author:
Chasanow, J.,
      Bishop, J.,

text:
    JAMES ANTHONY BOWSER v. STATE OF MARYLAND
    [No. 132,
    September Term, 1981.]

      Decided December 28, 1981.

      The cause was argued before Gilbert, C. J., and Moylan and Bishop, JJ., and Howard S. Chasanow, Associate Judge of the Seventh Judicial Circuit, specially assigned.

      John W. Sause, Jr., District Public Defender, for appellant.

      Diane G. Goldsmith, Assistant Attorney General, with whom were Stephen H. Sachs, Attorney General, Sidney S. Campen, Jr., State’s Attorney for Talbot County, and Jane Tolar O’Connor, Assistant State’s Attorney for Talbot County, on the brief, for appellee.
   Chasanow, J.,

delivered the opinion of the Court. Bishop, J., concurs and files a concurring opinion at page 380 infra.

James Anthony Bowser, the appellant, was convicted by a jury in the Circuit Court for Talbot County of two counts of distribution of marijuana, as well as lesser included offenses. The charges arose from appellant’s participation in two sales of marijuana to a police informant, whom we shall refer to as David (recognizing the preference for anonymity among police informants). The sales in question took place on January 23, 1980, and February 5, 1980.

Sometime prior to January 23, 1980, David had been observed selling drugs and had been arrested by Deputy Sheriff Kenneth Bailey of the Talbot County Sheriffs Department. In order to secure favorable sentencing recommendations, David agreed to assist Deputy Bailey in his investigation of drug dealers in Talbot County and also to participate in a series of police monitored drug purchases.

One of the targets of Deputy Bailey’s investigation was one Tommy Andrews. At the urging of Deputy Bailey, David approached Tommy Andrews for the purpose of purchasing marijuana. David was told that Andrews would not sell to him directly but that the purchase could be made through a mutual acquaintance, James Bowser, the appellant.

On January 23, 1980, David approached appellant and asked bim if he could get some marijuana from Andrews. Appellant replied that he "would check.” Later that same day, David again approached appellant and was told that appellant had not yet contacted Andrews. David then contacted appellant for the third time and arrangements were made for a purchase that same evening. David reported to Deputy Bailey and that night two deputies followed David to his meeting with appellant and watched while David handed appellant $45. David and appellant were then observed going to a parked automobile occupied by Tommy Andrews. Something changed hands between Andrews and appellant, after which appellant handed David a plastic baggy, which contained approximately one ounce of marijuana. During the next two weeks, David had three to six additional contacts with appellant, each time inquiring about further purchases. Finally on February 5, 1980, by prearrangement, David was again followed by sheriffs deputies and was again observed meeting with appellant. The two were then followed to a parked car occupied by Tommy Andrews and again there was an exchange observed between David, appellant, and Andrews; in return for $45, appellant gave David a plastic baggy containing approximately one ounce of marijuana. Following this second sale, David tried to buy substantially larger quantities of marijuana from appellant but was refused.

Warrants were obtained for the arrest of appellant and Tommy Andrews. Following his arrest, appellant gave a full confession to his part in both sales. He stated that he turned over all the money to Andrews and kept none of the proceeds for himself.

When appellant’s case came to trial, defense counsel conceded in an opening statement to the jury that, "There is absolutely no dispute but that the sales did take place.” He contended that the sole issue in the case was entrapment. The State called David as a witness and he testified to his contacts with the defendant and to his two purchases of marijuana. During cross-examination, it was brought out that appellant was not one of the identified targets of the police investigation and that prior to his conversation with Andrews, David had no reason to believe that appellant was trafficking in drugs. As its last witness, the State recalled Deputy Bailey, who had previously testified to his observations of the drug transactions. Deputy Bailey was asked the following question:

"During the course of your investigations ... say from July of... ’78 — had you received any information that would indicate that James Bowser was trafficking in drugs at that time?”

Defense counsel objected. The court overruled the defense counsel’s objection and allowed Deputy Bailey to answer:

"A. Yes, sir, your Honor, I would say that through investigation I know that Mr. Bowser has been selling drugs since 1978.
Q. And is that in Talbot County?
A. Talbot County.
Q. What kinds of drugs, if you know, did your investigations lead to?
A. Marijuana.
Q. Why wasn’t he arrested for any of those charges?
A. We were unsuccessful to catch Mr. Bowser.”

Defense counsel then renewed his objection and made a motion to strike the quoted testimony. Both were overruled. On cross-examination, Deputy Bailey implied that his information was obtained from one or more informants, whose identities Deputy Bailey would not, or could not reveal.

Appellant took the stand in his own behalf and admitted his involvement in the sales of January 23 and February 5. He further testified that he had received no money for his participation and also that he complied with David’s repeated solicitations out of friendship for David and because he "wanted to get him off my back.”

The trial judge instructed the jury on the issue of entrapment and further instructed to the effect that where the defense of entrapment is raised, the State has the burden of proving beyond any reasonable doubt that the defendant was not induced by a state agent to violate the law. If the State fails to prove the defendant was not induced, then in order to convict, the jury would have to find beyond any reasonable doubt that the defendant was ready and willing to commit the crime charged. In other words, it was the defendant’s predisposition rather than any inducement which caused the criminal conduct.

The appellant raises two primary contentions on appeal. I. Appellant’s entrapment was established as a matter of law. II. The trial court should not have admitted the quoted testimony of Deputy Bailey.

Inasmuch as we shall reverse appellant’s conviction for what we hold to be an error in admitting the quoted testimony of Deputy Bailey, superficially it might appear that the evidentiary issue would be dispositive of the appeal. Nevertheless, we must further determine if entrapment was established as a matter of law, since if entrapment was conclusively proven, the appellant would be entitled to an acquittal; on the other hand, if the evidence merely generated a jury question on the issue of entrapment, the state may retry him on the charges.

I. Was entrapment established as a matter of law?

In Maryland, the "subjective” test, also known as the "origin of interest” test, governs the defense of entrapment. See Simmons v. State, 8 Md.App. 355, 259 A.2d 814 (1969). The test was approved by the Court of Appeals in Grohman v. State, 258 Md. 552, 267 A.2d 193 (1970), cert. denied, 401 U.S. 982, 91 S.Ct. 1204, 28 L.Ed.2d 334 (1971), and reiterated by this Court in Dravo v. State, 46 Md.App. 622, 629-30, 420 A.2d 1012 (1980). Under the "subjective” test, the mere affording of an opportunity to commit an offense does not constitute entrapment. Entrapment occurs when a police officer or government agent induces the commission of a crime by one who, except for the government’s enticement, solicitation or persuasion, would not have committed the crime. The test requires two inquiries:

"(1) [W]hether there was an inducement on the part of the government officials [or their agents] and if so
(2) [W]hether the defendant showed any predisposition to commit the offense.” Grohman v. State, supra at 557.

In Fisher v. State, 28 Md.App. 243, 250, 345 A.2d 110 (1975), cert. denied, 276 Md. 743 (1976), this Court set forth the circumstances in which the offense of entrapment is established as a matter of law:

"The initial test of the evidence, within the framework of the substantive law of entrapment, is always a matter of law for the court. The question to be decided depends upon how the question is raised. A motion for judgment of acquittal based upon that defense requires the court to decide whether there is undisputed evidence, so clear and decisive that reasonable minds, applying the correct law, could not differ in finding that the defendant was induced by the police to commit the offense, and that his criminal conduct was due to the persuasion of the police, and not to his own readiness or predisposition to commit the offense. Only when such is the state of the evidence is there entrapment as a matter of law.” (Emphasis added.) (Footnote omitted.)

