plaintiffs’ claims of due process violations shall be treated as a motion for summary judgment. Defendants shall have 15 days within which to supplement said motion. Plaintiffs shall thereafter have 15 days within which to respond to said motion as a motion for summary judgment, and defendants shall thereafter have 10 days within which to file a reply.

      . NRS § 392.467(3) provided:
      "3. The provisions of Chapter 241 of NRS do not apply to any hearing conducted under this section. Such hearings shall be closed to the public.”
      (The Court notes that the 1985 legislature amended paragraph 3 to provide that the hearings must be closed to the public.)

      . Student disciplinary hearings were exempted from Nevada's Open Meeting law in 1977. Act of May 3, 1977, Ch. 320, 1977 Nev.Stats.

      . Plaintiffs were also suspended from extracurricular activities for the remainder of the school year. Unlike the right to an education, however, extracurricular activities do not rise to the level of a liberty or property interest. Therefore, we will analyze plaintiffs' due process rights as they relate to the six-day suspensions.

      . Plaintiffs should note that once a party moving for summary judgment initially establishes by allegations of particular facts that it is entitled to summary judgment as a matter of law, the burden shifts to the opposing party to counter with opposing affidavits or other competent evidence. See International Union of Bricklayers v. Jaska, Inc., 752 F.2d 1401, 1405 (9th Cir. 1985); Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir.1984).


source: Caselaw Access Project

author: O’NEILL, District Judge.

license: Public Domain

text:
    Marylouis FRIEDBERGER v. George P. SCHULTZ, The Secretary of State.
    Civ. A. No. 85-4514.
    United States District Court, E.D. Pennsylvania.
    Aug. 22, 1985.

      James J. Orlow, Philadelphia, Pa., for plaintiff.
    Joan K. Garner, Philadelphia, Pa., for defendant.
   MEMORANDUM

O’NEILL, District Judge.

Plaintiff is an American citizen who has petitioned the Department of State to issue a visa under 8 U.S.C. § 1101(a)(15)(K) to her fiance, Ibrahim Elkaddi, a Libyan national who presently is in Libya. The Department has informed plaintiff that Mr. Elkaddi is subject to the two year foreign residence requirement found in 8 U.S.C. § 1182(e). As a consequence, Mr. Elkaddi would be precluded from using a “K” visa to enter this country until September of 1986. Plaintiff has filed this complaint which seeks a judgment declaring that 8 U.S.C. § 1182(e) does not apply to an application for a “K” visa. A hearing was held on her motion for preliminary injunction, which, by consent of counsel, will now be deemed to have been a final hearing.

Mr. Elkaddi formerly was an exchange visitor under a “J” visa, see 8 U.S.C. § 1101(a)(15)(J). He was an architectural student at the University of Pennsylvania. 8 U.S.C. § 1182(e) requires an exchange visitor to return to his home country for two years before he can be eligible for an immigrant visa, permanent residence or a non-immigrant visa of type “H” and “L”. (“H” visas permit temporary residence by persons whose work is of special merit, e.g., opera singers and professional athletes; “L” visas are for temporary residents sent here by their employers pursuant to an intra-corporate transfer.)

Plaintiff petitioned for a “K” visa for Mr. Elkaddi, 8 U.S.C. § 1101(a)(15)(K). A “K” visa is a non-immigrant visa not mentioned in 8 U.S.C. § 1182(e). A “K” visa allows the fianceé or fiancé of an American citizen to enter the United States in order to get married. If the alien marries the American citizen who petitioned for the visa within three months he or she may apply for permanent residence; otherwise the alien is subject to deportation. 8 U.S.C. § 1184(d).

Although § 1182(e) does not mention “K” visas, the Department of State applies that section to “K” visas. The basis for its action is 22 C.F.R. § 41.66, which provides, inter alia:

“(c) Determination of the eligibility of an alien to receive a visa under section 101(a)(15)(K) [8 U.S.C. § 1101(a)(15)(K) ] of the Act shall be made, insofar as practicable, as if the alien were an applicant to receive an immigrant visa.
(d) If it is determined that the alien would be eligible in all respects to receive an immigrant visa, the consular officer may issue a non-immigrant visa under the provisions of the section to the alien.”

The Foreign Affairs Manual, in Note 6 to § 41.66, interprets this regulation to mandate the result reached in this case:

“Since section 212(e) [§ 1182(e)] of the Act precludes the acquisition of permanent residence by a former exchange visitor who is subject to the provisions thereof unless the former exchange visitor has resided and been physically present in his country of nationality or last residence for at least two years or has obtained a waiver of the requirement, an applicant for a K visa who is subject to the provisions of section 212(e) must, before a K visa may be issued to him, establish that he has fulfilled the requirement of section 212(e) or that he has obtained a waiver.”

Plaintiff asked the Secretary of State for an interpretation of these regulations as applied to Mr. Elkaddi. She has been informed that the policy of the State Department as expressed in the regulation is clear and that Mr. Elkaddi is required to finish his two-year foreign residence requirement. Plaintiff now asks this Court to declare that 22 C.F.R. § 41.66 and note 6 thereunder conflict with the plain language of § 1182(e) and the intent of Congress in enacting § 1182(e) and creating the “K” visa.

8 U.S.C. § 1182(e) provides for a waiver of the two-year residence requirement when the alien’s home country furnishes the Secretary of State with a statement in writing that it has no objection to such a waiver. The government argues that Mr. Elkaddi must “exhaust his administrative remedies” by seeking such a statement and waiver. Plaintiff’s counsel asserts that such an attempt would be a futile gesture given the possibly hostile nature of the Libyan government, see, e.g., El-Werfalli v. Smith, 547 F.Supp. 152 (S.D.N.Y.1982); further, that it might be difficult or impossible for Mr. Elkaddi to procure a written statement from his government to our Secretary of State because the United States has no diplomatic relations with Libya.

The Government asserts that the matter is not ripe for judicial review, but has cited no authority which suggests that failure to apply for such a statement and waiver precludes our consideration of plaintiff’s claim. Given the urgency of the matter, we believe that it is in the interest of justice to proceed.

The government also contends that this Court has no subject matter jurisdiction, citing Rivera de Gomez v. Kissinger, 534 F.2d 518 (2nd Cir.1976), cert. denied, 429 U.S. 897, 97 S.Ct. 262, 50 L.Ed.2d 181 (1977); Burrafato v. United States Department of State, 523 F.2d 554 (2d Cir.), cert. denied, 424 U.S. 910, 96 S.Ct. 1105, 47 L.Ed.2d 313 (1976); Hsieh v. Kiley, 569 F.2d 1179, 1181 (2nd Cir.1978); Ventura Escamilla v. Immigration and Naturalization Service, 647 F.2d 28 (9th Cir.1981). Those cases stand for the proposition that “[t]his Court is without power to substitute its judgment for that of a Consul, acting pursuant to valid regulations promulgated by the Secretary, on the issue of whether a visa should be granted or denied.” Ventura Escamilla v. Immigration and Naturalization Service, 647 F.2d at 32.

Before us, however, is the complaint of an American citizen that she has been adversely affected by the Department of State’s application of an invalid regulation to her petition. The Supreme Court has entertained a challenge by American citizens to a denial of a visa to an alien without expressing any doubt about its subject matter jurisdiction. See Kleindienst v. Mandel, 408 U.S. 753, 92 S.Ct. 2576, 33 L.Ed.2d 683 (1972). Section 279 of the Immigration and Nationality Act, 8 U.S.C. § 1329, confers upon district courts jurisdiction of all causes arising under subchapter II of the Act, which includes the provisions of the Act relating to immigration. Acosta v. Gaffney, 558 F.2d 1153, 1155 (3d Cir.1977). This jurisdiction extends to cases brought by American citizens who are adversely affected or aggrieved by the action of the Department of State. Id. at 1156-1157; see also Administrative Procedure Act, 5 U.S.C. § 701-706. We therefore hold that we have jurisdiction of the present action.

The power of Congress to prescribe the terms and conditions upon which aliens may enter this country is plenary and not subject to judicial intervention. See Kleindienst v. Mandel, 408 U.S. 753, 766, 92 S.Ct. 2576, 2583, 33 L.Ed.2d 683 (1972); Galvan v. Press, 347 U.S. 522, 531-32, 74 S.Ct. 737, 742-43, 98 L.Ed. 911 (1954). Furthermore, when Congress delegates a conditional exercise of this power to the Executive’s discretion, the courts may not question the exercise of that discretion, at least when the Executive acts on the basis of a facially legitimate and bona fide reason. Kleindienst v. Mandel, 408 U.S. at 770, 92 S.Ct. at 2585. This Court should not interfere with the sovereign prerogative of the political branches of government. United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537, 542-43, 70 S.Ct. 309, 312-13, 94 L.Ed. 317 (1950). In this case, however, plaintiff does not challenge Congress’ sovereign prerogative. Plaintiff challenges the validity of a regulation of the Department of State and the interpretation thereof in the Foreign Affairs Manual on the grounds that these contravene the intent and plain language of Congressional legislation. We do not understand the government to assert that the doctrine of sovereign prerogative allows the Executive to act in a manner contrary to Congressional mandate.

On the other hand, courts must accord great deference to an agency’s construction of a statute which it administers and, even more clearly, the agency’s interpretation of regulations it has drafted. Udall v. Tollman, 380 U.S. 1, 16, 85 S.Ct. 792, 801, 13 L.Ed.2d 616 (1965); Lucas Coal Co. v. Interior Board of Mine Operations, 522 F.2d 581, 584 (3d Cir.1975). If the State Department’s regulation applicable to “K” visas, 22 C.F.R. § 41.66, and note 6 thereto in the Foreign Affairs Manual, may reasonably be said to comport with 8 U.S.C. § 1182(e) as well as 8 U.S.C. § 1101(a)(15)(K), we should defer to the Department’s action.

