author: SPRIZZO, District Judge:

text:
    Raymond J. DONOVAN, Secretary of Labor, United States Department of Labor, Plaintiff, v. KASZYCKI & SONS CONTRACTORS, INC., A Corporation and William Kaszycki Individually and as President, Defendants.
    No. 82 Civ. 3287 (JES).
    United States District Court, S.D. New York.
    Dec. 21, 1984.

      Jay S. Berke, Regional Sol., Philadelphia, Pa., for plaintiff, U.S. Dept, of Labor; Francis X. Lilly, Sol. of Labor, U.S. Department of Labor, Washington, D.C., William M. Gonzalez, New York City, of counsel.
    James W. Dougherty, Jersey City, N.J., for defendants Kaszycki & Sons Contractors, Inc.
    George Farber Aney, Herkimer, N.Y., for defendant William Kaszycki.
   OPINION & ORDER

SPRIZZO, District Judge:

Plaintiff Donovan, United States Secretary of Labor, brings this action pursuant to section 17 of the Fair Labor Standards Act of 1938 (“FLSA”), 29 U.S.C. § 217, to enjoin defendants Kaszycki & Sons Contractors, Inc. (“Kaszycki & Sons”) and William Kaszycki (“Kaszycki”) from (1) violating sections 6(a), 7(a), 11(c) and 15(a) of the FLSA, 29 U.S.C. §§ 206(a), 207(a), 211(c) & 215(a), and (2) from withholding wages due defendants’ employees pursuant to sections 6(a) and 7(a), and for liquidated damages pursuant to section 16(c) of the FLSA, 29 U.S.C. § 216(c). The action was tried to the Court without a jury. This Opinion and Order constitutes the Court’s findings of fact and conclusions of law as required by Fed.R.Civ.P. 52(a).

I

FINDINGS OF FACT

Defendant Kaszycki & Sons was at all relevant times a New York corporation engaged in the business of demolition. Plaintiff’s Pre-Trial Order (“PTO”) ¶ V ; Plaintiff’s Exhibit 31 (“P.Ex. 31”) at 10-12. Kaszycki & Sons is an enterprise

engaged in commerce or the production of goods for commerce ... in that its employees were engaged in commerce or the production of goods for commerce, or handled or otherwise worked on goods or materials that have been moved in or produced for commerce, and it has an annual gross volume of sales made or business done of not less than $250,000 (exclusive of excise taxes at the retail level which are separately stated) ____ [and] in that its employees were engaged in the business of construction or reconstruction or both.

PTO at V. At all relevant times defendant Kaszycki was president of Kaszycki & Sons, P.Ex. 31 at 11, and ran the corporation, id. at 12. Kaszycki formed Kaszycki & Sons for the purpose of contracting with Trump Equitable Fifth Avenue Company (“Trump”) to demolish the Bonwit Teller building located at Fifth Avenue and 56th Street in Manhattan. Id. at 10-11, 16-17.

Prior to forming Kaszycki & Sons, Kaszycki owned and ran at least two other companies, hired employees for those companies, and paid his employees minimum wage and overtime compensation. Id. at 6-10. With respect to another demolition job performed just before the Trump job, however, defendant testified he was not aware of how many hours his employees worked, how they were paid, or whether they received compensation for overtime. See id. at 28-33.

The demolition work on the Bonwit Teller building commenced on or about January 29, 1980, see P.Ex. 31 at 16, and was completed on or about June 21, 1980, see Trial Transcript (“Tr.”) at 96. Kaszycki hired Zbigniew Goryn (“Goryn”) as supervisor of the job, see Tr. at 5-6; P.Ex. 31 at 22, 33, and Bodgan Krawczynski (“Krawczynski”) as timekeeper, see Tr. at 55-56; P.Ex. 31 at 43-44, 90. Kaszycki was generally on the job site daily, and at least once a week, unless he was out-of-town. See P.Ex. 31 at 39, 48; Tr. at 71.

Kaszycki, and on his authority Goryn and Krawczynski, hired employees to do the work under the Trump contract. See, e.g., Tr. at 72-73, 175; P.Ex. 31 at 33-35, 39, 46. Among those employees were all of the persons listed in Appendix A to this Opinion and Order (“the employees”), see Tr. at 115-16. Defendants also employed members of Local 95 of the Housewreckers Union (“the union employees”). P.Ex. 31 at 35, 37, 61, Exhibit 2. Defendants’ recordkeeping and payment of wages with respect to the union employees is not at issue in the instant action. In fact, the evidence demonstrates that defendants kept complete records for the union employees and timely paid them full regular and overtime compensation, see Tr. at 104-05; P.Ex. 31 at 66-73, 97, Exhibit 3, in compliance with the same provisions of the FLSA that defendants are alleged to have violated with respect to the non-union employees. Based on the foregoing, the Court finds that defendants were or reasonably should have been aware of the FLSA requirements at issue herein with respect to minimum wage, overtime compensation, and recordkeeping.

The non-union employees worked on two twelve-hour shifts. The first shift, or day shift, generally ran from 6:00 a.m. to 6:00 p.m., and the second shift, or night shift, ran from 6:00 p.m. to 6:00 a.m., seven days a week. E.g., Tr. at 7-9, 72; P.Ex. 31 at 42-43. Kaszycki was aware that the employees worked, these hours, see P.Ex. 31 at 42-43, and that they were therefore entitled to be paid for overtime, id. at 58. Goryn supervised the day shift, e.g., Tr. at 16, 48; P.Ex. '31 at 35, 41, and Krawczynski supervised the night shift, e.g., Tr. at 9, 48, 60; P.Ex. 31 at 43-44. Each kept records of the hours worked by the men on their respective shifts. E.g., Tr. at 9, 56; P.Ex. 31 at 41.

Goryn’s time record for first shift employees, which was lost, was reconstructed for purposes of this litigation in P.Ex. 33. See Tr. at 24-27. Krawczynski’s record of hours worked by second shift employees is reconstructed in P.Ex. 35. See Tr. at 57-62. Kaszycki testified that he had seen at least Krawczynski’s time records. P.Ex. 31 at 46. Some of the employees kept records of their own hours worked and wages received or owed. Kaszycki, Goryn and Krawczynski all testified that Goryn and Krawczynski were responsible for keeping the time records. See Tr. at 9-10, 56; P.Ex. 31 at 41.

It appears, however, that defendants, the employers, neither received nor kept these records, and that no formal company records were kept by defendants in the company offices or in any central record-keeping office, with respect to these employees, see P.Ex. 31 at 58-59, 73-74, ah though, as Kaszycki knew, the company bookkeeper did keep records with respect to the union employees. See Tr. at 101, 170; P.Ex. 31 at 35-36, 67-68.

The records kept by Goryn and Krawczynski did not contain information with respect to Social Security numbers, see Tr. at 74, 77-78, 99; P.Ex. 31 at 74, although some employees had Social Security numbers. There was also no record of employees’ addresses. See Tr. at 99.

Defendants agreed to pay these employees $4 to $6 an hour, depending on their skills and the work they performed. See, e.g., Tr. at 10, 39-40; P.Ex. 31 at 35; see also P.Ex. 13 at 13. All these agreements appear to have been oral, and there were no written contracts with respect to employment or rate of pay. See, e.g., P.Ex. 31 at 84; P.Exs. 1-14,16, 18, 20, 22-23, 25-27, 29, 40. No provision was made for overtime compensation with respect to hours worked in excess of forty hours in any workweek. Tr. at 89.

Defendants did not pay the employees on a weekly or regular basis, but paid them sporadically, if at all, and in amounts less than was due, a fact which Kaszycki admitted. P.Ex. 31 at 51. Kaszycki would give money to Goryn and Krawczynski to pay the employees on their respective shifts. See, e.g., Tr. at 34-35; P.Ex. 31 at 32, 48, 95-96. On occasion, Kaszycki paid some employees directly, sometimes by personal check, but in most instances, he gave money to Goryn and Krawczynski for that purpose. See, e.g., Tr. at 43; P.Ex. 31 at 48.

Kaszycki kept no records of the amount of money given to Goryn or Krawczynski to pay the employees. See P.Ex. 31 at 49. While he testified that his secretary was aware of the amounts he took for this purpose, there is no record reflecting this. See id. at 50. However, Goryn kept a book, placed in evidence as P.Ex. 32, in which he recorded the wages due and monies paid to the day shift employees, see Tr. at 13, and Krawczynski kept a record, P.Ex. 37, of the wages owed the night shift employees, see Tr. at 67-68; P.Ex. 22 at 14; P.Ex. 40 at B-25, B-46. Krawczynski also prepared a record of money owed to first shift employees, P.Exs. 34 and 37A, apparently prepared at Kaszycki’s request. See Tr. at 63-65, 68. Kaszycki knew of the arrearage in wages due to employees, and discussed the problem with both Goryn and Krawczynski, see Tr. at 32-33, 71, and with the employees themselves. See, e.g., P.Ex. 31 at 51-52, 101.

James Dondzil (“Dondzil”), a compliance officer for the Wage and Hour Division of the Department of Labor, conducted an official investigation of Kaszycki & Sons and William Kaszycki with respect to the demolition job, for the period of January to June, 1980. Tr. at 96-97. In the course of this investigation, Dondzil requested from defendants all employee payroll records. Defendants gave Dondzil records regarding the union employees, but no records were produced with respect to the non-union employees, including those listed in Appendix A. See Tr. at 100; P.Ex. 31 at 73. The records kept by Goryn and Krawczynski were not produced by the defendants, Tr. at 99-100, but were obtained directly from Goryn and Krawczynski, id. at 142-43.

Dondzil and two assistants interviewed approximately twenty-six employees with respect to, inter alia, their place and period of employment, the amount they were supposed to be paid, the amount they actually were paid, and whether or not they received overtime compensation. In the course of this litigation, twenty-nine employees were deposed with respect to the same topics. See Tr. at 97-98.

The employee interview statements, compiled in P.Ex. 40, and the depositions, P.Exs. 1-29, along with the deposition testimony of defendant Kaszycki, the trial testimony, and records kept by Goryn and Krawczynski, all demonstrate that defendants failed to pay the employees the required wages and overtime compensation. These amounts which remain due and owing to the employees were calculated by Dondzil from all the evidence, and are set forth in P.Ex. 38 and summarized in P.Ex. 39 and Appendix A to this Opinion. Defendants do not appear to dispute in their post-trial papers that these amounts are due and owing to each employee. Cf. Tr. at 145. The figures in P.Ex. 38 reflect the most conservative estimates of damages given all the information considered. See Tr. at 167.

The only explanation offered for what was a clear violation of the FLSA was Kaszycki’s claim that at some point around the middle of the job, he “lost the control of paying” his employees, because Trump took over all payroll responsibilities, see P.Ex. 31 at 52, 64-65, through a special checking account at Chase Manhattan Bank, which required the signature of a Trump representative, Tom Macari, on any check drawn on that account. See id. at 53-54. Kaszycki also claimed that he told the non-union employees, when they asked about their wages, that they would have to get their money from Trump. Id. at 101. At another point, however, Kaszycki said that Macari was directly paying the union employees, id. at 96-97, but that he, Kaszycki, was giving money to Goryn and Krawczynski to pay the .non-union employees. Id. at 95-96. He also stated that Trump was giving him a check each week to meet the payroll. Id. at 98.

One employee testified that he was not paid by Macari, see P.Ex. 13 at 48-49, and another testified that Macari did not pay non-union employees, see P.Ex. 3 at 40. Most testified that they did not even know who Macari was. ■ Two employees stated that they did receive money from Macari once, see P.Ex. 18 at 26; P.Ex. 19 at 33, and one testified that Macari paid other non-union workers twice, see P.Ex. 20 at 44. However none testified that Macari was responsible for their pay, or that they received money from him more than once or twice. None of the employees testified to being told by Kaszycki that they would be paid by Trump, and Goryn testified that Trump was involved only in the payment of the union employees. See Tr. at 42.

