author: PENCE, District Judge.

text:
    Ernie H. WOLDER, doing business as Wolder Salvage Co., Plaintiff, v. UNITED STATES of America, Defendant.
    Civ. No. 83-0015.
    United States District Court, D. Hawaii.
    July 23, 1985.

      Michael W. Atkin, Los Angeles, Cal., A. Bernard Bays and William Meheula, Honolulu, Hawaii, for plaintiff.
    Philip A. Berns, Atty. in Charge, West Coast Office, Torts Branch, Civil Div., U.S. Dept, of Justice, San Francisco, Cal., for defendant.
   ORDER

PENCE, District Judge.

Plaintiff, Ernie H. Wolder, doing business as Wolder Salvage Co. (Wolder), brought this action against the United States claiming that when the United States Navy personnel pulled the M/V SLI-DRE off the reef in front of Gab Gab Beach in Apra Harbor in Guam, towed her some six miles out to sea and sank her, acting under orders and authority of the Corps of Engineers of the United States Army (Corps), he had been damaged to the extent of $1,100,000 from the loss of his ship. The case was tried on March 19-22, 26-28, 1985. This court heard the testimony, observed the witnesses, reviewed the exhibits and depositions, and listened to arguments of counsel to determine the liability, if any, of the United States to Wold-er.

FINDINGS OF FACT

1. On May 21, 1976, the super typhoon PAMELA passed over Guam. PAMELA had winds which exceeded 125 knots. The sea rose 10 to 20 feet above normal, and waves were from 5 to 10 feet high within Apra Harbor. The M/V SLIDRE and the vessels MARIA I and PEACE OCEAN were anchored in the Harbor. The typhoon put all three vessels up on a coral reef that extends from Gab Gab Beach and along Oróte Peninsula almost to the entrance of the Harbor.

2. At the time of the typhoon, neither the MARIA I or the PEACE OCEAN was manned. The M/V SLIDRE was manned, but the typhoon nevertheless stranded her on the reef approximately 40 feet from a sharp underwater slope which descended towards the channel. The vessel was located approximately 1100 yards from the center of the navigable channel utilized by deep draft vessels. Both the MARIA I and PEACE OCEAN were subsequently removed from the area by the United States and sunk.

3. During the entire time of the events involving the SLIDRE, Apra Harbor was vital in terms of National Defense. It was utilized as a Navy base for nuclear submarines and other combatant vessels. The Navy had mooring buoys for deep draft vessels, including ammunition ships, in the vicinity of the stranded SLIDRE. Additionally, in the Outer Harbor commercial vessels would call at the port.

As set out in “An Evaluation of Apra Harbor, Guam, As A Typhoon Haven”, prepared by the Naval Environmental Prediction Research Facility, and published in November 1975, 107 tropical cyclones passed within 180 miles of Guam during 1947-1973, i.e., an average of 4 per year. Thirty four of those resulted in winds of 22kt at Guam, and 8 resulted in winds of 34 kt or more at Guam, i.e., precursors of winds of typhoon intensity.

“Storm surge is a major problem in Apra Harbor. Typhoon conditions have created surges 10-12 feet above mean lower low water level.” Typhoons KAREN, in 1962, and OLIVE, in 1963, were in this class, and damage to ships in the harbor was extensive. “There are no aspects of Apra Harbor that recommend it as a typhoon haven.”

4. When the typhoon struck, the SLI-DRE was owned by the Madrigal Shipping Company, Inc. (Madrigal) of the Philippines. It had been refitted and inspected in the Philippines in March, before going to Guam. It was unloading cargo and loading scrap in Guam just before the typhoon, but was then anchored out in the harbor to ride out the typhoon. The SLIDRE was about 250 feet long at the waterline. Its gross weight was about 1700 tons, with a net weight of 890 tons.

5. On June 15, 1976, the Coast Guard Captain of the Port wrote to the Guam agent for the SLIDRE requesting that the owners be notified of their obligation to remove the vessel, and that such action be commenced immediately as there was a probability the vessel would move and obstruct the Naval anchorages which were located in the near vicinity where the ship was grounded. The notice stated the Coast Guard had incurred over $25,000 in oil removal costs.

6. On August 5, 1976, the SLIDRE’s agent notified the Coast Guard that Madrigal had sold the wreck to Wolder Salvage Co. of Whittier, California. Wolder Salvage Co. was but the business name of Wolder. Under the agreement of sale, Wolder assumed all liability and responsibility related to the vessel, including its removal. Also, the cargo of scrap steel and bundled lumber which was on board was subject to any interest which the owners of the cargo might hold. The vessel was sold to Wolder for a reported sales price of $50. Wolder testified that he had also “paid $5,000 under the table” “to a guy in Hong Kong” who’d made the sale for the ship’s insurer.

7. On August 5, 1976, Wolder visited Minsky, the Chief of Guam Project Office (GPO), U.S. Army Engineer Division, Pacific Ocean, to establish liaison and to inform the Corps of his intentions to remove the SLIDRE. Wolder outlined his methods of removal, stating they would depend on the value of the vessel. One method he considered was to remove the vessel intact. Another would be to cut up the vessel in place and remove the scrap material for sale in the Orient. Minsky advised Wolder to contact the Coast Guard Marine Safety Office and the U.S. Naval Station and inform them of his plans, and also to keep the Corps advised of his plans.

8. As subsequent events illustrated, Wolder had but limited experience in marine salvage work. He had never attempted to remove a stranded ship from its strand. He had practically no salvage equipment and so little capital that he was constantly seeking “investors” in his $5,050 venture. Over the period October 16, 1976 through July 29, 1980, a Virginia Thomas of Placerville, California, “a partner”, invested over $53,000 in the SLIDRE venture. He also had at least three other “investors”: a personal friend, Powell, who lent him $10,000, a Mr. Stonestreet in Antioch, and a Bert (?) in Burlingame. Wolder subsequently brought in Robert Jordan (more, infra), who invested some $70,000 in equipment and machinery to attempt to remove some coral from under the ship. He also later secured an investment of about $29,000 in time and equipment from his “agent”, Hinkle (more, infra). Although Wolder claimed to have invested some $100-$200,000 in the project, the exact amount of his own investments was not determined.

9. On August 11, 1976, Wolder met with representatives of the Navy and the Corps and requested the Navy’s permission to use the Navy’s Floating Crane. At that point, the Navy did not want to get involved in the removal. Wolder stated he did not anticipate the use of explosives since he believed the SLIDRE could be pulled off the reef after removal of her cargo. He further stated the vessel was quite secure and that only a severe typhoon could cause it to come off the reef.

10. On September 9, 1976, Wolder informed the Army Engineers that the cargo had been off-loaded of its scrap steel and lumber cargo two weeks before, and that his people were pumping water from the holds to determine the extent of damage. He anticipated refloating the ship but needed a place to moor it once refloated. He stated that the previous weekend’s high-winds had rocked the vessel slightly and he hoped the SLIDRE would not work loose as deep water was only 40 feet away.

11. On September 10, 1976, Wolder informed the Corps by telephone that he was confident he would be able to pull the SLI-DRE off the reef, claiming the vessel was almost afloat at that time. On October 7, 1976, Wolder said the vessel was prepared for towing off. Although he couldn’t be contacted subsequently, on October 26, 1976, Cabras Marine, hired by Wolder, using two small tugs, attempted for less than two hours to pull the vessel off the strand. A line broke and the attempt was not repeated. The tugs were not specialized salvage tugs, of a total of about 1500 h.p.

12. On October 27, 1976, Wolder again reported to the Corps that the SLIDRE was ready to be pulled off its strand. At that time, Nippon Salvage Co., a Japanese company, was salvaging the wreck of the M/V CARIBIA which had sunk inside the entrance to Apra Harbor, and Wolder inquired about the use of a large floating crane owned by that company. He planned to use the crane to lift the stern of the SLIDRE and swing it out over the edge of the reef. He stated he would discuss this request with Nippon Salvage. He also reported finding a considerable quantity of oil on the vessel which he later estimated to be 40-60 tons.

13. Thomas L. Hinkle, who had worked for the Corps of Engineers from 1949 to 1965 and had been involved in construction in Vietnam — buildings, highways, bridges, and dock facilities — moved to Guam in 1975 where he engaged in salvaging scrap, as well as acted as agent for some ships. He had also done some salvaging of ships around Guam, so Wolder asked Hinkle to supply some labor and equipment — air compressors and other equipment. Hinkle went aboard the SLIDRE with Wolder to survey the condition of the SLIDRE and assist him, Wolder, in getting her off the reef. It was Hinkle who guaranteed payment for the attempt made by Cabras Marine. Hinkle said that he was but an investor with Wolder on the deal, and put about $29,000 into it. It was apparently Hinkle who suggested to Wolder that it would be necessary to remove some of the coral heads from under the SLIDRE before it could be pulled off.

14. Subsequently, Hinkle and Wolder’s brother informed GPO that only two more patches and cutting of a small area of coral was required to free the vessel. They were notified that a Department of the Army permit might be required.

15. After returning to Guam on December 24, 1976, Wolder informed Minsky that coral-splitting equipment was expected to arrive during early January 1977 and predicted the SLIDRE would be afloat in two to three weeks. What Wolder did not inform Minsky was that he had made an agreement with Robert Jordan, a trenching contractor in the Sacramento area of California, with no prior marine trenching experience, to use Jordan’s “expertise” and equipment in attempting to remove the coral from under the ship. Jordan, using a back hoe from a small barge, between January and April 1977, attempted to cut the coral from around and under the SLIDRE.