The regulation makes it clear that “K” visas are to be treated, “[i]nsofar as practicable, as if the alien were an applicant to receive an immigrant visa.” This language seems consistent with § 1101(a)(15)(K), as that section created the “K” visa to allow an alien to be married to an American and thereafter obtain permanent residence. See 8 U.S.C. § 1184(d) (providing that if the “K” visa holder is married within three months of entry, “the Attorney General shall record the lawful admission for permanent residence of the alien____”). Note 6 to the regulation explains that because a “K” visa is to be viewed as an immigrant visa, “K” visas are subject to § 1182(e)’s foreign residency requirement.

Plaintiff contends, however, that Note 6 contravenes the plain language of § 1182(e) and frustrates the intent of Congress in enacting § 1182(e) and in creating the “K” visa. Plaintiff’s plain language argument is that the foreign residence requirement applies only to applicants for “an immigrant visa, or for permanent residence, or for a non-immigrant visa under section 1101(a)(15)(H) or section 1101(a)(15)(L)” and not to applicants for any of the other alien non-immigrant visas under § 1101(a)(15), including the “K” visa. Plaintiff contends the exclusion of the “K” visa was no oversight, as the “K” visa was created in the same legislation that amended § 1182(e) to add the “L” visa to those to which the foreign residence requirement applies. Pub.L. No. 91-225 (1970).

Plaintiff’s argument gives the Court pause. However, the government has fairly characterized the “K” visa as a hybrid between an immigrant and non-immigrant visa, one which contemplates that the alien will eventually obtain permanent residence in this country. Because § 1182(e) speaks not only of immigrant visas, “H” visas and “L” visas, but also of applicants for permanent residence, we cannot .find that the language of § 1182(e) is so clear as to dispose of the issue before us.

The “K” visa was created to remove a previous significant hindrance to the contemplated marriage of an American citizen to an alien. Once married, the alien could apply for an immigrant visa; but that alien was often unable to obtain a visa in order to get married. H.Rep. No. 851, 91st Cong., 2d Sess., reprinted in 1970 Code Cong. & Ad.News 2753. The application of § 1182(e)’s foreign residence requirement to applicants for “K” visa holders partially resurrects that same hindrance, a result which appears inconsistent with the purpose of Congress in creating the “K” visa.

However, Note 6’s application of § 1182(e) to “K” visa applicants affects only those applicants who have been “J” visa holders within the prior two years. The general Congressional purpose to ease the path of couples intending to be married must be balanced with the purpose of § 1182(e) and the “J” visa for exchange visitors which was meant “... to enable the government of the United States to promote a better understanding of the United States in other countries and to increase mutual understanding between the people of the United States and the people of other countries.” The Information and Educational Exchange Act, Pub.L. 80-402, § 2 (1948). In other words, the program is intended to promote good will, and that purpose would be frustrated if exchange visitors did not return to their own countries and spread that good will. Therefore, § 1182(e) creates a two-year foreign residency requirement for former “J” visa holders before they may seek readmission to this country.

An applicant for a “K” visa who was not a “J” visa holder is not affected by the two year residency requirement; and even though Note 6 to 22 C.F.R. § 41.22 applies to a former “J” visa holder who now applies for a “K” visa, the applicant is not permanently barred from entering this country. After two years the applicant may enter the country, get married and thereafter obtain permanent residence. Furthermore, the “K” visa will help him do so, as it was intended to do.

We are unable to conclude that the State Department’s construction of § 1182(e) and of § 1101(a)(15)(K) as found in the Foreign Affairs Manual is an unreasonable one. Therefore, judgment will be entered in favor of defendant.

      . Jurisdiction is based on 28 U.S.C. § 1331 and 8 U.S.C. § 1329. Although the complaint does not cite the Declaratory Judgment Act, 28 U.S.C. § 2201-2, the Court will construe the complaint as having been filed pursuant to that statute.

      . We are informed that a national of Libya may leave the country only during one thirty-day period each year and that the period is about to expire for Mr. Elkaddi.


author: HAROLD H. GREENE, District Judge.

text:
    UNITED STATES of America v. Nathaniel BROWN.
    Crim. No. 85-00179.
    United States District Court, District of Columbia.
    Aug. 22, 1985.

      John F. Finnegan, Asst. U.S. Atty., Washington, D.C., for prosecution.
    Patrick J. Christmas, Washington, D.C., for defense.
   MEMORANDUM

HAROLD H. GREENE, District Judge.

This matter is before the Court on defendant’s motion to suppress evidence obtained in a warrantless search of an automobile and of his person. At the hearing on the motion it was established that police officers received information from a reliable informant that an individual known as “Sandman” was bringing heroin into the Kenilworth area of the city for distribution. The source provided a physical description of “Sandman” and stated that he drove a brown Cadillac with D.C. tag 889-429 and usually went to his mother’s house at 4402 Quarles- Street, N.E. between 8:00 and 9:00 a.m. Police officers knew that Nathaniel Brown was called “Sandman” and on April 22, 1985 they observed the brown Cadillac parked at the Quarles Street address at approximately 8:10 a.m. On April 23, 1985 police officers went again to the Quarles Street address and observed the brown Cadillac arrive, driven by defendant’s wife, Carol Brown, with defendant in the passenger seat. The officers approached the automobile.

The events that followed are subject to dispute. The government’s version is that the police officers told defendant that they had reason to believe he was bringing narcotics into the area, that defendant voluntarily told the police they could search the car, that Carol Brown also consented to the search and that she handed over the keys to the car. The police searched and in the trunk they discovered a bag containing drug paraphernalia. Defendant was arrested for possession of drug paraphernalia whereupon he claimed that he was having medical problems and was transported by ambulance to the hospital. At the hospital defendant was searched and police discovered 194 packets of heroin on his person.

After the search of the car, police impounded the vehicle. Sometime in the late afternoon of April 23, 1984, defendant’s sister, Suncerae Desiree Clarke, signed a consent form authorizing a search of the brown Cadillac.

At the hearing on the motion to suppress, the Court heard testimony from four police officers, the defendant, his wife, and his sister. Defendant disputed the police statements that he granted permission to search the car. He claims that he told the police that they could not search the automobile and his wife stated that she did not consent to the search of the car.

The government seeks to introduce into evidence the packets of heroin discovered on defendant’s person and the drug paraphernalia found in the automobile. Defendant objects, claiming that the searches of the automobile and of his person were warrantless searches in violation of the Fourth Amendment.

I

It is clear from the facts of this case that the government did not have probable cause to search the automobile and that therefore this search was not valid under the automobile exception to the warrant requirement. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). Because of the mobility of an automobile and the reduced expectation of privacy therein, police are permitted to search vehicles without a warrant if there is probable cause to believe that the automobile contains articles that the police are entitled to seize. Chambers v. Maroney, supra; United States v. Whitfield, 629 F.2d 136 (D.C.Cir.1980); United States v. Harris, 627 F.2d 474 (D.C.Cir.1980). In this instance, the information that the police received from their reliable informant states only that the defendant deals drugs and drives this car regularly to his mother’s home. There was no indication that the informant knew there was contraband in the car. Neither the informant nor the police had seen any drugs or paraphernalia being placed in the car and there was no probable cause to search the automobile. The government did not argue that the automobile exception applied in this instance.

The government does argue that defendant lacks standing under the Fourth Amendment to object to the search of the car because he was not the owner of record. The Supreme Court has rejected the concept of automatic standing so that criminal defendants no longer have standing to object to the introduction of evidence obtained in a search and seizure which violated the Fourth Amendment rights of a third party. Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). In order to determine whether a defendant has standing to object to the introduction of illegally seized evidence, the Court must now conduct two inquiries: “first, whether the proponent of a particular legal right has asserted ‘injury in fact,’ and, second, whether the proponent is asserting his own legal rights and interests rather than basing his claim for relief upon the rights of third parties.” Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). The Court made it clear that the key standard to be applied is whether the defendant had a legitimate expectation of privacy in the invaded place. This legitimate expectation of privacy may arise out of the defendant’s ownership or his lawful possession and control of property with the right to exclude others. Id. at 143, n. 12, 99 S.Ct. at 430, n. 12. The Court explicitly stated that expectations of privacy need not be based upon a common law interest in real or personal property but that these property concepts are useful in analyzing standing requirements.

In this case, the Court has no difficulty concluding that the defendant had a legitimate expectation of privacy in the vehicle and that consequently he has standing to seek exclusion of this evidence. Defendant’s sister, Suncerae Clarke, a very credible witness, testified that the defendant was the co-owner of the car, that he had paid $2,000 of the $8,000 down payment, that he had made monthly payments on the car, that the car was normally in his possession, kept at his residence and that he performed repairs and maintenance. She said that she used the automobile occasionally. A copy of the registration, seized at the time of arrest and in police custody from that date, showed Nathaniel Brown listed as an owner for insurance purposes.

Nathaniel Brown gave similar testimony stating that the car was purchased in his sister’s name because she had a better credit rating but that he was co-owner. He further stated that he believed he had the right to exclude others from the automobile and that the police could not search it without a warrant.

In response to this evidence, the government argued that Suncerae Clarke is the owner because she previously told the police that she owned the car, record title is in her name alone, and the sales records indicate that the sale was made to her with no mention of her brother’s interest.