The employees, including Goryn and Krawczynski, obviously believed Kaszycki, as their employer, was responsible for paying their wages, and the evidence demonstrates that he consistently failed to do so. Therefore, the Court finds that Trump did not take over the responsibility for paying the non-union employees, nor were defendants relieved of their responsibility to pay these employees. As defendants themselves have stated, “[t]he fact of the matter is that the defendants had improvidently entered into agreements that were obviously underbid for the amount of work, time, hours and effort that was required____” See Letter Memorandum of George F. Aney at 2 (March 13, 1984); see also Letter Memorandum of James W. Dougherty at 1 (Feb. 29, 1984). Whether or not defendants were receiving sufficient funds from Trump to cover the wages due these employees, however, has no bearing on defendants’ obligation to pay those wages and to comply with the FLSA. See Section II(E), infra.

Moreover, the testimony of Goryn and Krawczynski demonstrates that Kaszycki was fully aware of his obligation to pay the employees, see Tr. at 33, 73. Indeed, in November 1980, after the job was over, Kaszycki paid to Krawczynski the regular time wages he owed him for work on the Bonwit Teller job. See Tr. at 88. This payment is hardly consistent with the argument that defendants were no longer responsible for paying the employees’ wages.

The Court also rejects defendant Kaszycki’s claim that the testimony of the employees shows that defendants were “making every attempt possible to meet the payroll.” Letter Memorandum of George F. Aney at 1 (March 13, 1984). Rather the evidence establishes that some employees quit after not being paid for long periods, that the employees consequently engaged in strikes and forms of protests for nonpayment of wages, and that others believed Kaszycki was not acting in good faith with respect to the payment of their wages.

II

CONCLUSIONS OF LAW

A. General Issues

The Court has jurisdiction over this action pursuant to sections 16(c) and 17 of the FLSA, 29 U.S.C. §§ 216(c) & 217. The Court has personal jurisdiction over both defendants based on residency and the fact that each has done business in the state of New York.

Kaszycki & Sons is an “enterprise” within the meaning of section 3(r) of the FLSA, 29 U.S.C. § 203(r), and an “enterprise engaged in commerce or in the production of goods for commerce” within the meaning of section 3(s)(l) and (4) of the Act, 29 U.S.C. § 203(s)(l) & (4).

Defendants are both “employers” within the meaning of section 3(d) of the FLSA, 29 U.S.C. § 203(d). See, e.g., Donovan v. Sabine Irrigation Co., 695 F.2d 190, 194-95 (5th Cir.), cert. denied, — U.S. -, 103 S.Ct. 3537, 77 L.Ed.2d 1387 (1983); Marshall v. Sam Dell’s Dodge Corp., 451 F.Supp. 294, 296 (N.D.N.Y. 1978). Kaszycki, because he was president of the company and exercised virtually complete control over it, is personally liable for any amounts owed the employees due to any FLSA violation. See, e.g., Sabine Irrigation, supra, 695 F.2d at 194-95; see also Donovan v. Sovereign Security, Ltd., 726 F.2d 55, 59 (2d Cir.1984); cf. Falk v. Brennan, 414 U.S. 190, 195, 94 S.Ct. 427, 38 L.Ed.2d 406 (1973) (noting the “expansiveness” of the FLSA definition of “employer”); United States v. Klinghoffer Bros. Realty Corp., 285 F.2d 487 (2d Cir. 1960) (holding both corporation and individual officers liable for FLSA violations). The persons listed in Appendix A were all employees of defendants within the meaning of section 3(e) of the Act, 29 U.S.C. § 203(e).

The Court notes that the FLSA is to be liberally construed in favor of its intended beneficiaries. See, e.g., Corning Glass Works v. Brennan, 417 U.S. 188, 208, 94 S.Ct. 2223, 2234, 41 L.Ed.2d 1 (1974); Laffey v. Northwest Airlines, Inc., 567 F.2d 429, 461 (D.C.Cir.1976), cert. denied, 434 U.S. 1086, 98 S.Ct. 1281, 55 L.Ed.2d 792 (1978).

B. Failure to Keep Adequate Records

Section 11(c) of the FLSA, 29 U.S.C. § 211(c), requires as follows:

Every employer subject to any provision of this chapter or of any order issued under this chapter shall make, keep, and preserve such records of the persons employed by him and the wages, hours, and other conditions and practices of employment maintained by him, and shall preserve such records for such periods of time, and shall make such reports therefrom to the Administrator as he shall prescribe by regulation or order as necessary or appropriate for the enforcement of the provisions of this chapter or the regulations or orders thereunder, (emphasis added)

Section 15(a)(5), 29 U.S.C. § 215(a)(5), makes it unlawful to violate section 11(c). While no particular form or order of recordkeeping is mandated by the statute or regulations, the employer is required to make and maintain certain records. Id.; see 29 C.F.R. § 516.1(a).

The regulations set forth in 29 C.F.R. § 516.2(a) require these records to contain information with respect to, inter alia, name and address of each employee, occupation in which the individual is employed, rate of pay, hours worked each work day and total hours for each workweek, and both total wages due and total wages paid for regular time and overtime. Payroll records are to be preserved by the employer for three years. 29 C.F.R. § 516.5. Employment, earnings, and wage rate records are to be preserved for two years. Id. at § 516.6(a).

These records are to be maintained by the employer at the place of employment or central recordkeeping office, and are to be available for Department inspection on seventy-two hours notice. Id. at § 516.7. Defendants’ failure to keep company records in compliance with the regulations with respect to these employees clearly constitutes a violation of sections 11(c) and 15(a)(5). The records kept by Goryn and Krawczynski were not corporate records and were not in the possession of the employer, cf. Klinghoffer, supra, 285 F.2d at 490; therefore they do not satisfy the requirements of the Act. Even if they were company records, they failed to contain all of the information required by the FLSA and relevant regulations.

This failure by defendants to keep the required records with respect to the employees has an impact on the proof required of plaintiff. In Anderson v. Mt. Clemens Pottery Co., 328 U.S. 680, 66 S.Ct. 1187, 90 L.Ed. 1515 reh’g denied, 329 U.S. 822, 67 S.Ct. 25, 91 L.Ed. 699 (1946), the Supreme Court stated that where an employer does not keep accurate or adequate records of employee hours and wages, plaintiff, in an action to recover wages due employees, carries his burden of proof by producing “sufficient evidence to show the amount and extent of ... [uncompensated] work as a matter of just and reasonable inference.” Id. at 687, 66 S.Ct. at 1192. The burden then shifts to the employer to rebut, or to show the inference is not reasonable. If the employer fails to meet this burden the court may award the damages reasonably inferred, despite the fact that they are only approximate in amount. Id. at 687-88, 66 S.Ct. at 1192. See also Donovan v. Sovereign Security, Ltd., (CCH) 94 Lab. Cas. ¶ 34,219, at 44,732 (E.D.N.Y. April 28, 1982), amended on other grounds, Order, 81 Civ. 0615 (E.D.N.Y. March 9, 1983), amendment rev’d, 726 F.2d 55 (2d Cir.1984); Leisten v. Multi-Systems, Inc., (CCH) 37 Lab.Cas. ¶ 65,425, at 66,489 (S.D.N.Y. May 4, 1959). In view of defendants’ failure to keep and maintain the records required that rule is applicable here.

Anderson has been interpreted to allow damage awards for FLSA violations to a group of employees where only some of those employees testified as to hours worked and wages paid, the overall damage award being reasonably inferred. See, e.g., Donovan v. New Floridian Hotel, Inc., 676 F.2d 468, 472-73 (11th Cir.1982); Brennan v. General Motors Acceptance Corp., 482 F.2d 825, 829 (5th Cir.1973); Sovereign Security, Ltd., supra, 94 Lab. Cas. at 44,733.

Therefore, while not all of the employees were deposed or interviewed, the Court finds, as discussed infra at Sections 11(C) and (D), that the evidence is sufficient to establish a pattern of FLSA violations by defendants with respect to payment of both regular and overtime wages, and that any damages due employees for these violations may be reasonably inferred from the information in evidence before this Court.

C. Failure to Pay Minimum Wage

Section 6(a) of the FLSA, 29 U.S.C. § 206(a), provides:

Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the production of goods for commerce, or is employed in an enterprise engaged in commerce or in the production of goods for commerce, wages at the following rates:
* * * * * *
(1) ____not less than $3.10 an hour during the year beginning January 1, 1980,

Section 15(a)(2) of the FLSA, 29 U.S.C. § 215(a)(2), makes it unlawful for any person including a corporation to violate section 6(a).

While defendants contracted to pay the employees at a higher rate of pay than the minimum wage of $3.10 an hour, the evidence demonstrates that defendants did not in fact regularly pay the employees at the agreed rate, and further, that the amounts defendants did pay did not even always satisfy the minimum wage requirement. Therefore, while the minimum wage may have been paid to some employees for some workweeks, during other workweeks from January to June 1980 defendants violated the minimum wage provision with respect to at least every employee listed in Appendix A. See Sam Dell’s Dodge, supra, 451 F.Supp. at 302-03; cf. Klinghoffer, supra, 285 F.2d at 490. The fact that defendants may have intended to pay the employees at some future date, or that some employees might have acquiesced, albeit grudgingly, to deferred payment, has no bearing on the fact that the statute was violated. See Klinghoffer, supra, 285 F.2d at 491; cf. Hodgson v. A.W. Crossley, Inc., 365 F.Supp. 1131, 1134 (S.D.N.Y.1973).

Because defendants have failed to produce any evidence to challenge plaintiffs calculations of hours worked and wages due, under the rationale of Anderson and cases following it, the Court finds that the evidence produced by plaintiff, consolidated in P.Ex. 38, is sufficient to establish the number of hours worked and the amount of regular-time wages the defendants owe each employee.

D. Failure to Pay Overtime Compensation

Section 7(a)(1) of the FLSA, 29 U.S.C. § 207(a)(1), requires that:

Except as otherwise provided in this section, no employer shall employ any of his employees who in any workweek is engaged in commerce ..., or is employed in an enterprise engaged in commerce ..., for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

Section 15(a)(2) of the Act, 29 U.S.C. § 215(a)(2), makes violation of section 7(a) unlawful. Defendants have not established that any exception to section 7 applies in this case. See, e.g., Arnold v. Ben Kanowsky, Inc., 361 U.S. 388, 392, 80 S.Ct. 453, 456, 4 L.Ed.2d 393 (1960); Donovan v. Carls Drug Co., 703 F.2d 650, 652 (2d Cir.1983).

In Klinghoffer, supra, the Second Circuit made clear that while the agreed rate of pay could be disregarded for purposes of determining whether a section 6(a) minimum wage violation had occurred, for purposes of section 7(a) overtime hours must be compensated at one and one-half times the regular, agreed rate rather than the minimum wage rate. 285 F.2d at 491. See also Walling v. Helmerich & Payne, Inc., 323 U.S. 37, 40-42, 65 S.Ct. 11, 13-14, 89 L.Ed. 29 (1944).

Defendants have produced no evidence to show that they compensated the non-union employees at one and one-half times their regular rate of pay for hours worked in excess of forty hours in any workweek. The testimony of various employees, the records of Goryn and Krawczynski, and the findings by Dondzil make clear that there was no provision for overtime compensation in any amount for any of these employees. Once again, defendants offered no evidence to rebut or challenge plaintiffs proof with respect to the hours worked by the employees, or the fact that no overtime compensation was paid. And as noted above with respect to regular wages, supra at Section 11(C), any intent by defendants to pay overtime compensation at some future date does not excuse present violations of the Act. See, e.g., Klinghoffer, supra, 285 F.2d at 491; A.W. Crossley, supra, 365 F.Supp. at 1134. Therefore, the Court concludes that defendants violated sections 7(a) and 15(a)(2), and are liable to the employees for overtime compensation in the amounts set forth in P.Ex. 38.

