author: BELL, District Judge.

text:
    David A. JOHNSON, Plaintiff, v. Trooper D. PIKE, Defendant.
    No. C85-1754-A.
    United States District Court, N.D. Ohio, E.D.
    Dec. 19, 1985.

      W. Love II, Akron, Ohio, for plaintiff.
    William J. Steele, Asst. Atty. Gen., Columbus, Ohio, for defendant.
   ORDER

BELL, District Judge.

This matter is before the court on defendant’s motion for summary judgment on plaintiff’s civil rights claim brought pursuant to 42 U.S.C. § 1983. Plaintiff has responded in opposition to this motion.

Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, the party moving for summary judgment has the burden of showing that no genuine issue of material fact exists and that as a matter of law, it is entitled to summary judgment. In reviewing a motion for summary judgment, a court must consider the pleadings, related documents and evidence and all reasonable inferences in a manner most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1980); Smith v. Hudson, 600 F.2d 60 (6th Cir.1979); cert. dismissed, 444 U.S. 986, 100 S.Ct. 495, 62 L.Ed.2d 415 (1979); Board of Ed. Cincinnati v. Department of H.E.W., 532 F.2d 1070 (6th Cir.1976).

The following factual summary is drawn from plaintiff’s depositional testimony. See Deposition of David A. Johnson attached to Defendant’s Motion for Summary Judgment. Plaintiff spent the evening of October 18, 1983 at Bob’s Lake Bar in the Portage Lakes area of Akron, Ohio. Plaintiff consumed a number of beers before leaving that establishment at approximately 1:00 A.M. on October 1, 1983, together with several other persons who had been at the bar. He and Danny Ralston left on motorcycles while the others followed in an automobile, all apparently on their way to a party.

At least an hour later, plaintiff’s Harley-Davidson 1380 c.c. motorcycle ran out of fuel. He left his motorcycle behind a restaurant and got into the automobile that had been following him in order to look for an open gas station. Eventually he located a gas station, purchased fuel and returned to the restaurant where his motorcycle was parked. He thereafter engaged in conversation with individuals in the automobile for an undetermined amount of time and then proceeded alone.

Plaintiff left the restaurant location, returned the gas can he borrowed from the gas station and then decided to go home. At approximately 4:00 A.M. on October 29, 1983, plaintiff passed defendant’s Ohio State Patrol cruiser. See Affidavit of Dennis R. Pike at 11 2 and Deposition of David A. Johnson at 15-16, 24. Plaintiff was traveling at approximately sixty miles per hour in a zone he knew was posted at forty-five miles per hour. Observing the excessive speed with which plaintiff was traveling, defendant turned his cruiser around, activated its red flashing lights and undertook pursuit.

Plaintiff realized immediately that he was the subject of defendant’s pursuit but did not stop. Instead, he led defendant on a high speed chase covering between ten and fifteen miles. He turned off his headlight on several occasions during the pursuit in an effort to elude defendant. In addition, he purposely drove around a roadblock which had been established by the Summit County Sheriff’s Department at an intersection in his path. Plaintiff sought to avoid being stopped because he had been drinking and, although he had a valid license at the time, had previously been convicted at least twice of driving while under the influence.

While traveling at least eighty miles an hour and realizing defendant was still following him, plaintiff turned to go up an entrance ramp to an expressway. Even though he slowed down considerably as he began to enter the ramp, his motorcycle hit some gravel and went out from underneath him. Plaintiff then fell to the ground with the still running motorcycle resting on his right leg and his hands still on the handlebars.

Defendant Pike promptly blocked the path of the motorcycle with his cruiser, and advancing toward plaintiff, ordered him to stop. Plaintiff responded that he was trying to get the motorcycle off of his leg. At that point, defendant grabbed Johnson from behind, jerking him into the left side of the motorcycle. This action by defendant pulled plaintiff’s hands free from the handlebars. With the motorcycle still running and plaintiff’s hands off the clutch control, the motorcycle jumped out from underneath both men. Plaintiff experienced immediate pain to his right hand. Defendant kept his hold on plaintiff as they were thrown to the ground until defendant positioned plaintiff stomach down and placed his knee in plaintiff’s back. In that position, defendant handcuffed plaintiff. The total time that elapsed from when plaintiff lost control of his motorcycle at the base of the entrance ramp until he was handcuffed was, at the most, a half a minute.

Johnson told Pike as he was being handcuffed that something was wrong with his hand. Defendant did not respond but moments later, when other law enforcement officers arrived, plaintiff told them there was something wet on his back. Upon examination it was observed that plaintiff’s thumb and forefinger were missing. The handcuffs were then removed and plaintiff was taken to the hospital. Medical personnel were on the scene approximately fifteen minutes after plaintiff’s injury was discovered. He sustained no other physical injuries.

To establish a claim under section 1983, there are two jurisdictional prerequisites. Plaintiff must have been deprived of rights, privileges or immunities secured by the Constitution and laws of the United States. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Gomez v. Toledo, 446 U.S. 635, 100 S.Ct. 1920, 64 L.Ed.2d 572 (1980); Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1970). In addition, it must be alleged that the defendant was acting under color of law when he committed these constitutional deprivations. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). Defendant does not dispute that he was acting under color of law at all times during the incident above summarized. He contends, however, that he is entitled to summary, judgment because there is no material issue of fact that his actions did not deprive plaintiff of any constitutional right.

Plaintiff alleges that defendant’s use of excessive force in arresting him deprived him of his due process rights. Complaint at H 3 and 4. While the use of excessive force may be considered a constitutional deprivation under some circumstances, not every injury wrongfully inflicted by a state officer rises to that level. Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981). Specifically, the Civil Rights Act does not provide a remedy for state law tort violations. Baker v. McCollan, 443 U.S. 137, 146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1970).

In the recent case of Wilson v. Beebe, 770 F.2d 578, 579 (6th Cir.1985) (en banc) the Sixth Circuit Court of Appeals summarized the developing law in this area. The rule found by that court to have emerged in establishing due process violations provides:

[T]hat due process claims for injuries inflicted under color of state law may proceed either upon the theory that a deprivation has occurred without procedural due process or that there has been a substantive due process violation; that is, either the official conduct shocks the conscience as in Rochin [v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952) ], or infringes a specific constitutional guarantee, as in Monroe v. Pape [365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) ].

Id. at 583.

As the Wilson v. Beebe analysis is applicable to the case before this court, a brief summary of the facts of that case is worthy of inclusion. The court there stated that:

[W]hile investigating a breaking and entering report [Michigan state police officer] Beebe encountered Wilson walking along a dark rural road. Beebe knew from a radio report that guns and ammunition had been taken during the burglary. Beebe was alone in his patrol car when he spotted Wilson who fit the description of the suspect. Beebe made several attempts to summon other officers, but was unsuccessful. Beebe ordered Wilson to walk to the patrol car where he conducted a frisk and found no weapons. While holding his cocked revolver in one hand, Beebe was attempting to handcuff Wilson when his revolver discharged. The magistrate found that all four of Beebe’s fingers were wrapped around the handle of the pistol, with his thumb overlapping the fingers; his index finger was not in the trigger area. While he found that Beebe did not intend to fire the gun the magistrate also found that Beebe acted contrary to his training as a Michigan State Police Department Officer in cocking his revolver during the arrest and handcuffing of Wilson and that this conduct was negligent.

Id. at 581. Wilson sued Beebe under 42 U.S.C. § 1983 for damages and under a pendant state claim of negligence. The magistrate before whom the case was tried determined that Wilson’s complaint failed to state a claim upon which relief could be granted under § 1983 based on the decision of Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). Recovery was allowed, however, on the pendant negligence claim. In its eventual affirmance of this result, the Sixth Circuit Court of Appeals delineated the differences between conduct which reaches constitutional dimensions from conduct which merely constitutes a tort. See Wilson v. Beebe, 770 F.2d at 581-587. Both procedural and substantive due process analysis was covered because Wilson, as the- case with plaintiff in this cause, did not specify the exact nature of the alleged violation.

I. PROCEDURAL DUE PROCESS

In analyzing whether a procedural due process claim had been shown, the Sixth Circuit discussed at length the Supreme Court’s decision in Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), which limited the reach of § 1983 in the context of procedural due process. The Parratt court instructed that when a due process claim involves a deprivation- of-property, the first inquiry is whether the state provides an adequate tort remedy. Id. at 537, 101 S.Ct. at 1914. If the state tort remedy is deemed adequate, the deprivation is not “without due process of law.” Id.

The Parratt court dealt only with the deprivation of property by the negligent random and unauthorized acts of state officials. Wilson v. Beebe, 770 F.2d at 578. A more recent case, Logan v. Zimmerman Brush Co., 455 U.S. 422, 436, 102 S.Ct. 1148, 1158, 71 L.Ed.2d 265 (1982), limited Parratt to this type of random conduct by state officials and found that it does not apply to deprivations of property under established state procedures without adequate predeprivation procedural safeguards. The Parratt decision was expanded to include intentional deprivations of property in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), on the theory that the state cannot anticipate either negligent or intentional conduct which is random and unauthorized for the purpose of providing predeprivation process.

In Wilson v. Beebe, the Sixth Circuit Court of Appeals addressed the issue of whether the Parratt rationale should be extended to deprivations of liberty interests protected by the fourteenth amendment. The court found that Parratt applies equally to deprivations of liberty interests if two inquiries are addressed: first, was the conduct random and unauthorized rather than pursuant to established state procedures; and second, if the conduct was random and incapable of anticipation by the state, is there an adequate postdeprivation p oceeding which satisfies the requirements of procedural due process. Wilson v. Beebe, 770 F.2d at 584.