16. On February 24, 1977, Dillingham Corporation, using first two and then three tugs, attempted to pull the vessel off the strand. The attempts lasted “about all day” and were unsuccessful. These tugs were ordinary ocean-going tugs — not specialized salvage tugs.

17. Wolder left Guam and did not again return until May 10, telling GPO he intended to resume removal efforts and again stated he hoped to achieve removal in two weeks.

18. Jordan reported to the Army Engineers, on June 6, 1977, that he and a Donald Doug Wilson had removed visible coral heads around the SLIDRE but the SLIDRE still could not be pulled free. He stated he believed that pinnacles under the vessel were holding it in place. Minsky, at his request, introduced them to Noguchi, Salvage Master for Nippon Salvage Co.-

19. After that meeting, Noguchi stated that those gentlemen wanted to rent his firm’s 500-ton floating crane but he had refused the request since the crane was then in daily use on the salvage of the M/V CARIBIA, and the crane was committed to a job in India as soon as the CARIBIA work was completed. He stated that he could have assisted them up until about six weeks earlier, but they had never requested such assistance.

20. Jordan thereafter shipped most of his equipment back to the states. Jordan testified that in April 1977, in return for a loan as well as the work that he had done and proposed to do, he became a partner with Wolder in the salvage effort. At first, he was to get one-third, and then it was changed to 50% of whatever they could get from the SLIDRE if they removed it. Jordan stated that he had invested about $70,000 — loans and expenses — in the venture, and that he had left behind on Guam an electric welder and power unit, a pump, and a Volkswagen.

21. On July 5, 1977, Wolder first inquired about a Department of the Army permit for using explosives to blast the coral under and around the vessel. He claimed he had exhausted all other methods of removal. Wolder submitted a permit application, dated July 15, 1977, with an environmental assessment attached. His application indicated that only small charges of explosives placed in pre-drilled holes would be used to fracture the coral to allow the vessel to slide over smooth coral into deep water. The stern was allegedly in sufficient water to float. His assessment indicated only two coral pinnacles would have to be shattered.

22. The Corps did not have any objection to granting the permit but, in accordance with required procedure, distributed the application and assessment to concerned Federal and Island Government Agencies for their review and comments. None of the Federal Agencies voiced any objection to the issuance of a permit. The Commander, 14th Coast Guard District, stated that with the typhoon season then threatening the area, it was desirable to have the SLIDRE floated off the reef as soon as possible.

23. The Guam Environmental Protection Agency and the Aquatic Wildlife Resources Division recommended denial of the permit until the nature of the blasting operation was specified in detail. A representative of those Guam agencies questioned the accuracy of Wolder’s environmental assessment and other statements made in his application based upon their personal observations of the situation related to the quantity of blasting required and the lack of detail concerning his blasting methods. They did not recommend outright rejection of the permit but stated they wished to meet with Wolder to discuss the procedures to minimize any damage to the environment. They, too, acknowledged that the vessel had to be removed.

24. On August 25, 1977, the Corps’ Division representative in Honolulu forwarded a copy of the Aquatic Wildlife’s letter to the plaintiff, with a copy to his attorney, and requested that Wolder reply directly to Aquatic Wildlife, with a copy to Division.

25. No reply was received and, after 45 days, the District Engineer in Honolulu notified Wolder that the application would be considered withdrawn if Wolder made no response within 30 days of receipt of the second letter. A copy of this letter was forwarded to Wolder’s California and Guam addresses as well as to his attorney, who had been listed on the application.

26. By reply letter, dated October 29, 1977, Wolder apologized for not having answered sooner and claimed he planned to meet with the staff of the Guam agencies.

27. During a November 28, 1977 telephone conversation, Wolder informed Minsky that he was back on Guam ready to resume efforts to remove the SLIDRE. He said that since he was unable to satisfactorily resolve the concerns of the Guam Government, he intended to withdraw the permit, and was then considering removing all machinery from the vessel and cutting the hull for scrap.

28. By letter, dated November 29, 1977, Wolder requested withdrawal of his permit application since (unspecified) recent developments had made it unnecessary to use explosives. On November 29 Wolder also met with Minsky and reviewed the Aquatic Wildlife letter. Although the letter objected to the blasting, it indicated that those objections might be overcome if Wolder would provide details regarding the blasting and provide a plan that more accurately reflected the actual quantity of blasting required.

29. During the November 29 meeting with Minsky, Wolder reported that the SLI-DRE had shifted slightly as a result of a tropical storm in October 1977, and that the bow moved slightly toward deeper waters which might make blasting unnecessary. Wolder said he was still considering two options: (1) removing the machinery and cutting the hull for scrap, and (2) pulling the vessel off the reef as initially intended. He was going to determine his course of action after a November 30 meeting with unnamed private parties.

30. On December 2, 1977, Wolder telephoned Minsky to say he would submit a letter withdrawing his permit application. Apparently, this letter was the letter dated November 29, 1977, which was received on December 8, 1977, by Minsky. Wolder also stated he would leave Guam on December 2, but would return during the first week of January, 1978, and promised the SLI-DRE would be removed within two weeks after his return either by using tugs to pull it off the reef or by using hydraulic rams.

31. When no word had been received from Wolder by March 22, 1978, Minsky, by letter, requested Wolder to provide a removal plan by April 7, 1978. Minsky stated that a prompt removal was needed in view of the obvious danger to navigation which would result in the event a severe storm struck Guam and caused the SLI-DRE to sink in the navigable channel.

32. Wolder then informed Frank Dayton, who later relieved Minsky, that he was still considering his two options and, further, was discussing the salvaging of the SLIDRE with an unidentified Korean firm. Subsequently, Minsky received a “To Whom It May Concern” notice, dated April 4, 1978, which was signed by Wolder stating that title and all responsibility for the SLIDRE had been transferred to Eagle Corporation, Inc. (Eagle), as of the aforesaid date. Copies of this notice were furnished to various Federal agencies.

33. Minsky, by letter dated May 3, 1978, wrote to Eagle advising that corporation of its responsibilities and obligations to other navigational interests using the waters of Apra Harbor. He requested an opportunity to discuss these. There was no response to this letter, and Minsky wrote again on May 24, 1978, and again requested an opportunity for a meeting.

34. On June 6, 1978, Minsky and Dayton met with Mr. Kang, the President of Eagle, to explain Eagle’s responsibilities and obligations and to inform Kang that if the SLIDRE floated free he would be financially responsible for its removal. Kang described his plan of removal, which included, among other things, the hiring of technicians to supervise the removal operations, the use of floating equipment to remove the superstructure and side plates, and then the towing of the hull to the Dillingham docks for final cutting up. Pri- or to commencing removal operations, he intended to remove the remaining fuel oil. Kang said the removal operation would begin by the end of the month, i.e., June 1978.

35. By notice dated August 10, 1978, Eagle sent various agencies a copy of the removal schedule for the SLIDRE.

36. According to the bill of sale, Eagle had bought the vessel for $45,000, paying $10,000 down to Wolder, with the balance to be paid within 180 days.

37. The Corps, by letter of September 15, 1978, advised Eagle that no permit would be required if the SLIDRE was removed according to the proposed plans. Eagle was advised to coordinate its removal plans with the Navy, Coast Guard, and the Government of Guam before taking any removal actions.

38. On September 17, 1978, the Coast Guard again wrote the Corps of its concern regarding the three stranded vessels, which included the SLIDRE, as posing a threat to the environment and navigation. Included in that letter was a letter and a message from Allgreen Enterprises (All-green) offering to remove all three stranded vessels at no costs to the Government. Captain (then Commander) Franke of the Coast Guard had met with the two principals of Allgreen and was neither impressed with their salvage capability nor their facilities for removing the vessels which included the SLIDRE, PEACE OCEAN, and MARIA I. Dayton of the Corps advised, on October 11, 1978, that he had not been able to contact Allgreen. Nothing was ever heard of Allgreen after that time.

39. In the meantime, Kang had contracted with Dillingham to remove oil from the SLIDRE and had made arrangements with Dillingham to rent a barge-mounted crane and a tugboat on an “as needed” basis.

40. By November 1, 1978, Eagle had Dillingham remove 9,000 gallons of oil from the SLIDRE and indicated an intention to remove the engine and enough equipment so that the ship could float free and subsequently be towed to Taiwan for scrapping.

41. By mid-January, 1979, Dayton, who had become the Chief of Guam Project Office, Minsky having departed the Island, heard that ownership of the SLIDRE might have reverted back to Wolder and wrote to Wolder requesting confirmation of his ownership. Dayton also inquired of Kang about the ownership situation.

42. Wolder stated that Eagle had not followed his guidelines nor fulfilled the contract. He promised to call on Dayton to discuss salvage and methods of removal operation.

43. In mid-April, Wolder advised Dayton by telephone of his new plan of action. Wolder said he intended to scrap the superstructure in place, pull the lightened hull off, and then sell it.

44. Sometime during May, 1979, Tim Abbey, another of Wolder’s “agents” on Guam, stated that cutting up of the SLI-DRE had begun but the work was slower than expected. According to this plan, all of the metal down to E-deck was to be removed, as well as the engines, and then the remaining hull would be pulled off. A representative of the Corps attempted to contact Abbey on seven occasions through July and August. No one answered the telephone.

