text:
    Charles William MASSIE, III v. INEXCO OIL COMPANY.
    Civ. A. No. 84-0384.
    United States District Court, W.D. Louisiana, Lafayette-Opelousas Division.
    July 12, 1985.
    Carl W. Cleveland, New Orleans, La., for plaintiff.
    John M. McCollam, New Orleans, La., for defendant.
   EDWIN F. HUNTER, Jr., Senior District Judge.

Plaintiff, Massie, is suing to partially cancel an oil, gas and mineral lease dated October 14, 1977, granted to defendant (Inexco), as lessee, by Mr. Massie and his co-owners. The right of cancellation asserted is restricted to Massie’s undivided one-twelfth (Vi2th interest) in the lease. The basic thrust of his claim is that under the provisions of paragraph thirty-three (33) of the lease, Inexco forfeited all leasehold rights to subsurface horizons deeper than one hundred (100') feet below the depth of the deepest horizon from which the lessee had established production, as of the date of the expiration of the “primary term” on October 13, 1980.

Conversely, Inexco insists that the clause upon which Massie relies applies by its express terms, only in the event that the lease is being maintained at the expiration of the primary term solely by production, and does not preclude maintenance of the lease by other ongoing and continuous drilling operations. The argument is made that the lease may be extended beyond the primary term into a secondary term by “continuous drilling”. Paragraph V expressly provides for the transition of the lease from the primary term into a secondary term by drilling or production or both, while paragraph XII expressly grants the lessee the right to conduct drilling operations on the leased premises beyond the expiration of the primary term.

The basic issue is quite precise. Does paragraph thirty-three (XXXIII) operate as an absolute cut-off at the end of the primary term so as to require the lessee to release all depths 100 feet below the deepest productive depth when the lease is being maintained only by production? Counsel agree that the contract language is clear and explicit. They argue, too, that the meaning and intent of the parties must be sought within the four corners of the lease contract and cannot be explained or contradicted by parol evidence.

THE LEASE

Under the traditional form of “unless” oil, gas and mineral lease, the leasehold is granted for a term of years (the primary term) and for so long thereafter as there is production from the leased premises or other specified operations are prosecuted on the premises. Thus, a lease will typically be maintained in effect at the expiration of the primary term if a well (or wells) thereon is producing in paying quantities or if the lessee is then engaged in drilling or reworking operations with a view toward obtaining or increasing production. Generally speaking, such drilling operations will preserve the existence of the lease for so long as such operations continue without cessation for longer than a specifically stated period, commonly sixty (60) or ninety (90) days.

Under the “habendum” or granting provisions of the Subject Lease (which are contained in paragraphs one (I) and five (V)), plaintiff and his co-lessors grant to Inexco the right to explore for and to produce oil, gas and other liquid or gaseous hydrocarbon minerals from the leased premises for the stated three (3) year primary term, and for so long thereafter as (i) oil, gas or other hydrocarbon minerals are produced from the leased premises or (ii) “operations are being conducted by lessee” sufficient to maintain the lease in force. Then, too, one of the types of “operations” sufficient to maintain the lease in force after the expiration of the primary term are “drilling operations”. Such “drilling operations” are referenced in paragraphs ten (X) and eleven (XI) and an explicit “drilling operations” grant applicable is found in paragraph twelve (XII) of the lease, to-wit:

“XII. After the primary term and after beginning operations for the drilling of a well hereunder, Lessee shall have the right to make as many attempts to discover oil, gas and/or other liquid or gaseous hydrocarbon minerals as Lessee pleases; provided however, that except as otherwise provided herein, such attempts shall be successive in the sense that not more than ninety (90) days shall lapse from the date of cessation of work on one well and the commencement of drilling operations (which are herein defined to mean beginning operations and the prosecution thereof with due diligence and spudding in within ninety (90) days) on another, or of reworking operations on the same well, and provided, further, that such operations shall be carried out diligently and in good faith in an effort to develop the premises as herein contemplated. The right of Lessee to commence operations for the reworking of a well or wells within ninety (90) days after cessation of production shall also be applicable to a producing well or wells which has or have ceased to produce, as defined herein.”

The lease also contains a clause which explicitly sets out the various causes for “automatic termination” of the lease (which is in essence a compliation of the resolutory conditions to which exercise of the lessee’s granted rights are made subject), viz:

“XXX. Should Lessee fail to comply with the requirements hereof relating to the drilling of successive wells hereunder, or with reference to the drilling of offset wells or with reference to the payment of royalties (including ‘in lieu’ royalties), or with reference to the payment of rentals, all of Lessee’s rights of every kind and nature whatsoever shall lapse, cease and end, and this lease shall terminate ipso facto as of the date of such default ...”

Finally, the lease contains what Massie insists is clear and unambiguous and must be applied to limit Inexco’s lease to 100 feet below the deepest depth produced in the primary term.

“XXXIII. Notwithstanding anything to the contrary herein contained, any acreage which may be held by Lessee, its successors or assigns, at the end of the primary term by the production of oil, gas or other hydrocarbon minerals under the terms and conditions provided in this lease shall be held only to a depth of one hundred (100) feet below the stratigraphic equivalent of the base of the deepest horizon from which Lessee, its successors or assigns, shall have established production of oil, gas or other hydrocarbon minerals in paying quantities during the primary term. Lessor reserves all oil, gas and other hydrocarbon minerals below the aforesaid depth after the end of the primary term of this lease, and this lease shall terminate as to all lower depths.”

THE FACTS

The parties have entered into a stipulation of facts. This stipulation appears in the record. We review the highlights.

1. The primary term extended for a period of three (3) years from the effective date of the lease. The primary term expired at the end of the day on October 13, 1980.

2. Between the date of the confection of the Lease and the expiration (on October 13, 1980) of the primary term, the deepest horizon from which Inexco established commercial production of oil, gas or other hydrocarbon minerals from a well located on lands covered by the Subject Lease was the horizon designated as the DB-3 Sand Reservoir A, Forked Island Field, which sand occurs at the subsurface depths of 13,418' to 13,448' (electric log measurements) in the Inexco Oil Company Miller-Massie-Summers No. 3 Well.

3. The chronology of the drilling by Inexco of four (4) wells (three on the property covered by the Subject Lease and one on adjacent property), during the general time frame of the October 13, 1980 termination date of the primary term, is pertinent.

4. (a) The Inexco Oil Company MillerMassie-Summers No. 3 Well was spudded on December 28, 1979, and was successfully completed as a producer on June 21, 1980 in the DB-3 Sand.

(b) The Inexco-Miller-Massie-Summers No. 4 Well was spudded on October 3, 1980 (ten (10) days prior to the expiration of the primary term) and was drilled continuously until December 6, 1980, at which time it was lost due to downhole drilling conditions.

(c) The Inexco-Miller-Massie-Summers No. 5 Well was spudded on this Lease on February 26, 1981, after abandonment of the Inexco-Miller-Massie-Summers No. 4 Well, and was drilled continuously until April 29,1981, at which time it was lost due to adverse downhole drilling conditions.

(d) During the period that the InexcoMiller-Massie-Summers No. 4 Well was being drilled, another well, the Inexco-Broussard No. 4 (hereinafter the “Broussard No. 4 Well”), was drilled by Inexco on an adjacent lease and successfully completed as a producer in the Planulina B Sand. This completion occurred on November 6, 1980.

4. The Broussard No. 4 Well was unitized by Office of Conservation on April 23, 1981, and became effective on March 10, 1981. The order of the Commissioner of Conservation of the State of Louisiana created a unit for the PLAN B RA SUA (Planulina B, Reservoir A, Sand Unit A). The PLAN B RA SUA includes a portion of the property covered by the Subject Lease, and the referenced Order provides that 46.72681% of the production derived from the unit be attributed to the property covered by the Lease, here under attack.

5. Production from the Broussard No. 4 Well, as presently completed in the PLAN B RA SUA, is derived from a subsurface horizon which is deeper than one hundred (100') feet below the deepest horizon in which Inexco had established commercial production as of the end of the primary term of the Subject Lease.

6. By letter dated July 16, 1981, plaintiff made written demand on Inexco for a release of all lands then affected by the Subject Lease below a depth of 13,548 feet.

7. By letters dated July 30, August 3 and August 21, 1981, Inexco responded to plaintiffs demand letter of July 16, 1981. Inexco declined to furnish plaintiff with the requested release; however, Inexco did provide plaintiff with a release of that portion of the Subject Lease lying outside of the two units affecting the area (i.e., the DB-3 RA SUA created by Order No. 1054-A and the PLAN B RA SUA created by Order No. 1054-C) and as to all depths one hundred (100') feet below the stratigraphic equivalent of the deepest producing depth established in the Broussard No. 4 Well, viz. the PLAN B RA SUA.

8. Plaintiff has at all times since October 13, 1980 accepted royalty payments tendered to him by Inexco attributable to his interest in both the DB-3 Unit and the PLAN B RA SUA Unit and continues to accept such royalty payments at the present time.