The Court finds that the defendant was indeed co-owner of the car and that he enjoyed the right to possess, use, and control the vehicle to the exclusion of others such that he had a legitimate expectation of privacy. Common ownership is not unusual in a family situation, and it would be inconceivable to find that only the record owner has a legitimate expectation of privacy in these circumstances. The fact that Suncerae Clarke asserted that she owned the car is not inconsistent with the possibility of co-ownership and it is likely that she was also motivated by her interest in getting the car back from police custody. Based upon all the evidence, particularly the credible testimony of Ms. Clarke, the Court finds that defendant has standing to object to this search and seizure.

The final justification for the search of the automobile is the purported consent by defendant and his wife. Officer Colmes testified that the defendant voluntarily told the police to search the car after the police informed him that he was suspected of carrying drugs into the neighborhood. In addition, there was testimony that defendant’s wife also consent to the search of the automobile by voluntarily giving the police the keys to the car and telling them how to open the trunk.

A search and seizure conducted pursuant to consent is recognized as one of the exceptions to the warrant requirement. Schneckloth v. Bustamonte, 412 U.S. 218, 219, 93 S.Ct. 2041, 2043, 36 L.Ed.2d 854 (1973). To be valid, the consent must be an intentional relinquishment of a known right. In this case, defendant claims that he knew the police needed a warrant to search the car, he knew there was drug paraphernalia in the trunk of the car and a significant quantity of drugs on his person and he did not consent to any search of the automobile. This is corroborated by defendant’s wife who stated that she did not give police permission to search the car and that the police took the keys from her without her consent.

This is clearly a question of the credibility of witnesses. Only one police officer, Officer Colmes, claimed that he had obtained defendant’s consent. The other officers were concentrating on different individuals or were too far away to hear the exchange between Colmes and the defendant. In addition, there were a number of inconsistencies between the accounts given by the different officers. In contrast, defendant and his wife both testified emphatically that they did not consent to a search of the car. Defendant’s criminal record and his interest in this litigation weigh against his credibility. On the other hand, his undoubted familiarity with the criminal justice system, including the requirement for search warrants, and his knowledge that the drug paraphernalia was in the car, makes it extremely unlikely that he would have volunteered consent to search the car.

The Court finds that defendant did not consent to the search of the automobile and that the police search of the vehicle was therefore an illegal search.

It was this illegal search which uncovered the drug paraphernalia thereby giving the police probable cause to arrest the defendant. Thereafter, in a search incident to arrest, the police discovered the heroin on defendant’s person. The drug paraphernalia discovered in the first search and the heroin recovered from the later search must both be suppressed as the products of illegal search and seizures by the police.

The exclusionary rule does not operate without cost, as this case demonstrates. In this instance it appears that the defendant may have been engaged in illegal drug trafficking. However, the Fourth Amendment is designed to protect individuals against unreasonable intrusions by the government, and the exclusionary rule is an important tool to deter unconstitutional overreaching by the police. The police cannot be permitted to conduct warrantless searches of citizen’s automobiles based upon suspicions falling far short of probable cause. Where they do engage in such conduct, the Court has no choice but to suppress the evidence illegally seized.

For the reasons stated, the motion to suppress is granted, and the articles seized from the automobile and from defendant’s person are suppressed.

      . The government does have a written consent form signed by Suncerae Clarke authorizing a search of the automobile later that day when it was already in police custody. The circumstances of that consent are ambiguous at best and in any case that later consent cannot be used to justify the earlier search of the vehicle which furnished the probable cause to arrest the defendant.


author: CALEB M. WRIGHT, Senior District Judge:

text:
    Lowell FOLKE, Plaintiff, v. Charles J. SCHAFFER, Administrator of Teamsters Pension Trust Fund, Defendant.
    Civ. A. No. 84-215 CMW.
    United States District Court, D. Delaware.
    Aug. 26, 1985.

      John S. Grady, Dover, Del., for plaintiff.
    Francis J. Trzuskowski of Trzuskowski, Kipp, Kelleher & Pearce, Wilmington, Del., for defendant.
   MEMORANDUM OPINION

CALEB M. WRIGHT, Senior District Judge:

This claim for early retirement benefits against a pension fund and its administrator is now before the Court on cross motions for summary judgment. The plaintiff, Lowell Folke (“Folke”), is a resident of Delaware and was a member of Teamsters Local No. 326, of Wilmington, Delaware, from 1969 to November, 1980. The defendant, Charles J. Sehaffer (“Schaffer”), is the administrator of the Teamsters Pension Plan of Philadelphia & Vicinity (the “Plan”), which is the vehicle for administering the Teamsters Pension Trust Fund of Philadelphia and Vicinity (the “Fund”).

I. JURISDICTION

The Court has subject matter jurisdiction over the claims involved in this case by the jurisdictional provision of ERISA, 29 U.S.C. § 1132(e)(1). See Reiherzer v. Shannon, 581 F.2d 1266 (7th Cir.1978); Dimond, v. Retirement Plan for Employees of Michael Baker Corp., 582 F.Supp. 892 (W.D.Pa.1983). While defendant Schaffer has stated in his answer that he “denies that this Court has jurisdiction under 29 U.S.C. § 1132”, he has not alleged any specific facts as a basis for denying subject matter jurisdiction, nor has he briefed this issue on his motion for summary judgment. Any objection to personal jurisdiction or venue has been waived.

Although ERISA does not explicitly require a plaintiff to exhaust his remedies under a pension plan before bringing suit, courts have read such a requirement into the statute. See Amato v. Bernard, 618 F.2d 559, 567-68 (9th Cir.1980); Tomczyscyn v. Teamsters, Local 115 Health & Welfare Fund, 590 F.Supp. 211, 215-16 (E.D. Pa.1984). In the present case, Folke did everything he could reasonably be expected to have done to convene an appeal hearing by the Fund’s trustees. In view of the defendants’ persistent refusal to grant Folke an appeal on his denied claim and Schaffer’s view that an appeal would have been pointless, the Court finds that Folke has adequately complied with the exhaustion of remedies requirement.

II. FACTUAL BACEGROUND

On October 14, 1981, Folke filed a written application for early retirement benefits under the Plan. The processing of this application involved obtaining written confirmation of Folke’s employment history from the Social Security Administration, and this information was not received by the Fund until February 11, 1982. On April 1, 1982, Schaffer requested information from Folke about his current employment status, and Folke responded on April 5, 1982, with the information that he was then employed doing construction and building maintenance work for Delmar Q.E. Distributors, Inc., in Wyoming, Delaware. On April 8, 1982, Schaffer advised Folke that the processing of his application for early retirement benefits had been completed and that Folke had earned 10.96 years of benefit service and 11 years of vesting service under the Plan. Schaffer also informed Folke, “the above Service [sic] will be sufficient for your benefits to be Vested [sic] until your actual retirement.” Folke then retained counsel, who wrote to Schaffer on April 19, 1982 requesting that the Fund explicitly state whether Folke’s application for early retirement benefits was being denied, so that an appeal could be taken, if necessary. On April 23, 1982, Schaffer replied that Folke’s application for early retirement benefits was being denied because Folke was currently employed, and the Department of Labor’s recently issued regulations on suspension of benefits did not permit a beneficiary of a pension plan governed by the Employee Retirement Income Security Act of 1974 (“ERISA”) to work in any capacity whatever while receiving early retirement benefits.

There followed a fruitless attempt by Folke, through his attorney, to convene an appeal hearing on the Fund’s denial of his early retirement benefits. On May 3, 1982, Schaffer informed Folke’s counsel that he would be notified as soon as a hearing was scheduled. On June 21, 1982, Folke’s counsel wrote to Schaffer again requesting a date for a hearing but received no reply. Subsequently, in telephone conversations with Schaffer, Folke’s counsel was informed that the Fund’s trustees were not scheduled to meet and that there was no point in having a hearing, since Folke was not entitled to early retirement benefits. Folke then sought assistance from his Congressman, the Hon. Thomas Evans, a member of whose staff telephoned Schaffer in September, 1982, to inquire about Folke’s case. Schaffer replied to this inquiry by his letter of September 15, 1982, which stated that, because Folke was currently employed, he was not entitled to early retirement benefits under the new suspension of benefits regulations adopted by the Fund. On April 18, 1984, Folke filed the complaint in this suit.

III. ISSUES

At the time he applied for early retirement benefits, Folke was 51 years of age and had accumulated 11 years of vested service under the Plan. Both before and after the disputed amendment, the Plan provided that a participant who had attained 50 years of age and completed 10 years of vesting service was entitled to early retirement benefits, provided certain conditions regarding re-employment were fulfilled. Under the Plan undisputedly in effect in October, 1981,

An Employee will not be considered to be in retirement in a calendar month if, in that calendar month, he is employed in the same industry, in the same trade or craft and in the same geographic area covered by the Plan, as when such benefits commenced, or by a Plan from which pension benefits are being received pursuant to the terms of a Reciprocal Agreement.

Teamsters Pension Plan of Philadelphia & Vicinity, article IV (1981).

Folke maintains that he is entitled to early retirement benefits under this provision and that this provision was in effect both at the time he applied for early retirement benefits and at the time his application was decided. Alternatively, Folke argues that, even if the Plan was amended by the time a decision was made on his application, he is entitled to early retirement benefits under the old Plan, because he had supplied all the information required from him in October, 1981, and there was undue delay in processing his application. Finally, Folke maintains that he is entitled to early retirement benefits because the defendants failed to comply with the procedural due process guarantees of ERISA. The defendants assert that the quoted provision was amended, effective January 1, 1982, to provide that early retirement benefits are not available to any participant who is re-employed in any capacity whatsoever, and that any delay in the processing of Folke’s application was due to reasons beyond their control.