45. By letter dated August 28, 1979, Dayton inquired of Wolder whether the latter had sold the vessel to a Mr. Hanley and requested a copy of the sales agreement and Hanley’s address. Again, the Corps expressed its concern for the removal of the SLIDRE since Guam was in the midst of another typhoon season.

46. Hanley, the President of Steelcraft Marine, sent a letter, dated August 29, 1979, to the Commander, U.S. Naval Forces, Marianas, requesting their assistance in removing the SLIDRE from the reef. Hanley stated that Wolder would indemnify the Navy and hold it harmless for the removal of the vessel, as well as reimburse the Navy for all costs incurred in the removal. Wolder, by letter of September 1, 1979, claimed ownership of the vessel, indicating he had contracted with Hanley to participate in the salvage effort. Hanley was to cut off the sides and topside gear. According to Wolder, although Hanley had done some cutting, his delay in commencing the work caused a potential buyer to “back off.” Also, Dillingham had quoted a price of $100,000 a day for use of its crane, barge, and tug, but Wolder questioned the capability of that equipment to perform the required work. Further, Wolder was certain that the removal of 100 tons off the topside would enable him to pull the vessel free without any problems. Finally, he indicated he would return to Guam shortly and resolve this situation.

47. There were no local facilities, tugs or cranes, available on Guam, private or Government, which were capable of removing the vessel. A large salvage tug, with special equipment, or a large crane and barge would have to be brought from off the Island. Wolder knew that private salvage companies with heavy salvage equipment were located in Manila, Singapore, Japan, and the United States, but he did not enter into an agreement with any of them, maintaining that the cost was prohibitive. The SLIDRE could have been cut up on the site but, again, Wolder did not pursue this alternate course.

48. The Navy, through its personnel at COMNAVMARIANAS, indicated a willingness to provide Navy assistance, when available, if Wolder would execute a hold-harmless agreement, pay the cost of removal, and meet other necessary requirements.

49. The Navy arranged for the USS BOLSTER, a seagoing salvage vessel, to perform a salvage survey at Guam when the vessel stopped in that port during a short stopover while proceeding on its regularly scheduled activities to the Far East. A meeting was ultimately scheduled to be held aboard the vessel during the latter part of October, 1979.

50. Two days prior to the scheduled meeting, Wolder met with Commander Ry-land to discuss the possibility of the Navy’s assisting in the removal of the vessel. Ry-land emphasized the need for a hold-harmless and reimbursement agreement and the fact that Hanley’s letter was a positive step in that direction. More importantly, Wold-er would have to make provision for the handling of the vessel as soon as it had been removed from the strand. Specific and definite arrangements had to be made as to where the vessel would be taken upon its removal — if able to stay afloat. Wolder clearly indicated that this would not present a problem.

51. The crew of the BOLSTER performed a preliminary salvage survey to determine the possibility of pulling the vessel off the strand. On October 25, 1979, a meeting was held aboard the BOLSTER which was attended by representatives of the Navy, Corps of Engineers, Coast Guard, members of the crew of the BOLSTER, and Wolder and some of his cohorts. The preliminary survey was discussed. The BOLSTER crew had concluded that it was possible to pull the vessel off.

52. After that part of the discussion had taken place, Wolder was then asked by Commander Ryland where the vessel would be taken upon its removal. Wolder stated that he was unable to make arrangements for any pier facility, indicating clearly that he did not have the financial ability to meet any such expense. Wolder asked whether the vessel could be pulled off the reef on the southerly edge of the harbor, brought due north to the northerly edge of the harbor, and beached alongside the breakwater. This request was immediately and emphatically denied as no Government agency wished to have the vessel removed and then beached in a different area. The vessel in that new location would again be subject to movement by typhoons and would still create a potential hazard to navigation.

53. At that meeting, all parties present clearly indicated that they considered the vessel a potential hazard to navigation at its present stranding position and that it would create a similar problem if beached anywhere else.

54. Ryland asked Wolder to inform him within the next couple of days of his (Wold-er’s) intentions. Instead, Wolder left the Island soon thereafter.

55. During the meeting, Wolder made no mention of Hanley’s status as Wolder’s representative. Instead, by letter dated October 26, 1979, addressed to Hanley, Wolder stated that Hanley’s contract had expired on July 29, 1979, prior to Hanley’s “hold harmless” offer of August 29, 1979, and that Hanley was not Wolder’s agent on Guam subsequent to that time. The letter stated Wolder had no authorized agent on Guam. He also accused Hanley of removing equipment after that date and of cutting a hole in the vessel’s side below the waterline creating a hazardous condition. A copy of this letter was sent to the Corps and other Federal Agencies on Guam.

56. The BOLSTER, in the meantime, completed its salvage survey and a proposed plan for the removal of the vessel. Some questions arose as to the calculations for the pull required by a salvage vessel, and the Navy in Honolulu sent a representative of the Salvage Office to Guam to perform another survey. That representative recalculated the pull required, resulting in a requirement almost three times higher than the BOLSTER’S calculation but, again, determined it was feasible to pull the vessel off the strand.

57. In the meantime, the Navy Representatives on Guam informed the Navy in Honolulu of the situation that existed; that Wolder had disappeared; that there was apparently no chance of success of getting Wolder to remove the vessel or of getting Wolder to hold the Navy harmless, referring to Wolder’s rejection of Hanley and the latter’s authority. This report re-emphasized that the SLIDRE constituted a potential hazard to navigation.

58. On January 27, 1980, CINC-PACFLT, Honolulu, sent a message to the Corps reviewing the situation and its belief that the SLIDRE was a potential direct threat to general navigation in the harbor. The message noted that the hulk was deteriorating and that a typhoon could place the vessel in the navigable channel. The Navy salvage experts advised that even if the vessel was badly holed, it could still be removed from the reef.

59. On February 4, 1980, the Division Engineer informed the Chief of Engineers, Washington, D.C., that the SLIDRE was considered a potential hazard to navigation. On February 8, 1980, by letter, Colonel Schlapak, the District Engineer, Pacific Ocean Division, notified Wolder (with a copy to CINCPACFLT), that the SLIDRE was a potential hazard to navigation and its removal was his (Wolder’s) responsibility under Section 19 of the River and Harbor Act of 1899. 33 U.S.C. section 414. Wold-er was asked to submit, within thirty days of receipt of the letter, his proposed plan and schedule for removal. Colonel Schlapak warned him that the Corps might undertake the removal at the owner’s expense if no response was received or if the response was untimely or unacceptable. Wolder acknowledged receipt of the letter on February 13, 1980.

60. Wolder responded by letter, dated March 8, 1980, stating he was awaiting notification of the return of a Navy tug which was supposed to pull the vessel off the reef and that the Navy expected the tug in February or March, 1980. Further, Wolder, according to the letter, was negotiating with two firms to cut the ship down. The letter contained no details as to how Wolder would accomplish the removal, in either case.

61. Wolder’s March 8 letter did not make any reference to indemnifying the Navy or holding that agency harmless for removal of the vessel and, most importantly, did not state where the vessel would be brought once it was removed.

62. On April 3,' 1980, the District Engineer, by letter, notified Wolder that the latter’s response in the March 8 letter was insufficient to show how the vessel would be removed in the foreseeable future. Additionally, the District Engineer noted that the Navy had required Wolder to identify the berthing site before the Navy would agree to assist him in the removal. The District Engineer requested Wolder to provide that site before May 1, 1980 or failure to do so would force the Corps to undertake the removal at Wolder’s expense. The District Engineer further wrote that if the Corps had to remove the SLIDRE, the vessel would be towed to deep water and sunk for use as an artificial fish reef. The letter was addressed, correctly, to Wolder’s California address. It was returned undelivered.

63. In accordance with Section 19 of the River and Harbor Act of 1899 (section 414), a public notice was published in the Guam local newspaper stating that after 30 days from the date of first publication of the notice, the SLIDRE would be subject to removal or other disposition as a hazard to navigation. Such removal would be as provided by law unless prior removal was accomplished by the rightful owner. The last known owner of the SLIDRE, according to the publication, was Ernie H. Wolder.

64. The notice was published in the Pacific Daily News, Guam, on June 4, 11, and 18, 1980. The thirty-day period expired on July 5, 1980. No response was received to that notice.

65. Thereafter, on July 7, 1980, the Division Engineer determined it was in the best interest of the United States to allow the Navy to remove the vessel in lieu of advertising the vessel for sale and salvage. That determination indicated that the decision to allow the Navy to salvage the SLI-DRE and scuttle her was made because of the deteriorated condition of the vessel, the lack of action to remove her, and the upcoming typhoon season.

66. On that same day, July 7, 1980, Wolder called Colonel Schlapak. Colonel Schlapak granted Wolder seven days to submit a letter spelling out his intentions. No letter was received by July 14, 1980.

67. Wolder, by letter dated July 11, 1980 — the letter actually having been received by the Corps on July 18, 1980 — complained about encountering obstacles from various Federal and Guam agencies and indicated he would seek permission in writing from the Navy or whoever claimed jurisdiction, to cut the vessel where she was. Finally, he indicated he would attempt to take legal action to prevent any declaration that the vessel was a menace to navigation. Again, Wolder did not give any specifics as to removing the vessel, reimbursing and indemnifying the Navy if the Navy removed the vessel, or where the vessel would be taken if it was floated off.

68. On July 14, 1980, the Corps formally requested the Navy’s assistance in removing and disposing of the SLIDRE.

69. By letter, dated July 23, 1980, Wold-er wrote to Dayton and stated that he would have some people on Guam in the hope of towing the vessel to another port for “graving.” If that was impossible to accomplish, he intended to seek, in writing, permission of the Navy to cut the vessel up or until floatation of the bottom could be achieved at the site. He did not name the individuals who were to perform the work.