E. Willfulness of the Sections 6 and 7 Violations

Pursuant to section 6(a) of the Portal-to-Portal Act of 1947, 29 U.S.C. § 255(a), plaintiff’s claims pursuant to sections 6 and 7 of the FLSA are barred by the statute of limitations unless defendants’ FLSA violations were “willful.” A willful violation occurs where either (1) an employer knows that his business is subject to the FLSA, and the employer’s practices do not conform to the FLSA requirements, e.g., Carls Drug Co., supra, 703 F.2d at 652, or (2) the employer acts with reckless indifference to the Act, e.g., Klinghoffer, supra, 285 F.2d at 492. There is no requirement that an employer be aware that it has violated a specific provision of the FLSA, Carls Drug, supra, 703 F.2d at 652. In fact, “complete ignorance” on the part of an employer as to the fact that its practices violate the Act is no defense. Id.; Brennan v. Heard, 491 F.2d 1, 3 (5th Cir. 1974). All that is required is that the employer knew or had reason to know that it was or might have been subject to the FLSA. E.g., Marshall v. Erin Food Services, Inc., 672 F.2d 229, 231 (1st Cir.1982); Coleman v. Jiffy June Farms, Inc., 458 F.2d 1139, 1142 (5th Cir.1971), cert. denied, 409 U.S. 948, 93 S.Ct. 292, 34 L.Ed.2d 219 (1972); Sam Dell’s Dodge, supra, 451 F.Supp. at 305. There is no “good faith” defense to section 255(a) violations. E.g., Carls Drug, supra, 703 F.2d at 652-53.

It is clear that defendants knew or had reason to know that Kaszycki & Sons was or might be subject to the FLSA. The Court has already found that defendant Kaszycki was or should have been aware of the FLSA requirements involved herein. This is especially apparent since defendants paid the union employees regular and overtime wages in compliance with the Act. The Court has also concluded that the practices of defendants were in violation of the FLSA. As in Klinghoffer, supra, 285 F.2d at 492, defendant Kaszycki knew wages were not being paid, and any willfulness on his part may be imputed to the corporate defendant. Therefore, the Court finds that defendants’ violations were willful within the meaning of section 6(a) of the Portal-to-Portal Act.

Defendants argue that the evidence demonstrates that any violation of the FLSA was not willful on their part because control over any funds received by defendants in connection with the demolition job was taken away by Trump. However, as noted above in Section I, the Court finds that the evidence does not support the conclusion that defendants had no control over payment of wages to these employees. At most it suggests that defendants did not receive sufficient money under the contract to meet the payroll. This does not take control away from defendants, nor does it absolve defendants of their obligation to satisfy the requirements of the FLSA. Defendants have cited no authority, and the Court has found none, that says an employer is relieved of the mandates of the FLSA simply because that employer has insufficient funds to meet those requirements. Defendants also argue that the violations were not willful because there was “no embezzlement of funds or other wrong-doing” by defendants. See Letter Memorandum of George F. Aney at 2 (March 13, 1984). However,. wrongdoing of that nature is not required for a finding of willfulness.

Therefore, because the defendants willfully violated the minimum wage and overtime compensation provisions of the FLSA, the action is not barred by the statute of limitations.

F. Liquidated Damages

Section 16(b) of the FLSA, 29 U.S.C. § 216(b), provides that any employer who violates either section 6 or 7 of the Act shall be liable to the affected employee in the amount of unpaid compensation, “and in an additional equal amount as liquidated damages.” Id. (emphasis added). Pursuant to section 11 of the Portal-to-Portal Act, 29 U.S.C. § 260, if the employer proves to the satisfaction of the Court that (1) the acts or omissions giving rise to minimum wage or overtime compensation violations were in good faith, and (2) that the employer had reasonable grounds for believing that the acts or omissions were not in violation of the FLSA, the Court may, in its discretion, decide not to award any liquidated damages, or to reduce the amount of liquidated damages. Id.; see, e.g., Marshall v. Brunner, 668 F.2d 748, 753 (3d Cir.1982); Addison v. Huron Stevedoring Corp., 96 F.Supp. 142, 166-68 (S.D. N.Y.1950), modified on other grounds, 204 F.2d 88 (2d Cir.), cert. denied, 346 U.S. 877, 74 S.Ct. 120, 98 L.Ed. 384 (1953); Leisten, supra, 37 Lab.Cas. at 66,490. The employer bears the burden of persuading the Court that both good faith and a reasonable belief exist. See, e.g., Brunner, supra, 668 F.2d at 753-54; Reeves v. International Telephone and Telegraph Corp., 616 F.2d 1342, 1352-53 (5th Cir.1980), cert. denied, 449 U.S. 1077, 101 S.Ct. 857, 66 L.Ed.2d 800 (1981); Donovan v. Brandst Realty Corp., 82 Civ. 7651 (WCC), slip op. at 2 (S.D.N.Y. July 5, 1983).

In these circumstances, “good faith” pursuant to section 11 of the Portal-to-Portal Act requires at least an honest intention to ascertain what the Fair Labor Standards Act requires and to comply with it. Compare Addison, supra, 204 F.2d at 93 (dictum) with EEOC v. Home Insurance Co., 672 F.2d 252, 266 (2d Cir.1982). See also Brunner, supra, 668 F.2d at 753; Beebe v. United States, 640 F.2d 1283, 1295 (Ct.C1.1981). “Reasonable belief” is an objective standard. E.g., Addison supra, 204 F.2d at 93; Brunner, supra, 668 F.2d at 753; Beebe supra, 640 F.2d at 1295. As with willfulness, ignorance is no defense to a claim for liquidated damages. See, e.g., Brunner, supra, 668 F.2d at 753; cf. EEOC, supra, 672 F.2d at 266.

Because the Court has found that defendants knew or reasonably should have known of the FLSA requirements, and failed to comply with them, it is clear they have not demonstrated that they acted in good faith and with reasonable belief that they were not violating the Act. Even assuming they were not aware of the FLSA requirements, defendants introduced no evidence that they made any good faith effort to ascertain what the FLSA requires or to comply with it. Under these circumstances, liquidated damages will be awarded.

Defendants argue that liquidated damages cannot be awarded because these violations were not “willful.” This requirement does not appear in section 216, section 260, or the caselaw under either statute. The Second Circuit has made clear that the willfulness requirement of 29 U.S.C. § 255(a), which goes to the issue of the statute of limitations, is different from the good faith requirement of 29 U.S.C. § 260, which goes to liquidated damages. See Carls Drug, supra, 703 F.2d at 652-53. Furthermore, even if willfulness were a prerequisite to awarding liquidated damages, that requirement would be satisfied as the Court has concluded that the violations were willful. See Section 11(E), supra.

G. Injunction Against Future Violations

Pursuant to section 17 of the FLSA, 29 U.S.C. § 217, because the Court has held that defendants violated 29 U.S.C. § 215(a)(2), plaintiff is entitled to an injunction enjoining defendants from any future violation of the minimum wage, overtime compensation, and recordkeeping requiremente of the FLSA, or any provision of 29 U.S.C. § 215. See, e.g., Sabine Irrigation, supra, 695 F.2d at 196; Sovereign Security, Ltd., supra, 94 Lab.Cas. at 44,734; Marshall v. Burger King Corp., 504 F.Supp. 404, 411-12 (E.D.N.Y.1980), amended, 509 F.Supp. 353 (E.D.N.Y.1981), aff'd, 675 F.2d 516 (2d Cir.1982); Sam Dell’s Dodge, supra, 451 F.Supp. at 305-06. This injunction may validly issue even if present violation of the FLSA has ceased. See, e.g., Walling, supra, 323 U.S. at 43; Sovereign Security, Ltd., supra, 94 Lab.Cas. at 44,734; Marshall v. Coach House Restaurant, Inc., 457 F.Supp. 946, 953 (S.D.N.Y.1978); Sam Dell’s Dodge, supra, 451 F.Supp. at 305-06.

Defendants have cited no reason why the Court should not issue the injunction. They have made no representation to this Court that they will not violate the Act in the future. The evidence demonstrates that violations similar to those in the instant action also occurred with respect to other jobs defendant Kaszycki was involved in, involving some of these same employees. Moreover, a consent judgment entered into by defendant Kaszycki in another action, see P.Ex. 41, and which refers to another company owned by Kaszycki, does not preclude this Court from enjoining defendants as a result of the instant violations, and with respect to future violations not covered by that consent judgment.

CONCLUSION

The Court finds in favor of plaintiff on all claims and orders as follows: (1) defendants are hereby ordered to pay to plaintiff, for the benefit of the employees listed in Appendix A, $254,523.59 in unpaid wages and overtime compensation, and $254,-523.59 as liquidated damages; and (2) defendants are hereby enjoined from future violations of 29 U.S.C. §§ 206(a), 207(a), 211(c), and 215(a).

