author: FRIENDLY, Presiding Judge:

text:
    CONSOLIDATED RAIL CORPORATION, National Railroad Passenger Corporation, Plaintiffs, v. METRO-NORTH COMMUTER RAILROAD COMPANY, Metropolitan Transportation Authority, and Connecticut Department of Transportation, Defendants, v. UNITED STATES of America, Counterclaim Defendant.
    Civ. A. No. 83-14.
    Special Court, Regional Rail Reorganization Act.
    Nov. 23, 1984.

      Ralph G. Wellington, Margaret S. Wood-ruff, Philadelphia, Pa. (Jerome J. Shestack, Schnader, Harrison, Segal & Lewis, Bruce B. Wilson, Donald A. Brinkworth, Philadelphia, Pa., of counsel), for plaintiff, Consolidated Rail Corp.
    Stephen C. Rogers, Peter S. Craig, Paul F. Mickey, Jr., David J. Carol, Washington, D.C., for plaintiff, National Railroad Passenger Corp.
    Robert M. Lustberg, Walter E. Zullig, Jr., Steven Polan, General Counsel, Metropolitan Transportation Authority, New York City, for defendants, Metropolitan Transp. Authority and Metro-North Commuter Railroad Co.
    Robert R. Prince, Mark S. Shipman, Schatz & Schatz, Ribicoff & Kotkin, Stamford, Conn., for defendant, Connecticut Dept, of Transp.
    Richard K. Willard, Acting Asst. Atty. Gen., Michael F. Hertz, Alan E. Kleinburd, Attys., Civ. Div., U.S. Dept, of Justice, Washington, D.C., for counterclaim defendant, United States of America.
    Robert S. Burk, Acting General Counsel, Kathleen V. Gunning, Washington, D.C., for intervenor, Interstate Commerce Commission.
    Before FRIENDLY, Presiding Judge, and WISDOM and THOMSEN, Judges.
   FRIENDLY, Presiding Judge:

The plaintiffs in this action are Consolidated Rail Corporation (Conrail) and National Railroad Passenger Corporation (Amtrak). The defendants are Metro-North Commuter Railroad Company (Metro-North), Metropolitan Transportation Authority (MTA), and Connecticut Department of Transportation (CDOT). Metro-North and MTA are public benefit corporations of the State of New York; CDOT is an agency of the State of Connecticut, acting at all times relevant to this proceeding through the Connecticut Transportation Authority (CTA). In a counterclaim the defendants have impleaded the United States as a defendant.

The Facts

The controversy concerns trackage rights reserved by the Trustees of the Penn Central Railroad in certain sale and lease agreements with MTA and CTA dated October 27, 1970 and June 1, 1972. Plaintiffs contend these rights have devolved upon them and remain in full force and effect. Defendants’ primary contention is that they lapsed- when Conrail, on January 1, 1983, ceased to furnish the commuter services over the railroad lines on which the trackage rights were reserved which were provided for in agreements entered into simultaneously with the purchase and lease agreements.

The rail lines involved in this controversy were originally owned by the New York Central and the New Haven railroads and became part of the Penn Central as a result of the Pennsylvania-New York Central merger and the compelled inclusion of the New Haven. The former New York Central lines start from Grand Central Station in New York City, proceed under or over Park Avenue to the north, and cross the Harlem River. At Mott Haven in the Bronx the former Hudson Division diverges to the west and proceeds north to Poughkeepsie and Albany, whence the former main line of the New York Central continues to the west over what had been known as the Central’s Water Level Route. The former New York Central Harlem Division line proceeds east from Mott Haven to Woodlawn Junction, New York. There it diverges to the north, serving many suburban communities as far as Dover Plains, New York; the former New Haven line proceeds from Woodlawn Junction to the east. At Shell Interlock, near New Rochelle, New York, it is joined by the former Pennsylvania line coming from Pennsylvania Station in New York over the Hell Gate Bridge. The former New Haven line crosses the New York-Connecticut border just east of Port Chester, New York, and proceeds to New Haven, other points in Connecticut and ultimately to Boston. The lines from Washington, Baltimore and Philadelphia to Pennsylvania Station, and thence to Shell Interlock and beyond New Haven to Boston are owned or leased by Amtrak.

On November 25, 1969, Penn Central Transportation Company, MTA and CTA signed a Memorandum of Intent, 29 pages in length, outlining the business terms of a proposed contractual arrangement among MTA, CTA and Penn Central with respect to Penn Central’s New Haven Division West End passenger service (the Service) operating from Grand Central Terminal to New Haven, including the New Canaan, Danbury and Waterbury branches. The memorandum recited the intention of the two agencies, with state and federal aid, to provide new rolling stock and other additions and improvements for the Service. In order to protect the public investment so contemplated and to comply with the conditions of state and federal aid programs, MTA and CTA would “either purchase or lease from Penn Central the railroad rights-of-way upon which the fixed facility improvement work will be done (giving back to Penn Central appropriate trackage rights).” Memorandum of Intent, at 1. They would also lease from Penn Central the Grand Central Terminal (GCT) with its approaches from Woodlawn Junction for $1 a year “and on other terms intended to continue the substance of the arrangement under which the former New Haven Railroad used the terminal and Penn Central’s facilities north to Woodlawn, subject to Penn Central’s continued right, through the medium of a sublease, to use the terminal and approaches for its operations;” and would lease to Penn Central “all of the rolling stock involved in the program.” Id. at 1-2. The Service would be operated under a Service Contract to be entered into between MTA and CTA, on the one hand, and Penn Central, on the other, under which Penn Central would commit itself “for the term of the arrangement (5 years, renewable at MTA/CTA option) to refrain from utilizing the train discontinuance procedures of the Interstate Commerce Act with respect to the Service.” Id. at 2. The Memorandum elaborated on this under four headings:

I. MTA Purchase of Former NHRR Transportation Properties in New York State
II. CTA Lease of Former NHRR Transportation Properties in State of Connecticut
III. Lease of Grand Central Terminal Access to MTA
IV. Service Contract

There is no need to go into further detail about the Memorandum, which was executed as a basis for securing regulatory approvals, since it was superseded by the more detailed agreements dated October 27, 1970.

The first of these was the MTA Purchase and Lease Agreement between MTA and the reorganization trustees of Penn Central. Its essential provisions were as follows:

1) MTA was to pay Penn Central $7,200,000, and Penn Central was to convey to MTA all properties comprising the main line of the New Haven between Woodlawn Junction and the New York-Connecticut border by a deed substantially in a form attached. § 201.
2) In the deed Penn Central was to “reserve those trackage rights required by it to operate its railroad common carrier passenger and freight service over the properties conveyed therein to MTA thus permitting Penn Central to operate the Service as well as to continue its non-suburban passenger and freight operations.” § 301.
3) Penn Central’s utilization of the reserved trackage rights was to be limited to levels set forth in an appendix, but MTA would consent to usage in excess of those levels provided this did not unduly interfere with the Service. §§ 302, 303.
4) Penn Central promised to pay MTA a reasonable charge for all electric power used by it in its exercise of the reserved trackage rights, a fair and reasonable charge for any additional non-Service operations in excess of those specified levels to which MTA might consent, and, commencing 60 years after the date of the agreement, a fair and reasonable charge for the reserved trackage rights. § 401.
5) If a major structural repair was required, MTA or CTA had the right to terminate the Service Contract on 30 days notice. § 702.

The form of deed from the Penn Central Trustees to MTA made a reservation of trackage rights consistent with the provisions of the Purchase and Lease Agreement.

The second agreement, styled the CTA Lease Agreement, was between the CTA and the Penn Central Trustees. It provided that Penn Central would lease to CTA all properties of the former New Haven Railroad between the New York-Connecticut boundary, on the one hand, and New Haven, Waterbury, Danbury and New Canaan, on the other, for a term of 60 years, at a quarter-annual rental equal to V~k% of the average Aggregate Appraisal Value for such quarter, see § 201, and that so long as the lease remained in effect, CTA had an option to purchase any of the leased properties at the appraisal value. § 202. It contained provision for Penn Central’s reservation and utilization of trackage rights without any payment for 60 years save for charges for excess utilization and electric power similar to those provided for in the MTA Purchase and Lease Agreement.

The third agreement was entitled the GCT Joint Facilities Agreement. It provided that MTA/CTA should have a defined basic Service access to GCT, and an additional Service access so long as this did not “unduly interfere with Penn Central's other railroad services which use the trackage between Woodlawn Junction and GCT ... or materially increase the costs of operating Penn Central’s other railroad services into GCT.” § 202. Of some significance to the present controversy is a provision, § 301, which established different payment procedures for GCT’s net operating revenues and expenses “so long as the Service Contract remains in effect.” The term of the agreement was to be 60 years.

The fourth agreement was a Service Contract between CTA and MTA, on the one hand, and the Penn Central Trustees, on the other. Penn Central agreed to operate a commuting service between GCT and points in Connecticut detailed in an appendix at Service fares set forth in another appendix, all of which MTA/CTA had the right to amend subject to the limitations on access to GCT specified in the GCT Joint Facilities Agreement. MTA and CTA were to lease to Penn Central equipment specified in a further appendix. All profits of the Service were to inure to and all losses to be borne equally by MTA and CTA. Penn Central was to receive only a $100,-000 annual fee “[a]s compensation for its contributed expertise.” § 407. So long as neither CTA nor MTA was in default Penn Central would not exercise its rights under § 13a of the Interstate Commerce Act, 49 U.S.C. § 13a, to discontinue any Service trains. The term of the agreement was to be five years but MTA/CTA had the right to renew this for 11 additional consecutive five year terms. MTA and CTA each had the right to terminate the agreement on 18 months’ notice. Any party had the right to terminate for failure of another to cure a default or when granted such right under any of the three other agreements. Upon expiration or termination Penn Central was to pay MTA and CTA each $150,000 for materials and supplies. Also MTA/CTA had “the right to substitute another carrier to operate the Service and Penn Central [had to] surrender without further compensation its right to operate the Service to such substituted carrier.” § 706. Absent such substitution, the full responsibility for the operation of the Service would remain with Penn Central.