70. In the meantime, the USS BRUNSWICK, a seagoing salvage tug, had arrived on Guam. Plans were compiled for the removal of the vessel and removal attempts commenced. Extensive pumping and removal of loose debris and oil-polluted water was required. Topside weight such as masts and booms were removed by both explosive and oxy-acetylene cutting. Temporary plugging of numerous hull holes was required wherever the source of the leak could be located. On the 2nd and 3rd of August 1980, the BRUNSWICK, along with two YTB’s, failed to remove the vessel while exerting a pull of approximately 130 tons. Two attempts were made.

71. On August 4, 1980, a further survey was made of the ship and additional planning undertaken. By August 12, 1980, the stack, aft deck house, and the forward deck house were removed. Special patches were placed over the cargo deck manholes. Approximately 200 tons were removed from the topside. Additionally, four beach gear legs were rigged and a pulling barge equipped with a winch to add pulling force.

72. The vessel was finally pulled off the strand and, with the use of pumps and air pressure to prevent water from entering holes in the hull, the vessel was towed approximately 7 miles south of the entrance to Apra Harbor and it sunk in 600 feet of water.

73. At all times involved herein, i.e., from the time of its stranding, the SLIDRE constituted a potential hazard to navigation. Although the vessel appeared hard aground under good weather and sea conditions encountered in the harbor, Wolder, from time to time, reported it as moving and it was a real possibility that another typhoon could lift it off the strand and into navigable areas.

74. At all times involved herein, the United States Government, through its various agencies, acted reasonably and was not, in the slightest, negligent in removing and sinking the SLIDRE.

75. The total cost to the Navy for the removal of the vessel was $464,703.14.

76. The value of scrap in Guam was $70 per ton. The value in Taiwan was $130, delivered. This did not include the cost of cutting up the vessel while on the strand, or the cost of removal and towage if the vessel were pulled off intact and brought to the port where it would be sold. As noted previously, the vessel weighed approximately 980 tons.

77. Based on the value of scrap in Taiwan, without considering the costs which Wolder would have to incur in removing the vessel or cutting it up and then delivering the vessel or the cut-up scrap, even if the Government were liable, plaintiff would have secured $127,400. Even assuming an additional $25,000 value for miscellaneous equipment, the money received for scrapping would be far below the actual cost of the removal of the SLIDRE. Thus, even considering Wolder’s estimate of values, plaintiff did not suffer any damage as a result of the Government’s removing the vessel.

78. The actions of Wolder and his various “agents” were completely ineffectual in his attempts to remove the SLIDRE over the four years after it had originally stranded. Although the vessel always constituted a potential hazard to navigation, Wolder was interested only in removing the vessel in a manner which would result in a profit to him. As owner of the potential obstruction, he had the obligation and the responsibility to remove the SLIDRE. He failed to do so within a reasonable time, and the Government, after having heard him promise many, many times to have the SLIDRE off its strand “in a couple of weeks,” exercised extreme patience and acted most reasonably in finally taking action in the manner specified by 33 U.S.C. section 414 and removing and sinking the SLIDRE.

CONCLUSIONS OP LAW

Under 33 U.S.C. section 414, when the Secretary of the Army (through its agency, the Army Corps of Engineers), in the exercise of sound discretion, determines that navigable waters of the United States are obstructed or endangered by any wreck, it may remove the wreck without liability for any damage to the owner thereof. Contrary to plaintiffs position, it is not necessary that the wreck be a present, actual obstruction to navigation before action can be taken by the Corps under section 414. The Corps is not compelled to wait until a wreck actually and presently interferes with safe navigation in the area. If a wreck endangers, i.e., poses a potential hazard to navigation under conditions which may be reasonably anticipated to occur, the Corps can act under the powers given it under section 414.

As said by the Fifth Circuit Court in Agra-Trans Corporation v. Gladders Barge Line, Inc., 721 F.2d 1005, while

the Wreck Act [section 414] does not clearly refer the determination of whether a wreck poses an obstacle to navigation to the unreviewed discretion of the Corps of Engineers ... the determination of whether a wreck poses an obstacle ... rests initially with the Corps and that determination will be overturned by a reviewing court only if it is arbitrary or capricious.

The record clearly shows that the determination by the Corps to undertake the removal of the SLIDRE was arrived at only after all of the facts and factors involving the stranding of the SLIDRE, the four-year-long failure of the owner to remove it from the strand, the knowledge of the hazards to navigation brought on by the tropical cyclones that rack and wreck Guam almost seasonally, and the recognition of the danger to navigation in the harbor which would be imposed if a typhoon should move the SLIDRE from its strand, had been taken into consideration. The ultimate decision to remove it was fully reviewed by the Chief of Engineers, Washington, D.C., the Division Engineer, and the District Engineer, Pacific Ocean Division, of the Corps before the Corps authorized its removal by the Navy. The Corps made a well-founded administrative decision that the stranded SLIDRE was a potential danger to navigation in Apra Harbor. Thereafter, full statutory notice was given to Wolder that the Corps was going to remove the SLIDRE. Even after that notice, Wolder was given an opportunity to undertake his own salvage of the vessel. Wolder did nothing except talk about what he proposed to do. The action of the Corps was not in the slightest arbitrary or capricious. It was based upon four years of study, analysis, and concern for navigational safety in Apra Harbor.

Neither the Corps nor the Navy owed any obligation to Wolder to deliver him the hulk after it was removed. This would be so even if Wolder had had the tugs and berthing arrangements all ready to take over the SLIDRE after it came off the reef. Here, however, Wolder only verbalized about taking over and berthing the hulk. He did nothing to implement his words.

As is clearly set forth in the Act, the Secretary of the Army may dispose of a wreck in any manner which, in his discretion, he deems reasonable “without liability for any damage to the owners of the same” (section 414). The United States is not liable in any way to Wolder for the removal and sinking of the SLIDRE.

Wolder also claims that the government acted unconstitutionally by way of tort in removing the vessel. Under the Tort Claims Act, the United States did not waive its governmental immunity from suit in admiralty for torts. Thus, plaintiffs tort claim is without merit. Moreover, this court would be without jurisdiction to adjudicate a claim against the United States for any unconstitutional acts which exceeded $10,000 in damages. As a matter of law and fact, there was never any agreement between Wolder and the Corps or the Navy, i.e., the United States, by which the Navy was required to remove the SLIDRE for and on behalf of Wolder. The record is clear that although the Navy might, at one time, have been willing to pull the SLIDRE off for Wolder, Wolder never complied with the Navy’s requirement that a hold-harmless and reimbursement agreement be signed by Wolder.

Let JUDGMENT be entered for the Defendant United States and against the Plaintiff Wolder.

IT IS SO ORDERED.

      . Def.Ex. 20

      . At trial, Wolder's expert marine surveyor, Harry Naftel, testified that by using a 10,000 horsepower salvage tug, several of which were available in Singapore, plus hydraulic jacks available in Honolulu, it would have taken 4 days to pull the SLIDRE off the strand. He stated that the tugs charged $6,500 a day; that it would take 5 days each way from Singapore to Guam; that the jacks would cost $1,000 a day; and that he would have "jumped at the chance" to have contracted to pull off the SLIDRE for $100,000.

      . At trial, Harvey Minsky testified:
      "What made me stay with my opinion [that the SLIDRE was at all times a possible hazard to navigation] was very heavily weigh[t]ed on the comments that Captain Wolder himself was making to me; and what he was leading me to believe was the actual condition of the vessel at our many meetings and conversations ... He led me to believe that he had a vessel that could float, that was watertight; that merely had to be pulled off the reef; that it had moved on several occasions, not typhoon occasions either; that he was merely waiting for the right opportunity to go over and just pull it off the reef ... I envisioned a vessel that could be easily pulled off the reef, now a vessel that is floating around the harbor, just floating around Apra Outer Harbor, it could float into Apra Inner Harbor which is very critical to the Navy’s needs on the Island. It could float over to the commercial port. It could float over to the Dillingham facility; a vessel just floundering. At any time it could hit any point on the reef, within the harbor, it could hit the breakwater; it could sink any place in the harbor, in the outer harbor, in the inner harbor; in Sumay Cove adjacent to the commercial port. I envisioned a floundering vessel. Based on that, I said we have a potential hazard to navigation.”

      . See Findings 59, et seq., supra.

      . Cf. Agri-Trans Corp. v. Gladders Barge Line Inc., 721 F.2d 1005 (5th Cir.1983).

      . Zubic v. United States, 190 F.2d 278 (3d Cir.1951).

      . Buffalo Bayou Transportation Company v. United States, 375 F.2d 675, 677 (5th Cir.1967)

      . 28 U.S.C. § 1491.


source: Caselaw Access Project

author: GERRY, District Judge.

license: Public Domain

text:
    Marianne BOONE and Ward A. Robinson, Plaintiffs, v. BEACON BUILDING CORPORATION, Alan D. Bleznak, Betty Butterfield, Lorraine Flynn, Jefferson National Mortgage Company, Lincoln Federal Savings and Loan Association, Equity Savings and Loan, Barbara Durham, Township of Gloucester, Estate of James Joyce and Carole Houser, Defendants, and BEACON BUILDING CORPORATION, Alan D. Bleznak, Betty Butterfield and Lorraine Flynn, Defendants-Third Party Plaintiffs, v. ERIAL ESTATES, INCORPORATED and William Bowman, Third Party Defendants.
    Civ. A. No. 84-2557.
    United States District Court, D. New Jersey.
    July 23, 1985.