IV. DISCUSSION

The standard for reviewing the Fund’s decision is whether it was arbitrary and capricious in light of the language of the Plan. See Govoni v. Bricklayers, Masons & Plasterers International Union, 732 F.2d 250, 252 (1st Cir.1984); Rosen v. Hotel and Restaurant Employees & Bartenders Union, 637 F.2d 592, 596 n. 5 (3d Cir.1981); Wardle v. Central States, Southeast and Southwest Areas Pension Fund, 627 F.2d 820, 823-24 (7th Cir.1980). Under article II, section A of the Plan, the approval of the trustees is required to receive benefits, and under article V, section D the trustees can require the information they deem reasonably necessary for making a decision about benefits to be supplied before a decision is made. Pursuant to this provision, the Fund requested confirmation of Folke’s employment record from the Social Security Administration and information concerning Folke’s current employment from Folke himself.

Under regulations enacted pursuant to ERISA and in effect at the time Folke applied for early retirement benefits, “[i]f a claim is wholly or partially denied, notice of the decision ... shall be furnished to the claimant within a reasonable period of time after receipt of the claim by the plan.” 29 C.F.R. § 2560.503-l(e)(l) (1981) (emphasis added). Schaffer’s letter of April 8, 1982, which merely stated “[u]nder the provisions of the Pension Plan, the above Service will be sufficient for your benefits to be Vested [sic] until your actual retirement,” did not provide adequate notice of the Fund’s decision to deny early retirement benefits. Nevertheless, Folke was informed of the Fund’s decision two weeks later when Schaffer responded to his attorneys’ request for a statement of the Fund’s decision. The principal delay in processing Folke’s application was caused by the time needed for the Social Security Administration to confirm Folke’s employment history—approximately four months. Exclusive of this four month period, Folke’s application was in the hands of the Fund approximately eight weeks before he received an unambiguous decision.

Nevertheless, under the provisions of 29 C.F.R. § 2560.503-l(e)(3) in effect at the time Folke’s application was being processed, the time for processing an application

will be deemed to be unreasonable if it exceeds 90 days after receipt of the claim by the plan, unless special circumstances require an extension of time for processing the claim____ In no event shall such extension exceed a period of 90 days from the end of such initial period.

Since Folke’s notarized application was received by the Fund some time after October 19, 1981 and the Fund notified Folke of its decision on April 23, 1982, the Fund barely complied with the 180 day reasonable time requirement of the regulations. However, even if the time taken for processing Folke’s claim is deemed unreasonable, the result will be the same for Folke, since, under 29 C.F.R. § 2560.503-l(e)(2), if notice of denial of a claim is not furnished within a reasonable time, the claim is to be deemed denied. Furthermore, since the Fund could not have made a decision before February 11, 1982, when it received confirmation of Folke’s employment history from the Social Security Administration, any subsequent delay in processing Folke’s application could not have caused him any harm if, as the Fund asserts, the Plan was amended effective January 1, 1982, to provide that no member who is employed in any capacity can receive early retirement benefits.

Under amendments to the ERISA regulations that became effective January 1, 1982, a plan was permitted to suspend the early retirement benefits of any beneficiary who was employed in any capacity. See 29 C.F.R. § 2530.203-3(a) (1982). The defendants argue that the Plan was amended pursuant to these regulations at the trustees’ meeting of February 4, 1982 to provide for suspending the early retirement benefits of any member who is employed, regardless of the nature of the employment, and that this amendment was made retroactive to January 1, 1982. Folke argues, however, that no such purported amendment could have been effective, because early retirement is an “accrued benefit” within the meaning of 29 U.S.C. § 1002(23) and, as provided by 29 U.S.C. § 1082(c)(8) and its tax counterpart, 26 U.S.C. § 412(c)(8), no plan amendment reducing accrued benefits can be effective unless it is first submitted to the Secretary of Labor and the Secretary either approves the amendment or fails to take action on it. 29 U.S.C. § 1002(23) defines an accrued benefit as the amount of the annual benefit that would commence at normal retirement age, or its actuarial-equivalent. Under this definition, early retirement benefits would not be an accrued benefit, and the courts have so held. See Bencivenga v. Western Pennsylvania Teamsters and Employers Pension Fund, 763 F.2d 574, 577-78 (3d Cir.1985); Sutton v. Weirton Steel, 724 F.2d 406, 410 (4th Cir.1983); Hernandez v. Southern Nevada Culinary and Bartenders Pension Trust, 662 F.2d 617, 619-20 (9th Cir.1981). Thus, the alleged amendment to the Plan did not require the approval or acquiescence of the Secretary of Labor.

Folke challenges this conclusion by appealing to a 1984 amendment to ERISA, which provides that a plan amendment shall be treated as reducing accrued benefits if it eliminates or reduces an early retirement benefit. However, this amendment does not apply to the plan years involved in this dispute. Accordingly, 29 U.S.C. § 1082(c)(8) is not applicable to the Plan amendment at issue, and the defendants were not required to obtain the approval or acquiescence of the Secretary of Labor for the amendment to be effective.

The question remains, however, whether the Fund did, in fact, amend the Plan and, if so, when. The defendants advert to the trustees’ meeting of February 4, 1982, but the minutes of this meeting do not record an amendment of the Plan specifically to provide that early retirement benefits would not be available to any participant who is employed in any capacity. Rather, the minutes merely indicate that the trustees authorized Schaffer “to take necessary action to have the Fund comply with the Regulations as they pertain to Normal Retirement and to institute a suspension of benefits policy for Early Retirement.” At the trustees’ meeting of July 21, 1982, Schaffer submitted a “redrafted regulation relating to Suspension of Benefits,” which was made a part of the minutes. This item, which is entitled “Bulletin: Suspension of Benefit Regulations Adopted,” was intended to inform union members and sponsors of the terms of the new ERISA regulations. Its final paragraph read:

The regulations restrict only the suspension of pension benefits after a member’s normal retirement age. Benefits of a member who is reemployed before his normal retirement age, may be suspended for any reemployment without regard to these regulations provided that such suspension does not affect the retiree’s entitlement to normal retirement benefits payable after attainment of normal retirement age.

This statement, which the minutes do not even explicitly adopt, falls short of an amendment to the pension plan. It does not state that early retirement benefits mil be available to members who work but only that they may be suspended under the regulations. It is not until the Fall 1982 edition of the Philadelphia Update,, the official publication of the Teamsters Health and Welfare Funds of Philadelphia and Vicinity, that the Fund clearly promulgated an amendment to the Plan. The “Bulletin” section of that publication includes a section entitled “Amendment to Pension Plan: Article IV, Re-employment of Retired Employee.” The first sentence of the amendment reads: “A Retired Employee shall not be entitled to a. retirement benefit for any month prior to his Normal Retirement Age in which he is employed.” This publication may be deemed to have effectively amended the Plan.

The amendment itself does not indicate when it is to become effective. As stated in paragraph 14 of Schaffer’s affidavit, it was the intention of the trustees to amend the Plan effective January 1, 1982. Under ERISA, the trustees have the authority to make amendments retroactively effective to the beginning of a plan year up to two years after the end of the year. Given the stated intention of the trustees that the amendment have retroactive effect and their undoubted authority to make retroactive amendments under ERISA, the Court finds that the Plan was amended effective January 1,1982 to provide that no retired employee is entitled to a retirement benefit for any month prior to his normal retirement age in which he is employed. Accordingly, because Folke was employed in 1982 at the time his application for early retirement benefits was considered, the Court holds that he was not entitled to early retirement benefits at that time.

However, this result does not imply that Folke was not entitled to early retirement benefits at some later date, for the Fund amended Article IV of the Plan again in 1983 to provide:

(A) A Retired Employee shall not be entitled to a retirement benefit for any month PRIOR to the earlier of his Normal Retirement Age, or his completion of thirty (30) years of Vested Service, in which he is employed in:
(i) An industry in which Employees covered by the Plan were employed and accrued benefits under the Plan as a result of such employment at the time that the payment of benefits commenced or would have commenced if the employee had not remained in or returned to employment, and
(ii) A trade or craft in which any Employee is or was employed at any time under the Plan____

Philadelphia Update, Fall 1983.

Whether or not Folke would have qualified for early retirement benefits under these provisions involves factual issues that cannot be determined here, for no evidence has been submitted by either side as to the relationship of Delmar Q.K. Distributors, Inc. to industries in which employees covered by the Plan have been employed or as to the relation of the construction and maintenance work Folke performs for this company to the trades or crafts in which employees have been employed under the Plan. For that matter, it has not even been shown whether Folke continues to work for Delmar Q.K. Distributors, Inc. or, if not, how long he continued to do so. Thus, summary judgment cannot be granted on the issue of whether Folke was entitled to early retirement benefits under the 1983 amendment to article IV of the Plan.

Where the factual issues are not sufficiently developed on the record below for the Court to enter judgment, a remand is appropriate. See Beggs v. Mullins, 499 F.Supp. 916 (S.D.W.Va.1980). Accordingly, the Court will remand the issue of Folke’s entitlement to early retirement benefits under the 1983 amendment to the trustees for reconsideration in light of this opinion.

Folke also contends that he is entitled to early retirement benefits because of the defendants’ violation of the procedures for processing claims set out in 29 U.S.C. § 1133 and 29 C.F.R. § 2560.503-1. These provisions require written notice of a claim denial setting forth specific reasons for the denial and an opportunity for a full and fair review of the denial within 60 days. There can be no doubt that the Fund’s treatment of Folke’s claim was woefully lacking in procedural due process. After first assuring Folke’s attorney that an appeal hearing would be held, it then refused to convene one. Nevertheless, however reprehensible the Fund’s treatment of Folke may have been, it does not entitle Folke to his early retirement benefits. Under 29 C.F.R. § 2560-503-l(h)(4), if a decision on review is not made in a timely manner, as specified in the regulations, the claim is deemed denied on review. A claimant’s appropriate recourse is then to seek review of the denial by the district court.