The appellant contends that the trial judge should have granted the motion for judgment of acquittal and argues that he met both of the requisites for establishing the defense of entrapment as a matter of law. He contends first that he conclusively established that David, a state agent, induced him to commit the offenses, and second, that there was no evidence from which a reasonable jury could conclude that the sales were the result of his own readiness or predisposition rather than the inducement by the police. We disagree and hold that both elements of the entrapment defense were properly submitted to the jury.

We think that the evidence in this case did not establish inducement as a matter of law. Although it was undisputed that on two occasions before the January 23rd sale, then on three to six occasions before the second sale, David requested appellant get him some marijuana from Andrews, reasonable minds could have nonetheless differed as to whether the encounters constituted an inducement. Although David might have been persistent, there was not the degree of harassment, pressure, persuasion, coercion or the irresistible appeals that would be sufficient to establish an inducement as a matter of law. We note, however, that even if an inducement is established as a matter of law, the entrapment defense would not be conclusively established and would still be submitted to the jury if there was sufficient evidence from which the jury could find beyond a reasonable doubt that the criminal conduct resulted not from the inducement but from the defendant’s own readiness or predisposition to commit the offense.

With respect to the second requisite to establishing entrapment as a matter of law, we think there was sufficient evidence from which a jury could find beyond any reasonable doubt that appellant’s criminal acts resulted not from any inducement, but from his own readiness or predisposition to commit the offense and the State merely afforded appellant the opportunity to do so. Appellant’s predisposition might be inferred from the fact that Tommy Andrews referred David to appellant to act as a middleman in any sale. Further, appellant’s ready access to and his ability to procure the marijuana from Tommy Andrews on the same day as David’s inquiries, coupled with the fact that appellant participated in two separate sales to David could all be considered evidence of appellant’s predisposition. Finally, appellant made no claim in his confession that he was an unwilling or reluctant participant in the transactions. For the reasons indicated, the issue of whether the appellant was in fact induced to commit the offense, and if so, whether his conduct was due to the persuasion of the police or to his own readiness or predisposition were properly submitted to the jury.

II. Was the testimony of Deputy Bailey admissible to rebut the entrapment defense?

After determining that entrapment was clearly at issue, the trial judge admitted testimony that "through investigation” Deputy Bailey knew that appellant had been selling marijuana in Talbot County since 1978. The State contends that the testimony was admissible to establish appellant’s predisposition to commit the instant offenses.

Neither the State nor the appellant has cited, nor has our research disclosed, any Maryland case dealing with the precise issue of whether hearsay or reputation testimony is admissible on the issue of predisposition when the defense of entrapment is raised.

When an accused relies on the defense of entrapment, the State is entitled to rebut the defense with evidence of the predisposition of the accused to commit the crime. Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Simmons v. State, 8 Md.App. 355, 362, 259 A.2d 814 (1969). By electing to raise the defense of entrapment, a defendant "cannot complain of an appropriate and searching inquiry into his own conduct and predisposition as bearing [on his claim of innocence].” Sorrells v. United States, 287 U.S. 435, 451, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

The State may use various permissible methods to rebut an entrapment claim. Among the most common, are proof of prior convictions for similar offenses and evidence of similar criminal acts committed by the accused. In addition, a defendant’s ready acquiescence to a police officer’s solicitation may itself indicate predisposition, as might the ready access to contraband, the possession of paraphernalia generally associated with criminal activity, or any statements made in the course of the transaction, including displays of expert knowledge and boasts about previous similar criminal activity.

This Court has held evidence of similar criminal acts committed by a defendant admissible to rebut an entrapment defense, even where a defendant has not been convicted of nor even arrested for the other offenses, and even where the similar crimes occurred subsequent to the offense for which the defendant is being tried. See Berlin v. State, 12 Md.App. 48, 277 A.2d 468 (1971), cert. denied, 263 Md. 710 (1971). Berlin involved a defendant on trial for selling a controlled dangerous substance to an undercover state trooper. The defendant claimed entrapment. The State was permitted to cross-examine the defendant about illegal drug sales which occurred subsequent to the offense charged. This Court held the evidence of subsequent drug sales admissible to prove defendant’s predisposition to commit the offense charged. We pointed out that generally where a defendant is charged with the sale of narcotics, it is improper for the State to offer evidence of other unrelated sales. Nevertheless, there is a recognized exception where the defendant claims entrapment. There the State may offer proof of other unrelated narcotics offenses to establish that the sale charged was the result of the defendant’s predisposition rather than any inducement by the police.

Although evidence of prior convictions or evidence of similar criminal acts may be admissible to rebut the claim of entrapment, it does not necessarily follow that the similar offenses may be proven by unreliable forms of hearsay or by general reputation. We note that some jurisdictions have permitted hearsay and reputation evidence to establish predisposition. See United States v. Hawke, 505 F.2d 817 (10th Cir. 1974), cert. denied, 420 U.S. 978, 95 S.Ct. 1404, 43 L.Ed.2d 658 (1975); State v. Talbot, 135 N.J.Super. 500, 343 A.2d 777 (1975), aff'd on other grounds, 71 N.J. 160, 364 A.2d 9 (1976). See also, Cowen, The Entrapment Doctrine in the Federal Courts, and Some State Court Comparisons, 49 J.Crim.L.C. & P.S. 447, 450 (1959), where the author notes that hearsay evidence of predisposition offered to rebut an entrapment defense is afforded "a wider range of admissibility than found anywhere else in the law of evidence.” Supra, at 450. A substantial number of other jurisdictions, including many, like Maryland, which adopt the "subjective” test for entrapment, refuse to permit evidence of reputation or hearsay evidence to establish similar criminal acts. See, e.g., United States v. McClain, 531 F.2d 431 (9th Cir. 1976), cert. denied, 429 U.S. 835, 97 S.Ct. 102, 50 L.Ed.2d 101 (1976); United States v. Ambrose, 483 F.2d 742 (6th Cir. 1973); United States v. Cantanzaro, 407 F.2d 998 (3rd Cir. 1969); Whiting v. United States, 296 F.2d 512 (1st Cir. 1961); State v. Cox, 110 Ariz. 603, 522 P.2d 29 (1974); Price v. State, 397 N.E.2d 1043 (Ind.App. 1979); State v. Jones, 416 A.2d 676 (R.I. 1980).

In its brief, the State cites, as persuasive authority, several Fifth Circuit decisions which admitted hearsay evidence of prior criminal history and reputation evidence to prove predisposition where the entrapment defense has been raised. It is noteworthy that at about the same time the State’s brief was being filed in the instant case, the Fifth Circuit overruled that entire line of cases. In United States v. Webster, 649 F.2d 346, 350 (5th Cir. 1981), a majority of the en banc U.S. Court of Appeals for the Fifth Circuit stated:

"Our creation of a rule that allows gross hearsay evidence to be used to prove predisposition has resulted in the very evils that the rule against hearsay was designed to prevent. The jury is free to believe the unsworn, unverified statements of government informants, sometimes unidentified, whose credibility is not subject to effective testing before the jury and whose motivations may be less than honorable. We are hard pressed to envision a situation where the disparity between the probative value and prejudicial effect of evidence is greater.... [W]e hold that hearsay evidence is never admissible for the purpose of proving the defendant’s predisposition. All prior decisions of this Court to the contrary are hereby overruled.” (Footnotes omitted.)

According to one commentary, the Webster decision brought the Fifth Circuit "into line with all the other federal circuits that have decided the issue.... The five other circuits that have considered this issue — the First, Third, Sixth, Seventh, and Ninth — have all held that hearsay is not admissible to prove predisposition.”