      Sandra Ayres, Plainsboro, N.J., Sugar-man, Denworth & Hellegers by Robert J. Sugarman, John F. Hellegers, Philadelphia, Pa., for plaintiffs.
    Blank, Rome, Comisky & McCauley by Stephen M. Orlofsky, Haddonfield, N.J., for defendant Township of Gloucester.

      Tomlin, Clark & Hopkin by John Montemurro, Haddonfield, N.J., for defendant Beacon Building Corp.
    Higgins & Slachetka by Joseph Slachetka, Laurel Springs, N.J., for defendant Estate of James Joyce.
    Jeffrey I. Baron, Marlton, N.J., for defendant Carole Houser and third party defendants.
    J. Gregory Leonard, Morristown, N.J., for defendant Lincoln Federal Savings and Loan Assn.
    William J. Sragow, Marlton, N.J., for defendant Jefferson National Mort. Co.
    Matthew Segal, Westmont, N.J., for defendant Betty Butterfield.
    Joseph Sandone, Haddonfield, N.J., for defendant Lorraine Flynn.
    Brandt, Haughey, Penberthy, Lewis & Hyland, Haddonfield, N.J., for defendant Alan Bleznak.
   OPINION

GERRY, District Judge.

This is a case in which plaintiffs have sued builders, realtors and landfill operators on a variety of theories. The plaintiffs purchased a home in the vicinity of a toxic landfill and seek damages against all parties allegedly involved in inducing the purchase.

Only count 1, the civil RICO count, is left in plaintiffs action against the Township. However, numerous co-defendants have cross-claimed against the Township for contribution and indemnification. The Township seeks to get out from under the cross-claims.

Counts 3 to 8 involve state law claims against the various defendants. In the plaintiffs’ action against the Township, counts 3, 4, 6 and 7 were dismissed because immunity provisions of the New Jersey Tort Claims Act bar claims against public entities for fraud, breach of warranty, strict liability, and intentional torts, respectively. It is the Township’s position that these provisions apply to any claims, re-gardless of whether brought by a plaintiff or by a co-defendant.

The court agrees. There is nothing in the language of the Tort Claims Act that makes a distinction between a complaint and a cross-claim, and it seems unreasonable and unlikely that the Legislature would have barred these types of claims by an injured party only to permit them by a co-tort-feasor. More likely, the Legislature simply did not believe, as a matter of policy, that public entities should be liable at all on these causes of action, period.

Counts 5 and 8 are for negligence and negligent infliction of emotional distress, respectively. In dismissing these claims against the Township, we held that intervening intentional acts of other defendants (or even those of the Township) rendered any negligence on the part of the Township a non-proximate cause of plaintiffs’ injuries.

The Township argues, therefore, that to the extent cross-claimants are found liable for these later intentional acts, they cannot logically recover from a party whose acts or omissions do not constitute a legal cause of injury, or, by extension, co-defendants’ liability. We agree.

Put another way, the Township and its co-defendants are not joint tort-feasors as regards the negligence claims. What we have are two distinct, independent sets of wrongs, not common tortious conduct among all the defendants, and contribution is therefore unavailable.

As to count 2, the § 1983 count, the Township observes that none of its co-defendants are subject to liability on this basis and, therefore, have no need for contribution. We agree.

Finally, we come to count 1. Unlike counts 3 to 8, which are governed by the New Jersey contribution scheme, this count is governed by the federal common law of contribution, if there is any.

No case has yet determined, apparently, whether there is a right to contribution under the civil liability provisions of RICO. The statute, of course, is silent on the issue.

Under a federal statute, a right of contribution may arise in one of two ways: either (1) by the express language of a statute or the statute’s clear implication, looking to its legislative history, the identity of the class for whose benefit the statute was enacted, and the overall legislative scheme; or (2) through the power of federal courts to fashion a common law of contribution. Texas Industries v. Radcliff Materials, 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981).

In Northwest Airlines v. Transport Workers, 451 U.S. 77, 101 S.Ct. 1571, 67 L.Ed.2d 750 (1981), the Court denied a right of contribution under either the Equal Pay Act or Title VII. The Court found that these statutes have a fairly elaborate enforcement mechanism, and that the omission from the statutes of a contribution remedy was probably deliberate. Stressing the very limited power of federal courts to fashion common law, the Court declined to create a right of contribution under these statutes, given the comprehensive nature of the scheme enacted by Congress.

The Northwest Airlines case is not dis-positive, however. The RICO statute, and particularly its enforcement provisions, are not much like the statutes considered in Northwest Airlines. While it is certainly true that none of these statutes were enacted with any mind to benefit potential defendants — a factor considered by the Court in the Northwest Airlines case — the far more comprehensive enforcement schemes of the Equal Pay Act and Title VII make the intentions of Congress far clearer there than here.

A statutory scheme much closer to RICO is that presented by the antitrust laws. In particular, both the Clayton Act and the civil provisions of RICO provide for the assessment of treble damages and attorney’s fees. The language of the civil RICO provision closely tracks the language of § 4 of the Clayton Act, on which it is undeniably modelled.

Fortunately for our purposes here, the Supreme Court has addressed the question of contribution under the antitrust laws and declined to recognize such a right. Texas Industries v. Radcliff Materials, 451 U.S. 630, 101 S.Ct. 2061, 68 L.Ed.2d 500 (1981). In that case, the Court noted:

The very idea of treble damages reveals an intent to punish past, and deter future, unlawful conduct, not to ameliorate the liability of wrongdoers. The absence of any reference to contribution in the legislative history or of any possibility that Congress was concerned with softening the blow on joint wrongdoers in this setting makes examination of other factors unnecessary.

Id. at 639, 101 S.Ct. at 2066.

We find this reasoning quite persuasive here. The Court further noted the rather lengthy period of existence of the antitrust laws and stated:

[T]he continuing existence of this statutory scheme without amendments authorizing contribution is not without significance.

Id. at 645, 101 S.Ct. at 2069. Although RICO is a relatively new statute, it is in some ways as old as § 4, because Congress looked to its experience with § 4 in fashioning RICO’s civil remedies provision. Accordingly, its refusal to expressly authorize a contribution provision in RICO is not without significance.

One cross-claimant argues that one court has recognized a contribution right in connection with CERCLA, 42 U.S.C. § 9601 et seq., and that as the instant case too involves hazardous wastes, that decision is instructive. We are not persuaded for two reasons. First, the decision on which the cross-claimant relies, U.S. v. Chem-Dyne Corp., 572 F.Supp. 802 (S.D.Ohio 1983), does not recognize a right of contribution but is a case dealing with joint and several liability. These are not equivalent concepts.

[T]he judicial determination that defendants should be jointly and severally liable [does not] suggest that courts also may order contribution, since joint and several liability simply ensures that the plaintiffs will be able to recover the full amount of damages from some, if not all, participants.

Texas Industries, supra, 451 U.S. at 646, 101 S.Ct. at 2069 (emphasis added). Second, CERCLA is basically a strict liability statute, and any determination regarding the right to contribution under that statute is not particularly relevant to such a right under the civil provisions of an essentially criminal statute. And the fact that the instant ease involves hazardous materials is mere accident and cannot affect a determination of the general right of contribution under the RICO statute.

The various co-defendants’ claims for indemnification must also fail. Indemnification may arise by contract or where a party’s liability is merely passive and vicarious and where the party against whom indemnification is sought is the active wrongdoer. Here, there is no evidence of any contractual undertaking on the part of the Township. Furthermore, the only counts on which something akin to vicarious liability might even arguably arise (breach of warranty, strict liability) are those on which the immunity provisions of the Tort Claims Act bar any action against the Township.

Co-defendant Beacon Building Corporation seeks leave to file an amended cross-claim. As distinguished from previous cross-claims, which are based entirely on the allegations of the complaint, Beacon Building seeks to allege a different theory of negligence against the Township than the one plaintiffs allege, as well as to allege a claim for nuisance.

The Township claims immunity from suit on these claims under a variety of theories which we need not address. Suffice it to say, that on neither the negligence claim nor the nuisance claim would the Township be a joint tort-feasor liable for contribution.

The negligence alleged is in the selection of a company to operate the Township’s landfill and in failure to supervise the company selected. This negligence, even if proved, would not be a proximate cause of the damages alleged by plaintiffs any more than the negligence asserted by plaintiffs. And again, the intervening intentional acts of other defendants (or even the Township’s intervening intentional acts) demonstrate the existence of independent, not joint, torts.

This reasoning applies equally to the nuisance claim. And with regard to that claim, since no nuisance claim has been asserted by plaintiffs against Beacon, we have doubts whether such a theory may be asserted as a Rule 13(g) cross-claim, given the language of that Rule. Cf. discussion regarding § 1983, supra.

Lastly, co-defendant Houser argues that her bankruptcy petition, which stays plaintiffs’ action against her, also stays disposition of the Township’s motion. As we understand the automatic stay provision of the Bankruptcy Act, it only operates in actions where the petitioner is in a defensive posture. As regards her cross-claim, Houser is in an offensive posture, albeit her offensive posture is closely tied to her defense of the main action here. We do not believe the Township’s motion is stayed.

For all the reasons expressed above, the Township’s motion will be granted in its entirety, and Beacon’s motion to file an amended cross-claim will be denied. Counsel for the Township shall submit orders on both motions.