Folke’s reliance on Grossmuller v. International Union, United Automobile, Aerospace and Agricultural Implement Workers, 715 F.2d 853 (3d Cir.1983), in this connection is misplaced. In Grossmuller the plaintiff’s disability benefits were terminated by a pension plan when the plan allegedly discovered that Grossmuller was employed as a bartender, relying on evidence supplied by a private investigator. The plan did not have a written claims review procedure, and while it did allow Grossmuller to appeal its decision, it did not allow him to appear personally at the appeal hearing, even though the private invéstigator was allowed to testify. The Third Circuit affirmed the district court’s decision that these procedural deficiencies deprived Grossmuller of the “full and fair review” guaranteed by ERISA, and also upheld the reinstatement of Grossmuller’s benefits. However, the Third Circuit reversed part of the district court’s order to make it clear that Grossmuller’s benefits were reinstated pending the outcome of a review by the plan that complied with ERISA’s procedural safeguards.

There are two principal differences between Grossmuller and the present case. First, Grossmuller involved suspension of benefits that were already being received, whereas Folke was making an initial application for benefits. Second, the reinstatement of Grossmuller’s benefits was appropriate only because the procedural deficiencies of the plan’s review process had prevented Grossmuller from presenting evidence that might have affected its outcome. In the present case, however, there is no additional information or testimony relevant to Folke’s application for early retirement benefits under the 1982 Plan amendment that could have been presented at a review hearing. Under the 1982 Plan amendment, the undisputed fact that Folke was currently employed conclusively prevented him from receiving early retirement benefits. Thus, Folke’s claim for early retirement benefits on procedural due process grounds must be denied.

An order will issue in accordance with this opinion.

      . In any case, personal jurisdiction and venue would obtain under the minimum contacts analysis of Internat’l. Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In Varsic v. U.S. Dist. Ct. for Cent. Dist. of Cal., 607 F.2d 245 (9th Cir.1979), the court stated that a fund may be "found” in a district, within the meaning of ERISA’s venue provision, 29 U.S.C. § 1132(e)(2), if personal jurisdiction is properly asserted over the fund. On the basis of a minimum contacts analysis, the court concluded that the district court had personal jurisdiction over the fund, since the plaintiff-beneficiary performed his work and earned his pension credits in the district. See I.A.M. Nat’l. Pension Fund v. Wakefield Indus., Inc., 699 F.2d 1254, 1257-59 (D.C.Cir.1983) (adopting Varsic’s interpretation of meaning of “found” in 29 U.S.C. § 1132(e)(2)); Turner v. C.F. & I. Steel Corp., 510 F.Supp. 537 (E.D.Pa.1981) (same).

      . Defendants state in their answer that they do not "at this time raise failure to exhaust administrative remedies as it appears there was mutual mistake by the parties.”

      . This section provides, in relevant part:
      A plan may provide for the suspension of pension benefits which commence prior to the attainment of normal retirement age ... for any reemployment and without regard to the provisions of section 203(a)(3)(B) and this regulation to the extent (but only to the extent) that suspension of such benefits does not affect a retiree’s entitlement to normal retirement benefits payable after attainment of normal retirement age, or the actuarial equivalent thereof.

      . 29 U.S.C. § 1002(23) provides, in relevant part:
      The term "accrued benefit” means—(A) in the case of a defined benefit plan, the individual's accrued benefit determined under the plan and, except as provided in section 1054(c)(3) of this title, expressed in the form of an annual benefit commencing at normal retirement age____
      29 U.S.C. § 1054(c)(3) provides:
      For purposes of this section, in the case of any defined benefit plan, if an employee’s accrued benefit is to be determined as an amount other than an annual benefit commencing at normal retirement age, or if the accrued benefit derived from contributions made by an employee is to be determined with respect to a benefit (without ancillary benefits) commencing at normal retirement age, the employee’s accrued benefit, or the accrued benefits derived from contributions made by an employee, as the case may be, shall be the actuarial equivalent of such benefit or amount determined under paragraph (1) or (2).

      . See Pub.L. No. 98-397, § 301(a)(2) (1984), codified at 29 U.S.C. § 1054(g).

      . The effective date of the amendment for multi-employer plans such as the Teamsters Pension Plan of Philadelphia and Vicinity is the plan year, as of August 23, 1984, beginning the earlier of
      (1) the date on which the last of the collective bargaining agreements relating to the plan terminates ... or
      (2) January 1, 1987.
      Pub.L. 98-397, § 302(b) (1984).
      As of August 23, 1984, the date on which the last of the collective bargaining agreements applicable to the Plan terminates is December 31, 1987. Thus, the amendment does not apply to Plan years beginning earlier than January 1, 1987.

      . Folke also argues that the Fund failed to update the Fund’s summary plan description to reflect the 1982 amendment. However, under the terms of 29 U.S.C. § 1024(b) an updated summary plan description need only be furnished to participants every five years. The Fund’s latest summary plan description complies with this requirement, since it was published in July 1980. As to the requirement of 29 U.S.C. § 1024(b)(1) that summary descriptions of material changes in any terms of a plan be furnished to participants within 210 days after the end of the plan year in which the change is adopted, the publication of the Plan amendment in the Fall 1982 Philadelphia Update (discussed below) was sufficient.

      . Article VII of the Plan states in part that ”[t]he Trustees may at any time or times modify, alter or amend the Pension Plan in any respect, retroactively or otherwise ... ”, but does not specify a method of amendment.

      . See 29 U.S.C. § 1082(c)(8).


author: MENTZ, District Judge.

text:
    WILLIAMSON LEASING COMPANY, INC., et al., v. AMERICAN COMMERCIAL LINES, INC., et al.,
    Civ. A. No. 83-678 “I” (2).
    United States District Court, E.D. Louisiana.
    Aug. 26, 1985.

      I. Matthew Williamson, O’Neil, Eichin & Miller, New Orleans, La., for plaintiffs.
    Fred E. Salley, New Orleans, La., for defendants.
   OPINION

MENTZ, District Judge.

I. JURISDICTION

A bench trial of this matter was conducted by the Court on March 7-8, 1985. Jurisdiction was based on 28 U.S.C. § 1333 and Rule 9(h) of the Federal Rules of Civil Procedure and was uncontested.

II. BACKGROUND

The following uncontested facts serve as a description of the parties and vessels: On February 16, 1982 the M/V JACK D. WOFFORD and tow collided with the stern of the M/V SHELLY MOTT (presently the M/V SNOW SHEEN), a vessel moored at Mile 55 of the Illinois River. At that time, plaintiff, Williamson Leasing Company, Inc. was the owner of the M/V SHELLY MOTT and plaintiff, American Barge Company, Inc., was the bareboat charterer of that vessel. Williamson Leasing Company, Inc. and American Barge Company, Inc. were subsidiaries of plaintiff TPC Transportation Company, Inc. On January 31, 1983, Williamson Leasing Company, Inc. and American Barge Company, Inc. were merged into TPC Transportation Company, Inc., at which time Williamson Leasing Company, Inc. and American Barge Company, Inc. ceased to exist as distinct and separate entities. Also at that time, TPC Transportation Company, Inc. assumed all the liabilities and acquired all of the assets of the dissolved companies. Accordingly TPC Transportation Company, Inc. is the proper party to assert this action for damages to the M/V SHELLY MOTT.

At all material times, defendants American Commercial Lines, Inc., American Commercial Barge Line Company, and Inland Tugs Co. were, and still are, corporations duly organized and existing under laws of states other than Louisiana. The M/V JACK D. WOFFORD and Barge ACBL2934 were owned by American Commercial Lines, Inc. On February 16,1982, the M/V JACK D. WOFFORD was chartered to and operated by Inland Tugs Co., and the Barge ACBL-2934 was bareboat chartered to American Commercial Barge Line Company.

The M/V SHELLY MOTT is a river towboat built in 1974 by Mainstream Shipyards of Greenville, Mississippi, measuring 140 feet long and 35 feet wide, and powered by two diesel engines generating approximately 3,800 horse power. The M/V JACK D. WOFFORD is a river towboat built in 1976 by Jeffboat of Jeffersonville, Indiana, measuring 170 feet by 40 feet and equipped with two diesel engines generating approximately 5,000 horsepower.

III. FINDINGS OF FACT

(1)

On February 15, 1982, the M/V SHELLY MOTT picked up eight empty barges at Mile 34 on the Illinois River at approximately 1500 hours and proceeded northbound. The vessel and tow arrived at Florence Fleet at Mile 55 on the Illinois River at 2320 hours (11:20 P.M.) on February 15, 1982. The M/V SHELLY MOTT’s eight barge tow was arranged two wide and four long, making the flotilla approximately 940 to 950 feet long.

(2)

In the area of Mile 55 the Illinois river is between 800 and 900 feet wide. Its navigable channel, located approximately mid-river, is normally about 300 to 400 feet wide during warm weather. However, the cold weather conditions existant on February 15, 1982 resulted in an “ice channel” near the center of the river. This condition is caused when relatively hard, packed ice forms near the banks of the river and extends toward midstream. An ice channel then forms in the center of the river as a result of the effect of tows travelling in midstream and breaking up the ice. In accordance with bipartisan testimony, the Court finds that an ice channel condition existed on February 15-16, 1982.

(3)

Plaintiff’s witness Capt. John Griffith, a river boat pilot who holds a first class license and has passed Mile 55 many times in winter, testified that the ice channel is normally 70—80 feet wide and restricts tows’ width to a maximum of two barges wide. “Cube ice” drifts in this channel as a result of the passage of other vessels. These conditions prevailed at the time of the collision.