The Wilson court found that Beebe’s conduct in discharging his weapon was in fact random, unauthorized and could not be predicted. Wilson was successful on his negligence claim against Beebe which the court found to be a postdeprivation remedy which was adequate to satisfy the requirements of procedural due process. Id. at 584. Therefore, a procedural due process claim was found not to exist.

The facts before this court compel the same result. Defendant Pike approached plaintiff who was still on his bike after a high speed chase. He physically restrained plaintiff and during the process plaintiff’s fingers were severed. The entire incident took approximately thirty seconds.

At most, defendant’s conduct could be considered a negligent deprivation of plaintiff’s liberty. It could not be anticipated that, during the act of restraining plaintiff under these facts, his fingers would be severed. Thus, there are no steps which could have been taken to prevent the injury. The first test of Parratt is thus met.

The second test to be satisfied is whether Ohio provides an adequate postdeprivation remedy. Defendant asserts that this test is satisfied by the Ohio Revised Code § 2743.02(A)(1) (Pages 1981), which waives the state’s eleventh amendment immunity to the extent that plaintiff may proceed against the state, defendant’s employer, for damages in the Court of Claims. This postdeprivation remedy must be deemed adequate for purposes of the procedural due process requirements of the constitution.

Having found that defendant’s acts were random and unauthorized, and that the state provides an adequate postdeprivation remedy for this conduct, plaintiff may not maintain a cause of action pursuant to § 1983 for a claim of procedural due process. Summary judgment is hereby entered in favor of the defendant on that claim.

II. SUBSTANTIVE DUE PROCESS

As previously noted, the plaintiff’s claim must also be analyzed to determine whether a substantive due process deprivation has been asserted. There are two prongs of substantive due process analysis. First, plaintiff may show that a specific constitutional guarantee other than the due process clause of the fourteenth amendment has been violated. See Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) and Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). In the case before this court, no specific constitutional guarantee has been alleged or argued. Thus, plaintiffs claim may not rest on this prong.

Second, plaintiff may establish a substantive due process claim even in the absence of specific constitutional guarantee if he can show that the official act of which he complains “may not take place no matter what procedural protections accompany them.” Wilson v. Beebe, 770 F.2d at 586 (quoting Hudson v. Palmer, 468 U.S. at ---n. 4, 104 S.Ct. at 3197 n. 4, 82 L.Ed.2d at 412-13 n. 4 (1984) (separate opinion of Stevens, J.)). This prong encompasses claims in which law enforcement officers apply undue force in dealing with detainees. Johnson v. Glick, 481 F.2d 1028, 1032 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973) (The court applied the Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952), “shocks the conscience” standard to a § 1983 case.). In order to establish a substantive due process claim of this type, however, an intentional rather than a negligent act is required. Wilson v. Beebe, 770 F.2d at 586.

In Johnson v. Glick, the following specific factors were enunciated for determining whether an officer’s use of force was excessive so as to constitute a substantive due process violation:

[T]he need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

481 F.2d at 1033. These factors are all related to the purposeful infliction on injury. Wilson v. Beebe, 770 F.2d at 586.

Under the facts before this court, while it may be said that the plaintiff’s loss of fingers is indeed shocking, defendant’s conduct (the focus of inquiry here) was not intended to cause harm and can only be found to have negligently caused plaintiff’s injury. Even if defendant's conduct could be called intentional, the Johnson v. Glick factors could not be satisfied to establish a substantive due process violation through the excessive use of force. The force applied in this case was not unreasonable in view of the circumstances and was not in any way directed at causing harm but merely restraint. When defendant came upon the scene after a ten to fifteen mile high speed chase, plaintiff was still on his motorcycle with its motor running. It was not unreasonable to physically restrain plaintiff. The entire sequence from defendant’s arrival to handcuffing plaintiff took approximately thirty seconds. This fact alone attests to defendant’s focus as quick restraint rather than causing harm. The plaintiff’s claim under this prong of substantive due process can also not be met.

Accordingly, defendant’s motion for summary judgment is granted and this cause dismissed.

IT IS SO ORDERED.


source: Caselaw Access Project

author: JOHN V. PARKER, Chief Judge.

license: Public Domain

text:
    The KANSAS CITY SOUTHERN RAILWAY COMPANY, et al. v. Shirley McNAMARA, Secretary of the Department of Revenue and Taxation, State of Louisiana.
    Civ. A. No. 83-72-A.
    United States District Court, M.D. Louisiana, Division A.
    Dec. 19, 1985.

      Hilton S. Bell, Milling, Benson, Woodward, Hillyer, Pierson & Miller, New Orleans, La., for plaintiffs.
    Howard M. Romaine, Dept, of Revenue and Taxation, Baton Rouge, Robert Pugh, Pugh & Pugh, Shreveport, La., for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

JOHN V. PARKER, Chief Judge.

This matter is an action brought by eleven railroads under Section 306 of the Railroad Revitalization and Regulatory Act of 1976 (the “4R Act”), originally 49 U.S.C. § 26c, now codified as 49 U.S.C. § 11503, to enjoin the defendant Secretary from collecting from plaintiffs the gross receipts tax levied upon public utilities, including railroads, by the provisions of La.R.S. § 47:1001, et seq. (The Louisiana transportation and communications tax).

Plaintiffs allege that the collection and enforcement of La.R.S. 47:1001-1010 against them is a violation of Section 306 of the 4R Act and seek to enjoin the collection of this Louisiana license tax on the basis that it results in unlawful discrimination against them. Defendant denies that the Louisiana license tax is in any way discriminatory against the plaintiffs as compared to other commercial and industrial taxpayers generally. Defendant further alleges that this court does not have subject matter jurisdiction over this matter' because Section 306 is applicable only to property and ad valorem taxes and not to the type of tax which is at issue in this case.

Jurisdiction is established by virtue of Section 306(l)(d) of the Railroad Revitalization and Regulatory Reform Act of 1976, 49 U.S.C. § 11503(c). This court, upon the authority of Alabama Great Southern Railroad Co. v. Eagerton, 663 F.2d 1036 (11th Cir.1981) has denied defendant’s motion to dismiss, holding that the 4R Act is not restricted to ad valorem taxes but reaches all manner of taxes. 563 F.Supp. 199. See also, Richmond, Fredericksburg & Potomac Railroad Co. v. Dept. of Taxation, 762 F.2d 375 (4th Cir.1985); Burlington Northern Railroad Co. v. Bair, 766 F.2d 1222 (8th Cir.1985); Trailer Train Co. v. Bair, 765 F.2d 744 (8th Cir.1985); Atchison, Topeka & Santa Fe Railway Co. v. Bair, 535 F.Supp. 68 (S.D.Iowa 1982); and Ogilvie v. State Board of Equalization, 657 F.2d 204 (8th Cir.1981). That ruling is the “law of the case” and the court now faces the thorny question of whether the tax is discriminatory and if so, what must be done about it.

The Louisiana statute imposes a tax of two per cent of gross receipts from intrastate business upon a small group of “public utilities,” including railroads, “for the privilege of engaging in such business in this state.” Section 306 of the 4R Act expressly declares that discriminatory state taxation of railroads constitutes an undue burden upon commerce and it expressly forbids a state or political subdivision from imposing any ad valorem tax upon rail transportation property which is discriminatory as compared to “all other commercial and industrial property,” and subsection (d) further prohibits:

(d) The imposition of any other tax which results in discriminatory treatment of a common carrier by railroad subject to this chapter.

The issue of whether this court has subject matter jurisdiction over the claims involved in this lawsuit has continually been called into question by the defendant, even after this court’s ruling on this issue. Defendant argues that because the Louisiana license tax on public utilities, including railroads, pre-dated the 4R Act, it is not a tax “imposed” upon the railroads implying that the word “imposed” connotes a future event, rather than a condition already in existence. The history of the statute refutes this contention, since its effective date was set for three years after its enactment, in order to allow the states to revise any taxes which might contravene the statute. If the word “impose” were meant to apply only to future acts, this time period would have been unnecessary. Further, this interpretation ignores the intent of the statute, which clearly was intended by the Congress to abolish discriminatory tax schemes which were already in existence and which were unfairly burdening railroads and interstate commerce.

The matter has been tried on the merits and most of the salient facts have been stipulated although both sides produced expert witnesses at the trial. The stipulations are of record and need not be repeated here. All factual statements herein come from the stipulation, unless otherwise indicated.

Each of the eleven plaintiffs is a common carrier railroad subject to the jurisdiction of the Interstate Commerce Commission and each is engaged in intrastate, as well as interstate, transportation in Louisiana. Each plaintiff railroad is subject to and annually pays state income taxes imposed by LSA-R.S. 47:21 et seq., state general sales and use taxes imposed by LSA-R.S. 47:301 et seq., the corporate franchise tax imposed by LSA-R.S. 47:601 et seq. and local (municipal and parochial) ad valorem taxes on its property located in Louisiana (the state does not currently levy an ad valorem tax although the power for such levy exists, LSA-Const. Art. 7, Sec. 19), as well as local general sales and use taxes which are levied in some localities. The amounts paid by each plaintiff for each tax over a several year period has been stipulated by the parties.