THE LAW

This diversity case concerns title to Louisiana property. The substantive law of Louisiana applies. Louisiana’s codal provisions applicable to ordinary leases apply to mineral leases. Williams v. Humble Oil and Refining Company, 435 F.2d 772 (5th Cir.1970); Davis v. Laster, 242 La. 735, 138 So.2d 558 (La.1962); Bouterie v. Kleinpeter, 258 La. 605, 247 So.2d 548 (1971).

We are obliged to give legal effect to written contracts according to the true intent of the parties and this intent is to be determined by words of the contract when these are clear, explicit and lead to no absurd consequences. La.C.C. Art. 2046 (1985). The meaning and intent of the parties in such cases must be sought from the four corners of the lease agreement and cannot be explained or contradicted by parol evidence. Quintana Petroleum Corporation v. Alpha Inc., Corp., 435 So.2d 1092 (La.App.1983). However, when the terms of a written contract are susceptible to more than one interpretation, or there is uncertainty or ambiguity as to its provisions, or the intent cannot be ascertained from the language employed — parol evidence is admissible to clarify the ambiguity and to reveal the intention of the parties. Carters Insurance Agency, Inc. v. Franklin, 428 So.2d 808 (La.App. 1st Cir.1983).

As was observed by Judge Wisdom in the case of Williams v. Humble Oil, 432 F.2d 165 (5th Cir.1970):

“It is well settled in Louisiana that mineral leases are construed as leases generally and that the codal provisions applicable to ordinary leases must be applied to mineral leases whenever they are pertinent.” Melancon v. Texas Co., 1956, 230 La. 593, 89 So.2d 135, 142.

Louisiana Codal provisions (1985) pertinent here are:

Art. 2045. Interpretation of a contract is the determination of the common intent of the parties.
Art. 2046. When the words of a contract are clear and explicit and lead to no absurd consequences, no further interpretation may be made in search of the parties intent.
Art. 2047. The words of a contract must be given their generally prevailing meaning. Words of art and technical terms must be given their technical meaning when the contract involves a technical matter.
Art. 2048. Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract.
Art. 2049. A provision susceptible of different meanings must be interpreted with a meaning that renders it effective and not with one that renders it ineffective.
Art. 2050. Each provision in a contract must be interpreted in light of the other provisions so that each is given the meaning suggested by the contract as a whole.
Art. 2051. Although a contract is worded in general terms, it must be interpreted to cover only those things it appears the parties intended to include.
Art. 2052. When the parties intend a contract of general scope but, to eliminate doubt, include a provision that describes a specific situation, interpretation must not restrict the scope of the contract to that situation alone.
Art. 2053. A doubtful provision must be interpreted in light of the nature of the contract, equity, usages, the conduct of the parties before and after the formation of the contract, and of other contracts of a like nature between the same parties.
Art. 2056. In case of doubt that cannot be otherwise resolved, a provision in a contract must be interpreted against the party who furnished its text.
A contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party. Art. 2057. In case of doubt that cannot be otherwise resolved, a contract must be interpreted against the obligee and in favor of the obligor of a particular obligation.
Yet, if the doubt arises from lack of a necessary explanation that one party should have given, or from negligence or fault of one party, the contract must be interpreted in a manner favorable to the other party whether obligee or obligor.

CLEAR, EXPLICIT AND UNAMBIGUOUS AND IN FOUR CORNERS

The lease recites in its concluding paragraph that it “is the product of the joint negotiations of lessee and lessor, and has been prepared jointly by them.” Fully aware of the substantial contentions so ably presented, we must begin with the language and the assumption that the ordinary meaning of that language accurately expresses the purpose. In so doing, we must abide by tenets of contract construction and seek to ascertain the true intentions of the parties by examining the entire writing in an effort to harmonize and give effect to all pertinent provisions so that none will be rendered meaningless.

Ambiguity in the terms of a lease occurs when there are two or more inconsistent interpretations both of which are reasonable. We agree with counsel for Massie and Inexco that the contract is clear, explicit, unambiguous and is susceptable to only one clear and explicit interpretation. We agree with counsel, too, that the meaning and intent of the parties is not absurd and is clear within the “four corners rule” and cannot be explained or contradicted by parol evidence. Chevron v. Belco, 755 F.2d 1151, 1154 (5th Cir.1985). Article 2046 of the Louisiana Civil Code (1985).

Analysis must be focused on the specific language. Inexco suggests that the second sentence of paragraph 33 is simply a reiterative reinforcement of the depth limitation set out in the first sentence (i.e.) that production alone will maintain the lease only as to depths above a depth of 100' below the base of the then deepest producing horizon, but that the lessee can otherwise be maintained by continuous drilling operations under paragraph XII. Their argument is novel and depends upon several holding blocks. We recite them. First, the second sentence of the last paragraph of XXXIII occurs in the same paragraph which expresses the effect of production at the end of the primary term, which is the only place which addresses “depth limitation”. Secondly, the second sentence expressly refers to “the aforesaid depth”, which refers to the depth limitation described in the preceding sentence of the same paragraph. The issue quickly narrows: What is the “aforesaid depth”? Inexco insists that it can only be the deepest depth held only by production, and then explicitly reiterates its dominant theme:

“The last sentence has no limiting effect as to those depths which might be held by means other than production, namely, the continuous drilling of wells on the leased premises in a good faith effort to discover previously untested deeper horizons.”

This perception has been ably argued. But, one might well ask, would not this require a reconstruction of the first sentence of XXXIII to add— “and after the end of continuous drilling operations”? The answer has to be “Yes”.

We conclude that paragraph XXXIII operates as an absolute cutoff at the end of the primary term without any additional rights under the continuous drilling clause to explore deeper depths when and where the lease is being held by production at the end of the primary term. Paragraph XXXIII is, of course, irrelevant in the absence of production. If there had been no production, then paragraph XII would have entered the picture. When the two paragraphs are read together, a plausible construction becomes apparent. The landowner wanted Inexco to develop the land. If production was not achieved during the primary term, Inexco could utilize paragraph XII to keep the lease alive. On the other hand, if there was production during the primary term, the landowner did not want the lessee to have the rights to minerals located at an indefinite depth for an underterminate length of time. Rather, the lessor intended to, at the end of the primary term, cut off the lessee’s rights to minerals located below the deepest horizon upon which production had been established.

This is the purpose of paragraphs XII and XXXIII. The two mold perfectly. We again recite paragraph XXXIII:

“XXXIII. Notwithstanding anything to the contrary herein contained, any acreage which may be held by Lessee, its successors or assigns, at the end of the primary term by the production of oil, gas or other hydrocarbon minerals under the terms and conditions provided in this lease shall be held only to a depth of one hundred (100) feet below the stratigraphic equivalent of the base of the deepest horizon from which Lessee, its successors or assigns, shall have established production of oil, gas or other hydrocarbon minerals in paying quantities during the primary term. Lessor reserves all oil, gas and other hydrocarbon minerals below the aforesaid depth after the end of the primary term of this lease, and this lease shall terminate as to all lower depths. ” (Underscoring emphasis ours)

The explanatory statements made in this paragraph XXXIII are clear, precise and unambiguous:

“Notwithstanding anything to the contrary herein contained”;
“Lessor reserves all oil, gas and hydrocarbon minerals below the aforesaid depth after the end of the primary term of this lease, and this lease shall terminate as to all lower depths;”
“this lease shall be held only to a depth of 100 feet below the stratigraphic equivalent of the base of the deepest horizon from which lessee — shall have established production — ”.

This court’s interpretation of the depth limitation clause does not negate the express right given to the lessee under the “continuous drilling operations clause” to explore that part of the leased premises within the depth limitation after the expiration of the primary term. This is an important privilege.

Our interpretation in no way restricts the right of the lessee to keep the lease alive at all depths in the absence of production after the expiration of the primary term— by resort to the “continuous drilling operations clause.” We have endeavored to analyze each provision in light of the other provisions so that each is given the meaning suggested by the contract as a whole. This has been done in a manner which renders no part of the lease meaningless.

Plaintiff is entitled to judgment applying the depth limitation clause as written and decreeing the cancellation of the lease to that extent as to his interest, and ordering Inexco to make an accounting to him for post-production.

PLAINTIFF’S CLAIM FOR CANCELLATION OF ENTIRE LEASE

Plaintiff suggests that the Lease should be ordered cancelled in its entirety because Inexco has elected to contest the lessor’s demand for a cancellation of the lease as to all depths below a depth 100 feet below the DB-3 Sand. We do not agree with Inexco’s remark that this claim is reflective of plaintiff’s attitude concerning the rights of the lessee, but we agree wholeheartedly that plaintiff cannot use the concurrent issue to divest the lessee of its fairly bargained for and earned rights as to that part of the lease being held by production. This theory has no jurisprudential ancestry in Louisiana law. We agree, too, that there is not one iota of proof that defendant has acted in bad faith in any particular of its performance under the lease thus making “entire cancellation” totally inappropriate. The claim for cancellation of the entire lease is rejected.