(4)

At the time the M/V SHELLY MOTT arrived at Florence Fleet, Captain John Griffith was at the wheel. Captain Griffith moored the vessel and her tow in the fleet by securing the starboard bow corner of the M/V SHELLY MOTT’s tow to a group of barges moored to the left ascending bank. The vessel was moored so that the head of its tow was against the left ascending bank facing upstream and the stern of the M/V SHELLY MOTT was angled into the river. At this time the vessel was in excellent condition and Griffith experienced no problems with her.

(5)

Based on testimony, the Court finds that the left ascending edge of the ice channel was about 350 to 400 feet from the left ascending bank. The vessel and her tow were moored at an angle of 30-35° from the left ascending bank. This resulted in the stern of the vessel being about 460 feet from the left ascending bank. The M/V SHELLY MOTT, its stern protruding into the ice channel, impaired the safe navigation of vessels traversing this area of the river.

(6)

On February 16, 1982, Captain Griffith came on watch at approximately 0600 hours, and observed that the M/V SHELLY MOTT was moored in exactly the same position as when he went off watch at 2400 hours on the 15th. The ice conditions which existed on the river at the time prevented any significant movement of the vessel, its tow or the surrounding barges in the fleet. Just prior to this time, at approximately 0530, this witness saw a tow pass the position of the M/V SHELLY MOTT. This vessel was identified as the M/V BECKFJORD, an Ohio Barge Line vessel with an eight barge tow. This vessel passed within 40 to 50 feet of the MOTT’s starboard stern.

(7)

When Captain Griffith, went off watch around 11:30 A.M., heavy fog had reduced visibility to about 400 feet and the head of the MOTT’s tow was not visible from the wheelhouse. At that time, Pilot Charles Baughman came on watch in the wheelhouse of the M/V SHELLY MOTT and remained there until the time of the collision at approximately 1217 hours.

(8)

On February 16, 1982 the M/V JACK D. WOFFORD was northbound on the Illinois River, pushing a tow of eight empty barges and two loaded barges, including the Barge ACBL-2934 at the port lead. The weather was cold, the river was iced, and the M/V JACK D. WOFFORD was required to push ahead through the ice channel at approximately one to one and one-half miles per hour.

(9)

Captain Howard Evans of the M/V JACK D. WOFFORD worked the forward watch from 0600 hours to 1200 hours. As the deck log of the M/V JACK D. WOFFORD reflects, at 11:15 a.m. Captain Evans stopped the vessel at Mile 50 due to heavy fog.

(10)

At approximately 1200 hours on February 16, 1982, Pilot Paul Van Meter came on watch in the wheel house of the M/V JACK D. WOFFORD, and, despite the fact that restricted visibility and hazardous conditions continued to prevail, resumed navigating the vessel and her tow in a northbound direction toward Mile 55.

(ID

As the M/V JACK D. WOFFORD approached Mile 55, she suddenly encountered the stern of M/V SHELLY MOTT which was protruding into the narrow ice channel and, was therefore, in the navigable right of way. The Barge ACBL-2934 which was the port lead barge in the tow of the M/V JACK D. WOFFORD, then rammed and rode up onto the stern and rudder house of the M/V SHELLY MOTT, causing the damage which forms the basis of this lawsuit.

(12)

At no time before the collision did Pilot Van Meter visually sight the M/V SHELLY MOTT, although just prior to the collision he observed an “elongated blip” on his radar which appeared to be dead ahead of the northbound M/V JACK D. WOFFORD. Despite the presence of this radar target, Pilot Van Meter made no effort to ascertain the nature of the blip and incautiously continued on his way, thereafter colliding with the stationary M/V SHELLY MOTT. This imprudence on Van Meter’s part was a factor causing the collision.

(13)

The Court finds that the protrusion of the M/V SHELLY MOTT into the ice channel was a contributing cause of the collision. While the M/V SHELLY MOTT did not completely block the ice channel, as evidenced by the passage of the M/V BECKFJORD at 0530 on February 16, 1985, this obstruction constituted a hazard which partly caused the collision. The failure of the WOFFORD to cease navigation in the dense fog created an additional hazard and was also a contributing cause of the collision.

(14)

The Court attributes 33V3% of the fault to the stationary M/V SHELLY MOTT for reason of its improper mooring and 66%% of the fault to the M/V JACK D. WOF-FORD, the moving vessel. 33V3% of the fault is attributable to the WOFFORD because it should have remained stopped and waited for the fog to lift. An additional 33V3% of the fault is also attributable to the WOFFORD because she was being navigated in a negligent fashion when the collision occurred.

(15)

After the collision, Mr. John Stickling, then employed by Marine Loss Control, Inc., was retained by TPC to conduct a preliminary damage survey of the M/V SHELLY MOTT. He attended the vessel on the evening of February 16, 1982, while the vessel was still at Florence, Illinois. At that time, Mr. Stickling observed areas of damage, such as marks left by the lower bow towknees of the M/V JACK D. WOF-FORD’s lead barge, which were recent in nature and consistent with the collision. He found impact damage to the stern rudder house and metal fractures of the starboard bow tow knee. Mr. Stickling also observed other minor damage to the vessel but concluded that such damage did not result from the casualty because its age was not recent. The Court finds his testimony convincing and adopts his determinations as to the readily apparent, “topside” damages the M/V SHELLY MOTT sustained in the collision.

(16)

Mr. Stickling again saw the M/V SHELLY MOTT on February 22, 1983 while she was at St. Louis Shipyard. He found that the starboard tailshaft cooper bearing was broken and that tailshaft realignment was required. In his opinion, the tailshaft misalignment caused the vibration which caused the cooper bearing failure. This misalignment was, in turn, caused by stress. When asked if ice passing through the propellers would cause such stress, Stickling opined that the drivetrain should be able to sustain the pressures of ice as the system was designed to absorb that stress. As there was no evidence of propeller damage or misalignment, Stickling concluded that the stress which induced tailshaft misalignment, leading to cooper bearing failure, was caused by the collision. Although defendant raised the possibility of pre-collision vibration, no convincing evidence was introduced at trial to establish that fact and the Court finds that plaintiff’s evidence is sufficient for the Court to find that the collision caused both the drivetrain damage and the other structural damages to the M/V SHELLY MOTT.

(17)

Shortly after the 16th, the M/V SHELLY MOTT departed Florence for St. Louis, Missouri. While enroute, the starboard main engine would vibrate when used at full power. This vibration problem did not exist prior to the collision. The Court finds that a cooper bearing mount which supported the starboard tail shaft had been broken and related, starboard engine alignment problems created when the bow of the M/V JACK D. WOFFORD’s tow rode up on the stern of the M/V SHELLY MOTT.

(18)

Considering the trial testimony, depositions and all available evidence, the Court concludes that the following items of damage to the M/V SHELLY MOTT resulted from the February 16, 1982 collision: (Item numbers and repair costs are from the St. Louis Shipyard bill for repairs.)

a) Item No. 2: starboard side alignment; $750.00

b) Item No. 4: repair of the stern rudder house; $18,885.53

c) Item No. 7: starboard cooper bearing repairs; $2,627.16

d) Item No. 8: shore power; $153.00

e) Item No. 9: renew shims and realign starboard engine: $4,809.63

f) Item No. 10: weld starboard engine feet; $28.85

g) Item No. 12: renew damage to starboard bow towknee (minus $2,285.00 which represents an improvement by installation of S.L.S. type rubber bumpers); $5,000.00

h) Item No. 15: blocking the vessel at dry-dock; $288.50

i) Item No. 16: docking and launching of the vessel at the drydock; $638.25

(19)

Damages to plaintiffs total $29,180.92. This figure is reduced one-third ($9,726.97) in proportion with the comparative percentage of fault attributable to the M/V SHELLY MOTT for reason of her improper mooring which partially obstructed the ice channel of the Illinois River at Mile 55.

IV. CONCLUSIONS OF LAW

(1)

Jurisdiction of this Court is vested pursuant to 28 U.S.C. § 1332 and Rule 9(h) of the Federal Rules of Civil Procedure.

(2)

The M/V SHELLY MOTT violated Rule 9(g) of the Inland Navigational Rules, 33 U.S.C. § 2009(g), in that she was moored so as to protrude into a narrow channel. While 33 U.S.C. § 2009(g) provides: “Every vessel shall, if the circumstances of the case admit, avoid anchoring in a narrow channel,” the overall size of a towboat and its tow, in addition to the physical conditions of the river, are all properly considered by the Court in determining whether to apply the Narrow Channel Rule. Weathers Towing, Inc. v. M/V HERMAN POTT, 570 F.2d 1294, 1295-96 (5th Cir.1978). The Court also looks to the physical dimensions of the area and the character of the navigating use to which the water is put. Tempest v. United States, 277 F.Supp. 59, 63 (E.D.Va.1967), affirmed, 404 F.2d 870 (4th Cir.1968).

(3)

The Court first considered the dimensions of the Illinois River at Mile 55 and its seasonal physical conditions. A channel 700 or 800-feet wide, nearly the width of the Illinois River at Mile 55, is a narrow channel. The H.A. Baxter, 182 F. 930, 932 (D.C.R.I.1908). A channel 300-feet wide, which is the normal, warm weather width of the navigable center of the Illinois River at Mile 55, is a narrow channel. Barge Lake Farge Corp. v. The Saxon, 183 F.Supp. 132, 135 (E.D.Pa.1960), affirmed, 286 F.2d 247 (3rd Cir.1961). A canal which is 250-feet wide at the point of collision, but only 150 feet of which is usable as a channel for vessels, is a narrow channel. Lee v. Candies, 216 F.Supp. 665, 666 (E.D.La. 1963), affirmed, 323 F.2d 363 (5th Cir. 1963). The Court is therefore of the opinion that the Illinois River at Mile 55, even when unfrozen, is a narrow channel, and therefore, is certainly a narrow channel in winter when vessels must navigate in a 70-80-foot wide ice channel.