We find no justification for the proposition that where predisposition is in issue, traditional hearsay rules are inapplicable. As Professor Park stated in his excellent analysis of the entrapment defense:

"The willingness of some courts to admit hearsay in rebuttal of the entrapment defense seems to be a consequence of the disfavored nature of the defense rather than of any belief that the testimony has ’circumstantial guarantees of trustworthiness’ equivalent to those of other hearsay exceptions.” Park, supra, 60 Minn.L.Rev. 163, 214 n. 172.

There is no valid reason why the rules of evidence ought to be relaxed or ignored when the appellant raises the defense of entrapment. When other states of mind such as malice are at issue, we do not permit hearsay or reputation evidence. There is nothing unique about the state of mind known as predisposition which would justify dispensing with the reliability assurances afforded by the hearsay rule.

In summary, we hold that suspicion, rumor, secondhand reputation evidence, and other unreliable hearsay normally barred by the rules of evidence do not individually or collectively become admissible merely because the defendant has raised the defense of entrapment.

By asserting the defense, however, the defendant does place predisposition in issue, and prior convictions for similar offenses, prior similar criminal acts, and other probative evidence of state of mind are admissible to assist the trier of fact in determining whether the police ensnared in their net an innocent lamb lured astray, or a predatory wolf pursuing the bait.

Judgments reversed; case remanded for new trial.

Costs are not reallocated as part of the judgment of this Court pursuant to Maryland Rule 1082f.

APPENDIX A

DEPUTY KENNETH BAILEY

was recalled as a witness, and, having been previously duly sworn by the Clerk of the Court, was examined and testified further as follows:

DIRECT EXAMINATION

BY MS. O’CONNOR:

Q You’re still under oath, Deputy Bailey.
A Yes.
Q You testified earlier, I believe, that during the course of your investigations you received information about who may be selling different kinds of drugs in Talbot County, and in Easton, is that correct?
A That’s correct.
Q During the course of your investigations in the last — let’s pin it down to the last eighteen months, before February 5,1980, say from July of 1979, perhaps — no, July of ’78 — had you received any information that would indicate that James Bowser was trafficking in drugs at that time?
MR. PULLEN: Your Honor, I’m going to object.
MS. O’CONNOR: He’s opened the door.
THE COURT: Yes, you have.
MR. PULLEN: Your Honor, I object, and I don’t think I’ve opened the door, and I think the evidence that’s going to come from the witness is going to be pure hearsay, speculation. There’s no way I can cross-examine him as to that. I think it’s very unfair that that evidence be allowed to come in.
THE COURT: Mrs. O’Connor, in what way has he opened the door?
MS. O’CONNOR: He asked David [deleted] "As far as you know, Jimmy Bowser wasn’t selling marijuana on the streets, was he? ” And I have somebody who knows that he was.
MR. PULLEN: I’m going to object, your Honor.
THE COURT: Overruled. We’ll just have to let some appellate court someday take this up.
BY MS. O’CONNOR:
Q You can answer the question.
A Yes, sir, your Honor, I would say that through investigation I know that Mr. Bowser has been selling drugs since 1978.
Q And is that in Talbot County?
A Talbot County.
Q What kind of drugs, if you know, did your investigations lead to?
A Marijuana.
Q Why wasn’t he arrested for any of those charges?
A We were unsuccessful to catch Mr. Bowser.
Q I see. You hadn’t had an undercover agent or an informant?
MR. PULLEN: I’m going to object to the whole line of questioning.
THE WITNESS: To buy from Mr. Bowser.
MS. O’CONNOR: Thank you, very much. I have no further questions.
MR. PULLEN: I’m going to renew my objection and ask that the Jury be instructed to disregard those remarks, and ask that they be stricken from the record.
THE COURT: Overruled.
Do you want to cross-examine him on that?

CROSS-EXAMINATION

BY MR. PULLEN:
Q Deputy Bailey, you get all sorts of information, don’t you?
A We get information, yes, sir.
Q And the people who tell you these things are for the most part people in jail, criminals, is that right?
A Not necessarily.
Q Well, for the most part?
A No, sir.
Q Okay. Where do you get your information from?
A Phone calls we receive from people, personal —
Q Anonymous phone calls?
MS. O’CONNOR: I’d like the witness to be permitted to answer the question.
THE WITNESS: Phone calls we receive from people in the neighborhood, phone calls from personal friends, phone calls from the Dover Street Poolroom, people selling drugs in there, there are times names have been given to us.
BY MR. PULLEN:
Q Have you ever had anybody falsely accused?
A No, sir, not really, that I recall, no, sir.
Q Not in your opinion, is that right?
A That’s correct. There’s a lot of people selling drugs in Talbot County. Mr. Bowser was one of them.
MR. PULLEN: Your Honor, I’m going to object.
THE COURT: All right. That was volunteered. You’re correct. Strike that testimony.
MR. PULLEN: Your Honor, can we approach the Bench?

BENCH CONFERENCE

MR. PULLEN: Your Honor, I’m going to request a mistrial at this point. I think that the evidence that has been admitted is pure hearsay, and I think it is —
THE COURT: We think you opened the door, and your motion is denied. Okay.
(End of Bench Conference.)
BY MR. PULLEN:
Q Mr. Bailey, or Deputy Bailey, do you have any records with you today in Court that would indicate any source of any complaint, information, made against Mr. Bowser?
A No, sir.
Q Do you have the names and addresses of any persons that we can contact right now and ask them to come in to verify what you said from the witness stand?
A No, sir, I cannot reveal that person.
Q Do you have the names and addresses of anybody who has given you information concerning Mr. Bowser’s activities?
A No, sir.
Q You do not?
A No addresses.
Q Do you have the names?
A I can’t reveal that source right now.
MR. PULLEN: Your Honor, I’m going to ask that the witness be directed to answer the question.
THE COURT: Overruled. We’re not going to require him to. Go ahead. You have an objection.
BY MR. PULLEN:
Q You haven’t subpoenaed any of those people to the Court to testify here today, have you?
A I didn’t have to subpoena those poeple to Court to testify.
Q But you can repeat what they told you from the witness stand?
MS. O’CONNOR: Objection. He’s arguing with the witness.
THE COURT: He did that because of what you opened up on your last cross-examination. Ask him another question.
MR. PULLEN: Your Honor —
THE COURT: You have your objections.
MR. PULLEN: I have no further questions of this witness.
THE COURT: Anything further?
MS. O’CONNOR: No, sir.
THE COURT: Stand down.

Bishop, J.,

concurring:

Because I agree with the conclusion reached by the majority I concur in this Court’s reversal of the judgments against the appellant. It appears clear to me, however, that the prejudicial exchange contained in Appendix A, which took place in the jury’s presence, provided a far more compelling reason to remand for a new trial than do the reasons set out in the majority opinion. I especially note the following colloquy:

"THE COURT: Mrs. O’Connor, in what way has he opened the door?
MS. O’CONNOR: He asked David [deleted] 'As far as you know, Jimmy Bowser wasn’t selling marijuana on the streets, was he?’ And I have somebody who knows that he was.
MR. PULLEN: I’m going to object, your Honor.
THE COURT: Overruled. We’ll just have to let some appellate court someday take this up.”

That exchange was of such a highly prejudicial nature that the jury having heard it could not thereafter render an impartial verdict. Dobbs v. State, 148 Md. 34, 48-49, 129 A. 275 (1925); Reddy v. Mody, 39 Md.App. 675, 685, 388 A.2d 555, cert. denied, 283 Md. 736-738 (1978). Defense counsel, recognizing the prejudicial nature of the exchange, repeatedly objected and moved for a mistrial. This motion should have been granted because "it can be inferred with a reasonable probability that [the exchange] affected the jury’s determination in this case.” Reddy, supra at 685. I would not have found it necessary to reach the issues upon which the majority based its opinion.