LESSEE’S WAIVER ARGUMENT

The waiver argument has no merit. The acceptance of royalties does not estop the landowner from asserting his rights under the lease. This principle has been settled in a number of cases. Miller v. Kellerman, 228 F.Supp. 446, 447 (W.D.La.1964); Broussard v. Phillips Petroleum Co., 160 F.Supp. 905, 913 (W.D.La.1958); Kyle v. Wadley, 24 F.Supp. 884, 888 (W.D.La.1938). Miller and Broussard were written by this court. The estoppel argument was reviewed and denied. Both opinions were affirmed by the Fifth Circuit United States Court of Appeals. Kellerman v. Miller, 354 F.2d 46 (5th Cir.1965), Phillips Petroleum Co. v. Broussard, 265 F.2d 221 (5th Cir.1959). Broussard was cited, quoted and approved as a correct application of Louisiana law. Pierce v. Atlantic Refining Co., 140 So.2d 19, 23 (La.App. 3rd Cir.1962).

FINALLY

By stipulation of the parties, the issue of lease cancellation was bifurcated from all other issues for trial, including an accounting by Inexco for past production, the amount and recoverability of well costs for drilling, completing and producing the well at issue. It is apparent from the record that the value of the production at issue in these proceedings is significant. Defendant estimates total reserves attributable to the MMS lease, to be approximately fifteen million dollars ($15,000,000). For these reasons, we will enter a Rule 54(b) certification.

Counsel are instructed to submit an appropriate judgment terminating the lease as to all depths below one hundred (100') feet of the deepest formation from which production was achieved during the primary term. The judgment is to include an order bringing it within the ambit of Rule 54(b) of the Federal Rules of Civil Procedure.

      . The lease contains fifteen (15) additional named lessors or their assigns. Some of these lessors have filed a suit asserting the same cause of action as plaintiff here. Others by way of an application for intervention sought to underscore by the utilization of strong language that they considered INEXCO to be a trespasser. We denied the motion to intervene and our order doing so is made a part hereof by reference. We are now advised by counsel that these applicants for intervention have amicably settled their differences with INEXCO.

      . Both parties sought Summary Judgment. It was obvious that the case could be tried in several hours and that it involved millions of dollars. We denied the motions and promptly set the matter for trial.

      . A copy of the lease was received in evidence and is attached. \Ed. note: the lease was not published as its pertinent parts were incorporated in the opinion.]

      . Page eighteen (18) of the Lease.

      . Page twenty-nine (29) of the Lease.

      . Page thirty-one (31) of the Lease.

      . Paragraph X of the Subject Lease (Plaintiff's Exhibit 1) restricts the conservatory effect of production to 40 acres around a producing oil well and 160 acres around a producing gas well, or the area encompassed in a unit or units around said well or wells.


source: Caselaw Access Project

author: WARREN, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. Thomas MITTELSTEADT, Defendant.
    No. 83-CR-12.
    United States District Court, E.D. Wisconsin.
    July 16, 1985.
    Mel S. Johnson, Asst. U.S. Atty., Milwaukee, Wis., for plaintiff.
    Matthew J. Flynn, Quarles & Brady, Milwaukee, Wis., for defendant.
   ORDER

WARREN, District Judge.

On June 5, 1985, the defendant in this action filed a motion to correct inaccuracies in the presentence report (“PSR”) prepared by the United States Probation Office concerning the defendant. The defendant claims that the inaccuracies in the PSR have caused the United States Parole Commission to render an unduly high assessment of the severity of his offense, thereby eliminating his opportunity for release on parole. Since the Court has determined that it lacks jurisdiction over this matter, it will deny the defendant’s motion.

On April 21, 1983, the defendant was convicted of two counts of false statements to influence a federally insured bank, in violation of 18 U.S.C. § 1014, and one count of wire fraud, in violation of 18 U.S.C. § 1343. The convictions related to the defendant’s activities from late in 1979 to the fall of 1982, during which time he constructed fraudulent records for his family-businesses in order to conceal their insolvency from creditors. The Court sentenced the defendant to a total of four years imprisonment.

The Government never attempted to prove the amount of the loss incurred by creditors as a result of the defendant’s fraudulent actions, nor was it required to do so in order to establish his guilt. In the PSR, however, it was stated that the loss attributable to the defendant’s fraud was $3,300,000.00. Although the defendant disputed both the amount of the alleged loss and the assertion that his actions had caused any loss, he was unable to offer concrete evidence to rebut the Government’s claims. As a consequence of the uncertainty regarding the amount of the loss caused by the defendant’s fraud, the Court refused to make any findings on that point at the time of sentencing.

The defendant now requests that the Court make the following express findings with respect to the harm caused by his fraudulent activities:

“(1) The companies through which Mittelsteadt engaged in illegal activity, Mitt-co, et al. earned a profit during the period of Mittelsteadt’s fraud;
(2) Accordingly, any losses suffered by the victims of Mittelsteadt’s crime, the creditors of Mittco, et al., predated Mittelsteadt’s fraudulent conduct;
(3) The total loss to victims caused by or attributable to Mittelsteadt’s offenses was zero.
(4) The Court makes no finding as to the validity or lack thereof of the government’s claim relative to petitioner’s personal gain, but it does expressly find that even if this claim is viewed unfavorably to the petitioner, then loss to victims remains at zero because the amount of the increase in net assets during the period of the fraud exceeded the alleged personal gain.”

Defendant’s Brief In Support Of Motion To Correct Inaccuracies In Presentence Report, p. 17. As evidence in support of these findings, the defendant has submitted copies of a financial analysis of Mittco and the related companies for the period December 1, 1979 through July 31, 1982. The pro forma analysis, prepared by a firm of certified public accountants, indicates that income of $963,678.00 was available for debt service during the period in question. By using an opportunity cost rate of interest as opposed to the higher contract rate, the accountants calculated the interest owed to creditors for this period as $759,223.00. Subtracting the interest paid, $277,722.00, from that amount yields an “actual” liability to the bank creditors of $481,501.00. When balancing this sum against the net income of $963,678.00, the accountants determined that net assets had increased by $482,177.00 during the period December 1, 1979 through July 31, 1982. Therefore, the accountants concluded that any losses suffered by bank creditors predated the period of the defendant’s fraud.

While the Court does not intend to delve unnecessarily into the intricacies of the financial analysis, one further point cannot escape notice or comment. All of the amounts used to prepare the report were taken from the financial statements and records of Mittco and related companies without having been audited by the analysts. Viewing this fact in combination with other debatable aspects of the report described above, the Court is led to question whether this evidence is any more concrete than that available in the past.

The discussion thus far has veered too closely toward the merits of the motion which, it should be noted, both parties have agreed would require an evidentiary hearing to determine. Believing that the dis-positive issue in the present matter concerns the Court’s jurisdiction and that a decision on the merits need not be made, the Court will now address the jurisdiction question.

The defendant argues that jurisdiction is based upon the Court’s “inherent” power to correct inaccuracies, at any time, in the PSR. The defendant supports his argument by citing Rule 32(c)(3)(D), Federal Rules of Criminal Procedure, and the All Writs Act, 28 U.S.C. § 1651. Rule 32(c)(3)(D) allows the sentencing court to make findings with respect to alleged factual inaccuracies in the PSR. The All Writs Act, as its name suggests, enables federal courts to issue “all writs necessary or appropriate in aid of their respective jurisdictions.” While the defendant does not contend that jurisdiction exists solely by virtue of either Rule 32(c)(3)(D) or 28 U.S.C. § 1651, he does claim that these provisions betoken the Court’s inherent power to grant the relief requested.

Contrary to the defendant’s assertions, neither Rule 32(c)(3)(D) nor 28 U.S.C.. § 1651 provides any assistance with respect to the jurisdiction issue. Rule 32 was amended to include the aforementioned subsection in August of 1983; it was not applicable at the time the defendant was sentenced, and the Court was not bound to make the findings required therein. United States v. Darby, 744 F.2d 1508, 1532 n. 22 (11th Cir.1984); see also United States v. Stephens, 699 F.2d 534, 538 (11th Cir.1983). Section 1651 quite clearly is not applicable to the present matter since, by its terms, it allows federal courts to issue writs with regard to matters over which their jurisdiction has already been established.

Thus, the defendant’s argument hinges upon his contention that the Court has the inherent and perpetual power to correct inaccuracies in the PSR, even after the sentencing process has long been completed. Although the defendant has cited two unpublished cases from this circuit where district judges did grant the defendants’ motions to amend PSR’s, the overwhelming weight of authority conflicts with those decisions. Under 28 C.F.R. § 2.19(c), the Parole Commission has the responsibility for and authority to determine whether factual inaccuracies exist in information it takes into account relative to parole decisions:

(c) The Commission may take into account any substantial information available to it in establishing the prisoner’s offense severity rating, salient factor score, and any aggravating or mitigating circumstances, provided the prisoner is apprised of the information and afforded an opportunity to respond. If the prisoner disputes the accuracy of the information presented, the Commission shall resolve such dispute by the preponderance of the evidence standard; that is, the Commission shall rely upon such information only to the extent that it represents the explanation of the facts that best accords with reason and probability. However, the Commission shall not consider in any determination, charges upon which a prisoner was found not guilty after trial unless reliable information is presented that was not introduced into evidence at such trial (e.g., a subsequent admission or other clear indication of guilt).