APPENDIX A

EMPLOYEE NAME AMOUNT DUE

Albo, Mieczyslaw $ 1,380.00

Bak, Szczepan 172.00

Baldachowski, Waldyslaw 863.00

Bar, Tadeusz 5,950.00

Biedrzycki, Zbigniew 2,018.40

Bieniasz, Stan 1,140.00

Bodzak, Zbigniew 501.00

Boksz, Piotr 1,960.25

Bogdan, Janusz 2,104.30

Bryla, Ryzard 2,522.00

Borusiewicz, Piotr 99.00

Charemski, Jan 820.00

Charytoniuk, Waclaw 71.30

Chlebieki, Adam 438.00

Chodkiewicz, Zygmunt 833.95

Choinski, Jozef 106.95

Chowski, Waclaw 134.00

Chojkowski, Jan 3,665.00

Cholewicki, Aleksander 1,296.00

Cholewinski, Marian 1,652.00

Chrzanowski, Lech 540.00

Ciborowski, Henryk 161.20

Cybula, Witold 586.00

Cymbalak, Micezyslaw 1,205.00

Czajka, Romualo 185.00

Czajka, Tadeusz 799.00

Czarnowski, Josef 71.30

Czarnowski, Kazimierz 244.00

Dabrowski, Josef 1,511.00

Dabrowski, Stanislaw 840.00

Dawidowski, Wojciech 1,220.00

Debnicki, Stan 46.00

Domzalski, Miecz 285.20

Drabik, Witold 3,409.00

Druzkawiecki, Marian 2,983.00

Duba, Edward 136.00

Dziewa, Mierczslaw 536.00

Gabrysiak, Pawel 927.60

Garbowski, Aleks 35.65

Gasowski, Zenon 249.55

Gemzik, Eugeniusz 35.65

Golas, Henryk 341.00

Golda, Stan 830.00

Gorlewski, Piotr 648.00

Gorski, Bolelaw 733.00

Gorski, Tadeusz 178.25

Goryn, Zbigniew 10,815.00

Gorzelski, Zenon 35.65

Grabowiecki, Miecz 356.00

Gradzki, Edward 796.00

Grodski, Henry K. 106.95

Grodzki, Jerzy 886.70

Gutka, Zbigniew 1,211.95

EMPLOYEE NAME AMOUNT DUE

Hardek, Andrzei 106.95

Jakubowski, Marek 1,061.00

Jasionowicz, Tadeusz 560.60

Jung, Jerzy 699.60

Jurek, Wlasylaw 944.00

Kaczynski, Franciszek 342.50

Kalinowski, Franciszek 3.354.00

Kalinowski, Janusz 742.70

Kamieniowski, Witold 106.95

Kaminski, Jan 1.323.00

Karas, Franciszek 3.643.25

Karas, Wladyslaw 4.627.00

Kazanecki, Henry 35.65

Kielar, Eugene 678.00

Klaczynski, Czeskw 516.00

Klewinowski, Josef 878.00

Kmita, Eugeniusz 35.65

Kochanowski, Tadeusz 640.00

Kolakowski, Henry K. 278.00

Kolakowski, Marion 4,329.95

Konopka, Tadeusz 1.027.00

Konopka, Wlad 168.00

Kordulski, Czeslaw 441.00

Kordulski, Waclaw 3.226.00

Kotowski, Stanislaw 1.075.00

Kowalewski, Antoni 1.259.25

Kowalewski, Stan 187.00

Kozak, Wotciech 2,506.40

Kozicki, Kazimierz 232.50

Kozlowski, Maciej 1.354.00

Kozlowski, Mieczyslaw 660.00

Kozlowski, Zbigniew 571.00

Krasinski, Jozef 3.801.00

Krawczynski, Bogdan 1.032.00

Kropiewnick, Franciszak 464.00

Kropiewnicki, Mieczyslaw 538.00

Krystel, Jan 1.519.00

Kulczyk, Boleslaw a/k/a Mikina, Mieczyslaw 1.313.25

Kulesza, Jan 327.00

Kutylowski, Tadeuz 35.65

Kuznicki, Jan 196.00

Lapinski, Eugeniusz 512.00

Lapinski, Miecz 216.00

.Lapinski, Walerian 249.55

Laszczkowski, Eugeniusz 1.105.00

Ledwold, Stanislaw 532.00

Lesniewski, Stanislaw 897.00

Lesniewski, Tadeusz 806.40

Lesniewski, Wieslaw 1.716.00

Lemanski, Alfred 211.55

Lipinski, Albin 1.668.00

Lisowski, Andrzet 498.95

Lojek, Aloizy 3,892.00

EMPLOYEE NAME AMOUNT DUE

Lokaj, Jadeusz a/k/a/ Marek, Bronislaw $ 3,530.00

Luba, Zozislaw 3,166.80

Lukaszczyk, Stanislaw 6,387.70

Majewski, Marian 379.00

Makowski, Herzyk 566.00

Malek, Stanislaw 786.00

Mariowski, Jan 71.30

Maksimek, Josef 178.25

Mikolajdzyk, Zozislaw 889.40

Milewski, Josef 71.30

Miszczak, Jacey 1,610.00

Mlynarski, Boleslaw 3,004.78

Mocarski, Henry 86.00

Mocarski, Waclaw 1,161.00

Moczyolowski, Josef 739.00

Modzelewski, Jan 997.00

Moroz, Francizek 1.405.00

Moscicki, Witold 1.863.00

Mrowiec, Adam 1,387.25

Mucha, Jozef 1,787.50

Nalera, Julian 6.578.00

Nikonowicz, Zozislaw 849.00

Nowaczek, Franciszek 207.00

Nowak, Wlodzimierz 1.248.00

Okurowski, Janusz 397.00

Orlowski, Wladyslaw 71.30

Ostrowski, Josef 168.00

Ostrowski, Tadeus 3.537.00

Parkowski, Wladyslaw 106.95

Pasternak, Jan 810.00

Pasternak, Marek 4.700.00

Patkowski, Marek 1.249.00

Patia, Marian 258.00

Pawalec, Jan 950.90

Perkowski, M. 1.085.00

Piotrowicz, Wieslaw 156.00

Piotrowski, Mieczyslaw 5,091.75

Pedlowski, Stanislaw 801.00

Pekal, Boleslaw 240.00

Pielack, Pawel 494.00

Pietka, Waldemar 957.00

Pilis, Edward 1.040.00

Piszczatowski, Josef 236.00

Pogorzelski, Piotr 71.30

Ponichtera, Waclaw 4.126.00

Poplowski, Jan 219.00

Ratner, Josef 242.00

Rogowski, Edward 238.00

Rosckowski, S. 897.00

Roskowski, Tadeusz 4.026.00

Roszkowski, Tadeusz 244.00

Rybakowicz, Waldemar 955.00

Ryczko, Stanislaw 94.00

Rzeczkowski, Tadeusz 1.678.00

EMPLOYEE NAME AMOUNT DUE

Rzepczynski, Josef $ 288.00

Sadowski, Wieslaw 1.488.00

Salach, Maciei 353.40

Saraciewski, Stefan 704.00

Skorupski, Roman 341.00

Skrodzki, Eugeniusz 1.052.00

Skubisz, Witold 2.527.34

Suwowski, Wieslaw 35.65

Socha, Jozef 1,483.30

Sokolowski, Waclaw 4.015.00

Sosler, Jozef 1,612.50

Sosnowski, Kasimier 4,079.69

Stykala, Leszek 1.364.00

Styputkowski, Tad 106.95

Suchocki, Jan 35.65

Sudol, Edward 546.00

Sulewski, Adam 3.849.00

Supinski, Tadeusz 70.00

Swidzinski, Wladyslaw 851.00

Swies, Marion 726.00

Swieezkowski, Jan 1.270.00

Swieczkowski, Tadeusz 291.00

Szatrat, Bronislaw 979.00

Szczepanek, Joachim 1,768.75

Szczutko, Jansusz 6.237.00

Szerszen, Marek 798.00

Szlenk, Zozislaw 275.00

Szulborski, Josef 206.00

Szymanski, Zosilaw 116.25

Tabor, Jan 1.682.00

Targowski, Tadeusz 48.05

Tarnowski, Henryk 660.00

Uminski, Waclaw 765.00

Wattas, Ryszard 314.00

Wasilewski, Jaroslaw 738.00

Welc, Wieslaw 8.070.00

Wesolowski, Wdwik 938.00

Wierzchowski, Waldemar 18.60

Wisniewski, Zdzislaw 858.00

Wojoyla, Wladyslaw 313.20

Wottak, Stanislaw 1.743.00

Woloszyn, Stanislaw 874.00

Wolski, Josef 35.65

Wroblewski, Kazimer 508.00

Wrochniak, Stanislaw 219.65

Zorodowski, Henryk 852.00

Zorotkowski, Zbigniew 3.412.35

Zolkowski, Albin 453.00

Zygmunt, Zbigniew 720.00

TOTAL AMOUNT DUE $254,523.59

      . While plaintiff submitted the Pre-Trial Order, rather than submitting a Joint Pre-Trial Order, counsel for each defendant signed the Pre-Trial Order at the end thereof as "APPROVED AS TO FORM AND SUBSTANCE.” See Plaintiffs PreTrial Order. Therefore, those facts listed in paragraph V as “Undisputed Facts" are treated as such by the Court.

      . According to the Pre-Trial Order ¶ V, Kaszycki & Sons was organized pursuant to the laws of New York in May, 1975 under the name W-K Maintenance Corporation. On or about February 13, 1980, the name of the corporation was duly changed to Kaszycki & Sons Contractors, Inc.

      . Virtually every employee interviewed testified that he was hired by one of these men. See, P.Exs. 1-6, 8-14, 16-24, 26, 28-29, 40. Some of these employees were originally hired to do work for Kaszycki on other jobs.

      . While defendant Kaszycki testified that only the union employees did the demolition work, and that the non-union employees were not involved in this, see P.Ex. 31 at 37-38, 44, the Court finds as a matter of fact that the non-union employees were engaged in demolition work. Kaszycki’s testimony is inconsistent on this point. He later testified that the union workers started on the job "[a]fter the demolition work,” see id. at 38. The non-union employees also testified that they were involved in demolition work. See P.Exs. 1-3, 5-7, 9-18, 21, 22, 25, 27, 28, 40. One employee testified that the union workers did the final demolition of the outside walls of the building. See P.Ex. 21 at 34. Kaszycki himself stated that the union employees were hired to take the building down, see P.Ex. 31 at 35, 37, and the non-union employees were working inside the building, see id. at 45.

      . The employees also testified to working these or similar hours. See P.Exs. 1-5, 7-13, 15-25, 28, 40.

      . The employees described the records they kept, and some produced those records at their interview or deposition. See P.Exs. 1-3, 6, 8-9, 11, 13-14, 17-18, 20, 23, 26, 28-29, 40.

      . See, e.g., P.Ex. 1 at 26; P.Ex. 8 at 43; P.Ex. 9 at 34; P.Ex. 11 at 32, 41; P.Ex. 12 at 12; P.Ex. 13 at 51; P.Ex. 17 at 25; P.Ex. 19 at 20; P.Ex. 21 at 42; P.Ex. 28 at 47, 50.

      . For the employees' testimony on this point, see, e.g., P.Ex. 3 at 10; P.Ex. 6 at 14, 16; P.Ex. 7 at 44-45, 55-56; P.Ex. 8 at 22; P.Ex. 13 at 30, 37; P.Ex. 17 at 20; P.Ex. 19 at 12, 26; P.Ex. 20 at 15, 24; P.Ex. 21 at 11; P.Ex. 25 at 14; P.Ex. 28 at 13; P.Ex. 40 at B-5, B-ll, B-18, B-25, B-40, B-41, B-43.

      . See, e.g„ Tr. at 11-12, 33-35, 63, 71-72. Almost all the employees who testified discussed whether and how they were paid. See P.Ex. 1 at 10-12; P.Ex. 2 at 27-28; P.Ex. 3 at 35-36, 48, 55; P.Ex. 4 at 12-13; P.Ex. 5 at 12, 13; P.Ex. 6 at 14-15, 20-21; P.Ex. 7 at 29-30; P.Ex. 8 at 15, 41; P.Ex. 9 at 11-14; P.Ex. 10 at 19; P.Ex. 11 at 18-22; P.Ex. 12 at 15-17, 27-28; P.Ex. 14 at 15, 16; P.Ex. 15 at 20; P.Ex. 16 at 14; P.Ex. 18 at 13-15; P.Ex. 19 at 16-19: P.Ex. 20 at 20. 26-28: P.Ex. 21 at 18-21; P.Ex. 22 at 12; P.Ex. 23 at 26-28; P.Ex. 24 at 22-23; P.Ex. 25 at 14-15; P.Ex. 26 at 24; P.Ex. 27 at 14-19; P.Ex. 28 at 20-22; P.Ex. 40 at B-5, B-9, B-16, B-18, B-20, B-22, B-25, B-26, B-27, B-33, B-38, B-46, B-47, B-48.

      . Most employees testified that Goryn and Krawczynski paid them, while a few stated that they received money directly from Kaszycki. Many employees were paid with checks for which there were no funds. See, e.g., Tr. at 45; P.Exs. 1-6, 8-12, 14-16, 18-25, 27-29, 40.

      . Many employees testified specifically about conversations with Kaszycki about the wages they were owed. See, e.g., P.Exs. 1, 3, 4, 6, 8, 10-14. 17-19. 21. 22. 24-29. 40.

      . 29 U.S.C. § 255(a) provides, in pertinent part:
      Any action ..., to enforce any cause of action for unpaid minimum wages, unpaid overtime compensation, or liquidated damages, under the Fair Labor Standards Act ...—
      ■ (a) ... may be commenced within two years after the cause of action accrued, and every such action shall be forever barred unless commenced within two years after the cause of action accrued, except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.
      The actions complained of herein occurred from January to June of 1980. The complaint was filed on May 20, 1982. Therefore, unless the Court finds the FLSA violations to have been willful, any violation occurring before May 20, 1980 would be barred by the statute of limitations.

      . While plaintiff originally asked for pre-judgment interest on the unpaid wages and overtime compensation awarded, this request was withdrawn in plaintiffs post-trial papers, should the Court award liquidated damages. Therefore, the Court does not address the issue of interest.


source: Caselaw Access Project

author: NICKERSON, District Judge.

license: Public Domain

text:
    UNITED STATES of America, v. Martin LIGHT, Demetrios Christofidis, a/k/a “Jimmy Christofidis”, Robert Gordon Marshall, a/k/a “Robert K.C. Adrian” a/k/a “Karnig Craig Adrian”, Habeb Rahme, a/k/a “Sammy”, John Doe, a/k/a “Hana”, David Daoud, Aristod Sanas, a/k/a “Ari San”, Defendants.
    No. 84 CR 454.
    United States District Court, E.D. New York.
    Dec. 21, 1984.