      . At the time of the appellant’s trial, Andrews had pled guilty to his part in the instant transactions.

      . The transcript of this portion of the trial is set out in Appendix A.

      . See Appendix A.

      . The State had conceded in the trial court that there was sufficient evidence of inducement to raise the defense of entrapment and further, that since the issue of entrapment was properly submitted to the jury, the State had the burden of proving beyond any reasonable doubt that the defendant was not entrapped. This concession was made pursuant to language by the Court of Appeals in State v. Evans, 278 Md. 197, 362 A.2d 629 (1976), where that court referred to this Court’s decision in Evans v. State, 28 Md. App. 640, 349 A.2d 300 (1975), and adopted our analysis that:
      "[with] any defense theory of justification, excuse or mitigation, including ... entrapment ... a jury instruction ... which cast upon the defendant the burden of persuasion by a preponderance of the evidence... was constitutionally defective... since it shifted the burden to the defendant to prove justification or excuse ....” State v. Evans, supra at 207.

        See also Park, The Entrapment Controversy, 60 Minn.L.Rev. 163, 262-63 (1971), where the author states:
      "modern case law indicates that while the defendant has the burden of production on the issue of inducement, he does not have the burden of persuasion. To raise an issue for the jury, he need only produce, through government witnesses or otherwise, some evidence that government agents induced the offense. He need not persuade the trial judge that the evidence is credible. Nor is he required to persuade the jury. Almost every federal court of appeals that has considered the issue has disapproved jury instructions placing the burden of persuasion upon the defendant on the issue of inducement.” (Footnotes omitted.)

        But see, Harford County Education Association v. Board of Education, 281 Md. 574, 590-91, 380 A.2d 1041 (1977); Dravo v. State, 46 Md. App. 622, 626, 420 A.2d 1012 (1980).

      . Morton v. State, 284 Md. 526, 397 A.2d 1385 (1979); State v. Boone, 284 Md. 1, 393 A.2d 1361 (1978).

      . See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958), where the Supreme Court found entrapment as a matter of law based, in part, on requests by the informant to the defendant over a period of four months, during which time the informant repeatedly told the defendant that he was suffering and needed drugs. In the instant case, David’s importuning was not bolstered by appeals to sympathy, need, etc.

      . While appellant objected to David’s testimony concerning Andrews’ referral on the grounds of hearsay, he does not raise this issue on appeal and it may well be admissible as substantive evidence under the co-conspirator exception to the hearsay rule. See Mason v. State, 18 Md.App. 130, 136-37, 305 A.2d 492 (1973), cert. denied, 269 Md. 763 (1973), cert. denied, 416 U.S. 907, 94 S.Ct. 1612, 40 L.Ed.2d 111 (1974); Irvin v. State, 23 Md.App. 457, 471-73, 328 A.2d 329 (1974), aff'd on other grounds, 276 Md. 168, 344 A.2d 418 (1975).

      . We note that the testimony of Deputy Bailey concerning the appellant’s predisposition was introduced as part of the State’s case in chief, rather than in rebuttal. Evidence may be offered to rebut the defense of entrapment, even in the State’s case in chief, when it is clear, as in the instant case, that the defense will rely on a claim of entrapment and that the issue will be submitted to the trier of fact. See United States v. Brown, 453 F.2d 101 (8th Cir. 1971), cert. denied, 405 U.S. 978, 92 S.Ct. 1205, 31 L.Ed.2d 253 (1972); People v. Mann, 31 N.Y.2d 253, 288 N.E.2d 595, 336 N.Y.S.2d 633 (1972).

      . See, e.g., United States v. Tyson, 470 F.2d 381 (D.C. Cir. 1972), cert. denied, 410 U.S. 985, 93 S.Ct. 1512, 36 L.Ed.2d 182 (1973); United States v. Sherman, 240 F.2d 949 (2nd Cir. 1957), rev’d on other grounds, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Carlton v. United States, 198 F.2d 795 (9th Cir. 1952); State v. Astorga, 26 Ariz.App. 133, 546 P.2d 1142 (1976); Powers v. State, 380 N.E.2d 598 (Ind.App. 1978); Commonwealth v. Miller, 361 Mass. 644, 282 N.E.2d 394 (1972); State v. Lynard, 294 N.W.2d 322 (Minn. 1980); People v. Mann, 31 N.Y.2d 253, 288 N.E.2d 595, 336 N.Y.S.2d 633 (1972); State v. DeWolfe, 402 A.2d 740 (R.I. 1979).

      . Berlin v. State, 12 Md.App. 48, 277 A.2d 468 (1971), cert. denied, 263 Md. 710 (1971). See also, Admissibility of Evidence of Other Offenses in Rebuttal of Defense of Entrapment, 61 A.L.R.3d 293 (1975), and cases collected therein. Of course the evidence of other criminal acts may be subject to challenge because of remoteness from the offense charged, the irrelevant nature of the acts, or the unreliability of the evidence. See United States v. Ambrose, 483 F.2d 742 (6th Cir. 1973); DeJong v. United States, 381 F.2d 725 (9th Cir. 1967).

      . The Webster majority opinion did indicate a possible exception to the general prohibition and indicated that in "rare circumstances” the government’s "good faith, motive, and reasonableness” may assume unusual significance over and above the entrapment defense. Where a defendant asserts that a particular agent had entrapped him due to personal prejudice or personal animosity, in such "rare circumstances” hearsay might be admissible in rebuttal to establish that the agent acted with proper motives in pursuing the defendant. Webster, supra at 351.

      . 29 Crim.L.Rep. 2385 (1981).


source: Caselaw Access Project

author: Lowe, J.,

license: Public Domain

text:
    NATIONWIDE MUTUAL INSURANCE COMPANY v. WILLIAM JACKSON WEBB
    [No. 513 (On Remand),
    September Term, 1979.]

      Decided January 6, 1982.

    Submitted on remand to Lowe, Mason and Liss, JJ.
   Lowe, J.,

delivered the opinion of the Court.

Pursuant to the opinion of the Court of Appeals of Maryland, No. 11, September Term, 1980, filed November 6, 1981, [291 Md. 721, 436 A2 465 (1981).] our judgment in the case of Nationwide Mutual Insurance Company v. William Jackson Webb, No. 513, September Term, 1979, was vacated and the case remanded to us to reconsider our own remand under Md. Rule 1071.

Upon reconsideration in light of the Opinion of the Court of Appeals, it is our present judgment that the judgment of the Circuit Court for Wicomico County be affirmed without remand.

Judgment affirmed.

Costs to be paid by appellant.


author: Getty, J.,

text:
    ALAN G. STAHL et ux. v. JOSEPH M. ROULHAC and THOMAS G. PETER, Substitute Trustees et al.
    [No. 93,
    September Term, 1981.]

      Decided January 6, 1982.

    The cause was argued before Thompson, Liss and Bishop, JJ., and James S. Getty, Chief Judge of the Fourth Judicial Circuit, specially assigned.

      Thomas A. Garland, with whom was Terry B. Blair on the brief, for appellants.

      Roger D. Redden, with whom were David M. Funk and Thomas F. Ireton, on the brief for appellee James W. Rouse & Company. Robert E. Wieder on the brief for appellees Better Built Masonry and Emory N. Stull, Inc.
   Getty, J.,

delivered the opinion of the Court.