Pursuant to 28 C.F.R. § 2.19(a)(3), information considered by the Parole Commission may include PSR’s. Therefore, the majority of courts which have discussed the jurisdictional question now before the Court, including the Seventh Circuit Court of Appeals, have stated that the authority to resolve disputes over alleged factual inaccuracies in PSR’s when such disputes arise in relation to parole determinations rests with the Parole Commission. Solomon v. Elsea, 676 F.2d 282, 288-89 (7th Cir.1982); Castaldo v. United States Parole Commission, et al., 725 F.2d 94, 96 (10th Cir.1984); Anast v. United States Parole Commission, 739 F.2d 403, 404 (8th Cir.1984); Maynard v. Havenstrite, 727 F.2d 439 (5th Cir.1984); United States v. Leath, 711 F.2d 119 (8th Cir.1983).

The defendant’s argument that the Parole Commission has historically avoided such determinations in deference to the sentencing court is not persuasive. First, § 2.19(c) specifically allocates the authority to resolve matters such as this to the Parole Commission, which is to apply the preponderance of the evidence standard. Second, should the Parole Commission fail to perform, this function, the defendant may then seek relief through a petition for a writ of habeas corpus to the district court in the district where he is confined. Leath, 711 F.2d at 121, fn. 2. A motion to the sentencing court or any other district court as an initial recourse would be premature, as administrative remedies would not yet be exhausted. Maynard, 727 F.2d at 441.

Finally, the defendant’s contention that the sentencing court should retain jurisdiction over matters such as this runs contrary to the objective of securing final resolutions of criminal eases. Trial courts are already inundated with countless post-trial and post-sentencing motions from criminal defendants; to assume jurisdiction gratuitously over matters unrelated to the trial or imposition of sentence, when those matters have been explicitly delegated to another agency, merely retards the administration of justice and clouds the legitimacy of Congressional mandates.

For the foregoing reasons, the Court hereby DENIES the defendant’s motion to correct alleged inaccuracies in the presentence report.

      . The cases cited by the defendant are United States v. Hughes, No. 80-30032-06 (S.D.Ill. June 29, 1984), and United States v. Argentiere, (citation not provided). The defendant submitted a copy of the Hughes decision, which is designated as Defendant’s Exhibit 1, but has not yet provided the Court with a copy of Argentiere. The Hughes decision is extremely short (two pages), and contains no discussion of the factual background of the case nor any citation whatsoever to precedential authority. Accordingly, the Court finds Hughes to be of minimal persuasive value, at best.


author: LOUIS H. POLLAK, District Judge.

text:
    HOLT HAULING & WAREHOUSING SYSTEMS, INC. v. M/V MING JOY, her engines, machinery, tackle and apparel, etc., Retla Steamship Company, and Yangming Marine Transport Corporation v. HOLT MARINE TERMINAL, INC.
    Civ. A. No. 81-1897.
    United States District Court, E.D. Pennsylvania.
    July 17, 1985.

      Harry P. Begier, Jr., Philadelphia, Pa., for plaintiff.
    Douglas P. Riblet, Henry C. Lucas, III, John Mattioni, Philadelphia, Pa., for defendant.
   OPINION

LOUIS H. POLLAK, District Judge.

This case arises out of a March, 1978 accident which damaged Pier 7 on Newton Creek in Gloucester, New Jersey. According to the Complaint, two heavy steel coils fell onto the pier during the course of unloading cargo from the S.S. Ming Joy. Complaint lili 12-15. The coils allegedly caused extensive damage to the surface of the pier and to the sea wall. Holt Hauling and Warehousing Systems, Pier 7’s owner, sued the Ming Joy, its owner (Yangming Marine Transport, hereinafter “Yangming”), and its charterer (Retía Steamship Company, hereinafter “Retía”), alleging that the unseaworthiness of the Ming Joy and the negligence of its personnel caused the accident. Yangming then filed a third-party complaint against the stevedore (Holt Marine Terminal, hereinafter “Holt Marine”), alleging that the stevedore’s negligence in unloading the cargo was the cause of the accident. Holt Marine counterclaimed, alleging that Yangming’s negligence had cost Holt Marine the use of Pier 7 for some period of time. The counterclaim, as amended, seeks recovery of “stevedoring and related revenues” which Holt Marine lost due to the pier’s incapacitation.

The primary claim in this case has settled, so that the sole remaining dispute is between the Yangming and the Ming Joy on the one hand, and Holt Marine on the other. Yangming has moved for summary judgment on Holt Marine’s counterclaim, arguing that it is barred by Robins Dry Dock & Repair Co. v. Flint, 275 U.S. 303, 48 S.Ct. 134, 72 L.Ed. 290 (1927). In that case, the Supreme Court, per Justice Holmes, rejected the claim of a ship’s time charterer for loss of use of the ship due to the negligence of the defendant dry dock. Yangming contends that Robins Dry Dock establishes that Holt Marine cannot recover in tort for economic losses occasioned by damage to property in which Holt Marine had no proprietary interest. Holt Marine accepts the validity of Robins Dry Dock and the doctrine it spawned, but argues that it does not bar the counterclaim against Yangming because Holt Marine in fact had a valid property interest in Pier 7 under New Jersey law. Both parties have briefed and orally argued Yangming’s motion.

In addition to their legal arguments, the parties have devoted substantial energy and paper to characterizing the web of business relationships surrounding Pier 7. On this motion for summary judgment, of course, I must resolve all factual disputes in Holt Marine’s favor. Fed.R.Civ.P. 56(c); Gans v. Mundy, 762 F.2d 338, 340 (3d Cir.1985). Bearing this standard in mind, I consider below the nature of Holt Marine’s relationship to Pier 7 and the significance of that relationship under Robins Dry Dock.

I

Both Yangming and Holt Marine presume that Robins Dry Dock bars Holt Marine from recovering on its counterclaim unless Holt Marine had a proprietary interest in Pier 7 at the time of the accident. Consequently, both parties treat the nature of Holt Marine’s interest in the pier as the primary issue for purposes of deciding Yangming’s motion.

Pier 7’s owner was, at all relevant times, Holt Hauling and Warehousing Systems. In July 1976, Holt Hauling leased Pier 7 to Pierpoint Management Corporation. The lease agreement (which is attached as Exhibit A to Holt Marine’s answer to Yangming’s motion for summary judgment) is triangular: it involves Holt Hauling as landlord, Pierpoint as tenant, and Retía Steamship Company as the chief supplier of shipping business to the pier. (In response to questions from the bench at oral argument, the parties stated that Retía is Pierpoint’s corporate parent.) Pierpoint was to operate and maintain the pier, pay utilities, and indemnify Holt Hauling for any liabilities incurred because of Pierpoint’s activities. Rent was to be paid according to the tonnage of Retía cargo unloaded at the pier: base rental was $300,000 per year (based on $2 per short ton on the first 150,000 tons of steel and wood products to be unloaded), plus $1 for every short ton over 150,000 which might be unloaded.

Shortly after Pierpoint leased the pier from Holt Hauling, Pierpoint and Holt Marine entered into an informal agreement permitting Holt Marine to use Pier 7 under certain conditions. Under this agreement, Holt Marine was permitted to use Pier 7 to unload cargo from vessels which it had chartered or which it had otherwise induced to unload cargo at Pier 7, to the extent that such use did not interfere with Pierpoint’s use of the pier. Holt Marine was not, during the period covered by this agreement, the only stevedore working at Pier 7. Pierpoint employed Cooper Stevedoring to unload Retía vessels; in addition, Cooper was free to bring in other vessels for unloading as long as it did not interfere with Retía business.

In May 1977, Pierpoint made Holt Marine “our exclusive sub-contractor of certain terminal services contemplated at Pier 7.” Holt Marine was henceforth to “[pjerform all customary terminal services” as to both Retía vessels and Holt-induced vessels. Under this revised arrangement, Holt Marine was free to arrange to berth vessels as long as its berthing arrangements were consistent with the needs of Retía vessels. In order to implement this limitation, Holt Marine was kept apprised of when Retía vessels would be docking at Pier 7. Holt Marine was not required to give Pierpoint advance notice of its plans to berth nonRetla vessels, but did so “as a courtesy.”

In return for this largely unrestricted use of Pier 7, Holt Marine agreed to pay Pierpoint according to the volume of cargo unloaded at the pier. No base rental was charged; payment was strictly according to business volume. In addition to its payment obligations, Holt Marine agreed to assume (1) Pierpoint’s routine maintenance obligations under Pierpoint’s lease agreement with Holt Hauling, and (2) Pierpoint’s liability insurance obligations under that lease agreement. Finally, Holt Marine was obliged to pay the cost of any utilities it required to perform its stevedoring services.

The accident which gave rise to this lawsuit occurred while the Ming Joy, a Retía vessel, was being off-loaded at Pier 7. Holt Marine performed stevedoring services for the Ming Joy, as it apparently did for all other Retía vessels using Pier 7.