      . Without in any way stating a position on contribution under CERCLA, we note that such a right is at least arguably to be found implicit in the structure of the liability provision, § 9607.

      . The negligence alleged in the plaintiffs’ complaint is in the promotion of real estate development in the vicinity of the landfill.


text:
    Anthony J. CHIPOLLINI, Plaintiff, v. SPENCER GIFTS, INC., Defendant.
    Civ. A. No. 84-1669.
    United States District Court, D. New Jersey.
    July 23, 1985.

      Joseph R. Lally, Ventor, N.J., for plaintiff.
    Gary D. Fry, Jeanne Schubert Barnum, P.C., Camden, N.J., for defendant.
   OPINION

GERRY, District Judge.

This is a suit brought under the Age Discrimination in Employment Act. The plaintiff was terminated in October, 1982. At that time, he had been employed by the defendant for a period of ten years and was 58 years of age. Plaintiff during those ten years was a construction manager for the defendant. Upon his termination, plaintiffs duties were assumed by his assistant, Ralph Liberatore, who was 43 years of age. Shortly thereafter, Liberatore was officially promoted to the title of construction manager, and the assistant’s job was eliminated.

The defendant, Spencer Gifts, contends that plaintiff’s termination was the result of a need to reduce the size of its work force. In the previous year, the number of new stores the company opened declined dramatically in comparison to previous years. One of the principal responsibilities of plaintiff's department was the planning and supervision of new store openings. The defendant states that it decided that it could only retain one executive in the construction department, and thus, that it had to choose between plaintiff and Liberatore.

The defendant does not seriously dispute that plaintiff was a good worker. However, his informal evaluations had gradually declined from “Excellent” to “Good +.” Moreover, his supervisors had found him to be less cooperative and easy to get along with than they would have liked. They also believed that his health problems made him less flexible from the standpoint of travel. Finally, they were disappointed in his performance on a project assigned to him toward the end of his tenure. Chipollini had been made the company’s “energy warden,” in charge of implementing cost-cutting measures in this important area. Apparently, according to defendant, Chipollini did not accept this new responsibility very willingly, failed to show much initiative in doing this job, and did not produce the hoped-for energy savings.

The defendant states that Liberatore was more flexible and easier to work with than plaintiff. Liberatore, however, had only been made Chipollini’s assistant in the home office some 3 to 4 months prior to plaintiff’s termination. Prior to that, he had been a construction person “out in the field” for about three years. Thus, despite his relative lack of experience in carrying out the functions of the executive branch of the construction department, the defendant believed that Liberatore was a better man for the job.

The plaintiff, for his part, does not dispute Liberatore’s qualifications for the job. He simply alleges that age entered impermissibly into the decision as to who should be retained.

The defendant has moved for summary judgment and claims that age had nothing to do with its decision on who to retain and who to let go.

Legal Analysis

1. The defendant initially contends that the plaintiff has failed to establish a prima facie case under the ADEA. In a discriminatory treatment case such as this, the plaintiff, in the absence of direct proof of discriminatory intent, may satisfy his initial burden of going forward by meeting the four-part test of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). That case, of course, was a Title VII suit but has generally been held to apply to ADEA claims as well. See Massarsky v. General Motors Corp., 706 F.2d 111 (3d Cir.1983). The McDonnell Douglas test is not designed to be applied mechanically; different facts may necessitate modifications in the basic elements, but that case nevertheless provides a useful starting point. Under McDonnell Douglas, a prima facie case is established where:

(1) the plaintiff is a member of a racial minority;
(2) he was qualified for the job for which an employer was seeking applicants;
(3) despite his qualifications, he was rejected; and
(4) after his rejection, the position remained open, and the employer continued to seek applicants from persons of plaintiff’s qualifications.

Here, plaintiff was within the ADEA’s protected class of 40 to 70 year olds and therefore meets the first prong of McDonnell Douglas, as adapted to the ADEA. Second, we believe the evidence presented establishes that Chipollini was performing his job in a satisfactory manner, satisfying the second prong of the adapted test. See Douglas v. Anderson, 656 F.2d 528, 533 (9th Cir.1981). It is important to recognize that plaintiff need not show that he was the world’s greatest employee to be deemed satisfactory. All that is required is evidence that he generally performed the job in a capable manner. Although there is evidence that his employer may have felt that Chipollini’s performance was not as excellent as it had been in prior years, he nevertheless was still considered “Good +.” The third prong of the test is met quite simply by the showing that plaintiff, although a satisfactory employee, was terminated.

The defendant argues that the test’s fourth prong is not satisfied. It is defendant’s position that to satisfy this prong the plaintiff must show that he was replaced by someone outside the protected age group; i.e., by someone under the age of 40. Here, of course, the plaintiff was replaced by Liberatore, who was 43 at the time he took over plaintiff’s position.

There are courts that have accepted the defendant’s argument. See, e.g., Price v. Maryland Casualty Co., 561 F.2d 609 (5th Cir.1977). But we find these cases unpersuasive. Age, unlike sex or race, has many gradations. Although a 40 year old is also protected by the ADEA, it still seems reasonable to presume that if a 40 year old replaced a 69 year old, age impermissibly entered into the decision, all things being equal. See, e.g., McCuen v. Home Insurance Co., 633 F.2d 1150 (5th Cir.1981).

We believe the better test is that enunciated by the Douglas court, supra: whether the plaintiff was replaced by a substantially younger employee with equal or inferior qualifications. 656 F.2d at 533. While the Third Circuit position on this issue has not always been absolutely clear, language in Massarsky, supra, tends to suggest agreement with the position taken by the Ninth Circuit in Douglas. The Massarsky court, in holding that the plaintiff had established a prima facie case, stated:

It is also undisputed that a person considerably younger in age and with less seniority was retained.

706 F.2d at 118. While it is true that the persons there retained were below 40, that fact does not appear to have been the basis of decision, given the above language. The Third Circuit has now made its position quite clear in Maxfield v. Sinclair International, 766 F.2d 788 (1985); that one need not have been replaced by an employee under 40 to make out a prima facie case.

Although the meaning of “substantially” or “considerably” younger will perhaps need more precise definition at some point, we have no trouble concluding that the 15 year differential in the instant case suffices in this regard.

Accordingly, we find that the plaintiff has satisfied his initial burden of going forward and is entitled to the initial presumption of age discrimination.

2. Once plaintiff presents a prima facie case, the employer then bears the burden of dispelling the adverse inferences by articulating “some legitimate, non-discriminatory reason” for its treatment of the employee. Massarsky, supra, (quoting McDonnell Douglas).

Here, there is no question that the defendant has successfully met its burden. The defendant has explained its need to reduce the size of its work force and eliminate one executive position in its construction department. In choosing Liberatore over Chipollini, the defendant has maintained that the former seemed more flexible and easy-going, while the latter had become less effective as a worker, in addition to being less cooperative. Obviously, the defendant’s reasons for choosing the one employee over the other are subjective ones, but that is sufficient, particularly when the job in question is an executive position involving discretion and personal relations rather than more objective productivity factors. The reasons proffered seem facially reasonable.

3. The ultimate burden therefore shifts back to the plaintiff, who must prove that the reasons asserted by the defendant are merely a pretext for unlawful discrimination. Massarsky, supra, at 118. The defendant contends that the plaintiff’s proofs fail to raise a genuine issue of fact on the question of pretext.

There are few issues less suitable for summary judgment than issues of intent and motivation, such as are presented by a consideration of pretext. Credibility naturally is a critical factor. Defense witnesses may testify that age did not enter into their decision and may simply not be believed. On the other hand, the mere fact that the plaintiff has established a prima facie case is not always sufficient for an ADEA plaintiff to survive a summary judgment motion. See, e.g., Pace v. Southern Ry. System, 701 F.2d 1383, 1391 (11th Cir.1983); Askin v. Firestone Tire Co., 600 F.Supp. 751, 755 (D.Ky.1985). Once the defendant has articulated a legitimate reason for the termination, the prima facie case carries a good deal less weight (i.e., the presumption of discrimination drops from the case), and the plaintiff must come forward with something more.

The employee may succeed in showing pretext “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981); Duffy v. Wheeling Pittsburgh Steel Corp., 738 F.2d 1393, 1396 (3d Cir.1984). Thus, “there may be some cases where the plaintiff’s initial [prima facie ] evidence, combined with effective cross-examination of the defendant, will suffice to discredit defendant’s explanation,” and thus, in a proper case, plaintiff may simply rest on his initial proofs without offering additional evidence. See Burdine, supra, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10. Douglas, supra, at 535 n. 7. But on a motion for summary judgment, a plaintiff who would rely on the “indirect” method of proof must at least present the court with some basis for doubting the credence of the proffered explanation.

It is important to remember that the plaintiff must show that the explanation is a- pretext for discrimination. It is not enough for the plaintiff to show that the employer made an unwise business decision, or an unnecessary personnel move. And it is not enough for the plaintiff to show that the employer acted arbitrarily or with ill will. These facts, even if demonstrated, do not necessarily show that age was a motivating factor. The plaintiff’s mere conjecture that age was the deciding factor — based on plaintiff’s belief that other factors were an insufficient basis — does not provide the basis for denial of a motion for summary judgment. See Holly v. City of Naperville, 603 F.Supp. 220, 232 (N.D.Ill.1985).