This case arises from a mortgage foreclosure proceeding instituted in the Circuit Court for Howard County on August 25, 1978. The instrument foreclosed upon was a First Deed of Trust executed March 15,1977, between Tailored Homes, Inc., and James W. Rouse and Company, Inc., covering several lots in a development known as "Eagles Loft” in Howard County. Aggrieved by the Special Auditor’s distribution of the surplus proceeds are Alan G. Stahl and Jessie D. Stahl, his wife, contract purchasers from Tailored Homes of Lot No. 18.

STATEMENT OF FACTS

On September 4, 1977, the Stahls entered into an Agreement of Sale with Tailored Homes for the purchase of Lot 18 and the construction by the seller of a house thereon for the total sum of $110,000. A down payment of $10,100 was made with the balance due at the time of settlement.

At the time of the Agreement of Sale, Lot 18 was subject to a First Deed of Trust executed by Tailored Homes to Rouse to secure a land acquisition loan. On January 4, 1978, Tailored Homes entered into a Second Deed of Trust with Rouse to cover the cost of construction of homes previously contracted for on Lots 13, 18 and 19. This Second Deed of Trust was taken by Rouse with knowledge of the Agreement of Sale between Tailored Homes and the Stahls. The existence of these contracts and loan commitments form the principal basis for the construction loan from Rouse to Tailored Homes.

Tailored Homes defaulted on the land acquisition loan prior to completion of the Stahl home on Lot 18. At the foreclosure sale the Stahls purchased Lot 18 for the sum of $119,000. After satisfaction of the debt secured by the First Deed of Trust a surplus remained in the amount of $101,781.10. The special Auditors distributed to the Stahls their down payment of $10,100 and to Rouse $73,690.97 in satisfaction of its claim under the Second Deed of Trust securing the construction loan. The remaining surplus was distributed to other claimants. The other lots, 7, 13 and 19, were also sold, but those transactions are not material to the issues raised herein.

The Stahls filed two claims. The first set forth their contract purchaser position claiming their right to the equity of redemption of Tailored Homes under the First Deed of Trust. The second was for the $10,100 down payment representing a partial judgment the Stahls were entitled to in an action against Tailored Homes for breach of contract.

THE ISSUE

Where a second mortgagee has actual knowledge of an existing contract for the sale of that property and the first mortgage is thereafter foreclosed, what are the rights of the contract purchaser and the second mortgagee to the surplus resulting from the foreclosure.

THE LAW

Rouse concedes that by reason of its prior knowledge of the Stahl contract at the time of the Second Deed of Trust, a priority claim exists in favor of the Stahls for the $10,100 contract deposit as a "Vendees Lien”. Authority for this prior lien is set forth in Gribble v. Stearman & Kaplan, Inc., 249 Md. 289 (1968), Gerber v. Karr 231 Md. 180 (1963) and Spruell v. Blythe 215 Md. 117 (1957) wherein the Court of Appeals recognized that one who purchases real property under an executory contract of sale is entitled, in equity, to a lien on the land to the extent of payments made on the purchase price. This equitable lien is enforceable not only against the seller, but also against any person who subsequently acquires an interest in the property with knowledge of the existing contract, Gribble, supra.

The Stahls contend that Rouse, having knowledge of the prior contract of sale, is not a bona fide purchaser and is not entitled to any of the surplus. They further assert that if they are limited to their equitable lien, they are entitled to reimbursement for amounts expended by them toward completion of the property in addition to the down payment of $10,100. Had they been permitted to present evidence of these expenditures in the Court below, their claim would amount to $45,629.89, including:

$10,100.00 . Deposit
8,129.60 . Cash options
4.212.00 . Addl. price at foreclosure
1,878.29 . Int. from forecl. to settlmt.
14,250.00 . Completion of contract
2.500.00 . Driveway per contract
3.960.00 . Sellers VA points
600.00 . Tax loss from rental
$45,629.89

In support of their claim that Rouse is not entitled to any of the surplus, the Stahls rely on Gore v. Condon 82 Md. 649 (1895), wherein the Court ruled that a party who takes a mortgage knowing that the property has been purchased and partly paid for acquires no right which he can enforce against either the property or the contract purchaser.

Gore, however, is factually distinguishable from the present case. The mortgage in that case was not taken to secure any loan to improve the property and at the time of the attempted foreclosure the contract purchaser had fully performed and title had been conveyed to her. Briefly stated, the facts in Gore establish that a father contracted to sell his daughter an improved property. She took possession and made all scheduled payments thereon. Prior to full performance, the father executed a mortgage for no monetary consideration to a man who knew that the daughter was living in and paying for the property. After receiving a deed from her father’s executor, the daughter was confronted with an attempt by the mortgagee to foreclose. Dismissal of the daughter’s bill in equity to enjoin the foreclosure and annul the mortgage was reversed by the Court of Appeals.

A careful reading of Gore does not establish that a mortgagee taking with knowledge of a prior contract of sale is precluded from asserting any claim to a surplus after foreclosure. Such a result would lead to unjust enrichment of the contract purchaser at the expense of the mortgagee who has provided the funds to improve the property. Permitting the Stahls to obtain a property they contracted to buy for $110,000 for the down payment of $10,100 would be totally inequitable.

A brief review of Maryland cases dealing with the issues herein reveals the following:

Grayson v. Buffington 233 Md. 340 (1963), cited by the Stahls, recognizes that one who purchases real property with actual knowledge of prior equities is not protected as a bona fide purchaser, but such a purchaser takes the property subject to the known equities which are enforceable against him to the same extent that they are enforceable against the vendor. In accord, Westpark v. Seaton Land Co. 225 Md. 433, Blondell v. Turnover 195 Md. 251, Lissau v. Smith 215 Md. 538.

In Irvington Fed. Savings & Loan v. West 194 Md. 211 (1950), the Court of Appeals determined that a vendee’s lien was not entitled to priority over a subsequent mortgage in the absence of actual or constructive notice of the existing contract when the mortgage was executed. By implication, if a mortgagee does have knowledge of an existing contract of sale, the mortgagee’s interest is subject to the equitable lien of the contract purchaser. This rationale is consistent with the decision in Grayson, supra, and with the result reached herein by the Circuit Court for Howard County. It is clear, therefore, that the mortgagee with notice is not denied the right to share in the surplus, but the mortgagee’s claim is inferior to the vendee’s lien.

Having determined that the vendee’s lien takes predence over the claim asserted by Rouse under the Second Deed of Trust due to the knowledge of the existence of the prior contract, admitted by Rouse, we turn to the question of what disbursements may be appropriately included in determining the value of the equitable lien.

The Court of Appeals in Gribble v. Stearman 249 Md. 289 (1968), held that a vendee is entitled to an equitable lien on land which is the subject of the sales contract to the extent of the payments made on the purchase price; that the lien arises only in the event that the contract, through the vend- or’s fault, is not consummated. The Stahls contend that the only amount in issue in Gribble was the down payment and that case, therefore, is not authority for limiting the recovery to the initial deposit. If, however, the Court of Appeals had intended that a vendee’s lien should extend to all losses incurred by a contract purchaser rather than a return of money paid on the contract it could have so indicated; it did not.

A return of deposit was similarly ordered in Wayne Bldg. & Loan Co. v. Yarborough 228 N.E. 2d 841 (Sup. Ct. of Ohio) 1967, wherein that court determined that the equitable lien of the vendee is based upon money paid on the contract, not simply on the contract itself. Analysis of the authorities confirms this conclusion. See Palmer v. Crews Lumber Co. 510 Pac. 2d 269 (Okla.) 1973, National Indemnity Co. v. Banks 376 Fed 2d 533 (5th Cir. 1967), Annot. 82 ALR 3d 1040.