II

Both Yangming and Holt Marine assume that Robins Dry Dock bars recovery for negligently inflicted harm to a non-proprietary interest. For the reasons that follow, I find this a correct statement of the rule which Robins Dry Dock lays down. The parties further presume that, in order to apply that test to this case, I must look to the state law of New Jersey to determine whether Holt Marine had a “property” interest in Pier 7. This is incorrect. Robins Dry Dock and the cases which follow it establish a federal common law limitation on maritime tort recovery. The scope of that limitation turns not on the fine points of state property law but on the judicial economy concerns which spawned the limitation and which give it content. In order better to explain how those concerns apply in this case, I begin by briefly discussing Robins Dry Dock and the broader doctrine which it created. Then, I turn to the nature of the interests to which Robins Dry Dock applies, in light of the purposes which its doctrine serves. Finally, I return to the particular circumstances of this case, which present, in my view, a difficult problem in the application of Robins Dry Dock’s sensible but sometimes confining limitation.

A

In Robins Dry Dock, the time charterers of a vessel sued the defendant dry dock for lost profits occasioned by the defendant’s alleged negligence in repairing a damaged ship’s propeller. At the time of the damage, the vessel was up for regular repairs for which the vessel’s owner had contracted with the dry dock. The damage to the propeller required the ship to remain in dry dock an extra two weeks. The time charterers sought to recover for loss of use of the vessel during this two-week period.

The Supreme Court found that the time charterers had no claim for relief against the dry dock:

[T]he contract of the petitioner [dry dock] with the owners [of the vessel] imposed no immediate obligation upon the petitioner to third persons ..., and whether the petitioner performed it promptly or with negligent delay was the business of the owners and of nobody else. But as there was a tortious damage to a chattel it is sought to connect the claim of the [respondent time charterers] with that in some way. The damage was material to them only as it caused the delay in making the repairs, and that delay would be a wrong to no one except for the petitioner’s contract with the owners. The injury to the propeller was no wrong to.the respondents but only to those to whom it belonged. But suppose that the respondent’s loss flowed directly from that source. Their loss arose only through their contract with the owners — and while intentionally to bring about a breach of contract may give rise to a cause of action, ... no authority need be cited to show that, as a general rule, at least, a tort to the person or property of one man does not make the tort-feasor liable to another merely because the injured person was under a contract with that other unknown to the doer of the wrong.

275 U.S. at 308-09, 48 S.Ct. at 135-36. The Court noted that the time charterers had no property interest in the vessel, and that, unlike a demise charterer, the time charterers did not even have “possession” of the vessel. Id. at 308, 48 S.Ct. at 135. Consequently, the Court held, if the claimants had a legally protected interest in the non-negligent repair of the vessel’s propeller, “it must be worked out through their contract relations with the owners.” Id.

The Court’s holding in Robins Dry Dock was potentially quite narrow. The opinion repeatedly notes that the time charter was “unknown” to the assertedly negligent dry dock, id., and on its facts it does not appear automatically to insulate all economic expectancies from the protection of maritime tort law. A closer analysis of Justice Holmes’ opinion, however, leads to the conclusion that the case casts a longer shadow. Holmes cited three cases as providing “a good statement” of the applicable principle. Id. at 309, 48 S.Ct. at 135 (citing Elliott Steam Tug Co., Ltd. v. The Shipping Controller, [1922] 1 K.B. 127, 139, 140; Byrd v. English, 117 Ga. 192, 43 S.E. 419 (1903); The Federal No. 2, 21 F.2d 313 (2d Cir.1927)). The first of these cases, Elliott Steam Tug, stated that at common law the time charterer could not recover even direct injuries to “his mere contractual rights” in the chartered vessel. 1 K.B. at 140 (quoted in Louisiana ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1022 (5th Cir.1985) (en banc)). Byrd v. English denied recovery to a printing plant which had temporarily lost electrical power due to the defendant’s negligent damaging of a utility’s electrical equipment. Finally, in The Federal No. 2, the court denied recovery to the employer of a person injured by defendant for the loss occasioned by the employee’s injury, on the ground that such a claim was simply “too indirect.” 21 F.2d at 314.

As the majority of the Fifth Circuit sitting en banc has recently concluded, it is inconsistent with the cases on which Holmes relied to conclude that Robins Dry Dock states a narrow, fact-specific principle. See Testbank, supra, 752 F.2d at 1023-24. Those cases fairly support the proposition that negligently inflicted injuries to purely economic interests are simply not compensable, even though directly and foreseeably caused by the defendant’s negligence. However tenuous or unforeseeable the connection between the damaged propeller in Robins Dry Dock and the time charterers’ lost profits, the link between the defendant’s negligence and the claimant’s loss in a case such as Byrd v. English is direct and foreseeable. If one who negligently damages power lines cannot be held liable for the obvious consequences of such damage to the homes and businesses affected, it must be because the claimants’ economic interests are of a kind that does not receive the protection of tort law against accidental harms. It follows that Robins Dry Dock ought sensibly to be read to establish an exception to maritime tort liability for negligently caused harm to such interests. Testbank, supra, 752 F.2d at 1024-25.

B

Although Robins Dry Dock was greeted somewhat critically, see Carpenter, Interference with Contract Relations, 41 Harv. L.Rev. 728, 738-42 (1928), it has proved surprisingly resilient. Two courts of appeal have confirmed its vitality only this year. Barber Lines A/S v. M/V Donau Maru, 764 F.2d 50 (1st Cir.1985); Test-bank, supra. It has also found recent application in this district. Getty Refining & Marketing Co. v. M/T Fadi B., 595 F.Supp. 452 (E.D.Pa.1984) (Van Artsdalen, J.). And some current academic comment reflects awareness that valid reasons can be advanced for a Robins-style limitation on tort recovery for harm to non-proprietary interests. See, e.g., Rizzo, A Theory of Economic Loss in the Law of Torts, 11 J. Legal Studies 281 (1982); Note, Negligent Interference With Contract: Knowledge as a Standard for Recovery, 63 Va.L. Rev. 813 (1977). But see James, Limitations on Liability for Economic Loss Caused by Negligence: A Pragmatic Appraisal, 25 Vand.L.Rev. 43 (1972) (criticizing Robins Dry Dock rule as resting on pragmatic concerns that have been cast aside in other areas of tort law). Those judges and scholars who have most recently examined the issue have recognized the need to apply some such limitation in order to protect scarce judicial resources. Many accidents produce economic ripples which affect a theoretically infinite number of parties, each of whom may have to alter his behavior to his detriment because of the negligence of the party who brought about the initial injury. Each of these injured parties suffers a real loss for which tort law ought, in a perfectly just world, to provide redress. Yet compensating everyone who suffers some economic disadvantage from an accident would require both a staggering commitment of judicial resources — as courts struggle to determine the connection between the accident and each claimant’s monetary loss — and a consequent risk of increasingly arbitrary, ad hoc decisionmaking at the margins. The Fifth Circuit’s discussion in Testbank is instructive:

The vessel delayed in St. Louis may be unable to fulfill its obligation to haul from Memphis, to the injury of the shipper, to the injury of the buyers, to the injury of their customers. Plaintiffs concede, as do all who attack the requirement of physical damage, that a line would need to be drawn — somewhere on the other side, each plaintiff would say in turn, of its recovery. Plaintiffs advocate not only that the lines be drawn elsewhere but also that they be drawn on an ad hoc and discrete basis. The result would be that no determinable measure of the limit of foreseeability would precede the decision on liability. We are told that when the claim is too remote, or too tenuous, recovery will be denied. Presumably then, as among all plaintiffs suffering foreseeable economic loss, recovery will turn on a [judge’s] or jury’s decision. There will be no rationale for the differing results save the “judgment” of the trier of fact. Concededly, it can “de'cide” all the claims presented, and with comparative if not absolute ease. The point is not that such a process cannot be administered but rather that its judgments would be much less the products of a determinable rule of law.

752 F.2d at 1028. Such unpredictability is of course most costly to the parties most often affected by the Robins Dry Dock rule — businesses which must plan and insure against contingent liabilities. The “victims” of Robins Dry Dock’s limitation on recovery may thus be its real beneficiaries, for they exchange an especially dicey tort compensation system for the greater certainty of first-party insurance and/or contractual indemnification. See Barber Lines v. M/V Donan Maru, supra, at 54-55; Rizzo, supra, 11 J. Legal Studies at 391-97.

For these reasons, Robins Dry Dock’s prudent limitation on tort recovery remains good law almost six decades after Justice Holmes rendered his decision. See, e.g., Barber Lines, supra; Testbank, supra; Kingston Shipping Co. v. Roberts, 667 F.2d 34 (11th Cir.1982); Getty Refining & Marketing Co. v. M/T Fadi B., supra; In re Williamson Leasing Co., 577 F.Supp. 890 (E.D.Mo.1984); General Foods Corp. v. United States, 448 F.Supp. 111 (D.Md.1978). I turn now to a consideration of the nature of the interest which Robins Dry Dock exempts from the protection of maritime tort law.

C

The standard formulation of the Robins Dry Dock rule is that “physical damage to a proprietary interest [is] a prerequisite to recovery for economic loss in cases of unintentional maritime tort.” Testbank, supra, 752 F.2d at 1020. See also Barber Lines, supra, at 51 (plaintiffs cannot recover damages for “negligently caused financial harm, even when foreseeable, except in special circumstances”; the “most common such special circumstance” is “physical injury to the plaintiffs or to their property”). Cf. Venore Transportation Co. v. M/V Struma, 583 F.2d 708, 710 (4th Cir.1978) {Robins Dry Dock embodies “the principle that one who unintentionally but negligently damages the property of another is not liable to others who may suffer economic loss because the owner is unable to perform contractual commitments to those others”). The issue in this case is whether Holt Marine had a “proprietary interest” in Pier 7 at the time of the accident.