      Raymond J. Dearie, U.S. Atty., Brooklyn, N.Y. (Reena Raggi, Asst. U.S. Atty., Brooklyn, N.Y., of counsel), for the U.S.
    Prank A. Lopez, William Lupo, Ira D. London, Brooklyn, N.Y., for defendant Martin Light.
   MEMORANDUM AND ORDER

NICKERSON, District Judge.

Defendant Martin Light, a lawyer who practiced criminal law in this and other courts, was indicted for violations of Title 21 of the United States Code. Count One charged a conspiracy to possess with intent to distribute a substantial quantity of heroin. 21 U.S.C. § 846. Count Two charged the importation of a substantial quantity of heroin. 21 U.S.C. §§ 952(a) and 960(a)(1). Count Three charged possession of heroin with intent to distribute it. 21 U.S.C. § 841(a)(1). On Friday, December 14,1984, the jury found defendant not guilty on the first two counts and guilty on the third.

After verdict the court ordered defendant detained pursuant to 18 U.S.C. § 3143(a), the provisions of which became effective October 12, 1984, without prejudice to a further application for release pending sentence. That section provides in pertinent part:

Release or Detention Pending Sentence. — The judicial officer shall order that a person who has been found guilty of an offense and who is waiting imposition or execution of sentence, be detained, unless the judicial officer finds by clear and convincing evidence that the person is not likely to flee or pose a danger to the safety of any other person or the community if released pursuant to section 3142(b) or (c).

On Monday, December 17, 1984 counsel for defendant made an application for release, and the hearing was continued to December 19, 1984. At that hearing defendant offered evidence as to his bank accounts and securities. He testified to his concern for making arrangements for his family and for the substitution of counsel for clients he had been representing. He assured the court that he would not flee or engage in any narcotics or other illegal activity. On cross-examination he invoked the Fifth Amendment when asked as to the extent of his previous dealings in narcotics and about the truth of his testimony at the trial denying that he had possession of the heroin that the Drug Enforcement Administration agents testified was in his pocket at the time of his arrest. He also pleaded the Fifth Amendment in response to a question as to whether he had told his law partner that he did have possession of the heroin.

This court must determine whether it has been proven by “clear and convincing evidence” that defendant is “not likely to flee or pose a danger to the safety of any other person or the community” if released under conditions.

The Senate Report recommending passage of the legislation indicates that “the risk that a defendant will continue to engage in drug trafficking constitutes a danger to the ‘safety of any other person or the community.’ ” Sen.Rep. No. 225, 98th Cong., 1st Sess. 13 (1983). That report also makes clear that the presumption under previous law in favor of bail even after conviction has been eliminated. Id. at 26. The report states:

Once guilt of a crime has been established in a court of law, there is no reason to favor release pending imposition of sentence or appeal. The conviction, in which the defendant’s guilt of a crime has been established beyond a reasonable doubt, is presumably correct in law.

Id.

Here defendant has not yet been “convicted” since sentence has not yet been imposed. But in this court’s opinion guilt “has been established” beyond any conceivable doubt. Defendant admitted being present at an apartment while another defendant made up samples of heroin, and, according to the agents’ testimony, defendant was arrested on leaving the apartment with those samples in his pocket. Defendant did not contend at trial that he possessed the heroin for his own use or that he intended to throw it away. His position was in effect that the agents had lied. This court, and evidently the jury, regarded his testimony as deliberate perjury.

Defendant’s guilt would not be “established” if there were a significant possibility that the court would set aside the verdict. There is none. Defendant did not object to the charge, and no evidentiary or other ruling at the trial raises, in this court's opinion, a substantial question of law, certainly not one likely to result in a reversal or a new trial. Cf. 18 U.S.C. § 3143(b).

Defendant had the burden of establishing by clear and convincing evidence not only that he was not likely to flee but also that he would not engage in further narcotics trafficking. Although the jury found the defendant not guilty on two counts, the court is satisfied from the evidence that defendant was involved for some two years in sales of heroin. The government informed the court that there is also evidence that defendant was engaged in sales of cocaine. The fact that defendant invoked the Fifth Amendment as to questions concerning his past dealings in narcotics prevented the development of facts to show the acquaintances and opportunities available to him to engage in such ■ activities to provide for the future needs of himself and his family when he is precluded from practicing law. Presumably the defendant is aware of the difficulty the government has in detecting those who traffic in drugs.

This is the third time that defendant, a member of the bar, has been indicted. Twice he was acquitted of serious criminal charges, once in this court and once in the state court. Yet despite his oath to uphold the law and to act as an officer of the court he still saw fit to engage in narcotics transactions. That bespeaks an unusual boldness and a total lack of respect for the administration of justice. His deliberate perjury at the trial of this case makes this court hesitate to rely on his assurances that he will not flee and will not engage in illegal transactions.

In any event, in the light of defendant's penury, his failure to testify to the extent of his narcotics dealings, and his past activities, defendant’s protestations that he will remain for sentence and refrain from illegal activities are not sufficient to constitute the clear and convincing evidence the statute contemplates. The court is not convinced that defendant would adhere to his assurances, even if they are now sincere, once he is freed from custody, two days of which he testified he has found so unpleasant and burdensome.

No doubt it is anguishing for defendant to be removed from his family pending sentence. But the statute requires the court to weigh against his feelings and those of his family the risk of further anguish to those who may become afflicted by the curse of heroin.

The application for release on bail is denied. So ordered.


author: TAURO, District Judge.

text:
    Honour BROWN, Individually and as Personal Representative of Gary Brown and as Administratrix of the estate of Gary Brown, et al., Plaintiffs, v. UNITED STATES of America, Defendant.
    Civ. A. No. 81-168-T.
    United States District Court, D. Massachusetts.
    Dec. 21, 1984.

      Michael B. Latti, William J. Griset, Jr., Latti Associates, Boston, Mass., for plaintiffs.
    David Hutchinson, Trial Atty., Torts Branch, Civil Div., Washington, D.C., for defendant.
   OPINION

TAURO, District Judge.

On November 21, 1980, the fishing vessels SEA FEVER and FAIRWIND left the port of Hyannis, Massachusetts for the fishing grounds near Georges Bank. The next day, several crew members were lost during a vicious storm that hit Georges Bank. In this action, plaintiffs contend that the National Oceanic and Atmospheric Administration (“NOAA”) negligently failed to maintain a weather observation buoy on Georges Bank whose data was critical to accurate forecasts and, as a result, deprived the vessels of essential navigational information that would have allowed them to escape the tragic consequences of the crippling storm.

In May 1984, a seven day bench trial was held, limited to the issue of liability. After the receipt of post-trial briefs, the matter was taken under advisement on October 26, 1984.

I

THE STORM

Shortly before noon on Friday, November 21, 1980, the lobster-fishing vessels FAIRWIND and SEA FEVER left Hyannis, Massachusetts and headed for their lobster traps located on the southeast slope of the Atlantic Ocean’s Georges Bank. The FAIRWIND was a 52 foot, steel hull, diesel powered vessel built in 1973. Captain William Garnos was the ship’s master. George Berry, Robert Thayer, and Ernest Hazard were crewmembers. The SEA FEVER, built in 1972, was 4672 foot, wood hull, and diesel powered. Captain Peter Brown was the ship’s master. Brad Bowen, Richard Rowell, and Gary Brown were crewmembers. Both vessels were equipped with sophisticated nautical equipment, including VHF radios, radar, Loran position finders, depth sounders and single sideband radios. This equipment, coupled with information provided by the National Weather Service (NWS), made it possible for vessels their size to fish 100 miles off shore in that portion of the Continental shelf known as Georges Bank.

Captain Brown testified that it is industry custom for fishermen to use the VHF and sideband radios to monitor the forecasts of the NWS as well as the Notices to Mariners which provide navigational information and special weather warnings. Within fifty miles of shore, fishermen monitor the continuously broadcast VHF forecast. Beyond that range, they monitor the forecasts issued every six hours on the sideband radio. Two stations broadcast the forecasts — a six megacycle band from Portsmouth, Virginia and a two megacycle band, twenty minutes later, from Boston, Massachusetts. Customarily, the fishermen listen to the 5:00 a.m., 11:00 a.m., 5:00 p.m. and 11:00 p.m. NWS broadcasts out of Portsmouth, and the 5:20 a.m., 11:20 a.m., 5:20 p.m. and 11:20 p.m. broadcasts from Boston.

Captain Brown testified that buoy data from various locations at sea was among the information he heard transmitted directly from the NWS prior to November 1980. That buoy data included buoy location, wind speed and direction, sea height, water temperature and air temperature. According to Captain Brown, buoy data was important, because it gave fishermen a picture of the weather they would encounter offshore. They regarded it as reliable, because it was gathered right on the scene.

Following custom, the masters of the FAIRWIND and SEA FEVER listened to the November 21, 1980 weather forecast issued by the NWS out of Boston at 11:20 a.m. before leaving Hyannis. The Georges Bank forecast indicated good weather for fishing.

10:39 a.m. Friday, November 21, 1980 MARINE FORECAST FOR THE OFFSHORE WATERS EAST OF NEW ENGLAND NORTH OF 40 DEGREES LATITUDE AND WEST OF 60 DEGREES LONGITUDE. COLD FRONT OVER THE GREAT LAKES WILL MOVE ACROSS NEW ENGLAND TONIGHT. A LOW OFF THE SOUTH CAROLINA COAST WILL INTENSIFY AND MOVE NORTHEAST TO A POSITION ABOUT 250 MILES SOUTH OF CAPE SABLE NOVA SCOTIA SATURDAY MORNING.
GULF OF MAINE...
SOUTHWEST WINDS 15 TO 25 KNOTS THIS AFTERNOON SHIFTING TO THE NORTHWEST TONIGHT. WESTERLY WINDS 15 TO 25 KNOTS ON SATURDAY. SEAS BUILDING TO 4 TO 8 FEET THIS AFTERNOON CONTINUING TONIGHT. GEORGES BANK WEST TO LONGITUDE 72. SOUTHEASTERLY WINDS 15 TO 25 KNOTS THIS AFTERNOON. SHIFTING TO THE NORTHWEST 20 TO 30 KNOTS TONIGHT. WESTERLY WINDS 10 TO 20 KNOTS SATURDAY. SHOWERS THIS EVENING AND TONIGHT WITH VISIBILITY LOCALLY UNDER 1 MILE. SEAS BUILDING TO 5 TO 10 FEET BY TONIGHT.
SOUTH OF NOVA SCOTIA...
A MARINE WARNING MAY BE NEEDED FOR TONIGHT AND SATURDAY...
SOUTHWESTERLY WINDS 15 TO 25 KNOTS THIS AFTERNOON. WINDS SHIFTING TO THE NORTH AT 25 TO 35 KNOTS TONIGHT POSSIBLY HIGHER SATURDAY. SHOWERS OR FLURRIES TONIGHT. OCCASIONAL SNOW NORTH AND RAIN SOUTH SATURDAY WITH VISIBILITY LOCALLY UNDER 1 MILE. SEAS 3 TO 6 FEET TODAY BUILDING TO 6 TO 12 FEET TONIGHT.