Each plaintiff is also subject to the Louisiana tax on transportation and communication utilities levied by LSA-R.S. 47:1001 et seq. The amounts paid by each plaintiff railroad over a period of several years has been stipulated. Since commencement of this action, under an agreement with the Secretary, plaintiffs have been filing returns but not paying the tax, and the parties have stipulated the amounts due for each year subsequent to the filing of this action. The issue before the court is whether that tax is discriminatory within the meaning of Section 306 of the 4R Act.

In order to determine whether an action discriminates against a group or class, the effect of the action must be compared to the effect upon others. Not surprisingly, the parties do not agree as to the proper group or class to which the railroads should be compared. Plaintiffs insist that they must be compared to all other commercial and industrial taxpayers, while defendant asserts that the railroads should be compared only to those other utilities which are also subject to the transportation and communications tax. Businesses other than railroads which are subject to that tax include bus and motor freight lines, express companies, telephone companies, telegraph companies, packet lines and pipelines. LSA-R.S. 47:1003(1). If defendant’s selection of comparison class is correct, then the game is over at the outset, since it is apparent that the tax is levied uniformly upon the gross receipts of all those subject to the transportation and communication tax. While the ad valorem tax provisions of § 306(l)(a), (b) and (c) make it plain that for ad valorem tax purposes, the railroads are to be compared to all other commercial and industrial taxpayers, the provisions of § 306(l)(d), with which we are here concerned, have no such clear mandate. On remand, the district court in Alabama Great Southern Railway Company v. Eagerton, 541 F.Supp. 1084 (M.D.Ala.1982), concluded that the railroad tax burden should be compared to the burden upon other commercial and industrial taxpayers that are subject to the same type of tax. This court comes to the same conclusions. The plain intent of the statute is that state taxation upon railroads shall be upon an equal footing with other commercial and industrial taxpayer generally. The small number -of “public utilities” subjected to the transportation and communication tax does not represent the class of commercial and industrial taxpayers generally. In order to measure discriminatory tax treatment then the tax burden upon the railroads under the transportation and communications tax should be compared to the burden imposed upon other commericial and industrial taxpayers which pay the same type of tax.

Defendant then suggests that, since the transportation and communications tax is measured by gross receipts, it is the same as the general sales and use tax levied upon the gross sales price of consumer transactions. Thus, defendant would argue that the court should consider that rail transportation services are not subject to the Louisiana sales and use tax and would have the court compare the burden of the transportation and communications tax upon the railroads with that of the general sales and use tax upon the “average” commercial and industrial taxpayer. Defendant’s argument lacks merit.

The transportation and communications tax is imposed “for the privilege of engaging in such business in this state.” LSA-R.S. 47:1001. It is therefore a business license tax. The tax is paid by the business upon which it is levied. The general sales and use tax is levied upon individual consumer transactions and the buyer pays the tax. While the sales tax is collected from the buyer by the seller or dealer, it is clear that the sales tax is levied upon the buyer (or the renter or the person who brings a product into the state for use and consumption), not upon the dealer. As Louisiana’s courts have long recognized, business license taxes and general sales and use taxes are different types of taxes. See Mouledoux v. Maestri, 197 La. 525, 2 So.2d 11 (La.1941). The only meaningful comparison regarding general sales tax would be to compare the rate paid on similar transactions by each group of taxpayers; that is to say, do other commercial and industrial taxpayers pay sales tax at the same rate on purchases of equal amounts? The answer is obviously, yes, since the tax is the same percentage of the sales price without regard to the identity of the purchaser (taxpayer) and that tax discriminates against no one.

The court concludes that only the transportation and communications tax is at issue, that the tax is a business license or privilege tax and that the burden of that tax upon the railroads should be compared to the burden imposed by similar business license taxes upon other commercial and industrial taxpayers. The court thus rejects the Secretary’s argument that the court should consider “actual economic impact” of the tax, or should consider the total tax burden upon railroads compared to the total tax burden upon other taxpayers in Louisiana.

By Section 306(l)(d), the Congress forbids “any other tax which results in discriminatory treatment.” That language requires that the court focus upon the impact of the particular tax, in this case, the transportation and communications tax.

Arguably, the additional corporate franchise tax levied upon natural gas pipelines by LSA-R.S. 47:1031 et seq. could be considered a business license tax similar to that imposed by the transportation and communications tax because it is a tax “for the privilege of exercising their franchises or charters ... in this state.” Since that tax is levied only upon natural gas pipelines, not upon all commercial and industrial taxpayers, and the Congress has not seen fit to confer upon natural gas pipelines the same protection from state taxation which is granted to the railroads under the 4R Act, we are not concerned with the additional natural gas pipeline tax.

The only other business license tax levied in Louisiana which is comparable to the transportation and communications tax is commonly referred to as the occupational license tax. Although the state has not itself levied such a tax for several years, LSA-R.S. 47:341 et seq. prescribes the rates and authorizes each local governmental subdivision to levy an annual tax upon, “each person pursuing a trade, profession, vocation, calling, or business.” Railroads have not been taxed under the occupational license tax, which is clearly á license tax for the privilege of engaging in business. The occupational license tax is levied upon other commercial and industrial taxpayers. Different businesses are taxed at different rates prescribed by the statute. The heaviest tax burden imposed upon any taxpayer is that levied upon “all other businesses” by LSA-R.S. 47:395. That section prescribes brackets based upon gross annual receipts (the lowest bracket is, at least zero dollars and not more than $3,000, taxed at $5, and the highest is $2,500,000 or more, taxed at $7,500). The transportation and communications tax is measured by two percent of gross receipts with no limitation or maximum. A railroad which grosses $2,500,000 pays a tax of $50,000 (2.5 million X 2%). The next most heavily taxed commercial or industrial enterprise grossing 2.5 million dollars pays only $7,500 for the privilege of engaging in business. The transportation and communication tax levied upon the railroads is significantly higher at each level than is the tax levied upon other commercial and industrial taxpayers by § 395. This can be demonstrated by simply examining the brackets prescribed by § 395, multiplying 2% by each gross specified and comparing the tax due under the two statutes. The parties have stipulated as to the actual amount of gross receipts and transportation and communications tax owed by each of the eleven plaintiff railroads for the years 1979-83 and the following table includes that stipulation and also shows the amount which would be due by other commercial and industrial taxpayers which are subject to the occupational license tax.

Railroad Intrastate Gross Receipts T&C Tax O.L. Tax

TABLE

Railroad Intrastate Gross Receipts T&C Tax O.L. Tax

KCS

1979 $ 5,419,700 $108,394 $7,500

1980 5,596,250 111,925 7.500

1981 6,434,950 128,699 7.500

1982 5.820.500 116,410 7.500

1983 7.224.200 144,484 7.500

L&A

1979 8.657.150 173,143 7.500

1980 8.245.200 164,904 7.500

1981 10.066.350 201,327 7.500

1982 9,987,750 199,755 7.500

1983 8.584.150 171,683 7.500

MoPac

1979 11.804.750 236,095 7.500

1980 13.126.350 262,527 7.500

1981 13,503,400 270,068 7.500

1982 15,366,450 307,329 7.500

1983 14,091,000 281,820 7.500

ICG

1979 11,652,300 233,046 7.500

1980 14.834.750 296,695 7.500

1981 14,602,200 292,044 7.500

1982 12,770,100 255,402 7.500

1983 13,692,150 273,843 7.500

SoPac

1979 5,517,600 110,352 7.500

1980 4.144.500 82,890 7.500

1981 5,689,650 113,793 7.500

1982 3.553.150 71,063 7.500

1983 3,844,400 76,888 7.500

SSW

AGS

1979 110,900 2,218 300

1980 240,700 4,814 650

1981 77,650 1,553 200

1982 41,500 830 115

1983 50,100 1,002 150

1979 231,650 4,633 650

1980 127,850 2,557 300

AGS

1981 103,550 2,071 300

1982 78,500 1,570 200

1983 90,450 1,809 200

LSR

1979 56,000 1,120 150

1980 54,250 1,085 150

1981 71,300 1,426 150

1982 41,100 822 115

1983 55,400 1,108 150

NOTC

1979 183,600 3,672 450

1980

1981

1982

1983 21,950 439 60

Santa Fe

1979 173,000 3,460 450

1980 206.450 4,129 650

1981 178,250 3,565 450

1982 128,850 2,577 300

1983 158,100 3,162 450

Seaboard

1979 111.450 2,229 300

1980 80,700 1,614 200

1981 175,150 3,503 450

1982 102,650 2,053 300

1983 36,300 726 75

This court can come to no other conclusion but that the tax burden upon railroads for the privilege of doing business in Louisiana is significantly greater than the tax burden upon other commercial and industrial taxpayers for exercising the same privilege. Obviously, the larger the gross receipts, the greater the disparity, but at every level the disparity is significant.

It should be noted that Louisiana has 64 parishes and several hundred villages, towns, and cities, each of which is authorized to levy an occupational license tax upon those doing business within their respective jurisdictions. Each of the plaintiff railroads does business in more than one parish but each pays only one annual transportation and communications tax to the state which “licenses” it to do business in every part of the state. However, there is no set of circumstances involving multiple business locations or multiple occupational license taxes which will vary the disparity between the burden upon the railroads and the burden upon other commercial and industrial taxpayers. This is so because at every level of gross receipts except those less than $250 (250 X 2% = $5, the minimum tax specified in § 395), the rate of the occupational license tax is substantially less than the 2% rate specified by the transportation and communications tax. Practically speaking, a taxpayer liable for the transportation and communications tax will pay significantly more in every instance than another taxpayer with the same level of gross receipts who pays under the occupational license tax. The tax burden for the privilege of doing business in Louisiana thus falls unequally upon the railroads. The Congress in § 306(l)(d) prohibits “any other tax which results in discriminatory treatment.” The transportation and communications tax results in discriminatory treatment of each of these eleven plaintiffs, as the stipulated facts clearly demonstrate.