We turn now from the West End to the Harlem-Hudson properties. These were dealt with preliminarily in a Letter of Intent dated October 12,1970 and definitively in a Harlem-Hudson Lease Agreement dated June 1,1972 between MTA and the Penn Central Trustees.

The Lease Agreement provided for a 60 year lease, with a provision granting MTA an option to renew for six additional consecutive five year terms, by the Trustees to MTA of the GCT buildings, of Penn Central’s transportation properties used in its suburban passenger service from GCT including the Harlem River lift bridge and the property north of the bridge to Poughkeepsie, New York, on the Hudson Division, and to Dover Plains, New York, on the Harlem Division. The lease was subject to existing leases and agreements, including an agreement dated April 16, 1971 between the Trustees and Amtrak. The lease reserved “all rights necessary to enable [Penn Central] to perform its obligations, and National Railroad Passenger Corporation to exercise its rights, under the Amtrak Agreement.” Harlem-Hudson Lease, at 3. In accordance with Article III of the Agreement, the lease also reserved to Penn Central “the right, ... (A) to operate upon the leased premises (the “Track-age”) a railroad common carrier service to the extent (i) authorized under the Interstate Commerce Act, or any future law of like import, or (ii) otherwise permitted by law, including the right: (a) to operate over the Trackage freight trains, ears and locomotives; (b) to provide through and local freight service ...; (c) to operate long-haul (through) passenger trains, cars and locomotives ... to and from points north of Poughkeepsie or Dover Plains, New York, through or via Poughkeepsie or Dover Plains, over the Trackage ... [and,] (d) to operate over the Trackage suburban railroad passenger services, as they may from time to time be constituted.” Id. at 3-4. The agreement contained provisions as to the level of operations over the Trackage (other than Penn Central’s Harlem-Hudson Service and its New Haven Service) similar to those in the West End Agreements.

The Harlem-Hudson Service Agreement was quite similar to the West End Service Contract. Penn Central was to operate suburban passenger service in a quantity and at fares specified by MTA, which was to lease certain of the equipment used in the Service. All income should inure to and deficits be borne by MTA. Penn Central was to receive an annual fee of $125,-000. The term of the agreement was five years, but MTA had the right to renew for up to 17 additional five-year terms. MTA had the right to terminate the agreement at any time on 18 months’ notice except that during the initial five year term it might not do this without substituting another carrier. Either party could terminate for uncured defaults or when granted such rights by the Lease Agreement or upon the expiration of the Lease or the Lease Agreement. In the event of expiration or termination of the agreement, MTA had the right to substitute another carrier for Penn Central. If it did not do so, the full responsibility for operating the Service remained with Penn Central.

After the agreements became effective, the Penn Central Trustees operated the Service as contemplated by the West End and Harlem-Hudson Agreements, and exercised the reserved trackage rights, making no payments therefor except as stipulated.

Section 303(b)(2) of the Rail Act preserved the West End and Harlem-Hudson Agreements by providing that the conveyances to be ordered by this court should be

“subject to such leases and agreements as shall have previously burdened such properties or bound the owner or operator thereof in pursuance of an arrangement with any State, or local or regional transportation authority under which financial support from such State, or local or regional transportation authority was being provided on January 2, 1974 ----”,

this being the effective date of the Rail Act. 45 U.S.C. § 743(b)(2).

The Final System Plan (FSP), Vol. I, p. 264, as amended by the Official Errata Supplement, p. 14, designated to Conrail the following properties of Penn Central as transferor:

Trackage rights reserved by transferor for freight and passenger service under the West End Agreement with the Connecticut Transportation Authority and Metropolitan Transportation Authority.
Trackage rights reserved by transferor for freight and passenger operations under the Hudson/Harlem lease agreement and an operating easement in all properties used exclusively for freight service on lines covered by the agreement.

Section C of the FSP designated to Conrail for purchase, lease or other acquisition by Amtrak various properties in the Northeast Corridor (NEC), including:

Such trackage rights of transferors which are necessary to operate Amtrak services on rail lines which have been purchased or leased by public authorities.

1 FSP, at 323. Since only the “intercity” trackage rights were necessary to operate Amtrak services on the West End segment of the NEC, Conrail retained the “commuter” and “freight” trackage rights. After the conveyances on April 1, 1976, Conrail, in accordance with § 303(b)(2) of the Rail Act and the provisions of 1 FSP 45, provided the commuting services which Penn Central had furnished under the West End and Harlem-Hudson Agreements. Conrail and Amtrak continued to exercise the trackage rights reserved in those agreements for freight and long distance passenger service.

In 1981 Congress adopted the Northeast Rail Service Act of 1981 (NRSA). Section 1133(2) declared one of the. purposes of Congress to be a “transfer of Conrail commuter service responsibilities to one or more entities whose principal purpose is the provision of commuter service.” 45 U.S.C. § 1102(2). Section 1136 provided:

Notwithstanding any other provision of law or contract, Conrail shall be relieved of any legal obligation to operate commuter service on January 1, 1983.

45 U.S.C. § 744a. Section 1137 added to the Rail Passenger Service Act (RPSA) a new Title V entitled Amtrak Commuter Services. Section 501 directed the establishment of a wholly-owned subsidiary of Amtrak to be known as Amtrak Commuter Services Corporation (Amtrak Commuter). Section 504 provided in relevant part:

(a) Amtrak Commuter is authorized to operate commuter service under an agreement with a commuter authority. Effective January 1, 1983, any commuter service operated by Amtrak Commuter under an agreement with a commuter authority shall be operated solely pursuant to the provisions of this section.
(b) (1) Amtrak Commuter shall operate commuter service which Conrail was obligated to provide on the effective date of this title under section 303(b)(2) or 304(e) of the Regional Rail Reorganization Act of 1973, and may operate any other commuter service, if the commuter authority for which such service is to be operated offers to provide a commuter service operating payment which is designed to cover the difference between the revenue attributable to the operation of such service and the avoidable costs of operating such service (including the avoidable cost of any capital improvements necessary to operate such service) together with a reasonable return on the value.
sfc * * * * #
(f) Amtrak Commuter shall not be subject to any lease or agreement with a commuter authority under which financial support was being provided on January 2, 1974, for the continuation of rail passenger service, except that the Corporation and Conrail shall retain appropriate trackage rights (for passenger and freight operations respectively) over any rail properties owned or leased by such commuter agency. Compensation for such trackage rights shall be just and reasonable.
(g) Notwithstanding any other provision of this section, Amtrak Commuter is not obligated to provide commuter service if a commuter authority operates the service itself or contracts for the provision of such service by an operator other than Amtrak Commuter. In any such case, Amtrak Commuter shall, where appropriate, provide the commuter authority or such other operator with access to rail properties needed to operate such service.

45 U.S.C. § 584. Section 506 provided that not later than April 1, 1982, each commuter authority shall notify Amtrak Commuter and Conrail whether it intends to operate its own commuter service or to contract with Amtrak Commuter for the operation of such service. Other provisions of the section detail how agreements shall be made between Conrail and either Amtrak Commuter or a commuter authority for the transfer to one or the other of all of Conrail’s commuter services in the Northeast Corridor and any rail properties useful for the operation of the commuter services, such transfer to occur not later than January 1, 1983.

MTA and CTA elected not to accept the service of Amtrak Commuter. Instead MTA organized a wholly-owned subsidiary, Metro-North Commuter Railroad Company (Metro-North). Commencing January 1, 1983, Conrail, in compliance with § 1136 of NRSA but over the objection of MTA and CDOT, ceased operating the Harlem-Hudson and New Haven commuter services, which have been operated since that date by Metro-North. However, Conrail and Amtrak have continued to exercise the trackage rights, largely free up to a certain level of service, provided in the MTA Purchase and Lease Agreement, the CTA Lease Agreement, and the Harlem-Hudson Lease Agreement. MTA and CDOT challenged their right to such free exercise and demanded the payment of a reasonable fee.

In consequence, Conrail and Amtrak brought this action against Metro-North, MTA and CDOT, seeking a declaration that the trackage rights reserved in the West End and Harlem-Hudson Agreements continued in effect. The defendants filed an answer seeking dismissal of the complaints. They also asserted counterclaims against the plaintiffs and against the United States as an impleaded defendant. These counterclaims requested declarations that from and after January 1, 1983, neither Conrail nor Amtrak had any right to use the rail lines here in question save as such rights may have been created by § 504(f) of the Rail Passenger Service Act, quoted above; that if this court finds that such rights were created, plaintiffs and the United States are liable to defendants for the payment of just compensation for such use; and that the court should establish a methodology for the computation of such compensation. The counterclaims also sought a declaration that the creation of any trackage rights by § 504(f) of RPSA was an act of eminent domain for which the United States was bound to pay just compensation.