Robins Dry Dock has been most commonly applied where a facility used for commerce or transportation has been negligently damaged, thereby harming all those who would have used the facility during the time it undergoes repair. See, e.g., Barber Lines, supra (Robins Dry Dock bars claim by vessel delayed in using Boston Harbor due to defendant vessel’s oil spill); Testbank, supra (businesses which had suffered economic losses due to the negligent contamination of the Mississippi River had no claim against Ihose who caused the contamination); Hercules Carriers, Inc. v. Florida, 720 F.2d 1201 (11th Cir.1983) (per curiam) (Robins Dry Dock bars claim by vessels delayed in proceeding into Tampa Bay against vessel which hit a bridge and thereby blocked the entrance to the bay); Dick Meyers Towing Serv. v. United States, 577 F.2d 1023 (5th Cir.1978) (per curiam) (tugboat operator cannot recover against United States for negligent construction of canal lock whose failure forced curtailment of tugboat’s

business operations); Louisville & Nashville R.R. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir.1979); (Robins Dry Dock bars claim by railroad for loss of use of bridge struck by defendant vessel, even though railroad had contractual right to use bridge along with bridge’s owner); Getty Refining & Marketing Co. v. M/T Fadi B., 595 F.Supp. 452 (E.D.Pa.1984) (operator of marine terminal cannot recover for loss of use of terminal against ship whose negligent inspection of its hull caused delays in unloading cargo at terminal); General Foods Corp. v. United States, 448 F.Supp. 111 (D.Md.1978) (Robins Dry Dock bars claim for added cost of transporting goods due to incapacitation of railroad bridge resulting from vessel’s collision with bridge). See also In re Williamson Leasing Co., 577 F.Supp. 890 (E.D.Mo.1984) (Robins Dry Dock bars claims of railroad employees for lost wages against vessel which collided with railroad bridge and caused a ninety-one-day shutdown in the railroad); Complaint of Great Lakes Towing Co., 395 F.Supp. 810 (N.D.Ohio 1974) (Robins Dry Dock bars action by dockworkers for wages lost when dock was negligently damaged); Henderson v. Arundel Corp., 262 F.Supp. 152 (D.Md.1966), aff'd, 384 F.2d 998 (4th Cir.1967) (Robins Dry Dock bars claims by seamen for wages lost when ship was negligently damaged); Casado v. Schooner Pilgrim, Inc., 171 F.Supp. 78 (D.Mass.1959) (same). Adjudicating the economic loss claims in these cases would require expensive and duplicative litigation after every collision involving a frequently used facility. Robins Dry Dock’s application serves to limit the pool of potential plaintiffs to those with the strongest interests in the thing damaged. Parties wishing to use a bridge or harbor are free to contract with the owners of these facilities for indemnity, or to otherwise insure against the risk that the facility will be unavailable.

It would serve no purpose to limit recovery to those who, under state property law, “owned” the facility in question. Owners (as in this case) may be absentees, having little to do with the day-to-day management of their property. Consequently, some other party, having a stronger possessory interest and more closely involved in ordinary management and maintenance of the property, may be better able to protect the property by promptly discovering damage, identifying those responsible, and bringing suit against them. Cf. J. Ray McDermott & Co. v. The SS Egero, 453 F.2d 1202 (5th Cir.1972). The cases have responded to this concern by taking a practical approach to the question whether a particular plaintiff’s interest is one which falls outside Robins Dry Dock’s, proscription, looking not to formalistic doctrines of property law but to whether the particular plaintiff had possession and control of the damaged property.

A trio of Fifth Circuit decisions illustrates the point. In Louisville & Nashville R.R. v. M/V Bayou Lacombe, 597 F.2d 469 (5th Cir.1979), the court found that the plaintiff railroad could not recover for loss of use of a bridge which the defendant vessel had struck. The railroad invoked a long-standing contractual right to use the bridge, and argued that that right constituted an easement. Since an easement was a “proprietary” interest, the argument went, Robins Dry Dock did not apply to bar the railroad’s claim. 597 F.2d at 471-72. Judge Wisdom, writing for a unanimous panel, concluded that, under Alabama law, the interest which plaintiff held was not, in fact, an easement, but was wholly contractual. Id. at 473. He went on to state that “[e]ven if the Alabama courts would classify the plaintiff’s rights in the bridge as a form of property interest created by virtue of its contract with the owner, that interest would form too slender a reed upon which to base a right of recovery despite Robins." Id. The critical point, according to the court, was that plaintiff’s interest did not include possession or control of the bridge:

It is clear that the plaintiff’s right to use the bridge has none of the incidents of ownership ... that would justify recovery for damage to physical property____ Louisville & Nashville never had possession or control of Southern’s property____ The bridge is maintained entirely by Southern’s employees; Louisville & Nashville has no obligation to repair the bridge or contribute to the cost of repairs in the event of damage by a third party.

Id. at 474.

If Bayou Lacombe stands for the proposition that Robins Dry Dock bars recovery for harm to some interests which may fall within the ambit of property law, then J. Ray McDermott & Co. v. The S.S. Egero, 453 F.2d 1202 (5th Cir.1972) stands for the flip side of that proposition: Robins Dry Dock does not bar recovery for harm to a contractual interest when the nature of the interest is sufficiently like that of a property owner. In McDermott, a building contractor was permitted to recover from a vessel which negligently dropped an anchor on a pipeline the contractor was building. Significantly, the court did not undertake to determine the nature of the contractor’s interest under state law. Instead, the court stated that “[t]he case at bar is a suit by the ‘owner’ of the pipeline project seeking reimbursement of expenses incurred under its subcontract when the project was delayed.” 458 F.2d at 1204. The placement of the word “owner” in quotation marks suggests that the court was interested in functional and not formal ownership.

Domar Ocean Transportation, Ltd. v. M/V Andrew Martin, 754 F.2d 616 (5th Cir.1985), supports such a functional approach to the question whether an interest is proprietary for Robins Dry Dock purposes. The plaintiff in that case owned a barge, and chartered a tug to tow it. The plaintiff made certain improvements on the tug in order to facilitate its use with plaintiff’s barge. 754 F.2d at 617-18. The defendant vessel struck plaintiff’s barge. Plaintiff sought and recovered damages for, inter alia, loss of the “optimal” use of the chartered tug. Id. at 618. (Plaintiff had sub-chartered the tug after the accident.) The court approved this item of damages, reasoning that (1) the tug and barge were offered as a combination, and (2) plaintiff had the requisite proprietary interest in the tug-barge package to recover for loss of use of the tug. Id. at 619.

These cases plainly do not turn on state-law definitions of “property” interests. Indeed, the only one of the three eases which even mentions state law — Bayou Lacombe —expressly states that whatever the state-law classification of plaintiff’s interest, that interest was insufficiently “proprietary” to satisfy Robins. The cases seem instead to focus on whether, in each instance, the claimant had possession and control of the damaged property. Thus, in Bayou Lacombe, the court noted that the plaintiff did not perform ordinary maintenance and repair of the damaged bridge; by contrast, the pipeline contractor in McDermott was the party which functionally “owned” the “pipeline project” by virtue of its supervision of the pipeline’s construction. These distinctions, while perhaps fine ones, are nevertheless directly related to the reasons for the Robins Dry Dock limitation on tort recovery. Licenses . to use the bridge in Bayou Lacombe might have been widely distributed; the management of the pipeline project in McDermott was necessarily concentrated in a single party. Consequently, the fears of never-ending economic ripple effects and duplicative litigation made no sense in the latter case, while the same fears seem to justify denying recovery in the former.

In short, the question whether Holt Marine had a proprietary interest in Pier 7 is not an issue whose resolution depends on the New Jersey law of property. Rather, the question — as to which there must be no genuine issue of material fact in order for Yangming to prevail — is whether Holt Marine’s interest in the pier had sufficient “incidents of ownership” to render it “proprietary” as a matter of federal maritime law. Bayou Lacombe, supra.

D

The question is a close one. Holt Marine does not contend that it exclusively possessed Pier 7 and controlled the pier’s operations. Pierpoint was at all times free to use the pier to berth Retía vessels; Holt Marine could arrange berthings of its own only so long as those arrangements did not interfere with Pierpoint/Retla’s requirements. Thus, Yangming argues, control over the pier’s prime function — the berthing of vessels — was vested in Pierpoint, not Holt Marine. Moreover, this control was arguably exercised at the time of the accident: the Ming Joy was a Retía vessel, whose presence at the pier foreclosed Holt Marine from using the pier in any way that would conflict with the Ming Joy’s need to dock and unload its cargo.