Turning to the question of remedy, the 4R Act authorizes injunctive relief to restrain any violation of § 306(2) — “district courts ... shall have jurisdiction ... to grant such mandatory or prohibitive injunctive relief ... as may be necessary to prevent, restrain or terminate any acts in violation of this section____”

In cases involving assessments and ad valorem taxes, the 4R Act, § 306(2)(c), permits injunctive relief only when, “the ratio of assessed value to the true market value ... exceeds by at least 5 per centum the ratio of assessed value to true market value----” This court has previously construed the limitation in § 306(2)(c) as a threshold requirement for injunctive relief, reasoning that the Congress was not concerned with insignificant variances in state assessments or taxation. Louisville & N.R. Co. v. Louisiana Tax Com’n, 498 F.Supp. 418, 423 (M.D.La.1980). While we do not here deal with assessment or ad valorem taxation, the court considered the question of whether there may be some threshold discrimination required for relief under § 306(l)(d). Certainly the Congress was not concerned about de minimus differences in tax burdens upon railroads and de minimus differences would not constitute discrimination. Without attempting to define the precise point at which an insignificant difference might change into prohibited discrimination, the court finds that the facts of this case establish significant discrimination as to each of the eleven plaintiff railroads. Accordingly, plaintiffs are entitled to injunctive relief.

There will be judgment granting a preliminary injunction against the Secretary. The injunction must, however, be precisely drawn so as to protect plaintiffs only from that taxation which is clearly prohibited by the 4R Act and the injunction should not impede the state from levying and collecting a non-discriminatory business license tax upon the railroads. Initially the court leans in the direction of language which would enjoin the Secretary from levying and collecting any tax under LSA-R.S. 47:1001 et seq. from any plaintiff which would exceed the highest amount that would be due under the occupational license tax, LSA-R.S. 47:341 et seq. by any other commercial or industrial taxpayer having the same level of gross receipts. The court requests that counsel confer with each other and attempt to agree upon the form of the judgment.

      . The statute provides:
      La.R.S. 47:1001 Imposition of Tax
      Every person owning or operating, or owning and operating, any public utility in this state as defined in this Part, shall, in addition to all other taxes and licenses levied and assessed in this state, pay a license tax, for the privilege of engaging in such business in this state, of two per centum (2%) of the gross receipts from its intrastate business.
      La.R.S. 47:1003. Definitions
      (1) "Public Utility" means railroads and railways, sleeping cars, motor freight lines, express companies, telephone companies, telegraph companies, boat or packet lines, and pipe lines, as herein defined.

      . The complete text of Section 306 of the 4R Act, as originally enacted, reads:
      Pub.L.No. 94-210, § 306, 90 Stat. 54 (February 5, 1976).
      § 306. Discriminatory taxation by States, political subdivisions, or governmental entities or persons acting on behalf of States or subdivisions — Particular acts unlawful
      (1) Notwithstanding the provisions of section 302(b) of this title, any action described in this subsection is declared to constitute an unreasonable and unjust discrimination against, and an undue burden on, interstate commerce. It is unlawful for a State, a political subdivision of a State, or a governmental entity or person acting on behalf of such State or subdivision to commit any of the following prohibited acts:
      (a) The assessment (but only to the extent of any portion based on excessive values as hereinafter described), for purposes of a property tax levied by any taxing district, of transportation property at a value which bears a higher ratio to the true market value of such transportation property than the ratio which the assessed value of all other commercial and industrial property in the same assessment jurisdiction bears to the true market value of all such other commercial and industrial property.
      (b) The levy or collection of any ad valorem property tax on transportation property at a tax rate higher than the tax rate generally applicable to commercial and industrial property in the same assessment jurisdiction.
      (d) The imposition of any other tax which results in discriminatory treatment of a common carrier by railroad subject to this chapter.
      Judicial relief; limitations
      (2) Notwithstanding any provision of section 1341 of Title 28, or of the constitution of laws of any State, the district court of the United States shall have jurisdiction, without regard to amount in controversy or citizenship of the parties, to grant such mandatory or prohibitive injunctive relief, interim equitable relief, and declaratory judgments as may be necessary to prevent, restrain, or terminate any acts in violation of this section, except that—
      (a) such jurisdiction shall not be exclusive of the jurisdiction which any Federal or State court may have in the absence of this subsection;
      (b) the provisions of this section shall not become effective until 3 years after February 5, 1976;
      (c) no relief may be granted under this section unless the ratio of assessed value to true market value, with respect to transportation property, exceeds by at least 5 per centum the ratio of assessed value to true market value, with respect to all other commercial and industrial property in the same jurisdiction;
      (d) the burden of proof with respect to the determination of assessed value and true market value shall be that declared by the applicable State law; and
      (e) in the event that the ratio of assessed value of all other commercial and industrial property in the assessment jurisdiction to the true market value of all such other commercial and industrial property cannot be established through the random-sampling method known as a sales assessment ratio study (conducted in accordance with statistical principles applicable to such studies) to the satisfaction of the court hearing the complaint that transportation property has been or is being assessed or taxed in contravention of the provisions of this section, then the court shall hold unlawful an assessment of such transportation property at a value which bears a higher ratio to the true market value of such transportation property than the assessed value of all other property in the assessment jurisdiction in which is included such taxing district and subject to a property tax levy bears to the true market value of all such other property, and the collection of any ad valorem property tax on such transportation property at a tax rate higher than the tax rate generally applicable to taxable property in the taxing district.
      Definitions
      (3) As used in this section, the term—
      (a) “assessment” means valuation for purposes of a property tax levied by any taxing district;
      (b) "assessment jurisdiction” means a geographical area, such as a State or a county, city, township, or special purpose a district within such State which is a unit for purposes of determining the assessed value of property for ad valorem taxation;
      (c) "commercial and industrial property” or all other commercial' and industrial property” means all property, real or personal, other than transportation property and land used primarily for agriculture purposes or primarily for the purpose of growing timber, which is devited to a commercial or industrial use and which is subject to a property tax levy; and
      (d) "transportation property” means transportation property, as defined in regulations of the Commission, which is owned or used by a common carrier by railroad subject to this chapter or which is owned by the National Railroad Passenger Corporation.
      Feb. 4, 1887, c. 104, Pt. 1, § 28, as added Feb. 5, 1976, Pub.L. 94-210, Title III, § 306, 90 Stat. 54, and amended Pub.L. 94-555, Title II, § 220(o), Oct. 19, 1976, 90 Stat. 2630.
      The 4R Act was subsequently revised and re-designated 49 U.S.C. § 11503. (Pub.L. 95-473, Oct. 17, 1978, 92 Stat. 1445.) References to the 4R Act in this opinion will cite the original text.


author: MILTON POLLACK, Senior District Judge:

text:
    The TOKIO MARINE & FIRE INSURANCE CO., LTD., Plaintiff, v. M/V L. JALABERT BONTANG, and P.T. Trikora Lloyd, Defendants.
    No. 84 Civ. 1053(MP).
    United States District Court, S.D. New York.
    Dec. 20, 1985.

      Alexander Lesyk, Vincent, Berg, Russo, Marcigliano & Zawacki, New York City, for plaintiff.
    Thomas Healey, Healey & McCaffrey, New York City, for defendants.
   DECISION AND OPINION

MILTON POLLACK, Senior District Judge:

This admiralty case arises from water damage to a shipment of fifty-four pallets (or crates) of SIR-20 (Standard Indonesian Rubber, grade no. 20) rubber from Padang, Indonesia to New Orleans, Louisiana, F.O.B. Padang. The issues were presented to the Court at a Bench trial.

BACKGROUND

Who The Parties Are

P.T. Kilang Lima Gunung (of Indonesia) (“seller”) sold fifty-four pallets of rubber to Marubeni America Corporation (“Marubeni”) (“buyer”), 200 Park Avenue, New York, N.Y.; the invoice was consigned to “Order of Bank Dagang Negara Padang” for the account of Marubeni. The rubber was shipped from Padang to New Orleans on the M/V L. Jalabert Botang, a vessel owned by defendant P.T. Trikora Lloyd (“carrier”), an Indonesian corporation with a place of business at Two World Trade Center, New York, N.Y. (c/o Kerr Steamship Company). After the arrival of the rubber in New Orleans, the buyer sent a letter to the carrier indicating that the rubber ordered was damaged and that it was holding the carrier liable for the damage. Plaintiff, The Tokio Marine & Fire Insurance Co., Ltd. (“Tokio Marine”), paid buyer $21,632.42 under an insurance policy for damage to the shipment. Plaintiff insurance company sues as a subrogee on the buyer’s claim against defendant carrier.

How Rubber Is Initially Processed Into Blocks

Defendant’s witness James Burley, a rubber processing specialist, and plaintiff’s rebuttal witness Henry Schmeltzer, a chemist/laboratory specialist, testified as experts at length regarding the processing of rubber from the tree through to the finished product (e.g., a rubber tire). In short, the initial rubber processing is as follows:

The natural latex solution (“dry rubber” — i.e., latex — content of approximately 30-40%) that oozes from the rubber tree is collected in cups and then emptied into larger five gallon milk cans.’ These cans are then emptied into a stainless steel truck to be taken to the processing area. At the processing plant, this substance is placed in stainless steel process tanks and a coagulant is added. Excess fluid is drained off. The remaining substance is approximately 65% dry rubber content. Excess water is squeezed out; the substance then is put through a hammer mill, is chopped and placed in pans that are approximately the size of a finished block (or bale) of rubber.