Conrail has moved for summary judgment that the above described trackage rights remain unchanged and fully enforceable “including their use without compensation by Conrail subject to the terms and levels in [the West End and Harlem-Hudson] agreements, and were not altered or abrogated by Section 1137 of the Northeast Rail Service Act of 1981, which amended Section 504(f) of the Rail Passenger Service Act, or by the assumption of commuter rail service by MTA and CDOT as of January 1, 1983.” Amtrak has moved for summary judgment seeking a similar declaration with respect to trackage rights for intercity passenger service over the West End lines. Defendants have moved for summary judgment dismissing the complaints and granting the relief sought in the counterclaims. The United States has moved to dismiss the counterclaims against it. Briefs have been submitted and the court has heard argument.

DISCUSSION

In opposing plaintiffs’ motions for summary judgment and supporting their own, defendants rely on two separate although related arguments. The first is that, as a matter of contract interpretation, Penn Central’s reservation of what for simplicity we shall call free trackage rights was dependent on its performance of the obligation to provide commuter service under what the defendants contend to have been terms advantageous to them and was therefore lost when Penn Central’s successor, Conrail, abandoned that service in compliance with § 1136 of NRSA on January 1, 1983. The other is- that § 504(f), quoted above, which was added to the Rail Passenger Service Act by NRSA, contemplates the payment of compensation for the track-age rights or that if it does not, there was a taking of trackage rights by Conrail, Amtrak, or the United States for which this court should award compensation under § 1152(a) of NRSA.

I

Defendants contend that their losses from having to furnish the commuter services themselves rather than having them supplied by Conrail, even on a fully subsidized basis, are very substantial. First, they claim they were entitled to a $1.837 million dollar annual credit from Conrail under the GCT Joint Facilities Agreement and to an annual credit for approximately 472% of certain administrative costs attributable to passenger train service into GCT from both the Harlem-Hudson and West End lines, which are no longer being paid. Second, they claim to have lost the benefit of significant economies of scale when Conrail ceased to provide administrative services for the commuter service and the agencies had to furnish the needed services themselves. Metro-North estimates that this has increased annual costs by approximately $11 million in the areas of data processing, accounting, purchasing, and labor management alone. Third, the transportation authorities claim to be disadvantaged by the necessity of financing Metro-North’s operating deficit on a current basis, rather than financing Conrail’s deficit on a quarterly arrears basis as required by the Service Contracts. Finally, they assert that since Conrail is no longer obligated to maintain the New Haven right-of-way for commuter service, the responsibility has fallen to them. Conceding that under the Service Contracts they were obligated to reimburse Conrail for such maintenance, they claim it is an additional burden to be required not only to pay for the maintenance but also actually to perform it. Plaintiffs neither admit nor deny the accuracy of these figures and we express no opinion about them. Plaintiffs’ contention is rather that the entire issue of whether the defendants have suffered a loss as a result of termination of the Service Contracts is irrelevant to the continued existence of their free trackage rights.

Plaintiffs rest their case on what they consider to be the plain language of the reservation of trackage rights in the deed executed pursuant to the MTA Purchase and Lease Agreement, in the lease executed pursuant to the CTA Lease Agreement, and in the lease executed pursuant to the Harlem-Hudson Lease Agreement. The language governing the reservation of trackage rights is indeed unequivocal and without conditions, precedent or subsequent. They fortify this argument by pointing to clauses in the lease and purchase agreements specifying that particular provisions shall apply only so long as the Service Contract for the same rail property is in effect; in contrast there is no such linkage either in the contract provisions or in the deed or leases reserving the free trackage rights. The language being entirely plain, plaintiffs perceive no justification for resorting to extrinsic evidence, although they maintain that in fact such evidence would operate in their favor, as developed below.

Defendants’ chief response to this is that, as evidenced by the Letter and Memorandum of Intent and cross-references in the various contracts, the agreements were a “package deal”, so that a serious breach of any would avoid them all. Conceding the interrelationship as they must, plaintiffs answer that the contracts were carefully drawn and that when breach or lapse of one agreement was to affect another, the draftsmen said so, see note 5 supra; they point out further that defendants are not seeking a complete rescission of the agreements but wish to retain the conveyed fee and leasehold interests from which the trackage rights were carved, while excising those rights. They rely also on representations made by the Penn Central Trustees to Penn Central’s reorganization court, with defendants’ knowledge, that an important consideration to Penn Central for its lease of the Harlem-Hudson properties was its receipt of free trackage rights for 60 years, see Plaintiffs’ Jt.App., Exhibit 10, at 3. Moreover, in a deposition in the valuation proceedings before this court, Robert R. Prince, then secretary and general counsel of MTA and formerly its chief negotiator for the West End Purchase and Lease Agreement and Service Contract, stated that Penn Central had been demanding $14 million for the properties conveyed by the MTA Purchase and Lease Agreement and had been induced to reduce this to $7.2 million by an argument of MTA that the capitalized value of the reserved trackage rights amounted to some $6 million. See Plaintiffs’ Jt.App., Exhibit 5, at 136-40. Defendants attempt to answer that the dominating interest of Penn Central was to rid itself of the deficit laden commuter operations and that the precise sale or rental price was a matter of small consequence.

Recognizing the limitations on the “plain meaning” rule, see Pacific Gas & Electric Co. v. G.W. Thomas Drayage & R. Co., 69 Cal.2d 33, 69 Cal.Rptr. 561, 442 P.2d 641, 644 (Calif.1968) (Traynor, J.); Restatement of Contracts 2d & Reporter’s Note, comment b, we think this is preeminently a case for applying it. The contracts were drawn with meticulous care, providing for contingency after contingency. If the draftsmen had intended that Penn Central’s free trackage rights should cease in the event of a default by it with respect to the Service Contracts, they would have said so. In fact, as we have noted, certain provisions of the West End Purchase and Lease Agreements and of the Harlem-Hudson Lease Agreement are expressly conditioned on the continuance of the Service Contracts, see note 5 supra. The failure of the draftsmen to condition the reservation of trackage rights in a similar fashion affords strong proof that the parties did not so intend. Construction of the contract in accordance with its terms produces no harsh or unjust result. The transportation authorities continue to enjoy the fee and leasehold interests granted by the Purchase and Lease Agreements, and plaintiffs retain the trackage rights reserved to them. It is not likely that draftsmen who took care of many small contingencies would have failed to provide that a default under the Service Contracts would terminate the reserved trackage rights, if that had been their intent. Under the agreements as drawn, repudiation of the Service Contracts by Penn Central would have given the transportation authorities a cause of action for damages but would not have affected Penn Central’s exercise of free trackage rights any more than a failure of the transportation authorities to make subsidy payments for the commuter services would have entitled Penn Central to rescind the sales and leases.

II

Any difficulty in this case arises from § 504(f) of the Rail Passenger Service Act, as added by § 1137 of NRSA. It is worth quoting this again:

(f) Amtrak Commuter shall not be subject to any lease or agreement with a commuter authority under which financial support was being provided on January 2, 1974, for the continuation of rail passenger service, except that the Corporation and Conrail shall retain appropriate trackage rights (for passenger and freight operations respectively) over any rail properties owned or leased by such commuter agency. Compensation for such trackage rights shall be just and reasonable.

45 U.S.C. § 584(f).

Plaintiffs would have us dismiss § 504(f) on the simple ground that the section would apply only if defendants had sought to have commuter service furnished by Amtrak Commuter. Since they did not, deciding rather to furnish the service themselves, as, we understand, all commuter authorities did, plaintiffs argue that § 504(f) has no bearing on this case. Defendants respond that if the first sentence had been broken into two, with a period replacing the words “except that”, § 504(f) would have conveyed an intention that Amtrak and Conrail should pay just and reasonable compensation for retained trackage rights and that the words “except that” make no sense anyway since the retention of trackage rights is not an exception to the freeing of Amtrak Commuter from obligations under the Service Contracts. Putting the argument in another way, the objective of the first clause of the first sentence was to free Amtrak Commuter from any burdensome service agreements made by a commuter authority with Conrail. There was no need to extend similar protection to a commuter authority which decided to undertake the service itself, since such action would bring any service agreement with the previous provider to an end. On the other hand, Congress wished to be sure that Amtrak and Conrail retained necessary trackage rights over properties that had been sold or leased to commuter authorities, whether the authorities selected Amtrak Commuter or operated the service themselves. In either event Congress intended that the trackage rights should be paid for.

As we explained in a previous opinion where we recounted the story, the legislative history of NRSA is unusual, see Railway Labor Executives’ Ass’n v. SEPTA, 534 F.Supp. 832, 844 n. 14 (1982). Section 504(f) had no counterpart in S. 1100, the original version of the Northeast Rail Service Act, introduced by Senator Packwood. However, the bill reported by the House Committee on Energy and Commerce, H.R. 3559, see H.R.Rep. No. 97-153, 97th Cong., 1st Sess., contained a section 504 similar to that finally enacted in some respects but different in others. Notably § 504(g) of the bill, the counterpart of § 504(f) of the act, read as follows:

(g) If a commuter authority fails to offer a commuter service operating payment pursuant to subsection (b)(2) of this section, then any lease or agreement under which financial support was being provided on January 2, 1974, for the continuation of rail passenger service shall not apply to Amtrak Commuter, but the Corporation and the Consolidated Rail Corporation shall retain appropriate trackage rights (for freight and passenger operations respectively [sic]) over any rail properties owned or leased by such commuter agency. Compensation for such trackage rights shall be fair and equitable.