Yangming’s argument has substantial force. Bayou Lacombe plainly stands for the proposition that a joint user of property cannot recover for negligently inflicted damage to it when effective ownership of the property is vested in another. If Holt Marine simply used the pier alongside Pierpoint and subject to Pierpoint’s priority, then Holt Marine’s interest is no different from the railroad’s interest in Bayou Lacombe, and its counterclaim should be dismissed.

The record before me does not, however, compel the conclusion that Holt Marine merely used the pier, in the manner of the railroad-plaintiff in Bayou Lacombe. The record suggests that Holt Marine both performed routine maintenance on the pier and purchased liability insurance for Pier-point. In addition, it is undisputed that Holt Marine paid for all utilities necessary to its stevedoring operations. The record does not reveal whether Pierpoint paid for any utilities. Nor does the record show that Pierpoint representatives ever actually came to the pier. Thus, Holt Marine can argue that it was in fact the only party on the pier, that Pierpoint’s “use” of the pier consisted of booking vessels for Holt Marine to unload. If such was the case, then Holt Marine’s control of the pier and its operations was essentially complete, extending to everything but the choice of customers.

I find such control sufficient to survive summary judgment under Robins Dry Dock and its progeny. There is no danger of duplicative litigation in permitting one who exercises virtually unlimited control over a facility to bring suit when the facility suffers physical damage. Indeed, if Holt Marine’s version of the facts is correct, it was the only party in a position to protect the property by discovering damage, identifying its cause, and taking appropriate action in response. It would be foolish to forbid such protective action by the only party able to take it in the interest of avoiding excessive litigation.

I emphasize that my conclusion is one which rests on a particular (and limited) record. I do not rule out the possibility that, at trial, Yangming will be able to establish that Holt Marine simply performed stevedoring services for Pierpoint, and that Pierpoint actually managed the pier’s day-to-day operations. On this record, however, I cannot find conclusively that Holt Marine lacked the breadth of control which would exempt it from Robins Dry Dock’s limitation on tort recovery. Yangming’s motion for summary judgment will be denied.

      . Deposition of Thomas J. Holt at 33-42 (Sept. 19, 1984) [hereinafter "Holt Deposition”]. Mr. Holt was at all relevant times President of Holt Marine. Affidavit of Thomas J. Holt ¶ 1 (Oct. 9, 1984) [hereinafter “Holt Affidavit”].

      . Holt Deposition at 40-41.

      . Letter to Thomas J. Holt from M.R. Cameron (May 4, 1977) [hereinafter "Cameron Letter”].

      . Id.

      . Holt Affidavit ¶¶ 4-5.

      . Id. ¶ 5. See also Deposition of Bernard Gel-man at 21-22 (July 18, 1984) [hereinafter "Gel-man Deposition],

      . Gelman Deposition at 30. Holt Marine did not pay for its use of the pier directly; rather, Pierpoint was permitted to reduce its rental payments to Holt Hauling.

      . Cameron Letter at 1-2.

      . The leading admiralty text defines "time charter” as follows:

        The Time Charter. In this form as in the voyage charter, the owner’s people continue to navigate and manage the vessel, but her carrying capacity is taken by the charterer for a fixed time for the carriage of goods anywhere in the world (or anywhere within stipulated geographic limits) on as many voyages as approximately fit into the charter period. She is therefore under the charterer's orders as to ports touched, cargo loaded, and other business matters. The time charter is used where the charterer’s affairs make it desirable for him to have tonnage under his control for a period of time, without undertaking the responsibilities of ship navigation and management or the long-term financial commitments of vessel ownership. The company operating regular liner service may, for example, find itself temporarily short of tonnage and wish to place another vessel in the service; it can do this with relatively slight trouble and without indefinitely long commitment if it can find a suitable vessel to take on time charter.
      Gilmore & Black, The Law of Admiralty 194 (2d ed. 1975) (quoting Dowell & Gibbs, Ocean Transportation 221 (1954)). This arrangement is to be contrasted with the "demise” or "bare-boat” charter, under which "the charterer takes over the ship lock, stock and barrel, and mans her with his own people.” Id. Thus, the time charterer uses the owner’s ship even while the owner retains a kind of joint possession of the ship; the demise charterer becomes the lessor of the ship, and has full possession and control of it.
      Justice Holmes’ opinion in Robins Dry Dock implies that a demise charterer would be able to recover damages for harm to the vessel. Robins Dry Dock, supra, 275 U.S. at 308, 48 S.Ct. at 135. See Louisville & Nashville R.R. v. M/V Bayou Lacombe, 597 F.2d 469, 473 & n. 3 (5th Cir.1979).

      . Perhaps as a consequence, Robins Dry Dock has on occasion been read to apply only to its particular facts. See Federal Commerce & Navigation Co. v. M/V Marathonian, 528 F.2d 907, 908 (2d Cir.1975) (per curiam); Petition of Kinsman Transit, 388 F.2d 821, 823-24 (2d Cir.1968). See also Union Oil v. Oppen, 501 F.2d 558 (9th Cir.1974); Pruitt v. Allied Chemical Corp., 523 F.Supp. 975 (E.D.Va.1981). But see infra note 12 and accompanying text.

      . The discussion that follows draws heavily on Judge Patrick Higginbotham’s thorough and scholarly opinion in Lousiana ex rel. Guste v. M/V Testbank, 752 F.2d 1019 (5th Cir.1985) (en banc), which surveys Robins Dry Dock’s historical underpinnings and analyzes in detail the cases on which Justice Holmes relied. See id. at 1022-24.

      . As I have already noted, see supra note 10, the Second and Ninth Circuits have read Robins Dry Dock rather narrowly. See Union Oil v. Oppen, 501 F.2d 558 (9th Cir.1974); Petition of Kinsman Transit, 388 F.2d 821 (2d Cir.1968). As the cases cited in the text show, however, neither Union Oil nor Kinsman has been well received outside its own circuit. Moreover, as the Testbank court noted, see 752 F.2d at 1025-27, neither case is wholly opposed to Robins Dry Dock’s general limitation on tort liability. Union Oil held that commercial fishermen could recover for harm to their fishing operations occasioned by a mammoth oil spill. In so holding, the court noted the "special nature” of the fishermen’s losses, and explicitly declined to permit other parties to recover for the economic harms they suffered. 501 F.2d at 570. Kinsman, while purporting to “leave the rock-strewn path of ‘negligent interference with contract' for more familiar tort terrain,” 388 F.2d at 824, appeared to adopt a somewhat restrictive foreseeability analysis which responds (albeit more haphazardly) to the same difficulties which prompted Robins Dry Dock’s limitation. Id.

      . As the quoted passage from Judge Haynes-worth’s opinion in Venore Transportation indicates, there is some disagreement concerning whether Robins Dry Dock applies to interference with economic expectancies generally or only to interference with contractual interests. See also Pruitt v. Allied Chemical Corp., 523 F.Supp. 975, 981 (E.D.Va.1981) (Robins Dry Dock rests on a contract rationale). The cases that differentiate between contractual and non-contractual interests do not, in my view, provide a sensible basis for the line they draw. Indeed, it would seem that contractual interests ought to receive at least as much protection as non-contractual expectancies — the latter, after all, are by definition more tentative and thus less likely to have induced heavy reliance costs. And to the extent Robins Dry Dock’s principle "is essentially a principle of disallowance of damages because of remoteness," Venore Transportation, supra, 583 F.2d at 710, harm to non-contractual interests will typically be more remote than harm to contractual interests. “If a time charterer’s relationship to its negligently injured vessel is too remote, other claimants without even the connection of a contract are even more remote." Testbank, supra, 752 F.2d at 1023.
      I need not resolve this debate for purposes of deciding Yangming's motion in this case, for Holt Marine’s interest in Pier 7 plainly arose out of its contract with Pierpoint.

      . Holt Marine argues in passing that, even if its interest in Pier 7 was not "proprietary” for Robins Dry Dock purposes, it is entitled to recover because of the "special relationship” which existed between it and Yangming. This argument is without merit. There is some support for the proposition that some kinds of knowing interferences with economic expectancies may give rise to tort liability. See W.P. Keeton, ed., Prosser and Keeton on the Law of Torts § 129, at 1000-1001 (5th ed. 1984); Comment, Foreseeability of Third-Party Economic Injuries—A Problem in Analysis, 20 U.Chi.L.Rev. 283, 295-96 (1953). However, Yangming denies that it can be charged with knowledge prior to the accident of Holt Marine’s interest in Pier 7. Holt Marine does not point to record evidence from which I can conclude that no issue of material fact exists as to such knowledge.
      Nor is it obvious that such knowledge would necessarily remove this case from the ambit of Robins Dry Dock. The "special relationship” cases have typically arisen in circumstances in which the defendant owed a heightened duty to the plaintiff because of the plaintiff’s unavoidable dependence on the defendant’s nonnegligent performance of its tasks. Thus, telegraph companies have been found liable for the negligent transmission of messages resulting in contractual losses. Prosser and Keeton, supra, § 129, at 1000. These cases create a "narrow” exception to the ordinary rule of non-recovery, "turning on a special relationship or an assumption of responsibility by the negligent promisor, and equally on the presence of a narrow and particular class of plaintiffs.” Id. at 1000-01. See also Comment, supra, 20 U.Chi.L.Rev. at 296 (in telegraph cases, the recipient of the garbled message may often be the only party damaged, so that denying recovery would distort the telegraph company’s incentive to send messages promptly and correctly). Holt Marine has not offered any authority for the proposition that this narrow exception encompasses ordinary ship-dock collision cases like this one. Cf. Complaint of Great Lakes Towing Co., 395 F.Supp. 810 (N.D.Ohio 1974) (Robins Dry Dock bars action by dockworkers for wages lost when dock was negligently damaged).