The substance is then heated at approximately 200-225 degrees Fahrenheit (the boiling point of water is 212 degrees Fahrenheit) for four to six hours in a drying oven. Before entering the drying oven the substance is completely white like cheese and upon exiting the oven it is a shade of brown. Many of these blocks (approximately 75 pounds, or approximately 22 of them) are then compressed in a baler press under hydraulic pressure (approximately 20-25 tons of pressure per square inch) to make one block {i.e., the final product after initial processing). Samples of the rubber are then taken to determine its moisture content.

These seventy-five pound finished blocks are stood upright and allowed to cool for eight to twelve hours. A polyethylene bag is then slipped over them; this bag is sealed at one end and partially open at the other; three spot thermal welds are placed on the open end. Any moisture present in the environment is sealed within the bag; Indonesia has a very humid climate.

How Rubber Is Packed, Shipped and Processed Again

Thirty of these seventy-five pound, individually wrapped, blocks are stacked in five tiers, six blocks to each tier. The rubber itself thus weighs approximately 2250 pounds.

Between each tier of six blocks is placed a sheet of polyethylene (an “interleaf”). The long ends of these interleaf sheets are folded together loosely, not fastened, and another interleaf, colored blue, is laid over the top as a cap. These thirty blocks are then forced into a wooden pallet (or crate), held together by metal bands, and the top to the pallet is nailed down. Thus, there are three layers of polyethylene sheets, inside the pallet, covering the rubber.

This pallet is then shipped abroad from Indonesia. Upon arrival, it is inspected, either accepted or rejected, and if accepted sold to a company that will, through further processing, turn the natural rubber into a finished product.

The first stage of manufacturing the rubber into a finished product is to drop blocks from various lots of rubber into a Banbury mixer {i.e., blending). The Ban-bury runs for a specified time at approximately 350-400 degrees Fahrenheit. Any excess moisture, i.e., light spots, is driven off as steam. This rubber mixture is dropped on a mill, sheeted out, and allowed to cool. Samples are sent to the laboratory and if the tests are satisfactory, a release slip is sent back to the factory. Further processing into the finished product then begins.

Chronology of Events

The shipment of the fifty-four pallets of SIR-20 rubber was sampled for quality tests in Indonesia between December 15 and 27, 1982. The rubber at that time had just slightly more than one-third of one percent water content (noted as “volatile matter” on the inspection report). Defendant carrier issued bill of lading number eleven on February 28, 1983, for this fifty-four pallet shipment, each said to contain thirty blocks, or a total of 1,620 blocks. According to the shipping invoice, the price for these fifty-four pallets of rubber, F.O.B. Padang, was $46,457.50. Adding prepaid freight, the total cost came to $51,-911.50.

The fifty-four pallets covered by bill of lading number eleven were carried in hold number three of a four-hold ship. Hold number three was loaded in Padang on March 1 and 2, 1983. On March 1, rubber was loaded in hold number three from 17:30 (5:30 p.m.) to 18:20 (6:20 p.m.) and again from 19:30 (7:30 p.m.) until 20:05 (8:05 p.m.). At 20:05 the hatches for all four holds were closed “due to rain and gangs off [sic].” There was “[n]o cargo activity during the night due to heavy rain.”

On March 2, rubber was loaded into hold number three from 08:30 (8:30 a.m.) to 11:30 (11:30 a.m.) and again from 13:30 (1:30 p.m.) to 21:30 (9:30 p.m.). At 21:30, the Captain “[c]losed all the hatch [sic] and no cargo activity during the night due to heavy rain.”

The ship left Padang on March 5, 1983, and arrived in Norfolk, Virginia on April 1, 1983. At that time, additional cargo was loaded; intermittent rain was experienced during loading. The ship arrived in New Orleans sometime in April 13-15, 1983.

An employee of R.H. Keen & Co., Mr. Gene Colley, at some time prior to April 25, 1983, inspected the rubber on behalf of the buyer Marubeni.

On April 17 and 18, 1983, at the request of Kerr Steamship Company (“Kerr”) (a company related to defendant carrier), S & T Marine Surveyors Inc. surveyed the ship and its entire cargo while the cargo was still in stow. Although various kinds of “contamination” (e.g., coffee beans, polyethylene pellets) and damage (e.g., broken pallets) were noted in .the report, no water damage was noted. In fact, in the only reference to water in the entire report, it states that “[n]o water stained bags [of coffee in hold number one] or otherwise stained bags were observed.” S & T Marine Surveyors apparently made follow-up visits to the wharf from April 19-22, 1983, in order to supervise the reconditioning of the damaged and/or contaminated pallets noted previously in their report. The report does not state whether during these follow-up visits the cargo discharged from the ship in apparently good condition was again surveyed for any subsequent damage.

In a letter, dated April 21, 1983, from buyer Marubeni to Kerr, buyer stated, in part, “[p]lease be advised the captioned shipment has arrived in a damaged/short condition and we are holding you responsible and liable for this loss.”

At buyer Marubeni’s request, on April 27, 1983, Lakes & Eastern conducted a survey of the fifty-four rubber pallets. Previously, in a letter, dated April 22, 1983, from Mr. Thomaston of Lakes & Eastern Marine Surveyors (“Lakes & Eastern”) to Kerr, Mr. Thomaston confirmed a telephone conversation in which a Mr. Gonzales of Kerr declined to participate in a joint survey of the rubber.

Lakes & Eastern assigned Jeffrey Snyder to conduct this survey. When Mr. Snyder, accompanied by others, surveyed these pallets, they were stored indoors in a wharf warehouse building. The surveyor, therefore, never viewed the pallets aboard ship nor made any investigation of the conditions under which the rubber was shipped. There is no evidence of when the pallets were moved to the wharf or of where they were before being moved there (i.e., whether moved there directly from the ship or whether they sat exposed, outdoors for a period of time).

Mr. Snyder conducted a silver nitrate field test to determine whether chlorides (indicating contact with ocean water) were present on the pallets. The tests were negative, indicating no salt water contact.

Mr. Snyder noted that these pallets were wrapped in the standard way, discussed previously. Each block was individually wrapped in a polyethylene bag and then a second polyethylene liner was wrapped around all the blocks, inside the pallet. Finally, the inside of the pallet (or crate) was reinforced with a blue polyethylene sheet.

Mr. Snyder’s visual inspection of the fifty-four pallets revealed that some of them had external evidence of water contact, e.g., stained crates, rusted securing bands and nails. Mr. Snyder concluded that twenty-six pallets had been affected by water and that twenty-eight had not. He then segregated the affected from the unaffected pallets.

Mr. Snyder selected two of the twenty-six water-affected pallets to be disassembled so that the blocks could be inspected in detail. These two pallets were selected because, from external observations, they appeared to be extreme examples (i.e., one showing minimal external evidence of water contact and the other showing substantial exposure to water) of the twenty-six affected pallets. The other water-affected pallets were lifted by a forklift and externally examined, visually. In addition, windows were cut in the blue polyethylene liners of all twenty-six affected pallets to facilitate viewing. After thus inspecting the twenty-six pallets, Mr. Snyder concluded that 53 percent of the twenty-six pallets were damaged by the presence of excess water.

On the basis of the Snyder survey report, the buyer Marubeni rejected the allegedly water-affected pallets on April 28, 1983. Lakes & Eastern was instructed by the buyer to salvage the water-affected rubber for the best price. Because time was of the essence, nine potential bidders were contacted by telephone. Three submitted bids, and the highest bid of 10 cents per pound was accepted, for a total salvage amount of $5,846.60.

On May 23, 1983, buyer Marubeni sold fifty-four pallets (123,150 pounds) of SIR-20 rubber to Bridgestone Tire Maunfacturing Inc. for $57,535.80. Twenty-eight of the pallets were designated as being part of the shipment subject to this litigation and twenty-six were designated as being from another shipment.

How Water Affects The Rubber’s Usefulness

Rubber and fresh water are always present together in the environment. As the preceding discussion of rubber processing indicates, at no point in processing is water completely eliminated from the rubber. The percentage content of water in the rubber can, and does, vary.

Although the presence of some amount of water in rubber is essential to its proper condition and functioning, an excess amount causes “bleaching” and may, depending upon the extent of the bleaching, impede processing. Minimal bleaching, i.e., light spots on the block’s edges or within the blocks (approximately the size of a quarter or half-dollar) has no quality effect on the Banbury processing. Above a certain amount, however, bleaching has both economic and technological aspects.

Economically, the more water included in the rubber, the less dry rubber content per block and thus the more the cost for the natural rubber itself. Standardization of water content thereby prevents producers from “palming off” rubber with a lower dry rubber content. In addition, minimizing the water content prior to shipping reduces shipping costs.

Technologically, rubber with water content significantly in excess of specification has an effect on the Banbury process. If mixed in the Banbury without first being “dried out” so that the rubber is within specification, the Banbury process will have to continue for a longer period of time, with the accompanying risk of a quality defect occurring, i.e., producing “soft rubber.” Tire manufacturers will not use soft rubber. At the very least, this extra drying out process costs extra money.