H.R. 3559, 97th Cong., 1st Sess. (1981). The Committee Report elaborated somewhat on this:

Subsection (g) provides that if no commuter service operating payment is offered by a commuter agency pursuant to a lease or agreement, such lease or agreement shall not apply to Amtrak Commuter. In such event, Amtrak and Conrail are to retain appropriate track-age rights for passenger and freight operations over any rail properties owned or leased by such commuter agency. Compensation for such trackage rights is to be fair and equitable. In particular, compensation for freight operations should take into account industry-wide average compensation for freight track-age rights and any additional costs imposed on the commuter agency as a result of freight operations over passenger lines.

H.R.Rep. No. 97-153, supra at 23 (1981). The subsequent legislative history sheds no light on why the language of the House bill was changed.

However, even if we were to engage in the dubious course of reading § 504(f) as having the same meaning as § 504(g) of the House bill, we would not agree that Congress imposed a liability on Conrail and Amtrak to pay for the free trackage rights reserved in the West End and Harlem-Hudson Agreements. Whatever realism there might or might not be in assuming that the concerned members of Congress were aware of the provisions of the FSP designating the trackage rights held by Penn Central to Conrail and Amtrak, it would be pressing too far to believe that even such members were aware of how long such rights endured or that Penn Central was not obliged to make payment for them to the transportation authorities up to a certain level of use. What Congress desired to make clear was that its freeing of Amtrak Commuter from the obligations of the West End and Harlem-Hudson Agreements, to which Conrail had been made subject by the Rail Act, should not deprive Amtrak and Conrail of track-age rights needed for the operation of their respective passenger and freight services. The direction, “Compensation for such trackage rights shall be just and reasonable,” should be read as applying only when compensation is due; if a person is legally entitled to use something free, requiring him to pay any compensation is not “just and reasonable”. We can think of no reason why Congress, which was looking forward to a sale of Conrail, see 45 U.S.C. § 761(a), should have wished to impose costs on Conrail that it had no obligation to bear. We have been cited to nothing to indicate that the defendants made known to the Congress that enacted NRSA their present position that freeing Conrail from its obligations under the Service Contracts would be detrimental to them. On the contrary Congress had every reason to believe that all the commuter agencies were as glad to get rid of Conrail as Conrail was to be free of responsibility to them. As said in the House report, supra, at 11:

The commuter agencies (along with Conrail and Amtrak) contend that labor costs are too high and work rules too restrictive. But the institutional arrangements impede those most concerned with costs — the commuter agencies — from exercising control over the costs.

We thus conclude that § 504(f) did not impose a statutory obligation on Conrail and Amtrak to pay for what the West End and Harlem-Hudson Agreements entitled them to retain free.

What we have just said suffices to dispose of defendants’ arguments that NRSA constituted a taking of trackage rights over their properties for which we should award compensation under § 1152(a)(4). If NRSA took anything from the defendants, it was not the trackage rights, to which Conrail and Amtrak were entitled as successors to Penn Central, but rather the benefit of Penn Central’s Service Contracts which had been imposed upon Conrail. Defendants have not pleaded any such claim and we intimate no view with respect to its merit.

Plaintiffs’ motions for summary judgment are granted, and defendants’ motions for summary judgment are denied. The motion of the United States to dismiss defendants’ counterclaim is granted with leave to the defendants to file, within 20 days from the entry of judgment, an amended counterclaim for the loss of the benefits of the Service Contracts brought about by NRSA. If the parties cannot agree on a form of judgment, this should be settled on ten days’ notice.

      . This includes the properties covered by the West End Agreements, with the exception of the segment of track linking Woodlawn Junction with the Shell Interlock, but not those covered by the Harlem-Hudson Agreements.

      . The defendants point out that the presence of § 303(b)(2) and the related § 304(e)(3) was by no means accidental. The Rail Act, as originally drafted, provided generally that the conveyances from the transferors were to be “free and clear of any liens or encumbrances." S. 2676, 93d Cong., 1st Sess. (1973). Dr. William J. Ronan, then chairman of MTA, brought to the attention of the Senate Committee on Commerce the fear of MTA that this might have the effect of transferring to Conrail some of the properties here at issue which had been leased to MTA and on which it had spent large amounts of money, without any assurance that Conrail would provide commuter service. While MTA would share in a condemnation award for the taking of its property, it was far more interested in the continuation and improvement of commuter service. He therefore urged that the bill be revised “to insure that Metropolitan Transportation Authority’s rights under the several leases and agreements embodying our financial support arrangements with Penn Central covering these three lines be respected in any such transfer to the core-system operating company." Hearings on Northeast and Midwest Railroad Transportation Crisis Before the Senate Committee on Commerce, 93d Cong., 1st Sess., at 1000 (1973) (statement of William J. Ronan). When the Committee failed to respond to this suggestion, Senator Javits offered what is now § 303(b)(2) as a floor amendment. 119 Cong.Rec. S40736-37 (daily ed. Dec. 11, 1973) (statement of Sen. Javits). Consistent with this, § 304(e)(3) provided that passenger service under arrangements described in § 303(b)(2) should continue as provided in such arrangements rather than by the general provisions of § 304(c)(2)(A) and (C).

      . Amtrak concedes that it is not entitled to free trackage rights for intercity passenger service over the line from GCT to Poughkeepsie since this is not within the Northeast Corridor. It has applied to the Interstate Commerce Commission in Finance Docket No. 30426 under 45 U.S.C. § 562(a) to fix appropriate compensation for it to pay MTA for the use of this line. By a Memorandum-Order dated July 23, 1984, we denied a motion by MTA to stay the Commission proceeding. On October 29, 1984, the Commission issued an interim decision upholding its jurisdiction under 45 U.S.C. § 562(a) and directing further proceedings.

      . That section gives this court original and exclusive jurisdiction over any civil action:
      (1) for injunctive, declaratory, or other relief relating to the enforcement, operation, execution, or interpretation of any provision of or amendment made by this subtitle, or administrative action taken thereunder to the extent such action is subject to judicial review;
      (4) seeking judgment upon any claim against the United States founded upon the Constitution and resulting from the operation of any provision of or amendment made by this subtitle.
      45 U.S.C. § 1105(a).

      . MTA Purchase and Lease Agreement, §§ 106, 402, 501; CTA Lease Agreement, §§ 402, 501; Harlem-Hudson Lease Agreement, §§ 402, 501.

      . Plaintiffs make other arguments that are less convincing. They point to the fact that the reservation of free trackage rights was for 60 years whereas the Service Contracts were for only five, ignoring the provisions giving the transportation authorities options to renew the Service Contracts for successive five-year terms aggregating a total of 60 years in the case of the West End Service Contract and 90 years in the case of the Harlem-Hudson Service Contract. They point also to provisions in the Service Contracts that granted the transportation authorities the right to substitute another operator and to terminate the Service Contracts in the event that structural repairs were required. These rights, which rest in the volition of the transportation authorities, are quite different from a breach by Penn Central.

      . Subsection (b)(2) required Amtrak Commuter to operate commuter service if a commuter authority made a service operating payment pursuant to a lease or agreement under which financial support was being provided on January 2, 1974, for the continuation of rail passenger service. This phrase covered the Service Contracts here at issue.

      . After the provisions of H.R. 3559 were incorporated verbatim into H.R. 3982, the Omnibus Reconciliation Act of 1981, a House and Senate Conference Committee resolved any differences between the provisions of the bill and those of S. 1377, the Senate version of the Omnibus Budget Reconciliation Act, which had incorporated the terms of S. 1100. The only comment in the Conference Committee Report concerning the changes in what had been § 504(g) of H.R. 3559 is a general statement that "[t]he House and Senate provisions for the transfer of commuter services and related properties are combined.” 127 Cong.Rec. S9057 (daily ed. July 31, 1981) (Explanatory Statement of the House and Senate Conferees with Respect to Subtitles E, F, and G of Title XI of the Omnibus Reconciliation Bill).

      . The report elaborates this in some detail.


source: Caselaw Access Project

author: ORINDA D. EVANS, District Judge.

license: Public Domain

text:
    Elizabeth S. CHAPPELL v. Richard S. SCHWEIKER, Secretary of Health and Human Services.
    Civ. A. No. C81-1727.
    United States District Court, N.D. Georgia, Atlanta Division.
    Jan. 3, 1983.
    As Amended May 31, 1983.

      William I. Aynes, Atlanta, Ga., for plaintiff.
    Jere W. Morehead, Albert L. Kemp, Jr., Asst. U.S. Attys., Atlanta, Ga., for defendant.
   ORDER

ORINDA D. EVANS, District Judge.

This case is before the Court on Plaintiff’s Objections to the Magistrate’s Report and Recommendation.

This is an action for judicial review of a decision by the Secretary of Health and Human Services (hereinafter “the Secretary”) denying Plaintiff benefits under the Social Security Act. 42 U.S.C. §§ 301 et seq. Plaintiff Elizabeth Chappell filed a claim for widow’s disability benefits under 42 U.S.C. §§ 402(e) and 423(d)(2)(B). After an adverse decision by an administrative law judge (“AU”), Plaintiff’s request for review was denied by the Social Security Administration Appeals Council on August 4, 1981. Plaintiff brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

She requests a reversal of the Secretary’s decision based on lack of substantial evidence or in the alternative that the case be remanded for the taking of additional evidence. The Magistrate recommended that Plaintiff’s appeal be denied on both grounds and that her complaint be dismissed. For the reasons which follow, the Court declines to follow the Magistrate’s recommendation and remands to the Secretary for a reconsideration of Plaintiff’s claim.