(4)

The Court next considered the dimensions of plaintiffs flotilla in relation to the width of the Illinois River at Mile 55. The MOTT’s tow was 940-feet long and the Illinois River at Mile 55, from bank to bank, is an almost equal distance. These facts additionally require the Court to apply the Narrow Channel rule. Weathers Towing, Inc., supra; Tempest, supra.

(5)

The M/V SHELLY MOTT violated the Rivers and Harbors Act, 33 U.S.C. § 409, in that she was moored in a fashion which resulted in a protrusion into a navigable channel in such a manner as to obstruct the passage of other vessels. Orange Beach Water, Sewer and Fire Protection Authority v. M/V ALVA, 680 F.2d 1374, 1379 (11th Cir.1982). 33 U.S.C. § 409 provides in pertinent part:

“It shall not be lawful to tie up or anchor vessels or other craft in navigable channels in such manner as to prevent or obstruct the passage of other vessels or craft ...”

Whether a mooring constitutes an obstruction to navigation is to be determined by reference to all the relevant facts and circumstances, including the percentage of the waterway’s width which is not obstructed. Id. at 1380. Here, the M/V SHELLY MOTT’s flotilla extended 460 feet into the river from the left ascending bank. This was approximately 45—50% of the total width of the Illinois River at Mile 55, and caused partial obstruction of the 70— 80-foot wide ice channel.

(6)

The Pennsylvania Rule provides that when a ship violates a statutory rule of navigation intended to prevent collisions, “the burden rests on the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been.” The PENNSYLVANIA, 86 U.S. (19 Wall.) 125, 136, 22 L.Ed. 148 (1873). If one party carries this burden, the burden of proof as to causation is then shifted to its opponent by the rule. However, this shifted burden does not ipso facto impose liability. Otto Candies, Inc. v. M/V MADELINE D, 721 F.2d 1034, 1036 (5th Cir.1983); Florida East Coast Railway Company v. Revilo Corporation, 637 F.2d 1060 (5th Cir.1981). The Pennsylvania rule is applicable to plaintiffs for reason of the M/V SHELLY MOTT’s violation of 33 U.S.C. § 409. Because plaintiffs were unable to show that the protrusion of the M/V SHELLY MOTT into the ice channel was not a cause of the collision, the burden of proof as to this factor in the collision does not shift to defendants.

(7)

The Pennsylvania Rule applies only to violations of a mandatory statute or regulation designed to prevent a collision. State of Louisiana v. M/V TESTBANK, 564 F.Supp. 729, 738 (E.D.La.1983); Davis v. Superior Oil Co., 510 F.Supp. 1162, 1165 (E.D.La.1981); Board of Commissioners of Port of New Orleans v. M/V AGELOS MICHAEL, 1974 A.M.C. 1470, 1473 (E.D. La.1974).

(8)

The Inland Navigational Rules (33 U.S.C. § 2001 et seq. effective as of December 24, 1981) and common law principals of admiralty law require prudent seamanship and due care. Violations of the rules of navigation or default in the exercise of prudent seamanship constitute negligence and impose liability on the guilty party. Miller v. Semet-Solvay Division, Allied Chemical Corp., 406 F.2d 1037, 1038 (4th Cir.1969); Weathers Towing, Inc. v. M/V HERMAN POTT, supra. In accordance with its findings of fact, the Court concludes that violations of the Inland Rules and imprudent seamanship form the basis of imposing liability on both parties.

(9)

A moving vessel which collides with a moored vessel is presumed to be at fault. The Oregon, 158 U.S. 186, 15 S.Ct. 804, 39 L.Ed. 943 (1895); The Clarita, 90 U.S. (23 Wall.) 1, 13, 23 L.Ed. 146 (1874). This presumption suffices to make a prima facie case of negligence. Skidmore v. Grueninger, 506 F.2d 716, 722 (5th Cir. 1975); Brown & Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 724, 726 (5th Cir.1967). This presumption of fault is applicable in the present case because the M/V SHELLY MOTT was moored and the M/V JACK D. WOFFORD was moving when she rammed the stern of the M/V SHELLY MOTT. The M/V JACK D. WOFFORD is therefore presumed negligent. Defendants were unable to rebut this presumption at trial and are found to be proportionately at fault for the collision.

(10)

Rule 7 of the Inland Navigational Rules, 33 U.S.C. § 2007, provides in pertinent part:

(a) Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if risk of collision exists. If there is any doubt such risk shall be deemed to exist.
(b) Proper use shall be made of radar equipment if fitted and operational, including long-range scanning to obtain early warning of risk of collision and radar plotting or equivalent systematic observation of detected objects.
(c) Assumption shall not be made on the basis of scanty information, especially scanty radar information.
(d) In determining if risk of collision exists the following considerations shall be among those taken into account:
(i) such risk shall be deemed to exist if the compass bearing of an approaching vessel does not appreciably change; and
(ii) such risk may sometimes exist even when an appreciable bearing change is evident, particularly when approaching a very large vessel or a tow or when approaching a vessel at close range.

(ID

A vessel equipped with radar is under a duty to use it intelligently and fully, and the master or pilot who fails to do so is heavily burdened to prove that such fault did not contribute to the collision. Licenses of Parnell and English, 1971 A.M.C. 2212, 2214 (U.S.C.G.1971). The failure of an operator of a vessel to detect, by radar, that a close quarters situation is developing and the subsequent failure to take early and substantial action to avoid such a situation is statutory fault. Atlantic Richfield Co. v. S.S. STEEL DESIGNER (the ATLANTIC TRADER) 1970 A.M.C. 1371, 1326 (C.D.Cal.1970).

(12)

Despite the fact that an “elongated blip” appeared directly in the path of the upbound M/V JACK D. WOFFORD, Pilot Van Meter took no steps to avoid a close quarters situation thereby failing to use his radar intelligently and fully. At trial, defendant was unable to carry its burden of showing that Van Meter’s interpretation of radar imagery did not contribute to the collision. For reason of this violation of 33 U.S.C. § 2007, the Pennsylvania Rule is also applicable to defendants.

(13)

The use of radar, in and of itself, is not sufficient to exempt a vessel from proceeding at a safe speed. N.V. STOOMVAART MAATSCHAPPIJ v. Standard Oil Company of California, 398 F.2d 835 (9th Cir.1968), cert. denied, 393 U.S. 980, 89 S.Ct. 448, 21 L.Ed.2d 441 (1968). In order [to be found] to travel at a safe rate of speed, a vessel should be able to stop within one-half the distance of visibility forward from her bow. When conditions are such that a vessel cannot proceed in such fashion, she should not be underway in the first place. The Pennsylvania, supra 86 U.S. (19 Wall.) at 134; Holland-America Line v. M/V JOHS. STOVE, 1968 A.M.C. 2012, 2016 (S.D.N.Y.1968). It is negligent for a vessel to be underway at all if her minimum speed is greater than that which would permit a complete stop within the limits of visibility. Hogge v. S.S. YORKMAR, 1977 A.M.C. 805, 832 (D.Md. 1977); Barrois Bros., Inc. v. Lake Tankers, Inc., 188 F.Supp. 300, 303 (E.D.La. 1960), affirmed per curiam, 286 F.2d 573 (5th Cir.1961). Because the pilot of the WOFFORD was unable to see as far as the head of his tow, as established by cross-examination of Ronald Loughmiller at trial, he should not have had his vessel underway.

(14)

“Risk of collision” means mere chance, peril, hazard or danger of collision, and not an immediate danger. The PHILADELPHIA, 199 F. 299 (D.C.Pa. 1912), affirmed, 207 F. 936 (3rd Cir.1913). “Risk of collision” requires that navigators be prepared to do whatever safety demands. Socony Vacuum Transportation Co. v. Gypsum Packet Co., 153 F.2d 773, 775 (2 Cir.1946). Pilot Van Meter had a functional radar which displayed an “elongated target.” This should have warned him of danger and he should have cautiously investigated this target. Had he done this, the risk of collision he created by navigating in fog would have been more fully appreciated and some action might have been taken to avoid the collision. His violation of Rule 7 .is a statutory fault and a contributing cause of the collision.

(15)

The defendants violated Rule 8, of the Inland Navigational Rules, 33 U.S.C. § 2008 which provides in pertinent part: (e) If necessary to avoid collision or allow more time to assess the situation a vessel shall slacken her speed or take all way off by stopping or reversing her means of propulsion.

At no time did Pilot Van Meter slacken his speed, stop, or reverse his engines. Had he done so, he might have avoided the collision with the M/V SHELLY MOTT. This statutory violation was a contributing cause of the collision.

(16)

Defendants alleged that plaintiffs failed to maintain a proper radio watch prior to the collision, presenting a possible violation of 33 U.S.C. § 1203. In considering the merits of this contention, the Court first observes that the M/V SHELLY MOTT was moored to the bank and her engines were turned off. Had she been holding her position and that of her flotilla through use of engines against the current, she would have been “navigating” for purposes of the Vessel Bridge to Bridge Radiotelephone Act requirement of a listening watch for a towing vessel while navigating. Allied Chemical Corp. v. Hess Tankship Co. of Delaware, 661 F.2d 1044, 1053-54 (5th Cir.1981). A vessel which is “underway” for purposes of the Inland Rules must obey the Act. Id. at 1053-54. The Court, finding that the vessel was not underway, concludes that the Act is not applicable to plaintiffs and discerns no violation of 33 U.S.C. § 1203. As the M/V SHELLY MOTT was not underway, it was not required to sound fog signals in accordance with 33 U.S.C. § 2035. Id. at 1052; Barrois Bros., Inc. v. Lake Tankers, Corp., supra at 303; Griffin on Collision §§ 134, 139. The M/V SHELLY MOTT was thus not required to man a radio watch or make fog signals and no statutory violation was committed in this respect.