      . Interestingly, Robins Dry Dock appears not to bar the owner from suing even where he has no present possessory interest in the damaged property. See Rogers Terminal & Shipping Corp. v. International Grain Transfer, Inc., 672 F.2d 464 (5th Cir.1982).

      . Neither of the parties has identified any cases other than Bayou Lacombe which employ state law in determining whether Robins Dry Dock forecloses a claim for economic loss.

      . The record does not reveal who arranged for the berthing of the Ming Joy. The discussion in the text assumes arguendo that Pierpoint made the arrangements and communicated them to Holt Marine according to the ordinary practice described in Thomas Holt's deposition.


author: McMILLEN, District Judge.

text:
    Anna POLOVCHAK and Michael Polovchak, Plaintiffs, v. Michael LANDON, District Director Immigration and Naturalization Services, et al., Defendants.
    No. 80 C 5595.
    United States District Court, N.D. Illinois, E.D.
    July 17, 1985.

      Harvey Grossman, Chicago, Ill., for plaintiffs.
    Nancy K. Needles, Asst. U.S. Atty., Chicago, Ill., for defendants.
    Robert L. Bombaugh, Lauri Steven Filppu, Marshall Tamor Golding, U.S. Dept, of Justice, Office of Immig.Lit./Civil Div., Washington, D.C., For Wm. Smith and Dist. Dir. of I.N.S.
   DECISION

McMILLEN, District Judge.

Plaintiffs, who are parents of the Intervenor Walter Polovchak, have filed a motion for summary judgment on the issue of whether or not they were deprived of due process under the Fourteenth Amendment when the defendant issued a departure control order prohibiting Walter’s return to the Soviet Ukraine on January 8, 1982. Plaintiffs seek to restrain the defendants from taking any action which would prevent them from returning their son Walter to the Soviet Ukraine, and the defendants, and Walter, have been resisting this request since 1980. Plaintiffs returned to their home in the Soviet Ukraine in August 1981 but are willing to come to the United States to retrieve their son if there are no legal impediments to their doing so.

A brief history of this controversy might explain why it has become so attenuated. The Polovchak family came to Chicago to visit relatives in January 1980. When they decided to return to their home in Russia, Walter, who was then 12 years old, and his sister Natalie who was 17 years old, decided they wanted to stay in the United States and took refuge with their cousin in an apartment in Chicago.

After that, Walter was adjudged by the Circuit Court of Cook County to be a minor in need of supervision and was thus made a ward of the court and placed under the supervision of the Illinois Department of Children and Family Services. This decision was reversed by the Illinois Appellate Court for the First District and its decision was affirmed by the Illinois Supreme Court. In re Polovchak, 97 Ill.2d 212, 73 Ill.Dec. 398, 454 N.E.2d 258 (1983); cert. denied, — U.S. -, 104 S.Ct. 1413, 79 L.Ed.2d 740 (1984).

In the meantime, Walter was granted asylum by the Chicago District Director of the Immigration & Naturalization Service on July 19, 1981 and then was granted permanent resident status on October 16, 1981. The Appellate Court of Illinois released him to his parents (who had returned to Russia), and nine days thereafter I & NS issued its “departure control order” on January 8,1982. It appears to be undisputed that this order is the only thing which prevents plaintiffs from regaining the custody of their son. It is our conclusion that the order was entered in violation of the plaintiffs’ rights of due process.

Defendants have contended that some of the statements of uncontested facts stated in the plaintiffs’ motion are in fact in dispute. However, defendants’ contentions are not supported by sworn documents, nor are they material to our decision. It is our finding that there is no genuine issue of material fact. Posey v. Skyline Corp., 702 F.2d 102 (7th Cir.1983).

The landmark decision on the requirements of due process is Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) wherein the Court said at p. 334-35, 96 S.Ct. at p. 902-03:

[O]ur prior decisions indicate that identification of the specific dictates of due process generally requires consideration of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

The first interest to be weighed is that of plaintiffs as parents of Walter Polovchak. It is, in fact, one of the strongest private interests in this country. On occasion, it even overrides some of the more specific rights established by our Constitution. As was said in Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), at p. 650, 92 S.Ct. at p. 1212: “The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and, absent a powerful countervailing interest, protection.” In Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), the Court said at p. 214, 92 S.Ct. at p. 1532: “[A] State’s interest in universal education, however highly we rank it, is not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interests of parents with respect to the religious upbringing of their children ... .” We have no doubt that these words apply to a parent’s right to bring up their children as Communists or atheists. This is a very strong interest which has been all but negated by the official action of the District Director of I & NS.

The private interest of the intervenor, Walter, is by its very nature considerably less than that of his parents. The intervenor has often been referred to as “little Walter” because he was only 12 years old when his parents left him behind. Due to the willingness of various parties to engage in litigation in this case, Walter will become 18 years old on October 3, 1985. This fact would no doubt increase the weight of his interest, but the question of plaintiffs’ due process rights goes back to the I & NS action of granting “little Walter” a certain status in 1981. Surely a minor child of tender years does not have the right to control his own destiny, although in some cases this right is taken away from his parents and given to a court. As was said in Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) at 637, 99 S.Ct. at 3045:

[A]n additional and more important justification for state deference to parental control over children is that “[t]he child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

In the foregoing case, the Court held that, when a State requires parental consent to a minor’s abortion, it must also provide alternative procedures by which the minor can receive authorization for an abortion despite lack of parental consent. The Court suggested that such a proceeding need not take place in a court of general jurisdiction (p. 643 n. 22, 99 S.Ct. at p. 3048 n. 22).

Although the foregoing cases are not necessarily binding in this unique litigation, they do establish the superiority of a parents’ rights over that of their minor child, particularly in matters involving education, religion, and nurture generally. This was pointed out by the Supreme Court in Bellotti at p. 642, 99 S.Ct. at p. 3047 where it said “The abortion decision differs in important ways from other decisions that may be made during minority. The need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, require a State to act with particular sensitivity when it legislates to foster parental involvement in this matter.” In the case at bar, neither the parents nor the intervenor were given any type of due process hearing before his parents were prevented from taking him home.

Therefore, certainly the first two elements of Mathews v. Eldridge, supra, p. 902 weigh in favor of the plaintiffs. The risk of an erroneous deprivation of their interests is great and becomes magnified by the passage of time. “Little Walter” is fast becoming an adult and has spent the last five years in the United States, apparently completely removed from any influence or control by his parents. If the I & NS decision was erroneous and arrived at through improper procedures, the effects upon Walter are perhaps irreversible.

The third Mathews criterion for due process is “the Government’s interest,” including the fiscal and administrative burdens that an additional procedural requirement would entail (424 U.S. 335, 96 S.Ct. at 903). Under 8 C.F.R. § 215.2(a) a departure control officer may temporarily detain an alien if there is reason to believe that his departure would be “prejudicial to the interests of the United States.” Section 215.3 of the Regulation sets forth certain circumstances which could be deemed prejudicial to the United States. The defendants did not specify which provision of § 215.3 was being invoked, but subsection (j) is the one most applicable. It provides for detention of “Any alien, where doubt exists whether such alien is departing or seeking to depart from the United States voluntarily ... .” The alien is entitled to service of the order upon him and, at his request, a hearing before a special inquiry officer. The Regional Commissioner makes the final decision concerning the departure control order, and his decision is not appealable. No provision is made for notification of the parents of a minor child, and in their absence, there was no one interested in objecting to the departure control order in this case.

The intervenor contends that plaintiffs have failed to exhaust their administrative remedies. However, neither the statutes nor the regulations give them an administrative remedy, and this is a procedural defect itself. The alien Walter can request a hearing, and the plaintiffs attempted to object to the order after they obtained custody of their son from the Illinois Department of Children and Family Services. Thus plaintiffs did what they could, administratively.

It is not particularly surprising that the I & NS has no procedure for parents to object to or participate in the departure control order of their children. It is not often and perhaps unique that a child of the age of “little Walter” decides to remain behind when his family returns home. One even must become a little curious concerning what kind of influences may have impelled him to do this or whether it was entirely his own free choice.

To adopt a procedure or regulation to cover this situation would impose no perceptible burden on the government, nor would the hearing, if any. It is too late to hold such a hearing today, since the intervenor Walter is now almost 18 years old and his reasons for seeking asylum in the United States have been blurred if not changed over the years. The only way to remedy the lack of due process which was imposed upon his parents, the plaintiffs, is to grant their motion for summary judgment.

The foregoing decision will stand as a declaratory judgment in favor of plaintiffs in accordance with Fed.R.Civ.P. 52. Plaintiffs may serve and file an injunction order against the defendants and the intervenor on Monday, July 29, 1985 at 11:00 o’clock a.m.