Elizabeth Chappell is a 54-year old woman whose husband died in 1977. She has not been employed since his death. Mrs. Chappell claims entitlement to widow’s disability benefits based on disability beginning June 30, 1977 due to “back and neck condition, arthritis all over, thyroid condition, nervous condition, heart condition, hiatus [sic] hernia.”

I. The Applicable Regulations and Standard of Review

A widow will not be determined to be under a disability under the Act “unless ... her physical or mental impairment or impairments are of a level of severity which under regulations prescribed by the Secretary is deemed to be sufficient to preclude an individual from engaging in any gainful activity.” 42 U.S.C. § 423(d)(2)(B). Pursuant to this section of the Act, the Secretary has published a “Listing of Impairments” for use in determining whether to award widow’s benefits. 20 C.F.R. part 404, Subpart P, Appendix 1 (1981). The Listing describes impairments which are deemed severe enough to preclude an individual from engaging in any gainful activity. The accompanying regulations provide that a widow will be found to be disabled only if she has a medically determinable physical or mental impairment that has “specific clinical findings that are the same as those for any impairment in the Listing of Impairments or are medically equivalent to those for any impairment.” 20 C.F.R. § 404.1578. Impairments which would not constitute a disability if treated separately may be considered in combination to determine whether, taken together, they constitute a disability. 20 C.F.R. § 404.1526(a).

An impairment is determined to be medically equivalent to a listed impairment only if based on medical evidence supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 404.1526. The medical opinion of one or more physicians designated by the Secretary is considered in determining medical equivalence. Id. As in all disability determinations under the Act, the Secretary ultimately determines a widow’s disability; a physician’s statement that an individual is disabled or unable to work is not determinative, but must be supported by medical evidence. 20 C.F.R. § 404.1527. Finally, the claimant bears the burden of proving that he or she is disabled in order to recover benefits under the Act. Anderson v. Schweiker, 651 F.2d 306, 308 (5th Cir.1981).

In reviewing the Secretary’s decision in a disability case, this Court may not review findings of fact or substitute its judgment for that of the Secretary. Smallwood v. Schweiker, 681 F.2d 1349, 1351 (11th Cir.1982). We are confined to determining only whether there is substantial evidence in the record to support the Secretary’s decision. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971); Anderson v. Schweiker, 651 F.2d at 308. Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. Of course, our review of the legal standards applied by the Secretary is not so deferential, and failure to apply proper legal standards is grounds for reversal of the Secretary’s decision. Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir.1982).

II. The Evidence

The medical evidence consists of the reports of Dr. Grover Anderson and others who examined Mrs. Chappell at Georgia Baptist Hospital, Dr. Ralph Fleck, Dr. James Thomasson, who was Mrs. Chappell’s treating physician, and associates of Dr. Thomasson at the Papp Clinic. Each of these doctors based their reports on examinations which they conducted; Dr. Thomas-son’s evaluations were based on numerous consultations from 1978 to 1980. In addition, Dr. Thomasson submitted a letter dated October 1, 1980, which stated:

This patient suffers from severe, generalized arthritis and arteriosclerotic cardiovascular disease complicated by a tachy arrhythmia, etiology unknown.
She has to take Inderal regularly for the arrhythymia and sometimes has to come into the hospital or my office for further medications.
She also is 3V2 years post hysterectomy for adenocarcinoma of the endometrium. At present, she has no evidence of recurrent disease but has to be followed closely-
X-rays on her last admission to Newman Hospital, 2/22/80, showed her to have severe cervical degenerative disc disease and lumbosacral degenerative disc disease and is being treated on medication with only slight improvement [sic].
At present, this patient also takes thyroid extract for previous hypothyroidism. This lady, at present, is totally and permanently disabled because of the combination of these complicated factors.
She is unable to be gainfully employed because of the pain suffered while sitting, standing, bending, stooping or performing any type of gainful employment even to the point that she cannot type because of severe osteoarthritis of her joints of the hands and fingers.

Record at 87.

The AU also considered the reports of non-examining doctors “designated by the Secretary” pursuant to 20 C.F.R. § 404.-1526. These doctors reviewed the reports in the record and concluded that the severity of Mrs. Chappell’s “impairments do not meet or equal that of any impairment described in the Listing of Impairments.” Record at 68. Finally, the AU heard Mrs. Chappell’s own testimony concerning her condition and the pain she suffers from it.

On the basis of the evidence the AU found the following:

Medical evidence of record shows the claimant has X-ray evidence of degenerative disc disease of lumbar spine and cervical spine with a full range of motion and no neurological involvement, The claimant has been diagnosed as having generalized osteoarthritis but there are no resultant secondary sensory, motor, or reflex deficits. The claimant is noted to take medication for previous hypothyroidism but currently there is no evidence of deficiency of thyroid activity. Although the claimant alleges a nervous condition, she has no history of psychiatric treatment. Further, her testimony and demeanor at the hearing are convincing that she does not suffer from emotional problems of a serious nature. Intermittent tachycardia is noted to be under good control without any further cardiac problems. There is no medical evidence to substantiate alleged hiatus hernia.

Record at 10.

The AU noted Dr. Thomasson’s conclusion that Mrs. Chappell is “totally and permanently disabled” due to the above factors, but correctly stated that the weight to be given such a conclusion “depends on the extent to which it is supported by specific and complete clinical findings and is consistent with the other evidence as to the severity and probable duration of the claimant’s impairment or impairments.” See 20 C.F.R. § 404.1527; Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir.1981). The underlying medical data, although indicating that Mrs. Chappell does have certain health problems, did not persuade the AU that Mrs. Chappell was “disabled” within the meaning of the Act. He explicitly noted the conclusion of the designated physicians to the contrary.

The Court has reviewed the record and finds that there is substantial evidence to support the Secretary’s conclusion that Mrs. Chappell’s disc disease in her neck and back, arthritis, thyroid condition, nervous condition, heart condition or hernia were not, alone or in combination, of a level of severity equal to any listed impairment. The AU also made findings, however, concerning the pain which Mrs. Chappell suffers from her conditions and concluded that the pain itself is not disabling. This latter conclusion concerning pain was not supported by substantial evidence.

In addition to his conclusion that the physical conditions described above did not equal a listed impairment, the AU stated:

The claimant’s allegations of pain have been considered as pain may very well be a disabling affliction. There is no doubt that the claimant suffers some pain and discomfort; however, the evidence of record does not establish the presence of such severe and persistent pain as to be “disabling” in and of itself.

Record at 11.

The AU was correct in stating that pain itself can be disabling under the Act. Wiggins v. Schweiker, 679 F.2d 1387, 1390-91 (11th Cir.1982). Under the law of this Circuit, the symptom of pain can be found to be disabling where the underlying impairment or cause of the pain is medically determinable and supported by objective medical evidence; the complaints of pain themselves need not be supported by objective findings. Id. and cases cited therein. It is up to the Secretary to make credibility determinations concerning the subjective complaints. Id.

The cases which have held that pain alone can be disabling under the Act have done so in the context of wage-earner disability benefit applications, not widow’s disability claims. See Wiggins, 679 F.2d at 1390-91 and cases cited therein. These cases have construed 20 C.F.R. § 404.1529 to conclude that complaints of pain need not objectively be supported as long as the underlying cause is medically determinable. 20 C.F.R. § 404.1529 states:

If you have a physical or mental impairment, you may have symptoms (like pain, shortness of breath, weakness or nervousness). We consider all your symptoms, including pain, and the extent to which signs and laboratory findings confirm these symptoms. The effects of all symptoms, including severe and prolonged pain, must be evaluated on the basis of a medically determinable impairment which can be shown to be the cause of the symptom. We will never find that you are disabled based on your symptoms, including pain, unless medical signs or findings show that there is a medical condition that could be reasonably expected to produce these symptoms.

Although a widow’s disability is determined under the Listing of Impairments in Appendix 1, and not directly under the above-quoted regulation, the Listing also contains instructions concerning pain as follows: “Pain may be an important factor in causing [musculoskeletal] functional loss, but it must be associated with relevant abnormal signs or laboratory findings.” 20 C.F.R. part 404, Subpart P, Appendix 1, § 1.00 (1981).

The Court cannot discern from the language of the two sections whether different standards should be applied to evidence of pain in an application for widow’s disability benefits. Although Congress intended to establish a stricter disability test for widows by requiring that they be unable to engage in any gainful activity, as opposed to the wage-earners test of substantial gainful activity based on age, education and work experience, see Sullivan v. Weinberger, 493 F.2d 855 (5th Cir.1974), cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975); note 2 supra, it is unclear whether this means that Congress intended widows to sustain a higher threshold of pain before being entitled to benefits. In a wage-earner’s case, pain is considered along with the nonmedical factors mentioned above, whereas in a widow’s case, absent a separate listed impairment, pain alone would be the determining factor. Moreover, in a widow’s case the pain must be severe enough to foreclose any gainful activity, while pain suffered by a wage-earner need be severe enough to prevent substantial gainful activity defined by reference to certain other nonmedical factors.

As a practical matter this distinction probably is not significant. Unlike the physical impairments described in the Listing, pain is not susceptible to precise calibration and. often will not be demonstrable by clinical findings. Ware v. Schweiker, 651 F.2d 408, 412 (5th Cir.1981); Stewart v. Harris, 509 F.Supp. 31, 33 (N.D.Cal.1980). Evidence of pain consists largely of the subjective testimony of the claimant and may also include testimony from physicians based on their experience concerning how much pain certain conditions can be expected to produce. Evaluation of this evidence is primarily a credibility determination. Scharlow v. Schweiker, 655 F.2d 645, 648-49 (5th Cir.1981). Suffice it to say that, in a widow’s case, the Secretary must evaluate evidence of pain in light of the strict legal requirement that a claimant be unable to engage in any gainful activity before she is entitled to benefits.