(17)

Both parties contributed to this collision by violating the statutory requirements for safe navigation embodied in the Inland Navigation Rules. Violation of these rules invokes the presumption of The PENNSYLVANIA, supra, which requires that plaintiff and defendant prove that their respective violations could not have causally contributed to the collision. Both have failed to make this proof. Accordingly, liability for the damage sustained in this maritime collision is allocated according to the degree of the parties’ comparative fault. Valley Towing Service, Inc. v. SS AMERICAN WHEAT, 618 F.2d 341, 346 (5th Cir.1980); Portacci v. Moran Towing and Transportation Co., 615 F.2d 293, 294 (5th Cir.1980).

(18)

If both parties to a collision are found to be guilty of statutory fault, the heavy presumption such fault contributed to the accident may be rebutted by proof that, in fact, the fault of either of the parties was the sole cause of the accident, or not a substantial contributing cause thereof. Otto Candies, Inc. v. M/V MADELINE D, 721 F.2d 1034, 1036 (5th Cir.1983); Florida East Coast Railway Company v. Revilo Corporation, supra at 1066. Because no such proof was adduced at trial, the Court concludes that each party was partially and substantially responsible for causing this accident.

(19)

Maritime collision liability is predicated upon a finding of fault (a finding of negligent conduct) and the mere fact of physical impact has no legal consequence. The JAVA, 81 U.S. 189, 190, 20 L.Ed. 834 (1872); Hogge v. S/S YORK MAR, 434 F.Supp. 715, 727 (D.Md.1977); Pennsylvania Railroad Co. v. S/S MARIE LEONHARDT, 202 F.Supp. 368, 375 at n. 54 (E.D.Pa.1962). The fault found must be a contributing cause of the collision for liability to be imposed. The PENNSYLVANIA, supra; Gilmore & Black, The Law of Admiralty, Section 7-5 (2d Ed.1975). The Court finds that each party was at fault and that such faults were contributing, legal causes of the collision. Further, the Court should assess damages in a collision case where both parties are at fault in whatever ratio it deems appropriate. Allied Chemical Corp. v. Hess Tankship Co. of Delaware, supra at 1057. As indicated in the Court's findings of fact, plaintiff bears a 33V3 proportional fault, and defendant a 66% proportional fault. Accordingly, damages will be assessed in that light.

(20)

The general rule in admiralty is that prejudgment interest should be awarded absent peculiar circumstances. King Fisher Marine Service, Inc. v. The N P SUNBONNET, 724 F.2d 1181, 1187 (5th Cir.1984); Todd Shipyards Corp. v. Turbine Service, Inc., 674 F.2d 401, 415 (5th Cir.1982), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602 (1982). As no peculiar circumstances exist here, prejudgment interest shall be awarded. In admiralty, interest is usually awarded from the date of loss or injury to the vessel. King Fisher Marine Service, Inc. v. The N P SUNBONNET, 724 F.2d at 1187.

(21)

Judgment is rendered in favor of plaintiffs and against defendants in the amount of $19,454.01, plus legal interest from the date of injury, February 16, 1982. Each side shall bear its own costs.

      . Griffith was the pilot aboard the M/V SHELLY MOTT at the time of the collision giving rise to this action.

      . Search lights were used when the vessel was moored during the night of February 15-16, 1982.

      . Griffith testified that, after mooring, the stern starboard corner of the vessel was 175 to 200 feet from the left ascending bank and 50-75 feet out of the ice channel. This estimate is unconvincing because Griffith also said the ice channel, at the location where the vessel was moored, was 350 to 400 feet from the left ascending bank. A 940-foot flotilla moored at a 30° angle would have its stern 460 feet from the left ascending bank and in the ice channel. The relief pilot on this vessel, Charles Baughman, estimated that the M/V SHELLY MOTT was at an angle of 40-45° from the bank [see: Baughman deposition of January 12, 1984 at Page 19].

      . This further convinces the Court that the stern of the MOTT was protruding into the ice channel [see Footnote 3]. If the BECKFJORD was in the ice channel, it had to be at least 400 feet from the left ascending bank. The MOTT, attached to the rear of its flotilla, could not have been within 200 feet of that bank.

      . The defense witness Ronald Lee Loughmiller, a dispatcher riding aboard the M/V JACK D. WOFFORD on February 16, 1982, testified that the WOFFORD's tow was made up of six empties and two loads and arranged 2x4 with the vessel "centered up” on the rear barges of the tow. The length of this flotilla was about 970 feet: 800 feet of tow and 170 feet of towboat.

      . On cross-examination, Loughmiller testified that fog prevented anyone in the pilothouse from seeing the head of the WOFFORD’s tow or the ice channel ahead of the tow. He admitted he couldn't tell, from his place of observation, if the head of the WOFFORD's tow was even in the ice channel. Visibility was described as no more than three barge lengths [about 600 feet], Loughmiller didn’t see the M/V SHELLY MOTT prior to the collision and couldn't tell if she had lights on.
      Charles Baughman, pilot of the M/V SHELLY MOTT, said visibility at the time of the collision was 400 to 600 feet [Baughman deposition of January 12, 1984, Page 36]. Ronald E. Robertson, engineer on the MOTT at the time of the collision, said visibility was 25 to 30 feet at the moment right after collision [Robertson deposition of February 22, 1985 at Page 47],

      . Seconds before the collision, Pilot Baughman, who was maintaining his watch in the wheel house of the M/V SHELLY MOTT, noticed the head of the M/V JACK D. WOFFORD’s tow emerging from the fog on a collision course with the M/V SHELLY MOTT. Baughman immediately tried to contact the M/V JACK D. WOFFORD on the radio to warn it of the impending collision but, to no avail, the collision occurred.

      . Mr. Stickling is a St. Louis, Missouri-based marine surveyor with twelve years experience. He primarily used measurements to determine the extent of damage and inspected to see if the age of the damage agreed with the known time of the accident.

      . Captain John Griffith testified at trial that the vessel was in excellent condition prior to the collision. Afterward, he said a vibration was present when the vessel came ahead.
      Chief Engineer Robertson also testified that the M/V SHELLY MOTT had no vibration problems at any time prior to tying off in Florence Fleet on the night of February 15, 1982. (See plaintiffs Exhibit 6, Robertson Deposition of February 22, 1985 at pg. 52.)

      . Ronald E. Robertson, Chief Engineer of the M/V SHELLY MOTT, testified at his deposition that hull stress might cause this damage. He believed that when the port head of the WOF-FORD’s tow rode up on the stern of the MOTT, the hull was pushed downward unevenly, creating a torque-like stress on her hull. This could have caused the cooper bearing and alignment problems in the starboard power train and also caused damage to the starboard bow tow knee. While Mr. Robertson was not qualified as an expert witness, his opinion was the most plausible explanation of the damage offered to the Court. (See plaintiff Exhibit 6, Robertson Deposition of February 22, 1985, at pg. 72.) See F.R.E. 701 for the admissibility of a lay opinion.

      . See Plaintiff’s Exhibit No. 5 for a complete list of all work performed on the MOTT at St. Louis Shipyard. Not all items on this list were occasioned by the collision; some were simply vessel improvements or routine maintenance actions accomplished contemporaneously with the collision repairs.

      . The Court also notes that the duty to avoid creating an obstruction to navigation extends to the entire width of the navigable waterway, and is not limited to the channel. United. States v. Raven, 500 F.2d 728, 732 (5th Cir. 1974), cert. denied, 419 U.S. 1124, 95 S.Ct. 809, 42 L.Ed.2d 824 (1975).

      . 33 U.S.C. § 409 does not absolutely prohibit mooring of vessels in navigable channels, but is intended to prevent anchorage or moorage in a way which monopolizes the channel. There is no violation where sufficient passageway exists and other vessels can pass in safety when navigated with proper care. Nehus v. Alaska Marine Towing, Inc., 519 F.Supp. 328, 332 (W.D.Wash. 1981). In this case, there is evidence that the M/V BECKFJORD did successfully pass the M/V SHELLY MOTT without colliding. However, the M/V JACK D. WOFFORD was not being navigated with proper care as demonstrated by her operation in dense fog and Pilot Van Meter's poor judgment regarding the "elongated radar target" which he later discovered was the M/V SHELLY MOTT. The M/V SHELLY MOTT’s mooring did not monopolize the navigable channel, but it did intrude far enough to deny passageway to a vessel being navigated without due care under the existent fog conditions. For this reason, a violation of 33 U.S.C. § 409 is perceived by the Court.

      . If the ice channel was in the center of the Illinois River at Mile 55, where navigation charts place the sailing line, the left ascending edge of the ice channel would lie about 450 feet from the left ascending bank. Because her stern was at least 460 feet from the left ascending bank, the M/V SHELLY MOTT protruded into this channel.

      . Defendant’s witness Loughmiller testified that an "object” was observed on the M/V JACK D. WOFFORD’s radar prior to the collision. He testified that the radar was set on a one and one-half mile range at the time preceding the collision.

      . The Court finds the requirement that a vessel be able to stop within one-half of the distance of visibility [here 300 feet or less] is meaningless in this action; the WOFFORD could not have stopped after it got a warning from the M/V SHELLY MOTT, prior to collision. She should have remained stationary at Mile 50 until the visibility improved and safe navigation again became possible.

      . Any impact sufficient to cause damage to a sound vessel is a “collision.” Cornell Steamboat Co. v. New York Central Railroad Co., 1933 A.M.C. 621 (S.D.N.Y.1933).