Relying on this encouraging forecast, the vessels left port and headed towards the Great Round Shoal Channel which led to open sea. They arrived at the Great Round Shoal buoy at about 5:00 p.m. on November 21st. There, Captain Brown heard the following forecast:

MARINE FORECAST FOR THE OFFSHORE WATERS EAST OF NEW ENGLAND NORTH OF 40 DEGREES LATITUDE AND WEST OF 60 DEGREES LONGITUDE. LOW CENTER ABOUT 125 MILES EAST OF HATTERAS NORTH CAROLINA EARLY THIS AFTERNOON. THE LOW WILL MOVE NORTH-EASTWARD AT ABOUT 30 KNOTS AND INTENSIFY AS IT PASSES ACROSS THE WATERS SOUTH OF NOVA SCOTIA SATURDAY MORNING. A RIDGE OF HIGH PRESSURE MOVING EASTWARD ACROSS NEW ENGLAND PASSING OFF THE COAST SATURDAY EVENING.
GEORGES BANK WEST TO LONGITUDE 72. WINDS SOUTHEASTERLY 10 TO 20 KNOTS SHIFTING TO THE NORTHWEST 20 TO 30 KNOTS OVERNIGHT. NORTHWESTERLY WINDS 15 TO 25 KNOTS SATURDAY SHIFTING TO THE SOUTHWEST SATURDAY NIGHT. RAIN AND FOG LOWERING VISIBILITY TO LESS THAN 1 MILE TONIGHT. SEAS 3 TO 6 FEET TONIGHT AND 5 TO 10 FEET SATURDAY.

After receiving this fair weather forecast, the vessels proceeded to Georges Bank. When they arrived there at approximately 11:00 p.m., the weather began to change for the worse, suddenly and without warning. But, the 10:39 p.m. forecast continued to predict good fishing weather.

10:39 p.m. Friday, November 21, 1980 GEORGES BANK WEST TO LONGITUDE 72. WINDS SOUTHEASTERLY 20 TO 30 KNOTS AND GUSTY SHIFTING TO THE NORTHWEST OVERNIGHT. NORTHWESTERLY WINDS 15 TO 25 KNOTS SATURDAY SHIFTING TO THE SOUTHWEST SATURDAY NIGHT. RAIN AND FOG LOWERING VISIBILITY TO LESS THAN 1 MILE TONIGHT IMPROVING TO OVER 5 MILES SATURDAY. SEAS 5 TO 10 FEET TONIGHT AND SATURDAY.

The first forecast of inclement weather came the next morning, November 22, 1980, at 4:39 a.m. That forecast was as follows:

4:39 a.m. Saturday, November 22, 1980 MARINE FORECAST FOR THE OFFSHORE WATERS EAST OF NEW ENGLAND NORTH OF 40 DEGREES LATITUDE AND WEST OF 60 DEGREES LONGITUDE.
INTENSIFYING GALE CENTER ABOUT 200 MILES SOUTHEAST OF CAPE COD WILL MOVE NORTHEAST PASSING JUST SOUTH OF SABLE ISLAND THIS EVENING AND BEYOND THE OFFSHORE WATERS LATER TONIGHT. HIGH PRESSURE WILL BUILD EASTWARD ACROSS THE WATERS SUNDAY.
GULF OF MAINE...
GALE WARNING IN EFFECT FOR EAST PORTION...
NORTHWEST WINDS 15 TO 25 KNOTS WEST PORTION AND EAST 25 TO 40 KNOTS EAST PORTION SHIFTING TO THE NORTHWEST 30 TO 40 KNOTS THIS MORNING. NORTHWEST WINDS 20 TO 30 KNOTS THIS AFTERNOON EXCEPT UP TO 40 KNOTS EAST PORTION. DIMINISHING WINDS TONIGHT BECOMING SOUTHWEST AROUND 15 KNOTS SUNDAY. RAIN AND FOG WITH VISIBILITIES LOCALLY NEAR ZERO EAST PORTION ENDING LATE TODAY. SEAS 6 TO 12 FEET TODAY SUBSIDING SLOWLY TONIGHT.

After hearing that report, an on duty crewman awakened Captain Brown. Captain Brown’s on-site observations were that the winds were already at gale force with heavy rain and seas reaching to 25 feet. Captain Brown decided that any attempt to turn back would be futile, because the intense gale wind was coming from the direction in which the vessel would have headed home. Instead, the vessel headed into the wind, trying to maintain its position and stability.

Later that morning, at 11:20 a.m., a forecast originating from the Boston NWS office, called for winds of 40 to 50 knots and seas 15 to 25 feet.

10:39 a.m. Saturday, November 22, 1980 MARINE FORECAST FOR THE OFFSHORE WATERS EAST OF NEW ENGLAND NORTH OF 40 DEGREES LATITUDE AND WEST OF 60 DEGREES LONGITUDE.
A STORM CENTER ABOUT 200 MILES SOUTH OF HALIFAX NOVA SCOTIA EARLY THIS MORNING WILL MOVE EASTWARD AT 25 KNOTS TO A POSITION ABOUT 150 MILES SOUTH OF SABLE ISLAND EARLY TONIGHT. HIGH PRESSURE WILL BUILD EASTWARD ACROSS THE WATERS SUNDAY.
GULF OF MAINE...
STORM WARNING IN EFFECT AT 10 AM EST...
NORTHWEST WINDS 40 TO 50 KNOTS DIMINISHING TO 20 TO 30 KNOTS OVERNIGHT AND TO WESTERLY AT 15 TO 25 KNOTS SUNDAY. RAIN AND FOG WITH VISIBILITIES MAINLY 1 TO 3 MILES BUT LOCALLY NEAR ZERO — GRADUALLY ENDING FROM WEST TO EAST EARLY TONIGHT SEAS 15 TO 25 FEET REST OF TODAY SUBSIDING SLOWLY TONIGHT.
GEORGES BANK WEST LONGITUDE 72...
STORM WARNING IN EFFECT AT 10 AM EST...
NORTHWEST WINDS 40 TO 50 KNOTS GRADUALLY DIMINISHING TO 20 TO 30 KNOTS OVERNIGHT AND TO WESTERLY AT 20 TO 25 KNOTS SUNDAY. RAIN AND FOG WITH VISIBILITIES 1 TO 3 MILES BUT LOCALLY NEAR ZERO EAST PORTION ENDING BY LATE AFTERNOON. SEAS 15 TO 25 REST OF TODAY SUBSIDING TONIGHT.

Captain Brown’s on the spot observation at 11:00 a.m. was that the winds had already reached 70 to 80 knots and that the seas had crested to levels between 30 and 50 feet.

Meanwhile, the FAIRWIND was having comparable problems. It had turned around and was attempting to ride out the storm when it caught a wave and capsized and sank. Crewman Hazard was thrown overboard. After almost a two day struggle on a life raft, Hazard was rescued by the Coast Guard. The other three FAIR-WIND crewmen were’ lost.

The SEA FEVER suffered substantial damage, but did not sink. Tragically, however, crewman Gary Brown was hurled overboard to his death in seas that had reached sixty feet, with winds of approximately 70 knots.

II

THE DEFENDANT’S WEATHER DATA BUOY PROGRAM

The National Data Buoy Program is administered by the National Oceanic and Atmospheric Administration (NOAA), an agency of the Department of Commerce. NOAA oversees the placement and operation of buoys that are moored at various points along the United States coastline. The NOAA Data Buoy Center (NDBC) supervises the maintenance and repair performed on the buoys by contractors awarded the job after public bid. The NDBC also contracts with the Coast Guard for ship support necessary to place and service the buoys. The NDBC and the Department of Commerce compile the statistical information that serves as the basis for the buoy maintenance and repair program. For the period April 16, 1980 through March 31, 1981, the maintenance and repair program was awarded to Computer Science Corporation (CSC).

The NDBC monitors the data transmitted by the buoys. It has the responsibility for coordinating a schedule of necessary repairs with CSC and the Coast Guard. The purpose of its monitoring program is to insure prompt maintenance and repair of defective buoys so that incorrect data is not transmitted to the NWS.

Three of the data buoys in the program were located along the Northeast coast. Station 44003 was on Georges Bank. Station 44005 was in the Gulf of Maine. Station 44004, called the Ship Hotel buoy, was located south of the Georges Bank buoy. The information from these buoys was intended to be used by the NWS for offshore forecasts, scheduled daily at 4:39 a.m. and p.m. and at 10:39 a.m. and p.m.

The Ship Hotel buoy had been redeployed in November 1980. The Gulf of Maine buoy was scheduled to be redeployed in November 1980 after having been off station for about six months. It was not on station, however, during the relevant days of November 1980.

The Georges Bank buoy, on station since March 1977, ceased reporting wind speed and direction in May 1980, a condition that persisted for most of the summer. Its problems were compounded in August 1980, after it was apparently struck by a passing vessel. On station repairs were made to its hull and electronic report system on August 11, 1980, but the entire wind sensor system failed on September 6, 1980. The NDBC knew of this failure but made no further attempts to repair the buoy, nor did the NOAA explore with its contractor the possibility of whether the sensor system could be repaired. No substitute buoy was deployed. The Georges Bank buoy was permitted to remain on station even though it was essentially inoperative. As a result, the NWS suffered a critical void in its information gathering system.

When it functioned properly, the Georges Bank buoy provided forecasters with a reliable hourly electronic “snapshot” of the weather picture within the buoy’s immediate vicinity. Weather data measured by the buoy included wind speed and direction. This data is used in conjunction with computer guidance forecasts to predict weather patterns and to track the course of a storm. And so, the buoy not only provides an accurate report of current weather in its vicinity, but also provides the forecaster an hourly report of weather changes, facilitating the issuance of timely storm warnings for inclusion in a forecast or a Notice to Mariners.

Wind speed and direction are the most important factors considered by meteorologists in formulating and verifying their forecasts. That buoy data is transmitted via satellite to the National Meteorological Center in Washington, D.C. and, within 40 minutes, it is sent on to NWS in Boston.

Forecasters rely on buoy data because it is more accurate than other available surface observations, such as communications from passing ships. Forecasts that are prepared from buoy data, therefore, are particularly crucial to small vessel fishermen when they make a decision as to whether or not it is safe to venture out to sea. Indeed, one reason for the growth of the small vessel lobstering industry during the past several years has been the increased reliability of weather forecasting, thanks to the expanded buoy program, as well as the availability of affordable sophisticated electronic equipment.

The NWS knew of and encouraged small vessel fishermen’s reliance on their daily forecasts. Representatives of NWS met with fishermen to encourage daily forecast monitoring. Moreover, buoy location and information were transmitted in the forecasts, indicating an awareness by NWS that such information was of significance to fishermen and would be relied on by them. Small vessel fishermen had faith that the buoy data, and the forecasts based thereon, provided the most accurate and up-to-date “snapshot” of weather conditions at various locations where they intended to fish. Because small vessels are particularly vulnerable to storms, those fishermen regularly monitored relevant forecasts to keep abreast of changing weather en route to a selected fishing ground. Such monitoring enabled the captain to periodically reassess the safety of his venture.

The buoy reports were, at the time of this incident, a critical aspect of the NWS reporting process. In stressing the importance of adequate buoy maintenance, Mr. Winslow observed:

I cannot overemphasize the importance we place on buoy reports ... not only in the daily operational reports ... but also in our important verification program ... [which] has allowed us to improve forecasts in both the Gulf of Maine and Georges Bank area. TR 2-72.

Notwithstanding Winslow’s admonition, and the NWS’s awareness of the buoy’s importance to a Georges Bank forecast, it was permitted to remain in disrepair for two and one-half months immediately prior to this incident. During that period, the buoy’s wind information was so erratic that its transmission was blocked by the NWS. As a consequence, the NWS did not receive any Georges Bank wind information from what had been its most reliable source. Moreover, the NWS never informed the small vessel fishermen that the forecasts upon which they were relying were prepared without this crucial buoy data.

Ill

THE FORECAST

Expert testimony concerning the accuracy of the subject forecast was offered by both the plaintiffs and the defendant. William H. Haggard, a consulting meteorologist, appeared for the plaintiff. The defendant’s expert was Frederick Sanders, also a meteorologist. Although the court deemed both witnesses qualified to render opinions on a variety of relevant issues, it found the testimony of Mr. Haggard more persuasive. The court, therefore, accepts and adopts his opinion as to the scenario of relevant events and rejects those of Mr. Sanders that may be in conflict.