Although the Secretary has discretion in weighing the credibility of a claimant, courts have held that the Secretary must give great weight to subjective complaints of pain and must fully articulate his reasons for rejecting claims based on subjective complaints. Walden v. Schweiker, 672 F.2d 835, 840 (11th Cir.1982); Dobrowolsky v. Califano, 606 F.2d 403, 409 (3d Cir.1979); Aquino v. Harris, 516 F.Supp. 265, 271 (E.D.Pa.1981); Stewart v. Harris, 509 F.Supp. 31, 33 (N.D.Cal.1980). In particular, specific findings as to a claimant’s credibility are “necessary and crucial,” and an AU’s rejection of a claim based on pain without such findings is grounds for reversal. Walden, 672 F.2d at 840; Scharlow v. Schweiker, 655 F.2d 645, 648-49 (5th Cir. 1981); Rivera v. Secretary of Health, Education and Welfare, 513 F.Supp. 194, 199 (S.D.N.Y.1981).

Finally, in allocating the evidentiary burden on the issue of pain, courts have held that a claimant satisfies her burden by having her treating physician substantiate her subjective claims. Aquino v. Harris, 516 F.Supp. 265, 273 (E.D.Pa.1981); see Livingston v. Califano, 614 F.2d 342, 345 (3d Cir.1980). The burden then shifts to the Secretary to demonstrate that the claimant is not disabled by the pain. See Walden, 672 F.2d at 840. Although generally a treating physician’s opinion is not conclusive on the ultimate issue of disability, in the absence of contrary evidence in the record the AU is not free to disregard the opinion and is bound by it. Id. 839; Eiden v. Secretary of Health, Education and Welfare, 616 F.2d 63, 64 (2d Cir.1980); Aquino v. Harris, 516 F.Supp. at 273. Failure to credit the uncontradicted opinion of the treating physician on the issue of pain is grounds for reversal. Id.

In this case, the only evidence on the subject of Mrs. Chappell’s pain was her own testimony and that of her treating physician, Dr. Thomasson. Mrs. Chappell testified that the pain in her back, neck, hands, fingers, hip, and legs is constant, and also severe enough to prevent her from doing housework or even light typing. She stated:

Well, I can just sit here and tell you, even if I stand, if I stoop at all like I do to get something under my sink, I have to hold to the top of the sink to get up. And, dusting, stooping, if you could see my house you would know that I don’t do any housework. I do very little. Making beds — in fact I have to sit down and almost cry when I make a bed. The pain is so severe in my back.

Record at 34.

Dr. Thomasson’s October 1, 1980 letter stated that Mrs. Chappell experienced pain while sitting, standing, stooping, bending or even typing. Dr. Thomasson’s examination file notes of 12/22/80 state: “Comes in with severe pain in the hands, neck, shoulders, back and arms and feet. She definitely has severe ostheoarthritis in all of these areas and in the entire spine.” Record at 99. Indeed, the existence of pain related to severe arthritis and degenerative disc disease is consistently documented throughout the notes prepared by Dr. Thomasson and other doctors at the Papp Clinic from 1978 to 1981. Record at 78-81, 84; see also Record at 71.

The AU did not make the required specific findings concerning Mrs. Chappell’s credibility, but it appears that he found her credible to at least some extent on the issue of pain by stating “there is no doubt that the claimant suffers some pain and discomfort.” The medical evidence supporting her claims of pain, and establishing the existence of underlying impairments which would cause pain, is uncontradicted. Given the state of this record, the AU’s determination that “the evidence of record does not establish the presence of such severe and persistent pain as to be ‘disabling’ ” is not supported by substantial evidence. There simply is no “evidence of record” to support another conclusion. An administrative law judge may not arbitrarily reject uncontroverted medical evidence, nor may he arbitrarily substitute his own judgment for a lack of evidence. Walden, 672 F.2d at 839; Goodley v. Harris, 608 F.2d 234 (5th Cir.1979). The only evidence in this case is of severe and disabling pain; having implicitly found Mrs. Chappell to be a credible witness, the AU was not free to discount the evidence by some arbitrary amount.

There is an additional problem underlying the AU’s decision. Although he correctly stated that pain can be a disabling factor under the Act, the AU did not make clear whether he was evaluating Mrs. Chappell’s pain under the stricter standards which appears to be required by the regulations governing widow’s disability. As discussed above, pain in the context of a widow’s application must be found to preclude any gainful activity, as opposed to substantial gainful activity defined by reference to a claimant’s age, education and experience.

The Court therefore remands this case to the Secretary for a consideration of Mrs. Chappell’s pain in light of the specific requirements of the regulations. In addition, the Secretary is directed to make specific findings with respect to the claimant’s credibility, and is further directed to give the proper weight to the medical evidence of pain as discussed earlier in this order.

Mrs. Chappell also moves to remand for consideration of additional evidence. Specifically, she requests consideration of reports by Drs. Arthur M. Pruce and Robert J. George concerning her physical and psychological conditions. These reports were prepared after the AU rendered his decision in this case.

In order to justify a remand for the taking of additional evidence, a claimant must show that the “new evidence ... is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding____” 42 U.S.C. § 405(g). New evidence is material if it is relevant and probative, and if it appears necessary to a just determination of the claim. Chaney v. Schweiker, 659 F.2d 676, 679 n. 3 (5th Cir.1981). The purpose of the good cause and materiality requirements is to prevent needless remands after an initial disability determination has been made. S.Rep. No. 96-408, 96th Cong., 2d Sess. 5-6, 1980 U.S.Code Cong. & Admin.News 1277, 1284.

The Secretary opposes remand on the grounds that Mrs. Chappell has failed to make the requisite showing. The Court need not decide this question. Because the case must be remanded for the reasons stated, no purpose would be served by preventing the AU from considering the additional reports. The Court finds that it would be appropriate to consider the reports on remand in this instance.

This case is REMANDED to the Secretary for further proceedings not inconsistent with this opinion.

      . Section 202(e) of the Social Security Act, 42 U.S.C. § 402(e), provides for benefits to disabled widows between the ages of 50 and 60 whose husbands died fully insured.

      . The legislative history of the Social Security Amendments of 1967 shows that Congress intended a stricter test for disability for widows seeking benefits on the earnings record of a deceased spouse than for a worker seeking benefits on his own earnings record. S.Rep. No. 744, 90th Cong., 1st Sess. 49-50, 1967 U.S.Code Cong. & Admin.News 2883; H.R.Rep. No. 544, 90th Cong., 1st Sess. 27, 31; see Sullivan v. Weinberger, 493 F.2d 855, 862 (5th Cir.1974), cert. denied, 421 U.S. 967, 95 S.Ct. 1958, 44 L.Ed.2d 455 (1975); see also Smith v. Schweiker, 671 F.2d 789 (3d Cir.1982); Rodriguez v. Sec'y. of Health, Education and Welfare, 647 F.2d 218 (1st Cir.1981); Sims v. Harris, 607 F.2d 1253 (9th Cir.1979); Wokojance v. Weinberger, 513 F.2d 210 (6th Cir.), cert. denied, 423 U.S. 856, 96 S.Ct. 106, 46 L.Ed.2d 82 (1975); Powell v. Schweiker, 514 F.Supp. 439, 447 (M.D.Fla.1981). As the Court in Sullivan stated, Congress intended to grant benefits to widows only for a disabling medical impairment, not simply for an inability to obtain employment; factors such as age, experience and education are not considered in a widow's benefits case. In addition, a disabled wage earner, may receive benefits if unable to engage in any substantial gainful activity, 42 U.S.C. § 423(d)(1)(A), but a widow is not disabled unless she is unable to perform any gainful activity. 42 U.S.C. § 423(d)(2)(B). (emphasis added).

      . The impairment also must meet the duration requirements of the regulations; it must have lasted or be expected to last for a continuous period of not less than 12 months. 20 C.F.R. § 404.1505.

      . Plaintiff argues that the conclusion of a non-examining physician designated by the Secretary that a claimant is not disabled does not alone constitute substantial evidence in the face of a contrary conclusion by a treating physician. See Neumerski v. Califano, 513 F.Supp. 1011, 1014 (E.D.Pa.1981); Marbury v. Matthews, 433 F.Supp. 1081, 1086 (W.D.N.Y.1977); Ehrenreich v. Weinberger, 397 F.Supp. 693, 697 (W.D.N.Y. 1975). Although the Court is inclined to agree, it need not decide that question here. It is clear that the AU did not rely solely on the conclusion of the non-treating physician, and that the AU’s determination was supported by independent medical evidence in the record.

      . The Court has found only two cases which even discuss the issue of pain in a widow’s disability context. Smith v. Schweiker, 671 F.2d 789 (3d Cir.1982); Woodard v. Schweiker, 668 F.2d 370 (8th Cir.1981). In Smith, the Secretary argued that pain may not constitute a disability for a widow because pain is not one of the conditions included in the Listing of Impairments. This argument is erroneous. Section 1.00 of the Listing discusses pain as a factor in causing loss of muscle or skeletal function. In any event, the court did not reach this question in Smith, and held only that pain must be considered as a symptom of a listed impairment.
      In Woodard, the court stated that subjective complaints of pain "are not irrelevant” in a widow’s disability case. 688 F.2d at 374.