As we view plaintiff’s submissions, he is attempting to prove discrimination “indirectly.” None of his arguments, however, raise an inference of age discrimination. For example, plaintiff disputes the defendant’s economic justification for plaintiff’s termination, claiming that other alternatives than the complete elimination of his position could have been considered, and that, in fact, the workload of his department did not slow down to the extent alleged. None of these challenges touch on the issue of age, however. For whatever reason, the defendant decided to reduce the size of plaintiffs department. That was a business decision which we simply have no occasion to evaluate. An employer (absent a contractual provision to the contrary) has no obligation to keep its operation or any division thereof running at full capacity so as to maximize employment. A decision to reduce work force, in and of itself, is age neutral, and there is no indication that plaintiffs department was heavily populated with older employees so as to give rise to suspicion. The real issue here, then, is not why Spencer Gifts decided to eliminate one executive in plaintiffs department, but why it chose to eliminate Chipollini, not Liberatore.

On this issue, plaintiff fares no better. He disputes the importance of the energy project to which he was assigned and his ineffectiveness in handling that project. And further, he contends that Liberatore’s limited experience as a manager prior to being elevated to plaintiff’s position is indicative of improper motive. As we have said before, however, the decision with which we are concerned was necessarily subjective. Although plaintiff may have given the court reason to believe that he handled an unimportant project with great skill, he has not given us any reason to question his employer’s perceptions of his performance. And although Liberatore had less experience, plaintiff has not given us reason to doubt defendant’s perception that he showed greater future promise.

The court, indeed the defendant as well, has no reason to doubt that plaintiff was basically a hard-working and capable employee, but nothing the plaintiff has proffered raises an issue of age as a factor that was considered along with the other intangibles. No statements made to plaintiff, no memos among defendant’s decision-making employees have been submitted; no statistics have been compiled; no pattern or practice of discrimination has been suggested. To allow a jury to infer age discrimination would simply be to invite speculation.

Finally, plaintiff suggests that he was terminated on the basis of age because his salary was higher than Liberatore’s. Nothing in the evidence substantiates this. It is not disputed that older workers with longer experience are generally higher paid. But that does not necessarily mean that salary is a proxy for age; that because one with a higher salary is terminated, the reason was to discriminate on- the basis of age. Plaintiff’s proofs do not raise any inference but that a slight savings in salary was merely an incidental benefit of an otherwise legitimate employment decision.

For all of the above reasons, the defendant’s motion will be granted.


author: TURK, Chief Judge.

text:
    UNITED STATES of America, Plaintiff, v. RAPOCA ENERGY COMPANY, Defendant.
    Civ. A. No. 83-0038(A)(R).
    United States District Court, W.D. Virginia.
    July 23, 1985.

      Robert S. Moore, Knoxville, Tenn., Morgan E. Scott, Asst. U.S. Atty., Abingdon, Va., for plaintiff.
    Elsey A. Harris, III, Norton, Va., for defendant.
   MEMORANDUM OPINION ■

TURK, Chief Judge.

This case, involving the question of ultimate liability for payment of reclamation fees by operators of coal mines, is before the court on cross motions for summary judgment. The government contends that the defendant, Rapoca Energy Company, as the owner of large coal reserves in Buchanan, Dickinson, and Wise Counties, Virginia, is obligated to pay, pursuant to the provisions of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. §§ 1201 et seq., a reclamation fee of thirty-five cents per ton of coal produced by surface mining and fifteen cents per ton of coal produced by underground mining. Rapoca, however, asserts that it is the forty-eight independent companies with whom it contracts to mine the coal that should be held ultimately liable, for it is only they who fall within the statutory definition of “operator” contained in Section 1291(13) of Title 30 of the United States Code. Thus, the ultimate issue for consideration is whether a large coal company that contracts with independent companies to produce coal that it owns or leases is an “operator” responsible for the payment of reclamation fees.

Section 402 of the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1232(a) (1982) (“the Act”), requires all “operators” of coal mining operations to pay a reclamation fee, per ton of coal mined, to the Secretary of the Interior. “Operator” is further defined in section 1291(13) as “any person, partnership, or corporation engaged in coal mining who removes or intends to remove more than two hundred and fifty tons of coal from the earth within twelve consecutive calendar months in any one location. 30 U.S.C. § 1291(13) (1982). Rapoca argues that it is not an operator within the meaning of the statute since it is the independent mining companies, and not Rapoca, that physically remove the coal from the earth. According to Rapoca, the only situation which would allow liability to fall on it would be if its agents or employees were to remove the coal. Since these mining companies are not employees of Rapoca, but, rather, independent contractors, Rapoca argues that it may not be held liable for any reclamation fees.

Under Virginia law, two factors are necessary in order for an agency relationship to be established. First, “it is necessary that [the agent] be subject to the [principal’s] control, with regard to the work to be done and the manner of performing it.” Whitfield v. Whittaker Memorial Hospital, 210 Va. 176, 181, 169 S.E.2d 563, 567 (1969). “Actual control, however, is not the test; it is the right to control which is determinative.” Id. Second, “the work has to be done on the business of the principal or for his benefit.” Id. In addition, the mere fact that these companies are termed “independent contractors” is not a conclusive indication of the relationship between the parties. Chandler v. Kelley, 149 Va. 221, 141 S.E. 389 (1928); Murphy v. Holiday Inns, 216 Va. 490, 219 S.E.2d 874 (1975). “What the parties call themselves is immaterial; the law looks to the actual relationship between the parties.” 1A Michie, Michie’s Jurisprudence of Virginia and West Virginia, § 12, p. 543 (1980). In the present case it is undeniable that the work performed by the “independent contractors” is done “on the business of” Rapoca or “for [its] benefit”. Rapoca Energy Company owns or leases all of the coal being mined and merely contracts with the mining companies to extract the coal. The mining companies are not free to sell the coal which they extract to the highest bidder, but must instead bring it to Rapoca’s facilities, where they are paid a fixed rate per ton of coal delivered.

Thus, the only question to be determined is whether Rapoca Energy Company has the right to control the work done by the mining companies and the manner in which they perform it. Here, Rapoca’s method of developing and maintaining the coal reserves indicates such a degree of control. Rapoca surveys its mineral holdings to determine what locations are suitable for coal mining operations. It then performs all preliminary engineering work for the site, including the engineering work required for a surface mining permit. In addition, Rapoca begins the actual site development work, which includes building or improving access roads, constructing sedimentation ponds, and facing up the coal seam.

During the course of the mining operations, Rapoca provides all engineering and mapping services for the contractors. The contractors follow Rapoca’s engineers’ directions relative to the placement and method of driving entries, the pulling of mine pillars, the location and use of haulings inside the mines, and any other matter pertaining to the protection of the mine and the securing of the greatest amount of coal possible.

The day-to-day conduct of the coal removal operation is the responsibility of each contractor. They are responsible for the hiring, supervising, and firing of their own employees, for the acquisition and maintenance of their own equipment, and for the provision of their own fuel, parts, and other supplies. This is not a conclusive indication that the mining companies are “independent contractors”, however, for an agency relationship impliedly carries with it the authority for the agent to use all means necessary for the accomplishment of the work to be performed.

Finally, the manner of payment also indicates that the relationship is that of principal and agent rather than one of owner and independent contractor. Once the mining companies have removed the coal from the ground, they must bring it to a processing facility owned by a subdivision of Rapoca. These companies are then paid a fixed amount for every ton of coal delivered. This amount does not change with day-today fluctuations in the market price that Rapoca is receiving for its coal. Rather, upward or downward adjustments are made from time to time to reflect the overall market trend. The lack of freedom to sell the extracted coal to anyone other than Rapoca,, along with the lack of day to day fluctuations parallelling the market price of coal, is strong evidence that the relationship is one of principal and agent, for it shows direct control over the mining companies. Where the relationship that of owner and independent contractor, the mining companies would undoubtedly be free to sell to whomever would pay the highest price, with only a royalty per ton of coal mined or percentage of the sales price being remitted to Rapoca.

Because of the degree of control which Rapoca Energy Company exerts over the mining companies with respect to crucial aspects of the mining process, along with the corresponding lack of freedom regarding the mining companies ability to sell to anyone other than Rapoca, this court must conclude that the “independent contractors” are no more than Rapoca’s agents. Thus, it is Rapoca Energy Company that is liable for payment of the reclamation fees.

Were the question of agency not raised, however, the factors enunciated in Parsons v. Smith, 359 U.S. 215, 79 S.Ct. 656, 3 L.Ed.2d 747 (1959), for determining the entity entitled to claim an allowance for depletion of mineral deposits, would persuade the court to find that Rapoca Energy Company, and not the independent mining companies, is liable for payment of the reclamation fees. The Parsons opinion covered two consolidated cases with similar facts. In each the owner of coal-bearing land entered into a contract with a mining company which provided that the company would strip-mine the coal for a fixed price per ton. The ultimate question to be decided was whether the mining companies had an “economic interest” in the coal in place, and were thus entitled to the depletion allowance, or a “mere economic advantage derived from production, through a contractual relation to the owner, by one who has no capital investment in the mineral deposit.” Parsons, 359 U.S. at 222, 79 S.Ct. at 661. The Court looked to the following seven factors in determining that the mining companies had only an economic advantage in the coal in place and thus were not entitled to claim the depletion allowance:

(1) that the [contractors’] investments were in their equipment, all of which was movable — not in the coal in place; (2) that their investments in equipment were recoverable through depreciation — not depletion; (3) that the contracts were completely terminable without cause on short notice; (4) that the landowners did not agree to surrender and did not actually surrender to [contractors] any capital interest in the coal in place; (5) that the coal at all times, even after it was mined, belonged entirely to the landowners, and that the [contractors] could not sell or keep any of it but were required to deliver all that they mined to the landowners; (6) that [contractors] were not to have any part of the proceeds of the sale of the coal, but, on the contrary, they were to be paid a fixed sum for each ton mined and delivered, which was, as stated in Huss, [255 F.2d 600] agreed to be in full compensation for the full performance of all work and for the furnishing of [labor] and equipment required for the work”; and (7) that [contractors], thus, agreed to look only to to the landowners for all sums to become due them under their contracts.