Mr. Haggard’s opinion was that the NWS did not accurately track the fatal November 21, 1980 storm, because it did not have the Georges Bank buoy data as to wind direction and speed. His opinion was that wind speed and direction, in addition to wave height, constitute the most significant data from a buoy. Of those three elements, he regarded wind speed and direction as the most important for the purposes of analysis and prediction. Wave development may lag four to seven hours behind wind development. Haggard regarded such surface data to be crucial in determining the track of a storm. His opinion was that if the NWS had received correct wind speed and direction data from the buoy, its forecasters would have realized that their analysis was “impossible [and] ... would have had to relocate the storm to a more proper position, which would have indicated that it was going to go across Georges Bank as it deepened.” TR 3-127.

Haggard also opined that, from 7 a.m. on November 21, 1980 up to the point that the vessels and crewmen were in distress, the center of the storm was actually 90 to 150 miles away from where the NWS had placed it. That variance became significant after 7 p.m. on November 21. His conclusion was that, from 7 a.m. on November 21, 1980 to 4 p.m. the next day, the NWS tracking of the storm was significantly incorrect.

Haggard’s opinion was that a storm warning should have been issued at 10:39 p.m. on November 21, 1980 and that, if the NWS had the wind speed and direction information from the Georges Bank buoy, a timely forecast could have been issued that would have accurately tracked both the intensity and location of the storm. The court is persuaded by Mr. Haggard’s opinions, and therefore, adopts them as findings.

IV

DISCUSSION

A. LIABILITY

This action was brought under the Suits in Admiralty Act, which provides in pertinent part:

In cases where ... if a private person or property were involved, a proceeding in admiralty could be maintained, any appropriate nonjury proceeding in person-am may be brought against the United States ____

46 U.S.C. § 742 (1982). Federal law governs maritime tort cases. See DeBardeleben v. United States, 451 F.2d 140, 147 (5th Cir.1971). As with all tort actions, plaintiffs bear the burden of showing: (1) that defendant owed them a duty of care; (2) that the duty was breached; and (3) that the breach caused plaintiffs harm. See Allen v. United States, 527 F.Supp. 476, 486 (D.Utah 1981).

1). Duty

In analyzing the threshold question of whether the NOAA owed plaintiffs a duty of care, the Second Restatement of Torts provides a useful starting point. Section 323 states:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (Second) of Torts § 323 (1965).

The legislative history leading to the creation of the NOAA demonstrates clearly that the government intended to undertake and meet the responsibility for providing a reliable weather monitoring and prediction system for the use of commercial fishermen. In hearings before the House Committee on Merchant Marine and Fisheries, numerous experts stated that one of the NOAA’s principal goals was to improve the system of weather monitoring and prediction, thereby making it possible for fishermen to safely venture even further off shore in their quest for a catch. See, e.g., A Report by the Commission on Marine Science, Engineering and Resources entitled, “Our Nation and the Sea: Hearings Before the Subcomm. on Oceanography of the House Comm, on Merchant Marine and Fisheries, 91st Cong., 1st Sess. 13-19 (1969) (testimony of Dr. Julius Stratton) (hereinafter cited as “Hearings”).

These Congressional hearings also demonstrate that projects such as the National Data Buoy Development Project were undertaken to improve the accuracy of weather forecasting activities, particularly in areas such as Georges Bank. Dr. Samuel Lawrence stated:

Most of the weather is made over the water, the west coast weather particularly. [You] ... need to have some capability to observe what is happening in the Pacific to have a forecast capability. I believe the west coast accuracy is below that of other areas of the country because we don’t have the capability on the oceans as we have on land. Similarly on the east — Georges Bank and others.

Id. at 82.

The NOAA, moreover, was on notice that weather forecasts were important to the safety of commercial fishermen and their vessels. After outlining the goals of the NOAA, including the expansion of commercial fishing, Dr. Julius Stratton, a leading proponent of the establishment of the NOAA, stated,

The development of a system for monitoring and predicting the state of the oceans and the atmosphere is critical to all that the Nation would do in the Seas.

Id. at 16. Obviously, commercial fishermen must have accurate weather information to conduct their activities safely. Cf. Trade and Transport Inc. v. Caribbean Steamship Inc., 384 F.Supp. 782 (S.D.Tex. 1974) (mariner negligent because of failure to monitor NWS forecasts).

The testimony of Captain Brown established that fishermen had come to rely on the government’s forecasts. He stated that lobstering in non-coastal waters significantly developed after advances in technology made it possible to monitor NWS forecasts far from shore. Moreover, Captain Brown said that the decision to terminate or continue a particular voyage often hinged on NWS forecasts.

Given that defendant undertook to provide a service that was necessary to the protection of plaintiffs, and that plaintiffs relied on that service, this court finds that defendant owed plaintiffs a duty to take reasonable care in maintaining its weather observation and prediction system.

The duty recognized here is a limited one, owed to an identifiable group of mariners that place special reliance on the accuracy of the NWS weather forecast. DeBardeleben Marine Corp. v. United States, supra, is instructive on this point. There, the Fifth Circuit recognized that the United States owed mariners a duty of care in issuing Coast and Geodetic Survey Charts and weekly Notices to Mariners. Id. at 149. In limiting its holding, the DeBardeleben court stressed two points: (1) the charts in question were distributed to a narrow audience — mariners—through a reliable channel; and (2) the mariners relied on the charts as accurate. Id. at 148.

This court’s conclusion that the mariners here were owed a duty of due care by the NOAA is supported by decisions of the Supreme Court, the First Circuit, and other district courts. The seminal case on the issue of duty is Indian Towing Co. v. United States, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48 (1955). In Indian Towing, a tug with a barge in tow ran aground causing cargo damage. Plaintiff there sued the United States, alleging that the Coast Guard negligently failed to maintain a particular lighthouse. On the issue of what duty, if any, the Coast Guard owed the tug, the Supreme Court stated:

The Coast Guard need not undertake the lighthouse service. But once it exercised its discretion to operate a lighthouse on Chandeleur Island and engendered reliance on the guidance afforded by the light, it was obligated to use due care to make certain that the light was kept in good working order; and, if the light did become extinguished, then the Coast Guard was obligated to use due care to discover this fact and to repair the light or give warning that it was not functioning.

Id. at 69, 76 S.Ct. at 126.

Consistent with the holding in Indian Towing, plaintiffs here do not argue that the NOAA had an obligation to provide a weather forecasting system, or that there was a duty to have a data buoy on Georges Bank. Rather, plaintiffs’ position is that once the NOAA undertook to provide a forecasting system, and then induced reliance on that system, it was obligated to use due care in seeing to the system’s proper maintenance or, at least, to give warning that the system was not functioning correctly.

The First Circuit has consistently followed the teaching of Indian Towing in analyzing the issue of whether a duty exists. In Chute v. United States, 610 F.2d 7 (1st Cir.1979), cert. denied, 446 U.S. 936, 100 S.Ct. 2155, 64 L.Ed.2d 789 (1980), the plaintiff alleged that the buoy selected by the Coast Guard to mark a submerged wreck was inadequate. Although the court rejected the plaintiff’s claim on the ground that selection of the type of buoy marker was a matter of governmental discretion, it recognized that:

The government, just as any private person who undertakes to warn the public of danger and thereby induces reliance, must not worsen the position of those who have come to rely on the service by carelessly omitting it.

Id. at 13.

This language applies directly to the instant case. As noted above, plaintiffs here do not challenge the right of the NOAA to select a particular monitoring system. Rather, plaintiffs’ complaint is that the NOAA negligently failed to maintain the selected system after fishermen began to rely on it.

Other district courts confronted with this precise issue have recognized a duty on the part of the government. See e.g., Chanon v. United States, 350 F.Supp. 1039 (S.D. Tex.1972), aff'd, 480 F.2d 1227 (5th Cir. 1973); Delroy v. United States, No. 79-546 (S.D.Ind. March 12, 1982). As in the instant case, Chanon arose out of the loss of a fishing vessel in a violent storm that the NWS failed to predict. In recognizing that the NWS owed mariners a duty of due care, the Chanon court stated:

Since the government, through the Weather Service, had been, for many years, forecasting the weather and issuing reports and warnings for the general public, ... it was under the duty to use due care in gathering weather information, forecasting and making available for broadcasting, up-to-date weather information.

Chanon, 350 F.Supp. at 1041 (citations omitted).

In Chanon, the court determined that the United States had not breached its duty. The controlling facts in Chanon were substantively different from those in this case. Specifically, Chanon recognized that “a forecast that turns out to be an erroneous forecast, standing alone, should-not be considered as any evidence of fault on the part of the Weather Service.” Id. at 1041. Here, plaintiffs do not allege that the government was negligent merely because it issued an incorrect forecast. Rather, they argue that defendants were negligent in failing, for more than three months, to make any effort to repair a data buoy whose purpose was to provide information recognized as vital to a reliable forecast— or to even give warning that the critical buoy was essentially out of action. This court agrees.

2). Breach

Plaintiffs contend that the government breached its duty of due care in deciding not to make any effort to repair the Georges Bank buoy in September merely because the buoy was scheduled to be replaced in January. Plaintiffs argue further that the government’s failure to warn mariners that the Georges Bank buoy was not operational exacerbated its negligence. Again, this court agrees.

Under the circumstances here, the conscious decision not to repair the Georges Bank buoy in September merely because it was scheduled to be replaced in January was unreasonable. The buoy information was critical to a reliable forecast. Its data would be unavailable during fall and winter months. Furthermore, the decision by the project manager to replace in January rather than repair in September was made without any inquiry as to how easy or difficult it would be to get the buoy back in action on an interim basis. Indeed, the buoy project manager admitted that he did not make any inquiry of anyone to see if personnel were available to repair the Georges Bank buoy. Cf. Tringali Brothers v. United States, 630 F.2d 1089, 1093 (5th Cir.1980) (fourteen day delay in returning navigational buoy to proper location held unreasonable).

Moreover, no attempt was made to notify mariners that the monitoring and prediction system was not functioning properly, particularly those mariners contemplating a venture to the Georges Bank area. It is unnecessary, therefore, to consider whether the government would have met its duty if it had notified mariners of the equipment failure. Cf. Greer v. United States, 505 F.2d 90, 92 (5th Cir.1974) (notice of malfunction of navigational aid does not remove government obligation to correct potentially dangerous condition).

3). Causation

This court is persuaded by the evidence that the defendant’s breach of its duty was a “substantial factor” in causing the deaths of fishermen here. See Gercey v. United States, 540 F.2d 536, 538 (1st Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977); W. Prosser, Handbook of the Law of Torts 240 (4th ed. 1971). Two areas of evidence are of particular import. The first is the expert testimony of Mr. Haggard that the NWS forecast was significantly incorrect as of 7 a.m. on November 21, 1980, that a storm warning should have been issued no later than 10:39 p.m. that day, and that the lack of buoy data from Georges Bank was critical to the NWS error. The second is the testimony of Captain Brown that if he had received a proper storm warning by 11 p.m. on November 21, 1980 he would have turned around because of the danger, and would have been able to return safely to port. The court considers the testimony of both witnesses to be, credible and persuasive.

f). Damages

This was a bifurcated trial dealing solely with the issue of liability. It is not disputed, however, that the seamen in question were killed during the course of the subject storm.

B. DEFENSES

By way of affirmative defense, defendant argues that this action is barred by the discretionary function and the misrepresentation exceptions to the government’s waiver of sovereign immunity in the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. (1982).