      . The Fifth Circuit upheld the constitutionality of a stricter disability test for widows in Sullivan v. Weinberger, supra note 2. See also Sims v. Harris, supra note 2, and Wokojance v. Weinberger, supra note 2. The Fifth Circuit’s holding in Sullivan is binding on this Court. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981).

      . Subsequent notes from 3/16/81 state: "Arthritis is symptomatic all the time but she is advised to take only Tylenol for the discomfort. I don’t think she should take anything else as it may cause more trouble with the stomach.” Record at 99. The record shows that Mrs. Chappell experienced severe stomach problems, including hemorrhaging, as an apparent reaction to the varieties of medication which she took for her other ailments. Her inability to stomach a stronger analgesic for the arthritis pain is additional evidence that Mrs. Chappell spends much of her time in severe pain.


author: PEREZ-GIMENEZ, Chief District Judge.

text:
    Carmen LUSSON, et al., Plaintiffs, v. James CARTER, et al., Defendants.
    Civ. No. 77-700(PG).
    United States District Court, D. Puerto Rico.
    Aug. 15, 1983.

      Feldstein, Gelpi, Toro & Hernandez, San Juan, P.R., and Arthur Abarbanel, Shulman, Abarbanel & Schlesinger, New York City, for plaintiffs.
    Jose A. Gonzalez Gierbolini, Asst. Dist. Atty., Dept, of Justice of P.R., San Juan, P.R., for Carlos Romero Barcelo and Julia Rivera de Vicenti.
    Herbert W. Brown III, Asst. U.S. Atty., San Juan, P.R., for United States of America and James Carter, President of U.S.A.
    Jimenez & Fuste, San Juan, P.R., for Shipowners & Merchants Towboat Co. & for intervenor Caribe Tugboat.
   OPINION AND ORDER

PEREZ-GIMENEZ, Chief District Judge.

This cause came to be heard on remand after the United States Court of Appeals for the First Circuit vacated the portion of our judgment of dismissal against co-defendant, Shipowners & Merchant Towboat Co., Ltd. (“Shipowners”). The dismissal against Caribe Tugboat Corp. was affirmed. We were asked to reconsider whether Shipowners is a statutory employer under 11 L.P.R.A. 20, and, therefore, immune from suit, according to 11 L.P.R.A. 21. In the alternative, the Court of Appeals asked us to address the defense originally urged by defendants, that Shipowners had so parted with the control of the vessel prior to any unseaworthy condition that it cannot be held liable for injuries resulting from such a condition. Lusson v. Carter, 704 F.2d 646 (1st Cir.1983). See original Opinion by this Court, Appendix A to the present Opinion and Order.

Plaintiffs are the dependent widows and children of two seamen, Louis Lusson and Robert Bousson, who died as a result of injuries they sustained on December 17, 1976, while working aboard the Tug “SEA RACER” in the harbor of San Juan, Puerto Rico. The decedents were employed by Caribe Tugboat Corp., a Louisiana corporation authorized to do business in Puerto Rico. Shipowners, a California corporation, owned the tug. Under Puerto Rico law, if a seaman or maritime worker is covered by the Puerto Rico Workmen’s Accident Compensation Act (PRWACA), his only remedy against his employer is the compensation provided under the statute. Caribe had insured its seamen working in Puerto Rico waters and the benefits under PRWACA would be paid to plaintiffs. Plaintiffs are not able to recover against Caribe under the Jones Act, 46 U.S.C. § 688, and/or under the General Maritime Law. See Gen. Fonseca v. Prann, 282 F.2d 153 (1st Cir.1960); Cáceres v. San Juan Barge Corp., 520 F.2d 305 (1st Cir. 1975); García v. Friesecke, 597 F.2d 284 (1st Cir.1979), cert. denied 444 U.S. 940, 100 S.Ct. 292, 62 L.Ed.2d 306 (1979); Lusson v. Carter, supra.

In our original Opinion, we held Caribe immune from suit as employer and Shipowners, the tug owner, an immune statutory employer under García v. Friesecke, supra. Plaintiffs now claim as per issues on remand that the tug owner is liable for unseaworthy conditions arising before a demise charter to Caribe. Shipowners claim is to the contrary. Based on Ramos v. Beauregard, Inc., 423 F.2d 916 (1st Cir. 1970), the defendant claims that any unseaworthy condition arose after a bareboat charter party went into effect. Furthermore, Shipowners claims that, in any event, our original ruling granting said defendant the statutory employer benefits under PRWACA was well taken and that dismissal under said additional ground is warranted.

This Court received testimony on the issues on remand on the 28th of June and 11th of July, 1983. Based on the testimony and documentary evidence received, and taking into consideration a further stipulation by the parties on the issue of the demise charter, we find as follows:

1) At the time of the casualty object of this suit, that is, December 17, 1976, the tug SEA RACER had been bareboat chartered by its owner Shipowners & Merchant Towboat Co., Ltd., to Caribe Tugboat Corporation.

2) The tugboat in question was delivered to charterer at New Orleans, Louisiana, on November 26, 1976. Charter hire commenced to accrue on the 8th day of December, 1976. On said date the tug left New Orleans for Puerto Rico under the command of Captain Robert A. Peters, a Caribe employee. As of December 31, 1976, the charter hire paid by Caribe to Shipowners was $21,600.00. On the day the accident occurred, the entire crew of the SEA RACER was under the employ of Caribe.

3) On the evening of December 17, 1976, the tug SEA RACER left Pier 9, San Juan Harbor, to go alongside a barge ramp or pier where it intended to take the Barge “SANTO DOMINGO” in tow to the U.S. Virgin Islands. At about 5:00 P.M., the crew under the command of Captain Robert A. Peters and Chief Mate Francisco T. Rivas started to make up the tow. There was a 90 foot surge chain on the barge, but the crew spent some time changing the same to a 45 foot surge chain. The crew stopped work and had supper.

4) After supper, the operation continued. Seamen Louis Lusson, Robert Bousson and Stephen Rivera worked on the stern of the tug making the. tow. Departure from the barge pier was made at about 8:30 P.M. Up to this time the SEA RACER had been made fast to the barge by three lines in a conventional manner. The tug was backed slowly for about 100 feet with the surge chain still on deck. At this point, the tug stopped and the chain was dropped by slacking the brake on the tow winch. The tug was then brought ahead on a dead slow speed, full left rudder.

5) At the same time, the tow wire was slacked until by estimate of the Mate and crew there were 150 feet of wire out. During this operation the tug was operated on alternate speeds of dead slow and stop.

6) When only 150 feet of wire were out, the tow winch brake was tightened, taking a strain on the chain and turning the barge as expected. With the rudder amidship, still alternating between slow and stop, the tug and tow proceeded into the channel with the tow following.

7) We find that during this maneuver the Master was handling the tug from the bridge controls rather than from the stern controls from where he could have a full view of the operation taking place in the stern of the tug. We further find that at the moment the accident occurred, the Chief Mate had abandoned his position at the stern controls and winch controls. He went forward to the house or bridge to inform the Master that the towing wire was out. In this respect we also find that the stern control station provides an ideal location for the Master and Mate to maneuver the tug. The station’s location high on the bridge level allows the Master and Mate to direct the men working on the stern making up the tow while also permitting the officers to view with relative ease the area right in front of the tug and tow for a safe operation.

8) At the time the Mate went to the bridge to talk to the Captain, the three men on the stern were in the process of securing a hold down block which keeps the towing wire within the two port pins and on top of the wire roller assembly in normal towing conditions. The tug, fitted with a double drum towing winch was towing with the portside wire and portside pins.

9) We find that at this precise moment, when the stern of the tug was left unattended by both the Master and Mate, contrary to prudent and safe practice, seamen Lusson, Bousson and Rivera were engaged in putting the hold down block or gear on the towing wire to later secure it to the stern deck. The particular hold down block should have been already installed on the wire for an easy and safe securing operation. On this occasion, the Master and Mate had allowed the hold down gear to remain disassembled. As a result thereof, the three mentioned seamen had to put the hold down block high on the wire, pass a main pin through the block and a roller or sheave to secure it with a nut and cotter pin and then secure the block to the deck through a padeye onto a pelican hook. In order to carry out this operation starting with a dismantled block, the three men had to stand right over or near the level of the towing wire when it had tension on it.

10) When the Mate was at the bridge talking to the Master he heard the Captain say a man was overboard. He felt the tug jerk. The Mate went to the stern and saw Robert Bousson in the water drifting away. A life line with a strobe light was thrown into the water. The Mate and seaman Rivera jumped into the harbor waters and were able to put a life line on Bousson. Seaman Lusson was also missing and could not be found. Both Lusson and Bousson died as a result of this accident.