DISCUSSION

By virtue of our admiralty jurisdiction, this Court has subject-matter jurisdiction over this subrogated claim by an insurance company against an ocean carrier for alleged breach of a contract of carriage. 28 U.S.C. § 1333(1) (1982). Consequently, this case is governed by federal maritime law. Allied Chemical International Corp. v. Companhia De Navegacao Lloyd Brasileiro, 775 F.2d 476, 481 (2d Cir.1985).

Because the rubber was shipped in foreign commerce under a bill of lading to a United States port, Tokio Marine’s right to recover on its claim is controlled by the provisions of the Carriage of Goods by Sea Act (“COGSA”), 46 U.S.C.App. §§ 1300-15 (Supp. I 1983). Id. at §§ 1300, 1312; G. Gilmore & C. Black, The Law of Admiralty 145 (2d ed. 1975) (“a bill of lading covered by Cogsa is to be read as though Cogsa were incorporated by reference.”). Although by its own terms COG-SA’s applicability is limited to the period of time from loading through discharge of the cargo, 46 U.S.C.App. at § 1311; G. Gilmore & C. Black, supra, at 147, the parties to the contract may, and did in this case, agree to incorporate the terms of COGSA for the period of time prior to loading and after discharge as a contractual term in the bill of lading. Allied Chemical, 775 F. 2d at 483.

Under the provisions of COGSA, a “plaintiff has the burden, which remains with it throughout the case, of proving that ‘the goods were damaged while in the carrier’s custody.’ ” Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 351 (2d Cir.1981) (quoting Pan-American Hide Co. v. Nippon Yusen (Kabushiki), Kaisha, 13 F.2d 871, 871 (S.D.N.Y.1921) (L. hand, J.)). Further, carriers are not strictly liable for the condition of the cargo but are liable for loss or damage to cargo only on the basis of fault. Allied Chemical, 775 F.2d at 483; G. Gilmore & C. Black, supra, at 150. Thus, plaintiff has the burden of proof to establish that defendant was negligent and that defendant’s negligence caused plaintiff’s damages.

A plaintiff establishes a prima facie case for recovery from a carrier under COGSA by proving “(1) delivery of the goods to the carrier in good condition and (2) outturn by the carrier in a damaged condition.” Westway Coffee Corp. v. M. V. Netuno, 675 F.2d 30, 32 (2d Cir.1982). Once plaintiff has established its prima facie case, the burden shifts to the carrier to prove either that it exercised due diligence to prevent the damage by properly handling the cargo on a seaworthy ship, 46 U.S.C.App. §§ 1303(1) & (2), or that the damage falls within one of COGSA’s exceptions set forth in 46 U.S.C.App. § 1304(2). Terman Foods, Inc. v. Omega Lines, 707 F.2d 1225, 1227 (11th Cir.1983) (per curiam); Westway Coffee, 675 F.2d at 32. Because plaintiff Tokio Marine has failed to establish by a fair preponderence of the proof either of the two requirements, plaintiff’s claim will be denied.

The first requirement of a prima facie case, delivery of the cargo to the carrier in good condition, may be proved in either of two ways. First, a plaintiff may produce a clean bill of lading, which is ordinarily prima facie■ evidence of delivery of the cargo in good condition. Caemint Food, 647 F.2d at 352; see 46 U.S.C.App. § 1303(3)(c) & (4). Second, a plaintiff may demonstrate that “the nature of the damage suffered indicates that the damage occurred after delivery of the cargo to the carrier.” Goya Foods, Inc. v. S.S. Italica, 561 F.Supp. 1077, 1082 (S.D.N.Y.) (Lumbard, J.), aff'd without opinion, 742 F.2d 1434 (2d Cir.1983); see Caemint Food, 647 F.2d at 355.

In this case, Tokio Marine attempted to rely on a clean bill of lading to prove delivery of the rubber to the carrier in good condition. Apparently recognizing that relying on a clean bill of lading is insufficient to prove delivery in good condition when the goods are “shipped in packages that would have prevented the carrier from observing the damaged condition had it existed when the goods were loaded,” Caemint Food, 647 F.2d at 352; Westway Coffee, 675 F.2d at 32-33, Tokio Marine contends that the three polyethylene layers covering the rubber shipment, the outermost layer of which was colored blue, were translucent. Thus, Tokio Marine contends that any water damage to the rubber would have been visible upon loading and, therefore, was not present at the time of loading since not noted on the bill of lading. In light of the layered packaging, the contention that the water underneath the polyethylene layers would be visible to the naked eye from the outside of the packages is unacceptable and not credible.

Tokio Marine contended, through the introduction into evidence of the deposition of surveyor Jeffrey Snyder, that the blue polyethylene wrapping was translucent. As noted previously, Mr. Snyder was the surveyor hired by the plaintiffs insured, Marubeni America Corp., to survey the rubber on April 27, 1983, approximately two weeks after arrival in New Orleans and ten days after the initial survey in which no water damage was noted. In the report of the April 27 survey, however, it states that “[w]e noted some crates with windows cut in the plastic liners with some bleached bales visible.” Exhibit 2, at 2, to Plaintiff’s Exhibit 14. In other words, in the later survey report, the only indication that bleached blocks were visible was by viewing them through windows that had already been cut in the blue polyethylene liner. Along this same line, it is highly significant that the surveyor cut windows in the blue polyethylene liner of each of the twenty-six pallets suspected of water damage so as to view the packaged rubber blocks within the pallet. If the blue polyethylene liner was in fact translucent there would appear to be no need for such a procedure.

Moreover, defense witness Captain Max Korah, a man thoroughly familiar with the standard packaging and shipping of SIR-20 rubber, stated that the blue polyethylene wrapping was not translucent. His testimony was careful and credible. Tokio Marine’s attempt to discount his testimony by stating that Captain Korah did not see the actual shipment subject to this lawsuit, and that only Mr. Snyder did, is disingenuous given its attempt to counter the carrier’s argument that the goods were improperly packaged by claiming that the rubber was packaged according to “the best method currently available for such purpose.” Plaintiff’s Post-Trial Memorandum, at 24. The shipment was, therefore, packaged in the standard way; the blue polyethylene liner was not translucent. The carrier could not determine, by reasonable inspection, the condition of the wrapped rubber concealed within the blue polyethylene sheet. Tokio Marine’s reliance on a clean bill of lading to prove delivery to the carrier devoid of water, bleaching, and damage underneath the liners, i.e., in good condition, thus, must fail.

As noted previously, however, a plaintiff may still prove delivery to the carrier in good condition by demonstrating that “the nature of the damage suffered indicates that the damage occurred after delivery ...” Goya Foods, 561 F.Supp. at 1082. Although plaintiff did not argue this second method of proving delivery in good condition, the April 27 survey report notes that “[w]e were not in attendance during discharge of subject shipment from ocean vessel; however, water stained crates, rusted bands and nails apparently existed prior to discharge.” Exhibit 2, at 6, to Plaintiff’s Exhibit 14 (emphasis added). This indication of external signs of wetting (which, if present at loading, should have been noted on the bill of lading), by itself, however, is insufficient to carry plaintiff’s burden of proof for two reasons. First, there was no sufficient linkage of this external contact with fresh water to an effect on the rubber within, wrapped with three layers of polyethylene. There was no evidence adduced at trial regarding whether superficial or substantial fresh water contact is required to cause these signs of external wetting to occur. Second, there is no indication of when this external contact occurred; it apparently could have occurred very shortly before the April 27 survey. Significantly, the surveyor, Mr. Snyder, at his deposition could not even state how recently the rubber itself had been damaged by water and on cross-examination conceded that the damage could have occurred very shortly before his survey, i.e., after discharge of the cargo in New Orleans. Plaintiff’s Exhibit 14, at 63. Plaintiff thus also has failed to produce sufficient evidence to satisfy this second method of proving delivery of the cargo to the carrier in good condition.

Plaintiff, therefore, has failed to prove that there was any difference in water content when it was packaged, loaded, and delivered. Although Tokio Marine’s prima facie case fails, without more, because of its inability to prove delivery of the cargo to the carrier in good condition, neither was plaintiff able to satisfy the second requirement for a prima facie case, i.e., outturn by the carrier in a damaged condition.

Defendant’s surveyor surveyed the cargo of the entire ship on April 17 and 18, 1983. As stated previously, no water damage was noted in their survey report although other kinds of damage and “contamination” were. On April 27,1983, plaintiff’s surveyor did note extensive water damage. No evidence was adduced at trial indicating when delivery of the cargo was made, when it was moved to the warehouse, or what weather conditions existed in New Orleans in the period from April 17 through 27. Indeed, there was no testimony regarding how long it takes for water to affect rubber wrapped in the standard manner in the way this rubber was affected.

Given the absence of proof presented by plaintiff on these issues, it is not more likely than not that the damage to the rubber pallets occurred prior to discharge.

Plaintiff’s case contains gaps in the proof of proximate cause that can be filled only by speculation and assumptions in place of permissible evidentiary inferences from proofs submitted. Plaintiff could not point to any negligent act of the carrier that proximately caused plaintiff’s damages while the rubber was in the carrier’s possession.

Since plaintiff has failed to sustain its burden of proof for recovery from the carrier under COGSA, this Court need not address defendant’s further claims that the damage occurred either because of an inherent vice or because of inadequate packaging. See 46 U.S.C.App. § 1304(2)(m) & (n). Plaintiff’s claims are dismissed, with costs.

The foregoing shall constitute this Court’s findings of fact and conclusions of law under Rule 52(b), Federal Rules of Civil Procedure.

So Ordered.