Applying the rule stated in Grayson, supra, to the facts herein, the "known equities” chargeable to Rouse are set forth in the contract. An examination of that contract would reveal that the Stahls had paid $10,100 toward the purchase price of a lot and house to be constructed with a balance due upon completion of $95,200.00. By addendum the total contract price was raised to $110,000.00 due to additional improvements. The contract further discloses, paragraph 9, that in the event the seller fails to complete the dwelling or deliver marketable title, the seller’s liability shall be limited to the return of the buyer’s payments hereunder.

The "known equities” when Rouse executed the Second Deed of Trust, therefore, consisted of the deposit made by the Stahls. Rouse was under no obligation in determining "known equities” to seek out the purchasers to determine if any private agreements had been negotiated between the seller and the purchaser, or if the contract purchaser had voluntarily expended sums not provided for in the contract. The Circuit Court for Howard County properly refused any testimony of the Stahls’ losses beyond the deposits made. Finding no error in the distribution made by the Special Auditors, we affirm.

Judgment affirmed.

Costs assessed to appellants.


author: Morton, J.,

text:
    JONG HEE PARK et al. v. UNITED STATES LINES, INC. et al.
    [No. 266,
    September Term, 1981.]

      Decided January 6, 1982.

      The cause was argued before Morton, Couch and MacDaniel, JJ.

      Paul D. Bekman, with whom were Daniel S. Katz and Kaplan, Heyman, Greenberg, Engelman & Belgrad, P.A. on the brief, for appellants.

      Donald A. Krach, with whom were Niles, Barton & Wilmer on the brief, for appellee I.T.O. John H. West, III, with whom were Kieron F. Quinn, M. Hamilton Whitman, Jr. and Ober, Grimes & Shriver on the brief, for appellee United States Lines, Inc. James R. Eyler and Miles & Stockbridge on the brief for appellee Clark. David W. Skeen and Constable, Alexander, Daneker & Skeen on the brief for appellees Svendborg, Moller and Maersk.
   Morton, J.,

delivered the opinion of the Court.

This appeal presents for resolution a question of first impression in this State. We must decide whether a vessel berthed in port and a stevedoring concern employed to unload it have a duty to warn land-based longshoremen of bad weather which might render hazardous unloading operations, and to suspend unloading operations until such unsafe conditions no longer exist.

It appears that on March 21,1976, two container ships, the S.S. American Legend and the S.S. Albert Maersk, were berthed or in the process of being berthed in adjacent slips at the Maryland Port Administration’s (hereinafter M.P.A.) facility in Dundalk, Maryland, and were in the process of being or were about to be unloaded through the use of M.P.A.’s container handling cranes. At approximately 1:15 p.m. on that day two cranes assigned to the S.S. American Legend were blown off the pier and into the water by gusting high winds. Chang Lim Park and Earl Wayne Bridges, the two M.P.A. employees manning the cranes, were killed.

A second amended declaration was filed by the personal representatives of the estates of Park and Bridges by their surviving spouses; and for the benefit of their surviving children and for the State Accident Fund.

The named defendants were United States Lines, Inc., and United States Lines Company (hereinafter U. S. Lines), owners and/or agents for the owners of the S. S. American Legend (hereinafter American Legend) over which vessel the decedents were positioning their cranes when the accident occurred; I. T. O. Corporation of Baltimore (hereinafter I.T.O.), a stevedoring concern employed by U. S. Lines to unload cargo from the American Legend; A/S D/S Svendborg; D/S af A/S; Quivira Shipping Company Ltd.; Maersk Line Agency, Inc., owners and/or agents of the owners of the S. S. Albert Maersk (hereinafter Albert Maersk), the vessel berthed next to the American Legend at the time of the accident; Moller Steamship Company, Inc., which employed stevedores to unload the Albert Maersk; and John T. Clark and Son of Maryland, Inc. (hereinafter Clark & Son), stevedores employed to unload the Albert Maersk.

The facts as finally alleged, after demands for particulars, are not complex. The declaration alleged, in pertinent part:

"On or about March 21, 1976, the SS ALBERT MAERSK was berthed at Berth 11 of the Dundalk Marine Terminal and the S. S. AMERICAN LEGEND was berthed at Berth 12 at the Dundalk Marine Terminal. The owners of the respective vessels, and/or the agents of the owners contracted with the Maryland Port Administration for use of the respective berths and the equipment and facilities appurtenant thereto for the unloading and loading of the vessels, including the rental and use of container handling cranes. Crane numbers 4621 and 4622 operated and manned by the Plaintiffs’ Decedents, Chang Lim Park and Earl Wayne Bridges, were assigned to the S. S. AMERICAN LEGEND beginning at 12 noon on March 21,1976. Crane numbers 4619 and 4620 were assigned to the SS ALBERT MAERSK beginning at 8:00 a.m. on March 21, 1976. At approximately 1:15 p.m. on March 21,1976, while assigned to operate and man the cranes used for the loading/unloading operations for the respective vessels, crane numbers 4621 and 4622 were caused to fall off the pier and into the water adjacent to Berth #12 as a result of the fact that crane numbers 4619 and 4620 were caused to move from their positions where they were operating, causing crane number 4619 to strike the mast of the SS ALBERT MAERSK and crane number 4620 to strike the mast of the S. S. AMERICAN LEGEND and further resulting in crane 4619 and/or crane 4620 striking the crane in which Earl Bridges was the operator causing same to fall off the pier and into the water. As a result, the Plaintiffs’ decedents, Chang Lim Park and Earl Wayne Bridges were killed.
That at the time of the happening of this occurrence, the decedents, Chang Lim Park and Earl Wayne Bridges were employed by the Maryland Port Administration as crane operators. ... That the [owners and/or agents of the American Legend], through their agents, officers and servants, supervised and had control over the loading and unloading of cargo with respect to ... the American Legend ..that [they] supervised and controlled the work being performed by Plaintiffs’ decedents; that [they] knew, or by the exercise of reasonable care should have known of the dangerous wind and weather conditions in the vicinity of the Maryland Port Administration facilities at the time of the occurrence; that said Defendants, knowing of the weather conditions existing at the time, and knowing that such conditions presented a hazard and a danger to persons operating under their control and supervision, including the Plaintiffs’ decedents, had the duty and responsibility to suspend the operations then and there being performed; that despite the aforesaid knowledge, the said Defendants continued to perform work and operations and failed to warn the Plaintiffs’ decedents of the impending danger and failed to shut down or suspend the work and operations then being performed.
That it was the duty and responsibility of the Defendants individually, and jointly, to safely and properly perform loading and unloading operations at said location and to further suspend and/or terminate said work and/or operations if weather conditions were of such a character so as to endanger life or property including cranes 4621 and 4622, which were manned by the decedents and which were intimately involved in the work and operations then being performed, and to warn or otherwise notify the decedents, their supervisors and/or employer of the weather danger which they knew or should have known was approaching, and to safely, properly and correctly monitor the weather conditions in the area of the occurrence where cranes 4621 and 4622 were being operated for the safety of their property and of the lives of all persons engaged in the performance of work in the vicinity of the cranes #4621 and 4622.
The deaths ... were caused by the negligence of the Defendants ... their agents, servants and employees in causing and permitting the Plaintiffs’ decedents to man said cranes under the conditions then and there existing, and as a result of [their] negligence ... in failing to shut down and/ or terminate loading and/or unloading operations ... [and] in failing to warn the Plaintiffs’ decedents of the dangerous conditions... [and] in failing to heed the warnings of dangerous weather conditions which were likely to exist ... and [in failing] to restrict access to the cranes by all personnel until such time as it would be safe to man same; and ... in causing and permitting the SS AMERICAN LEGEND and SS ALBERT MAERSK to be berthed and located in said locations under the then existing circumstances ....”