11) The stipulated versions of testimony contained in the Statements of Peters, Rivas and Rivera, and the testimony received in Court from Rivera and Captain Lowell Bass, Jr., in light of the Coast Guard Report on the accident, including a letter requesting further action, subscribed by Attorney Arthur Abarbanel, representing plaintiffs, force us to conclude that the accident occurred due to the negligence of the Master and Mate; said negligence consisting in having sailed with a dismantled hold down gear and by having failed to operate the tug at the critical time when the accident occurred from the stern controls of the tug. From the stern control area, both Master and Mate had the three men on the stern in sight at all times and by their actions they could have avoided the tow wire from having jumped the towing pins launching both Lusson and Bousson overboard. We further conclude that at the time of the accident Lusson and Bousson were standing in the bight side of the tow wire, thus having contributed to the occurrence in that sense. The bight side of the wire, referred to in the discovery as the dead man’s side of the wire, is the area within an angle formed by the tow wire resting against a towing pin under tension. A towing cable under a strain is a very hazardous piece of equipment. The evidence shows that it is a known fact that prudent seamanship dictates that at all times the bight side of any wire should be avoided because of the danger involved. Keep low and stay out of the bight side is the basic rule of safety. If the tow wire should swing across the deck and you are low enough, it will pass over the seaman’s head. Keeping out of the bight means to stay out of the eye or loop in a line; it also means to stay on the safe side of a line under tension. Negligence on the part of the crew employed by Caribe was the sole cause of the accident. Indeed, plaintiffs’ own expert witness was brought to admit during cross examination that had the Captain and Mate been at the stern controls and Lusson and Bousson on the safe side of the wire, the accident would not have occurred. Caribe, as an insured employer under PRWACA, is immune from further liability.

12) Even though we have no doubt about the fact that certain combined acts of negligence can be tantamount to unseaworthiness, Mitchell v. The Trawler Racer, Inc., 362 U.S. 539, 80 S.Ct. 926, 4 L.Ed.2d 941 (1960), we cannot go as far as proposed by plaintiffs and rule that an unseaworthy condition preceded the date of the demise or bareboat charter, thus subjecting Shipowners to liability. Ramos v. Beauregard, Inc., supra. The great weight of credible expert testimony in light of all other evidence received does not allow this Court to find a pre-demise unseaworthy condition.

13) The tug SEA RACER was at the time Caribe took over control at New Orleans, Louisiana, in excellent operating condition and seaworthy in all respects. The testimony received so confirms. Furthermore, this Court cannot find any unseaworthiness as a matter of design of the tug which can be taken as a pre-demise condition. The design of the tug SEA RACER and the eventual upgrading of its towing pins to a hydraulic mechanism was made following accepted naval architecture and marine engineering principles in use throughout the industry.

The hydraulic pins make the towing operation easier and safer in all respects. The theory advanced by plaintiffs to the effect that the accident could have been avoided by having a locking device across the top of ■ the two towing pins (referred to as norman pins) such as a flat piece of metal or “lips” on the pins which could be placed over the two pins in a locked position to serve as an additional permanent hold down gear is unacceptable. Said theory in its various forms ignores basic principles of tugboat design and Operation which require that for safety and maneuverability an ocean going tug like the SEA RACER have the capability of being able to tow and/or maneuver with the pins fully retracted so as to allow the towing wire to move freely across the stern of the tug in certain conditions. Any locking device of the type proposed by the plaintiffs would affect tug maneuverability and would hamper immediate pin retraction. Furthermore, the safety of those called upon to handle and/or retract the locking device in case of need would be further endangered. The integrity of the towing wire, tug and tow could also be affected inasmuch as the proposed retention of the wire by “lips” or otherwise can materially interfere with pin retraction and cause damage to the wire. Those working on said device may have to stand next to the pins over the tow wire level with consequent exposure to the possibilities of the towing wire jumping the pins and causing an accident similar to the one we have described. The system found on the SEA RACER allowed the pins to be fully retracted by remote hydraulic control from the stern control panel immediately leaving the stern free of obstructions. If needed, the hold down gear or block could be released by having a crewmember work under the bight of the wire to simply let go the block at the pelican hook. Furthermore, in an extreme case, after pins are fully retracted and even if the hold down gear remains in place and the Master decides not to send a man to the stern of the tug to effectuate the release at the pelican hook, the design of the block is such that it serves as weak link in the system. Forces created by the then free towing wire will snap the chain that retains the block allowing free towing with pins fully retracted. The system of “lips” retention proposed by plaintiffs would be awkward, impractical and dangerous for the reasons stated.

14) We find that the allegation of unseaworthiness prior to the demise had as the only useful purpose keeping this case within the admiralty and maritime jurisdiction of this Court under 28 U.S.C. § 1333. As it pertains to Shipowners, the allegation is not well taken. Plaintiffs failed to convince this Court by credible evidence that the theory of pre-demise unseaworthiness had any merit in a practical context within the towing industry.

15) The remaining allegations of lack of adequate communication and visibility between the bridge and the stern of the vessel, as well as those pertaining to the bulwark designed height of the tug and engine speed modulation are utterly without merit in light of the finding made today. On direct examination plaintiffs’ expert stated that the American Bureau of Shipping had in effect bulwark height regulations which were not followed by the designer of the tug SEA RACER. On cross-examination the witness had to admit that the so-called regulations were simply recommendations. He further admitted that the recommendation contemplated exemptions for particular boats where the design justified a difference. The evidence further showed that the SEA RACER is a classed vessel by the American Bureau of Shipping. In any event bulwark height was not a factor or cause in the accident. The men, when hit by the wire, were catapulted or launched out of the tug. The proposed bulwark height of 39V2 inches rather than the existing 27 inches played no role of causation in the accident which is the object of this suit. The testimony of plaintiffs’ expert to the effect that a higher bulwark would have prevented the injuries suffered by the seamen is totally speculative and contradictory to his own line of thought to the effect that the seamen were actually catapulted. A careful evaluation of the testimony on this aspect convinced this Court that a higher bulwark would have resulted in additional body trauma assuming that upon being hit by the wire the seamen would have been thrown against the bulwark, a steel structure.

The alleged failure on the part of the designer to provide an engine speed modulation control or clutch device ignored the fact that the tug was indeed provided with such a mechanism. The alleged failure to provide life jackets of a certain type ignored the fact that at all times the tug was equipped with U.S. Coast Guard approved life saving apparatus. The operational negligence of Caribe, which permeates plaintiffs’ case, is of no avail to them in their pursuit of Shipowners as a potential defendant.

16) The testimony of plaintiffs’ only witness, Gerrit J. Van Dissel, merits a special finding. This naval architect and marine engineer was offered as an expert on tugboat design and operation. Voir Dire conducted by defendants, as well as testimony given during direct and cross examination, forces us to conclude that his qualifications in this field are dubious. His opinions were not sustained by industry standards or credible, technical reasons of why the industry should adopt such standards. He could not point out having knowledge of any other tug or tugboat operation which had implemented the modifications which he suggested would make the SEA RACER a safer ship. Furthermore, the witness could not point out any learned treatise or technical publication which sustains his views. Finally, the witness’ testimony was characterized by superficial, erroneous and misleading references to other evidence, leaving doubt about his objectivity, impartiality and thoroughness of preparation. The witness’ carriage, gestures, evasiveness and air of lack of impartiality confirm the above.

17) We further hold that a re-examination of García v. Friesecke and the post Lugo Sánchez case law decided by the Supreme Court of Puerto Rico does not change our initial holding that Shipowners qualifies as a statutory employer under PRWACA. Garcia consisted of several consolidated cases representing the various factual arrangements that at the time were found to establish a pattern in the then pending litigation before this District. Charter party situations were included and the United States Court of Appeals for the First Circuit did not differentiate between the various factual situations presented except for a land based accident involving the consolidated case of Rafael Claudio Torres v. Sea-Land Service, Inc. See Garcia, at note 1 and at 295. We find nothing in the opinion which ordered the remand of this case which changes the general rule enunciated in 1979. As a matter of fact, the issue of statutory employer was left open for further determination by this Court. We now decide that even in the context of a bareboat charter party Shipowners & Merchant Towboat Co., Ltd., is protected by the statutory employer doctrine for the negligent acts which led to the casualty which is the object of this lawsuit.

WHEREFORE, based on the findings and conclusions made today, judgment shall be entered for defendant Shipowners & Merchant Towboat Co., Ltd., dismissing the complaint filed by plaintiffs. In accordance with Rule 54(d) of the Federal Rules of Civil Procedure costs shall be allowed in favor of defendant.

IT IS SO ORDERED.

      . The Court held two conferences in chambers to discuss with counsel the issues on remand and their respective positions related thereto. At trial the parties stipulated that the Court could consider as evidence all discovery on file.

      . Since the inception of this suit, defendant, Shipowners, has always sustained the position that it had bareboat chartered the tug SEA RACER and as such was not liable for any post demise unseaworthy condition. On appeal, one of plaintiffs main arguments was that there was no evidence in the record to sustain this point. Although this was one of the principal reasons for the remand, the Court need not address this point in any detail since prior to the hearings plaintiffs have stipulated the existence of a bare-boat charter and the date of commencement. See finding numbered 14 at 13 infra.

      . Plaintiffs’ expert witness stated that the action of the wire hitting the seamen was like a catapult effect. The Court recalls the hand motion by the witness related to his testimony indicating clearly that upon being hit by the wire the men were launched out of the tug. See Paragraph numbered 15 at 13, infra.

      . Hold down gear and/or blocks are designed to keep the towing wire, a most important part of the tug and tow combination, between pins and moving over a roller assembly to keep wire damage to a minimum. We find that a tug equipped with hydraulic tow pins is a safer vessel.

      . The fact that the day of the accident the inboard starboard pin was inoperative and the outboard port pin would not go down, has no bearing on the occurrence. The SEA RACER was towing with the postside wire of its double drum towing winch and the two port pins were available and usable even though the outboard port pin could not be retracted. If at all, this further confirms operational negligence on the part of Caribe. Captain Peters should have demanded that the pins be operative before he departed on the voyage object of this suit.

      . Lugo Sánchez v. Puerto Rico Water Resources Authority, 105 DPR 861 (1977).

      . The purpose in making a selection of representative cases was to have the precedent or rule of law that was about to be adopted apply to all pending litigation.