Parsons, 359 U.S. at 225, 79 S.Ct. at 663 (citations omitted). While this court recognizes that these factors, dealing with depletion allowances, are not controlling in a case such as this involving reclamation fees, they do provide a standard by which it may be determined whether the independent mining companies have an economic interest in the coal in place. It is this determination, in the absence of a conclusive resolution of the question of an agency relationship, which this court feels is dis-positive of the issue of liability for payment of reclamation fees.

Six of the seven factors enunciated in Parsons, and later reaffirmed by the Supreme Court in Paragon Jewel Coal Company v. Commissioner, 380 U.S. 624, 85 S.Ct. 1207, 14 L.Ed.2d 116 (1965), are present in the instant case. The only factor that differs here is that the contracts were not terminable without cause on short notice. Rather, each of the contracts was of specific duration, with the usual term being one year. The fact that the contracts are not terminable at will, however, has been determined by the Supreme Court not to be dispositive of the issue of economic interest, see United States v. Swank, 451 U.S. 571, 582, 101 S.Ct. 1931, 1938, 68 L.Ed.2d 454 (1981), but is merely one of the factors to be considered. In the present case, it is undisputed that the investments of the mining companies are in their equipment, that this equipment is movable, and that their investments are recoverable through depreciation. In addition, Rapoca Energy Company has never surrendered to the mining companies any capital interest in the coal in place. Rather, it merely conveys to the companies the right to mine and remove the coal from the locations covered by the contracts. In fact, each written contract specifically states that the “Contractors sole interest in the Licensed Premises shall be limited to the coal actually mined by it.”

Factors six and seven of the Parsons test, whether the companies are bound to deliver the mined coal to the landowners or instead may sell it to the highest bidder and whether the companies are paid a fixed price per ton for the coal or instead may sell the coal at whatever price the market may bear, also dictate a finding that the “independent contractors” employed by Rapoca have no economic interest in the coal in place. In both Parsons and Paragon Jewel Coal Company the contractors were required to deliver the mined coal to the landowner’s tipple and in turn received compensation at a fixed rate per ton. In both cases the Supreme Court determined that the contractors had a mere economic advantage in mining the coal, and thus were not entitled to the depletion allowance. In United States v. Swank, however, the mining companies “had a legal interest in the mineral both before and after it was mined, and were free to sell the coal at whatever price the market could bear.” Swank, 451 U.S. at 582, 101 S.Ct. at 1938. As a result, the Court found that the lessees retained an economic interest in the mineral deposits. In the present case the written contracts specifically provide that “[a]ll coal mined from the Licensed Premises by Contractor or its agents shall be delivered to the Norton Coal Company Tipple" ... and that “[f]or its services of extracting coal from the Licensed Premises and delivering such coal to the Tipple, Owner shall pay to Contractor the current dock price ... per ton” of coal mined. It is thus clear that the mining companies are not free to sell the mined coal to whomever they please, but must instead deliver the coal to Rapoca’s processing facilities, at which time they are paid a fixed amount per ton of coal delivered.

It is also clear, as in both Parsons and Paragon Jewel Coal Company, that the mining companies are bound to look only to Rapoca Energy Company for all sums due them under their contracts. “The agreement of the landowners to pay a fixed sum per ton for mining and delivering the coal ‘was a personal covenant and did not purport to grant [the contractors] an interest in the coal [in place].’ ” Parsons v. Smith, 359 U.S. 215, 225, 79 S.Ct. 656, 663, 3 L.Ed.2d 747 (1959), quoting Helvering v. O’Donnell, 303 U.S. 370, 372, 58 S.Ct. 619, 620, 82 L.Ed. 903 (1938). The seven factors enunciated in Parsons thus show that the companies with whom Rapoca Energy Company contracts to mine its coal reserves have no economic interest in the coal in place.

Since Rapoca Energy Company has been determined to be the only entity that has an economic interest in the coal in place, and that the independent contractors enjoy no more than an economic advantage in the mineral deposits, this court feels that it must therefore also determine that it is' Rapoca Energy Company that is liable for the payment of reclamation fees.

Finally, though this court has been unable to find any reported cases dealing with the precise issue presented for consideration today, the courts of Ohio, Kentucky, and Alabama have dealt with similarly worded statutes involving the “severing” of minerals from the soil. N & G Construction, Inc. v. Lindley, 56 Ohio St.2d 415, 384 N.E.2d 704 (1978), dealt with the question of ultimate liability for severance taxes under a statute which imposed such liability on the “severer” of natural resources. “Severer” was further defined as “any person who actually removes the natural resources from the soil or water in this state.” R & F Coal Company, the owner of the coal and contractor for its excavation, argued that it could not be liable for the severance tax since it did not physically remove the coal from the ground. The Ohio Supreme Court disagreed, finding that “it would be unreasonable ... to render [N & G] liable for the severance tax, in effect recognizing as a basis for that determination the agency relationship between [N & G] and its employees who actually severed the coal, but on the other hand refusing to recognize the enterprise agency between [N & G] and the R & F Coal Company. N & G Construction, Inc., 56 Ohio St.2d at 417, 384 N.E.2d at 706. The court held that a “reasonable and workable scheme ... must obligate the enterprise which ultimately directed the severance” to be held liable for the tax. Id.

In Commonwealth v. Majestic Collieries Co., 594 S.W.2d 877 (Ky.1979), reh’g denied (Ky.1980), the court addressed the question of whether mineral owners or their contract miners were responsible for the payment of the severance tax. The mineral owners argued that the contractors were the “taxpayers” under the statute because they were the ones who “severed” the coal from the ground. The court disagreed, stating that:

Majestic and Sovereign [the mineral owners] owned the right to extract the coal and sell it. They arranged with the contract miners to perform the mining and transportation tasks for them. They paid the contract miners a per ton compensation for the cost of removing the coal. The contract miners never owned the coal nor sold it to Sovereign and Majestic. Rather the contract miners dug the coal which Sovereign and Majestic wanted mined ...
... The argument of Majestic and Sovereign, taken to its logical conclusion, would result in the coal severance tax being levied upon the individual pick miner or machine operator merely because he is the one who physically removes the coal from the earth. Majestic and Sovereign were engaged in severing the coal from their leasehold, and the payments to the contract miners were a business expense necessary to get the coal out of the ground and to the rail car where it could be sold at the market price. In short, the contract miners were the tools with which Majestic and Sovereign severed the coal.

Majestic, 594 S.W.2d at 878.

Finally, Alabama, under a similarly worded “severance” statute, has become the third state to hold that “the legislature intended for the entity which owns the right to extract the coal to be the one that should pay the severance tax.” State v. Burgess Mining and Construction Co., 464 So.2d 95, 97 (Ala.Civ.App.1984), reh’g denied, (Ala.1985). “Otherwise, carried to its logical conclusion, the person who will ultimately be liable for the tax is the person who actually operates the machinery or who handles the shovels, since he is the one who actually severs the coal from the soil.” Id.

This court feels that in determining liability for payment of reclamation fees by the entity who “removes” the coal from the ground, just as in cases involving payment of state severance taxes by the “person who actually removes the natural resources from the soil”, the legislature intended that ultimate liability should rest with the entity that owns the right to extract the coal. Here, the “independent contractors” owned no economic interest in the coal in place. Rather, they enjoyed a mere “economic advantage” derived from production, through a contractual relation to the owner and were in fact no more than the tools by which Rapoca was able to extract its coal. Rapoca Energy Company is liable for payment of the reclamation fees.

The plaintiff’s motion for summary judgment is GRANTED. The parties have stipulated that, if Rapoca were determined to be liable for the payment of the reclamation fees, the amount of the judgment to which the plaintiff, the United States of America, would be entitled would be $222,-713.45 principal, plus $64,020.56 in prejudgment interest through March 31, 1984, plus an additional $2227.13 in pre-judgment interest for every month or portion thereof from April 1, 1984, until the date of judgment.

An accompanying Order shall be entered this day.

      . In Commissioner v. Southwest Exploration Co., 350 U.S. 308, 76 S.Ct. 395, 100 L.Ed. 347 (1956), the Supreme Court defined "economic interest” as consisting of two factors, to be considered together. The factors were: '“(1) acquiring], by investment, any interest in the [coal] in place’, and ’secur[ing] by legal relationship ‘income derived from the extraction of the [coal], to which he must look for a return of his capital.’” Id. at 314, 76 S.Ct. at 398, quoting Palmer v. Bender, 287 U.S. 551, 557, 53 S.Ct. 225, 226, 77 L.Ed. 489 (1933).

      . Rapoca Energy Company consists of two divisions: Black Watch/Black Diamond Division and Norton Division. The contracts between the mining companies and Norton Division are written while those with Black Watch/Black Diamond are oral.

      . This position was later reaffirmed in Young v. Lindley, 61 Ohio St.2d 58, 399 N.E.2d 89 (1980).