The declaration alleged the same control and duties on the part of: I.T.O. by virtue of the fact that it "was responsible for the loading and unloading of cargo on the American Legend”; the owners and agents of the Albert Maersk by virtue of the fact that they had similar "control over the loading and unloading of cargo with respect to the vessel S.S. Albert Maersk”; and Clark & Son by virtue of the fact that it "was responsible for the loading and unloading of cargo on the SS Albert Maersk.”

By way of demurrer each defendant challenged the legal sufficiency of the claims, stating that the declaration as amended failed to allege a cognizable duty of care. The Superior Court of Baltimore City (Bothe, J.), in finding the correlative rights and duties no more apparent in the second amended declaration than the two which preceded it, concluded that the plaintiffs failed to state a cause of action and sustained the demurrers without leave to amend.

It is first to be noted that the trial judge in ruling on the demurrers had to assume the facts were as the plaintiffs alleged. Plaintiffs conceded at oral argument, however, that although the declaration indicated that the American Legend was already berthed and being unloaded at the time of the accident, in fact the vessel was just coming into port and the unloading operations had not yet begun.

As modified by this concession then, the facts are simply these: Park and Bridges were in the process of postitioning M.P.A.-owned, pier-based cranes over the American Legend, which cranes were then to be manned by employees of the stevedoring concern employed by the vessel to unload it, when the cranes were blown off the pier and into the water by gusting winds causing the deaths of Park and Bridges; and that no one in the employ of either the American Legend, the ship berthed at an adjoining berth, or the stevedoring companies employed to unload either vessel warned either Park, Bridges, or the M.P.A. of the dangerous weather conditions or suspended the hazardous unloading operations.

Assuming the facts to be true, the question for our consideration is whether they form the basis for a cause of action upon which relief may be granted.

Jurisdiction of Admiralty

Before we can answer the question posed, we must address the threshold issue of whether or not the appellees’ alleged negligence constitutes a maritime tort so as to require the application of maritime law.

Almost uniformly, the courts look to the situs of the injury in determining whether to invoke admiralty jurisdiction in matters of tort. See Moore’s, Federal Practice, Vol. 7A, Admiralty, pp. 3501-3601. However, the Extension of Admiralty Jurisdiction Act, 46 U.S.C. § 740, under which the plaintiffs seek to invoke maritime jurisdiction, provides for admiralty jurisdiction in "all cases of damage or injury, to person or property caused by a vessel on navigable water, notwithstanding that such damage or injury be done or consummated on land.” (Emphasis added.)

Although earlier decisions disagreed on whether the Extension of Admiralty Jurisdiction Act applied to damage not directly and physically produced on the land by a vessel, see, e.g., Hovland v. Fearnley & Eger, 110 F.Supp. 657, 658 (E.D.Pa. 1952), Clinton v. Joshua Hendy Corp., 285 F.2d 199, 201-202 (9th Cir. 1960), cert. denied, 366 U.S. 932 (1960); the Supreme Court has interpreted the Act as extending jurisdiction to cases where an injury on land is caused by, among other things, the ship’s crew. Gutierrez v. Waterman S. S. Corp., 373 U.S. 206 (1963).

The Supreme Court stated in Gutierrez, at 209-210:

"There is no distinction in admiralty between torts committed by the ship itself and by the ship’s personnel while operating it, any more than there is between torts 'committed’ by a corporation and by its employees.... [T]he case is within the maritime jurisdiction under 46 U.S.C. § 740 when, as here, it is alleged that the shipowner commits a tort while or before the ship is being unloaded, and the impact of which is felt ashore at a time and place not remote from the wrongful act.” (Footnote omitted.)

In Canadian Aviator, Ltd. v. U. S., 324 U.S. 215, 224 (1945), it was stated:

"The use of the phrase 'caused by a ... vessel’ constitutes an adoption by Congress of the customary legal terminology of the admiralty law which refers to the vessel as causing the harm although the actual cause is the negligence of the personnel [through their acts and omissions] in the operation of the ship.”

Because the plaintiffs allege that the deaths were caused, at least in part, by the negligence of personnel of the American Legend and the Albert Maersk, the action against the various owners and agents of the vessels is within the admiralty jurisdiction by virtue of the Extension of Admiralty Jurisdiction Act.

With regard to the claim for negligence against the stevedoring companies — I.T.O. and Clark & Son — the United States District Court of Maryland’s decision in Maryland Port Administration v. S. S. American Legend, 453 F. Supp. 584 (1978), provides guidance. In that case which involved a claim for property damage brought by the M.P.A. for the very same incident that forms the basis of the instant action, Judge Harvey, for the Court, quoted the Fifth Circuit in Gebhard v. S. S. Hawaiian Legislator, 425 F.2d 1303, 1306-07 (9th Cir. 1970), at 588:

"[T]he question is whether the Extension Act, in giving jurisdiction over claims for injury 'caused by a vessel,’ is restricted to jurisdiction over suits against the person responsible for the vessel’s torts or whether it extends to all claims arising out of a vessel-caused injury, regardless of the parties sought to be charged.
We think the latter is the proper construction. The Act by its terms applies to 'all cases’ where the injury is 'caused by a vessel on navigable water.’ It imposes no other requirements. On its face, therefore, the Act seems to base jurisdiction not on the character of the parties, as in diversity, but on the nature of the facts giving rise to the cause. And in view of the savings in time and money — both to litigants and to the courts — that result from consolidation in one action of all claims arising out of a single injury, we see no reason why we should depart from the literal meaning of the Act.”

We are satisfied that the tort action against the remaining appellees is also within the admiralty jurisdiction by virtue of the Admiralty Extension Act.

Article 28 of the United States Code, § 1333, reads: "The district courts shall have original jurisdiction, exclusive of the courts of the States, of. . . any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.” The "saving to suitors” clause has been interpreted to mean that maritime law can be applied in state court, see Romero v. International Term. Co., 358 U.S. 354, 362-63 (1959), and where the action is brought in state court, maritime law must be applied. See Carlisle Packing Co. v. Sandanger, 259 U.S. 255, 259 (1922). Thus, although the plaintiffs have decided to proceed outside the admiralty of the United States District Courts, they take with them the features peculiar to admiralty law. Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 408-10 (1953), including the doctrine of comparative negligence.

The Vessel Owners’ Standard of Care Under Maritime Law

General maritime law, a judicially formulated common law of admiralty recognized as "self-evident” at the time of the adoption of the United States Constitution and adopted by the United States maritime courts, has traditionally afforded longshoremen a cause of action against allegedly negligent shipowners for injuries caused by a vessel. Kermarec v. Compagnie Generale Transatlantique, 358 U.S. 625 (1959); Atlantic Transport Co. v. Imbrovek, 234 U.S. 52 (1914); Sieracki v. Seas Shipping Co., 149 F.2d 98 (3rd Cir. 1945), aff'd. 328 U.S. 85 (1946). The early cases involved longshoremen injured while working on the vessel. See, e.g., Leathers v. Blessing, 105 U.S. 626 (1881). It is from this general maritime law, combined with applicable acts of Congress such as the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. §2 901 et seq., that the definition of maritime negligence is derived.

In 1927 Congress enacted the Longshoremen’s and Harbor Worker’s Compensation Act which provided the injured longshoreman, or his estate, with the exclusive remedy against his employer, preserving meanwhile the right to bring an action against any third party who may have caused the injury. Negligence had been the primary basis for such actions under the Act (except for the period between 1946 and 1972 when the basis of such recovery was "unseaworthiness” ) and is now the only basis for recovery under the Act.