      . Contrary to what plaintiff tried to demonstrate at trial, there is no indication from the ship’s logs for March 1 and 2 that any hatch was closed any sooner or later than another hatch.

      . It is unclear exactly when his inspection took place, whether he prepared a report regarding the condition of the rubber at that time, and what skills he possesses in evaluating rubber. in any event, neither Mr. Colley’s initial inspection’s findings nor, indeed, even the existence of a prior inspection was mentioned at trial.

      . Apparently at this time there were large quantities of water-affected rubber in New Orleans. There is no indication of weather conditions (i.e., rainfall) in New Orleans at the time in question, however.

      . Water in excess of SIR-20 specifications, i.e., over one percent content, turns the color of the . rubber to white. Thus the water content of the rubber can, in a rough way, be determined from its color.

      . A bill of lading for ocean carriage acts as a receipt for goods shipped, embodies the contract of carriage for those goods, and serves as documentary evidence of title to the goods. See

        Internado, Inc. v. M/V Yinka Folawiyo, 480 F.Supp. 1245, 1251 (E.D.Pa.1979).

      . Plaintiff did not argue, in the alternative, that if the rubber pallets were damaged after discharge in New Orleans, but before delivery, defendant would be liable for any negligence under COGSA's provisions, as contractually agreed, see Goya Foods, 561 F.Supp. at 1085 (applying the Harter Act’s provisions in the absence of contrary agreement), or, if defendant was still in possession after delivery, as a bailee. See id. at 1086. Plaintiffs failure to prove the items enumerated in the text accompanying this footnote forecloses such arguments anyway.

      . The only testimony regarding time was that water "droplets” (condensed from natural humidity within the polyethylene bags) could bleach the block rubber if exposed to it for an extended period of four to six weeks.
      According to plaintiff’s expert, Mr. Schmeltzer, the results of a 1985 test on the standard rubber packaging involved in this case indicate that "even the slightest rain can cause damage to rubber packed in this fashion." There was no proof, however, in how short or long a period the rubber is affected by the packaging being permeated by water. Moreover, at the time of this shipment, according to Mr. Schmeltzer, the standard packaging of rubber in these three polyethylene sheets was believed by the rubber industry to be impervious to water; carriers, therefore, could reasonably believe that these rubber shipments wrapped in the standard manner did not have to be protected from ordinary rain.

      . There appears to be some controversy concerning whether the shipper or the carrier has the burden of proof on the inherent vice issue. See United States Steel International, Inc. v. M.T. Granheim, 540 F.Supp. 1326, 1332 (S.D.N.Y. 1982) (citing cases).


author: JOHN B. JONES, District Judge.

text:
    ASSAM DRUG CO., INC.; Downtown, Inc., d/b/a Shoppers City Liquor of Mitchell, S.D., Plaintiffs, v. MILLER BREWING CO., INC., Defendant.
    No. Civ. 84-4189.
    United States District Court, D. South Dakota, S.D.
    Dec. 23, 1985.
    Charles Rick Johnson, Gregory, S.D., for plaintiffs.
    Lawrence L. Piersol, Sioux Falls, S.D., Jerome I. Chapman, Thomas H. Milch and Douglas L. Wald, Washington, D.C., for defendant.
   MEMORANDUM OPINION AND ORDER

JOHN B. JONES, District Judge.

Plaintiff Assam Drug Co. is a beer retailer in Sioux Falls, South Dakota. Plaintiff Downtown, Inc. is a beer retailer in Mitchell. They allege that defendant Miller Brewing Company has entered into “a contract, combination, or conspiracy ... in restraint of trade or commerce” with each of its beer distributors in South Dakota in violation of S.D.C.L. Section 37-1-3.1, which is the state law equivalent of Sherman Act Section 1. See 15 U.S.C. § 1.

Specifically, the complaint alleges that in early 1983 defendant contractually granted to each of its beer distributors in South Dakota a precisely defined exclusive distribution territory. Pursuant thereto, each distributor has the sole right and responsibility to sell Miller products to beer retailers located within his territory. Plaintiffs allege that prior to the execution of this scheme they purchased all their Miller beer from Brewster Distributing Company in Watertown. Because plaintiffs are not located within the boundaries of Brewster’s territory under the 1983 contract, plaintiffs claim that they are unable to continue purchasing beer from Brewster and instead each plaintiff must purchase Miller beer from the distributor for the territory where he is located. Plaintiffs allege that as a result, their costs in acquiring Miller products has increased approximately 90 cents per case and that their retail sales of Miller beer have been substantially curtailed. Miller now moves for summary judgment.

Under Fed.Rule Civ.Proc. 56, summary judgment shall be granted only “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Accordingly, “all facts are viewed in the light most favorable to the party opposing the motion, giving that party the benefit of all reasonable inferences to be drawn from the facts.” Portis v. Folk Construction Co., 694 F.2d 520, 522 (8th Cir.1982).

S.D.C.L. Section 37-1-22 provides that federal court interpretations of the federal antitrust statutes may be used as a guide in interpreting the South Dakota statutes cited by plaintiffs in this case. In view of the scarcity of state case law on this subject and the existence of United States Supreme Court decisions which address the issues presented herein, it is appropriate for correct analysis of the issues presented by this motion to refer to the relevant federal law.

The exclusive distributorship agreements at issue in this case are classified in antitrust terminology as vertical non-price restraints; i.e., restraints imposed by a manufacturer upon its chain of distribution which do not involve any form of resale price maintenance. See White Motor Co. v. United States, 372 U.S. 253, 83 S.Ct. 696, 9 L.Ed.2d 738 (1963); Continental T. V., Inc. v. GTE Sylvania, Inc., 433 U.S. 36, 97 S.Ct. 2549, 53 L.Ed.2d 568 (1977). As opposed to agreements among competitors themselves to allocate mutually exclusive territories, which are per se in violation of antitrust law, see, e.g., United States v. Sealy, Inc., 388 U.S. 350, 87 S.Ct. 1847, 18 L.Ed.2d 1238 (1967), vertical territorial restraints have been reviewed under the rule of reason analysis defined by the Supreme Court in Board of Trade of the City of Chicago v. United States, 246 U.S. 231, 38 S.Ct. 242, 62 L.Ed. 683 (1918). See White Motor; Continental T.V., supra. That rule, which has guided antitrust analysis for 68 years, provides that:

The true test of legality is whether the restraint imposed is such as merely regulates and perhaps thereby promotes competition or whether it is such as may suppress or even destroy competition. To determine that question the court must ordinarily consider the facts peculiar to the business to which the restraint is applied; its condition before and after the restraint was imposed; the nature of the restraint and its effect, actual or probable. The history of the restraint, the evil believed to exist, the reason for adopting the particular remedy, the purpose or end sought to be attained, are all relevant facts. This is not because a good intention will save an otherwise objectionable regulation or the ' reverse; but because knowledge of intent may help the court to interpret facts and to predict consequences.

Chicago Board of Trade, supra, at 246 U.S. at 238, 38 S.Ct. at 244 (emphasis added).

As Chicago Board of Trade clearly states, application of the rule of reason test for whether or not a particular restraint is anticompetitive involves inquiry into the nature of the business and the restraints at issue. See Continental T. V., supra, 433 U.S. at 49, 97 S.Ct. at 2557. These issues are complicated in the case of vertical territorial restraints because of their potential for simultaneous reduction of intrabrand competition and stimulation of interbrand competition. Id. at 51-52, 97 S.Ct. at 2558-59. Generally speaking, vertical restrictions reduce or eliminate intrabrand competition at one or more levels of the distribution process by limiting the number of sellers of a particular product competing for the business of a given group of buyers. See id. at 54, 97 S.Ct. at 2559. At the same time, they may promote interbrand competition by allowing manufacturers to achieve certain desirable or necessary efficiencies in the distribution of their products. See id. Since maintenance of vigorous interbrand competition is the primary concern of antitrust law, resolution of a vertical territorial restraint case depends upon a factual analysis of whether the restraints at issue do in fact enhance interbrand competition to the extent that, viewing defendant’s business as a whole, they may be deemed pro-competitive. See id. at 52 n. 19, 97 S.Ct. at 2558 n. 19.

In support of its motion for summary judgment, Miller relies heavily on the notion of “market power” as a threshold legal requirement for unlawful vertical territorial restraints. As authority, Miller cites Graphic Products Distributors, Inc. v. Itek Corp., 717 F.2d 1560 (11th Cir.1983), wherein the Eleventh Circuit held that the factors discussed in Chicago Board of Trade are “exceedingly general” and lack “an analytical framework for applying the rule of reason,” and that Continental T. V. “provides us with little guidance as to how the rule should be applied.” Id. at 1568 & n. 10. Therefore, the Graphic Products court found it prudent to “[narrow] the broad ranging inquiry called for by the rule of reason by insisting at the threshold, that a plaintiff attacking vertical restrictions establish the market power of the defendant.” Id. at 1568.

The essence of market power, as discussed in Graphic Products, is the absence of substantial competition in the relevant market. See id. at 1570. While the reasons for a manufacturer’s market power may require sophisticated economic analysis, its existence is reflected by and may be inferred from possession by defendant of a dominant market share. See id.; Valley Liquors, Inc. v. Renfield Importers, LTD., 678 F.2d 742, 745 (7th Cir.1982). The absence of market power in the interbrand market, according to the Eleventh Circuit,

“implies that the defendant is in competition with firms that sell products regarded by the consumer as close substitutes for the defendant’s. The defendant will therefore lose most or all of its sales if its retail price exceeds its competitors’ retail price for any reason, including a lack of intrabrand competition that drives its costs of distribution up.”