1). Discretionary function

In pertinent part, the discretionary function exception provides that the United States shall not be liable on

[a]ny claim based upon an act or omission of any employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

28 U.S.C. § 2680(a) (1982).

As a preliminary matter, there is disagreement as to whether the discretionary function exception applies to cases under the'Suits in Admiralty Act, 46 U.S.C. § 741 et seq. Compare Gercey v. United States, 540 F.2d 536, 539 (1st Cir.1976), cert. denied, 430 U.S. 954, 97 S.Ct. 1599, 51 L.Ed.2d 804 (1977) with DeBardeleben Marine Corp. v. United States, 451 F.2d 140, 146 (5th Cir.1971). This court, of course, accepts and follows the First Circuit’s pronouncement in Gercey that the discretionary function exception applies to the Suits in Admiralty Act as well as to the Federal Tort Claims Act. See 540 F.2d at 539.

While its exact scope has never been defined, see Dalehite v. United States, 346 U.S. 15, 35, 73 S.Ct. 956, 967, 97 L.Ed. 1427 (1953), the Supreme Court recently set forth two factors to be considered in determining whether the government is protected by the discretionary function exception. See United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), — U.S. -,-, 104 S.Ct. 2755, 2765, 81 L.Ed.2d 660 (1984). First, a court should consider whether “the Government is acting in its role as a regulator of the conduct of private individuals.” Id. Second, the court should determine whether the conduct of the government employee— as opposed to his or her status — is of the nature and quality that Congress intended to shield from tort liability. Id. In Varig Airlines, the plaintiffs alleged that the Federal Aviation Administration negligently failed to inspect certain portions of two aircraft before certifying them for use in commercial aviation. Id. at -, 104 S.Ct. at 2765. The Supreme Court concluded that this licensing or certification activity was regulatory in nature. Id. at -- -, 104 S.Ct. at 2767-68. By contrast, defendant in this case was not involved in licensing or certification, but rather in providing a service that, absent government involvement, could have been provided by a private concern.

Whether defendant’s negligent acts were of the nature and quality that Congress intended to shield from tort liability is a more difficult question, requiring inquiry into the legislative history of the discretionary function exception. See generally, United States v. Varig Airlines, — U.S. at -, 104 S.Ct. at 2762, Dalekite v. United States, 346 U.S. at 24-30, 73 S.Ct. at 962-965. From this legislative history two important principles can be gleaned. First, the discretionary function exception was intended to

preclude any possibility that the bill might be construed to authorize a suit for damages against the Government growing out of an authorized activity, such as a flood-control or irrigation project, where no negligence on the part of any government agent is shown, and the only ground for suit is the contention that the same conduct by a private individual would be tortious, or that the statute or regulation authorizing the project was invalid.

Dalehite v. United States, 346 U.S. at 29 n. 21, 73 S.Ct. at 964 n. 21 (quoting H.R. 2245, 77th Cong., 2d Sess. (1942)). Second, Congress intended to exempt discretionary activities, that is, activities “[wjhere there is room for policy judgment____” Id. at 36, 73 S.Ct. at 968.

The theory of liability asserted by plaintiffs is not barred by either of these principles. This case is not an attempt to challenge a properly performed, congressionally authorized activity on the theory that' similar activity by a private person would be tortious. Plaintiffs, moreover, are not attempting to gain judicial review of an authorizing statute or regulation. They simply assert that defendant induced reliance and then negligently failed to perform.

In addition, the government action here did not involve a policy judgment. The decision to have a weather monitoring and prediction system and the decisions concerning the methods for obtaining observational data may have involved policy judgments. See Bartie v. United States, 216 F.Supp. 10, 19 (W.D.La.1963), aff'd, 326 F.2d 754 (1964), cert. denied, 379 U.S. 852, 85 S.Ct. 98, 13 L.Ed.2d 55 (1964). Plaintiffs do not challenge those judgments. But, once a system was in place and mariners began to rely on it, the time for policy judgments was past. See Coastwise Packet Co. v. United States, 398 F.2d 77, 80 (1st Cir.1968) (discretionary function exception provides almost complete protection to government decisions concerning initiation of a program, but protection decreases after program or policy is established), cert. denied, 393 U.S. 937, 89 S.Ct. 300, 21 L.Ed.2d 274 (1968); Seaboard Coast Line Railroad Co. v. United States, 473 F.2d 714, 716 (5th Cir.1973) (same).

Plaintiffs complaint is that, after inducing reliance on its selected weather system, the government negligently chose not to keep it in repair and failed to issue any warning concerning its disrepair to those relying on it. The law does not permit the government, under the guise of policy making, to negligently remove its proffered safety net without reasonable notice to those who risk their lives daily in reliance on it. For these reasons, the discretionary function defense must be rejected.

2). Misrepresentation

Defendant maintains that the plaintiffs’ claims are barred by the so-called “misrepresentation” exception to the Federal Tort Claims Act, which states in pertinent part that:

The provisions of [the Federal Tort Claims Act] shall not apply to ... (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights____

28 U.S.C. § 2680(h) (1982).

Although the First Circuit has ruled in Gercey v. United States, supra, that the “discretionary function” defense under the Federal Tort Claims Act is applicable to actions under the Suits in Admiralty Act, it has never issued a similar ruling with respect to the “misrepresentation” defense.

In the analogous case of Ingham v. Eastern Air Lines, 373 F.2d 227 (2d Cir. 1967), cert. denied, 389 U.S. 931, 88 S.Ct. 295, 19 L.Ed.2d 292 (1967), a federal aircraft controller failed to alert an incoming aircraft that visibility had been reduced from one mile to three quarters of a mile as a result of a change in weather. The aircraft crashed and the government was found liable under the Federal Tort Claims Act. On appeal, the government asserted the misrepresentation defense on the ground that the controller’s failure to alert the aircraft to the change in visibility was a misrepresentation. In rejecting this defense, the Second Circuit stated:

[T]he government’s reading of the misrepresentation exception is much too broad, for it. would exempt from tort liability any operational malfunction by the government that involved communications in any form____ Where the gravamen of the complaint is the negligent performance of operational tasks, rather than misrepresentation, the government may not rely upon § 2680(h) to absolve itself of liability.

Id. at 239.

In this case, the inaccurate forecast was the consequence of the government’s negligent performance of the operational task it had assumed of compiling data on the weather at sea from offshore buoys. Since the government’s negligence in performing this operational task is the basis of the plaintiff’s complaint, the government cannot rely on the misrepresentation defense.

The Supreme Court’s recent decision in Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), is also instructive as to the inapplicability of the misrepresentation defense in this case. In Neal, the plaintiff claimed that the Farmers Home Administration (“FmHA”) had failed to use due care in supervising the construction of her house, and had led her to believe that the house was properly constructed when in fact it was not. In rejecting the government’s misrepresentation defense, the Court stated: “Section 2680(h) thus relieves the Government of tort liability for pecuniary injuries which are wholly attributable to the Government’s negligent misstatements.” Id. at 297, 103 S.Ct. at 1093. In Neal, the plaintiff’s injuries were not only attributable to the FmHA’s misrepresentation as to the quality of the construction, but also to the FmHA’s negligent supervision of the construction. In this case, the plaintiffs’ claim is not based on the inaccurate weather forecasts but rather on the cause of their inaccuracy — the government’s negligent failure to maintain the Georges Bank buoy.

CONCLUSION

For the reasons set forth in this opinion, a judgment is entered for the plaintiffs on the issue of liability. A pre-trial conference on the issue of damages will be held on January 28, 1985 at 10 a.m.

It is so ORDERED.

      . Plaintiffs are the personal representatives of the estates of three deceased fishermen (Gary Brown, William Garnos, David Berry) who lost their lives during the storm. Plaintiffs, Garnos and Berry have separate suits pending before Judge McNaught against the owner of the FAIR-WIND, Fairwind, Inc. Sea Fever Corporation, a defendant/third party plaintiff, seeks indemnity and contribution from the government.

      . The importance of the Georges Bank Buoy is underscored by the observation on April 2, 1980 of Rodney C. Winslow, Acting Meteorologist in charge of the NWS Boston office:
      [T]his buoy is extremely important to us in New England. It serves as one of the few reliable observation points in an area where a tremendous number of fishing vessels operate daily____ (Ex. 17)

      . The “snapshot” information transmitted by a properly functioning buoy includes wind speed and direction, sea-level pressure, air temperature, sea surface temperature, and wave height.

      . Mr. Haggard’s expert testimony as to what should have been the proper tracking of the subject storm was based on an analysis called hindcast as opposed to the more familiar term, forecast. Basically, a hindcast is a reconstruction of weather maps based on an analysis of relevant weather data, weather maps, surface data, Coastal Weather Logs, as well as barometric pressures. The details of Mr. Haggard’s analysis, the information he utilized, and the scope of his opinions are set forth fully in the transcript. TR 3-92 to 3-139.

      . The NOAA was actually created by a Reorganization Plan prepared by President Nixon. See Reorg. Plan No. 4 of 1970, 35 Fed.Reg. 15,627 (1970), reprinted in 15 U.S.C.A. § 1511 app. at 715 (West 1982). It is widely accepted that this plan was deeply influenced by the report entitled "Our Nation and the Sea” and the hearings thereon. See F. Hoole, R. Friedheim, and T. Hennessey, Making Ocean Policy: The Politics of Government Organization and Management 24-25 (1981).

      . The hearings were actually before the Subcommittee on Oceanography.

      . The project was the predecessor of the National Data Buoy Office.

      . Recently, the Supreme Court questioned the precedential significance of Indian Towing in deciding whether the discretionary function exception to the Federal Tort Claims Act, 28 U.S.C. § 2680(a), should be applied to limit government liability. See United States v. S.A. Empresa de Viacao Aerea Rio Grandense, — U.S. -, -, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984). Heeding that admonition, this court does not rely on Indian Tpwing in analyzing the discretionary function exception. See infra pt. IV(B)(1). The Supreme Court has never questioned the viability of Indian Towing as a precedent with respect to the issue of what duty may be owed by the government.

      . In Chute there was no allegation that the buoy selected was negligently maintained.

      . United States v. Sandra & Dennis Fishing Corp., 372 F.2d 189, 195 (1st Cir.1967), cert. denied, 389 U.S. 836, 88 S.Ct. 48, 19 L.Ed.2d 98 (1967), also is consistent with Indian Towing with respect to the duty issue. There, claimants alleged that their boat was lost because Coast Guard rescue vessels were improperly equipped and negligently operated. The First Circuit held that, where no warning had been given, the government had an obligation to assure that the Coast Guard vessel "would perform its functions with reasonable care.” 372 F.2d at 195.

      . In two other cases brought against the NWS, district courts have held that the plaintiffs were not entitled to recovery. See Williams v. United States, 504 F.Supp. 746 (E.D.Mo.1980); Bartie v. United States, 216 F.Supp. 10 (W.D.La.1963), aff’d, 326 F.2d 754 (5th Cir.1964), cert. denied, 379 U.S. 852, 85 S.Ct. 98, 13 L.Ed.2d 55 (1964). These cases are distinguishable from the instant case because they involved attempts to hold the NWS liable for merely issuing an incorrect weather forecast, with no showing of any other negligent act. See Williams, 504 F.Supp. at 750; Bartie, 216 F.Supp. at 19.

      . TR 6-85.

      . Supra pt. III.

      . The fact that the plaintiffs in this case seek compensation for personal as opposed to pecuniary injuries does not detract from this statement's applicability. To the contrary, the misrepresentation defense is more appropriate in cases involving pecuniary injuries than those involving other types of injuries. In United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), a case involving pecuniary . injuries, the Court held that the government was protected by the misrepresentation defense. The Neustadt Court distinguished Indian Towing, supra, a case involving property damage, on the ground that there was no misrepresentation in Indian Towing. In so doing, the Court stated:
      As Dean Prosser has observed, many familiar forms of negligent conduct may be said to involve an element of "misrepresentation," in the generic sense of that word, but "[s]o far as misrepresentation has been treated as giving rise in and of itself to a distinct cause of action in tort, it has been identified with the common law action of deceit,” and has been confined "very largely to the invasion of interests of a financial or commercial character, in the course of business dealings."

        Id. at 711 n. 26, 81 S.Ct. at 1302 n. 26.