Graphic Products, supra, at 1569 n. 11, quoting Posner, The Next Step in the Antitrust Treatment of Restricted Distribution: Per Se Legality, 48 U.Chi.L.Rev. 6, 16 (1981).

The logic behind this position is that in a competitive market the marketability of a manufacturer’s product is in large part a function of quality and price. Therefore, it is plainly against the manufacturer’s interest to create a distribution scheme which artifieally increases the cost of his product, or is otherwise harmful to consumers. Rather, market forces compel the manufacturer to adopt the distribution system which allows him to maintain, promote, distribute and service his product in the most efficient manner and at the lowest cost possible. Where a firm employs a policy that ignores these forces, market retribution will itself correct the error.

Three circuit courts have utilized the market power test for analyzing vertical territorial restraints. See Graphic Products, supra; Valley Liquors, supra; Muenster Butane, Inc. v. Stewart Co., 651 F.2d 292 (5th Cir.1981). It is the view of the Court that the market power test is analytically sound and consistent with the pro-competitive values expressed in Chicago Board of Trade, White Motor and Continental T.V. Therefore, the Court holds that a plaintiff challenging a vertical territorial restriction must show, at the threshold, the absence of substantial competition in the relevant product market through the possession by defendant of a dominant market share.

Rule 56(e) provides that

[w]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by the rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

Defendant has submitted in support of his motion the affidavit of Miller Assistant Secretary and Assistant General Counsel Carroll A. Bodie. Therein Mr. Bodie states that for the year beginning July 1, 1984 and ending June 30, 1985 Miller’s share of the interbrand beer market in South Dakota was 19.1%. At that same time, he states, Anheuser-Busch, Inc. and Stroh Brewery possessed market shares of 30.5% and 22.7%, respectively. Plaintiffs have offered nothing in response but the naked assertion that “these are self-serving statistical conclusions by Miller of which the plaintiffs have no knowledge.” By the plain terms of Rule 56(e) plaintiffs have failed to meet their burden to show that there is a genuine issue for trial relating to the market share of defendant Miller Brewing Company. The market share figures contained in the Bodie affidavit manifest vigorous competition in the relevant product market. Applying the competition and market share criteria of the market power test discussed above, it is clear that defendant does not possess market power in the product market relevant to this case. Accordingly, defendant is entitled to judgment as a matter of law.

Now, therefore,

IT IS ORDERED that summary judgment is granted in favor of defendant.

      . Intrabrand competition is the competition among distributors — wholesale or retail — of the product of a particular manufacturer. Inter-brand competition is the competition among manufacturers of the same generic product (in this case beer), see Continental T. V., supra, 433 U.S. at 52 n. 19, 97 S.Ct. at 2558 n. 19.


author: HADEN, Chief Judge.

text:
    Robert Gary CRAIGO, pro se, Petitioner, v. Honorable John HEY, Circuit Judge; and Honorable A. Andrew MacQueen, Chief Judge, Circuit Court of Kanawha County, Respondents.
    Civ. A. No. 2:85-1588.
    United States District Court, S.D. West Virginia, Charleston Division.
    Dec. 23, 1985.

      Robert Gary Craigo, pro se.
   MEMORANDUM ORDER

HADEN, Chief Judge.

This day the Court having considered the petition of Robert Gary Craigo for leave to proceed herein in forma pauperis hereby grants such leave and the Clerk of the Court is directed to file without prepayment of costs or fees the petition.

Turning as it must to the jurisdictional basis of this action, the Court notes that there are no facts alleged which satisfy this Court’s limited subject matter jurisdiction.

Mr. Craigo attempts to invoke the jurisdiction of this Court pursuant to 28 U.S.C. § 1651, commonly known as the “All Writs Act.” In pertinent part, this act provides “(a) the Supreme Court and all courts established by act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the useages and principles of law.” In his application for mandamus under the All Writs Act, Petitioner seeks a writ of mandamus from this Court to compel the Respondent state circuit judges to hear his case there pending in a timely fashion. Mr. Craigo has no case pending in this Court, the federal court for the Southern District of West Virginia, except this putative petition for mandamus.

According to the papers submitted in support of his application for mandamus, Petitioner instituted a civil rights action claiming a violation of 42 U.S.C. § 1983 against certain City of Charleston police officials and the Mayor of Charleston in November, 1984, or prior thereto. That case was assigned to Circuit Judge John Hey for disposition. Judge Hey dismissed that civil action sua sponte on the ground that W.Va.Code, § 28-5-36, 1931, as amended, prevents inmates from filing suit except through a committee appointed by the County Commission pursuant to another State Code section. Petitioner appealed that dismissal to the Supreme Court of Appeals of West Virginia and in an opinion authored by Chief Justice Miller, the highest court of West Virginia held the circuit judge’s decision to be error and reversed and remanded the case to the Circuit Court of Kanawha County for further proceedings. Craigo v. Marshall, 331 S.E.2d 510 (W.Va., 1985).

More than six months have passed since the remand and apparently Judge Hey, the assigned judge, has not scheduled the case. In Petitioner’s words “Respondent’s have all refuse to set a trial date for an hearing — in one way or another they have just forgotten about the case.”

On this factual premise Mr. Craigo, simply put, seeks a writ of mandamus from the federal district court of the Southern District of West Virginia to compel a circuit or trial judge of the State of West Virginia to schedule a case pending in the state court for trial in the state court. The jurisdiction of this Court and the dual sovereignties of the United States of America and the State of West Virginia are directly implicated by this application for mandamus.

The right of access to courts which Mr. Craigo claims now has been denied him is assuredly a constitutional right protected by both the United States Constitution and the West Virginia Constitution. When he apprehended that he was being denied access to the courts, Mr. Craigo had the option of vindicating that constitutional right in either the federal or state court. He freely chose to initiate his underlying civil rights claim in the state court, though under the auspices of 42 U.S.C. § 1983, a federally authored remedy. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979). Inasmuch as West Virginia trial courts have concurrent jurisdiction with the United States District Courts over actions seeking a remedy or vindication of constitutional right pursuant to 42 U.S.C. § 1983, Mitchem v. Melton, 277 S.E.2d 895 (W.Va. 1981), he should pursue that right to vindication within the state court system, his forum of choice. On the present state of facts it is both inappropriate and impermissible for Mr. Craigo to attempt to compel the right of access to state trial courts by seeking the aid of the federal court system.

A writ of mandamus under the All Writs Act, 28 U.S.C. § 1651, may issue against a state court in that rare instance where the case has been actually within the jurisdiction of the federal court, the federal court has ruled and the state court has apparently disobeyed directly the order of the federal court. See Bucolo v. Adkins, 424 U.S. 641, 96 S.Ct. 1086, 47 L.Ed.2d 301 (1975); Deen v. Hickman, 358 U.S. 57, 79 S.Ct. 1, 3 L.Ed.2d 28 (1958). The authority of a federal court to issue a writ under the All Writs Act, however, exists for the sole purpose of protecting the jurisdiction of the federal courts. Thus, federal courts have no power to issue a writ of mandamus in an original action brought for the purpose of securing relief by the writ, and this result is not changed because the relief sought concerns an alleged right secured by the Constitution of the United States. Covington & C. Bridge Co. v. Hager, 203 U.S. 109, 111, 27 S.Ct. 24, 51 L.Ed. 111 (1906). Further, the courts of the United States have no power to acquire jurisdiction of a case or question by issuing a writ of mandamus. McClennan v. Carland, 217 U.S. 268, 30 S.Ct. 501, 54 L.Ed. 762 (1910). Thus this Court has no original jurisdiction in this matter now presented and it in no sense sits as an appellate or supervisory tribunal for any state court of West Virginia. Gurley v. Superior Court of Mecklenburg County, 411 F.2d 586 (4th Cir.1969). See also, Wright, Miller, Cooper & Grossman, Federal Practice and Procedure, § 3932 (1977).

Petitioner’s relief in mandamus, if it is to come, must be sought in the highest state court of West Virginia, the Supreme Court of Appeals. That Court, in both its original jurisdiction and through the exercise of extraordinary, supervisory and civil contempt powers, has full authority to control the activities of inferior judicial tribunals, subject only to the limitations placed upon it by the West Virginia Constitution. The State of West Virginia and its judicial branch represent a sovereignty at least coequal in power to the sovereignty of the lower courts of the United States of America, courts of limited jurisdiction.

For the reasons stated, the Petitioner’s application for mandamus does not state and can state no facts upon which relief can be granted in this Court. Although the Respondents in this action have not been called upon to answer or otherwise plead, this Court is authorized to dismiss this action sua sponte if satisfied that it is “frivolous or malicious”. 28 U.S.C. § 1915(d). See Todd v. Baskerville, 712 F.2d 70 (4th Cir.1983). The test for frivolousness in this Circuit has been stated as follows:

“To satisfy the test of frivolousness under Section 1915(d), it is ... essential for the district court to find ‘beyond doubt’ and under any ‘arguable’ construction, ‘both in law and in fact’ of the substance of the plaintiff’s claim that he would not be entitled to relief.”

Boyce v. Alizaduh, 595 F.2d 948, 952 (4th Cir.1979) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957) and Watson v. Ault, 525 F.2d 886, 892 (5th Cir.1976)).

On the authority of the foregoing, the Court ORDERS the petition for mandamus dismissed with prejudice.