Section 905 (b), as amended by the 1972 Amendments to the Act, provides:

"In the event of injury to a person covered under this chapter caused by the negligence of a vessel, then such person, or anyone otherwise entitled to recover damages by reason thereof, may bring an action against such vessel as a third party in accordance with the provisions of section 933 of this title, and the employer shall not be liable to the vessel for such damages directly or indirectly and any agreements or warranties to the contrary shall be void. If such person was employed by the vessel to provide stevedoring services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing stevedoring services to the vessel. If such person was employed by the vessel to provide ship building or repair services, no such action shall be permitted if the injury was caused by the negligence of persons engaged in providing ship building or repair services to the vessel. The liability of the vessel under this subsection shall not be based upon the warranty of seaworthiness or a breach thereof at the time the injury occurred. The remedy provided in this subsection shall be exclusive of all other remedies against the vessel except remedies available under this chapter.”

We recognize that the Act and cases decided under it are not binding under the circumstances here in that the Act does not cover "a[n] officer or employee of the United States or any agency thereof or of any State or foreign governments or of any political subdivision thereof.” We note, however, that the reason for this exception was the doctrine of sovereign immunity and, as such, should have no effect on such third party suits as here where appellants are attempting to recover damages, not from the state agency which employed the decedents, but rather from the allegedly negligent vessel owners and stevedoring companies. For this reason, we find the post amendment cases proceeding under § 905 persuasive authority for our purposes — defining negligence.

Although § 905 clearly preserves the injured longshoreman’s third party action against the vessel for negligence, the Act itself does not specify the appropriate standard of care owned by the vessel owner to a longshoreman involved in the process of loading or unloading cargo. While the legislative history of the Act is replete with references to "land-based” standards, the treaties differ as to what standard should be applied.

Several circuits have decided in favor of land-based principles. The Courts of Appeals of the Second, Fourth, and Fifth Circuits have defined negligence under § 905 (b) in terms of the Restatement (Second) of Torts.

In Anuszewski v. Dynamic Mariners Corp. Panama, 391 F.Supp. 1143 (D.Md. 1975), aff'd. 540 F.2d 757 (1976), cert. denied, 429 U.S. 1098 (1977), a longshoreman was injured when a beam which supported a hatch cover was dislodged during unloading operations and fell on him. The hatch cover was supported by four beams which were usually locked into place by a series of pins, but on this occasion they were not. The longshoreman knew that the pins were unfastened and informed his foreman to this effect. He was told to go back to work, that it would be corrected. The Fourth Circuit held for the defendant shipowner once it had found that the danger was open and obvious to the longshoreman and that the vessel owner could reasonably have anticipated that the longshoreman would protect himself by, among other things, fastening the beams.

The Court, viewing the longshoreman as an invitee of the vessel owner, found controlling the established principles of negligence tort law set out in §§ 343 and 343A of the Restatement (Second) of Torts. Under these sections of the Restatement, the landowner will be liable to his invitees for his failure to exercise reasonable care to protect them against a dangerous condition on the land if (1) the owner knows or should know of the condition, should know it involves an unreasonable risk of harm and expects that the invitee will not discover it, or (2) the owner expects that the danger, though known and obvious to the invitee, will not be protected against by the invitee or will cause harm despite such obviousness.

Where, as in Anuszewski, the longshoreman might reasonably be expected to protect himself against the open and obvious danger, the vessel owner will be relieved of liability. Accord, see Frasca v. Prudential-Grace Lines, Inc., 394 F. Supp. 1092 (D.Md. 1975). Where, however, the vessel owner could reasonably anticipate that the longshoreman will not protect himself against even an obvious danger, the vessel owner may still be at least partially liable in negligence, notwithstanding the control exercised by the longshoreman. See Napoli v. Hellenic Lines, 536 F.2d 505 (2d Cir. 1976).

Napoli was injured aboard a ship when he slipped from snow-covered plywood boards which had been placed, unsecured, over drums to be unloaded. The Second Circuit, following §§ 343 and 343A, stated that "[w]here dangers are unreasonable, their obviousness, standing alone, should not necessarily relieve a [vessel owner] of all responsibility for their presence.” Napoli, at 508. The Court, giving illustrations, indicated that the vessel owner should anticipate, and would be liable for, harm despite its obviousness where a longshoreman could not fully appreciate the risk, such as when distracted, or where he could not "avoid the danger even though aware of it,” such as when "his duties as an employee may require his unavoidable exposure to it.” Napoli, at 508. In Napoli, at 509, it was said:

"[T]here was evidence from which a jury might conclude that the ship should reasonably have anticipated that Napoli would not be able to avoid the danger despite its obviousness. The thrust of Napoli’s testimony was that he had to stand on the plywood in order to carry out his duties of giving signals to the winchmen. Thus, it might be argued that if this was the only place for Napoli to work and carry out his job, the vessel might reasonably anticipate that he would use it despite its obvious danger, since the only alternatives would be to leave his job or face trouble for delaying the work. Should the jury be persuaded by this argument and find that the shipowner was negligent in not correcting the open and obvious danger but that the plaintiff was contributorily negligent, it would apply the doctrine of comparative negligence to reduce the shipowner’s liability proportionately.”

Several circuits have objected to the application of Restatement Sections 343 and 343A, adopting instead a broader "reasonable care under the circumstances” approach. These circuits note that the traditional doctrines of contributory negligence and assumption of risk might bar any recovery by the longshoremen despite the long standing admiralty concept of comparative negligence. See Pope & Talbot, Inc. v. Hawn, supra, 409. The Ninth Circuit used in Santos v. Scindia Steam Navigation Co., 598 F.2d 480 (9th Cir. 1979), and the Supreme Court approved in Scindia Steam Navigation Co. v. Santos, 49 U.S.L.W. 4405 (1981), this standard of reasonable care:

"A vessel is subject to liability for injuries to longshoremen working on or near the vessel caused by conditions on the vessel if, but only if, the shipowner (a) knows of, or by the exercise of reasonable care would discover, the condition, and should realize that it involves an unreasonable risk of harm to such longshoreman, and (b) the shipowner fails to exercise reasonable care under the circumstances to protect the longshoreman against the danger.”

Just as "the special characteristics of [admiralty law] preclude unthinking adherence to § 343A alone or to a literal reading thereof,” Lubrano v. Royal Netherlands S. S. Co., 572 F.2d 364, 372 (1978), so this Court shall let those sections of the Restatement cited us serve only as general guidelines to illustrate the standard of reasonable care under all the circumstances.

Duty Imposed on United States Lines by the Standard of Reasonable Care

It must first be noted that because the defenses of assumption of risk and contributory negligence are not available in maritime actions, U. S. Lines cannot defend on the ground that Park and Bridges should have refused to continue working in the face of the obviously dangerous weather conditions. See Scindia, supra, at 4411. We are concerned only with whether the "reasonable care” standard imposed on U. S. Lines a duty to warn the land-based longshoremen of the danger involved and to suspend unloading operations.

Because the injury here did not occur on premises owned or possessed by the vessel, the liability of U. S. Lines, in appellants’ view, is to be adjudged by the standards articulated with respect to duties owed by the employer or an independent contractor, the independent contractor in this case being the M.P.A. and its employer being the vessel.

As articulated in the Restatement (Second) of Torts, § 408, which applies to independent contractors:

"Except as stated in §§ 410-429, the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants.”

In assessing liability under the Restatement exceptions, §§ 409-415, the exception most favorable to appellants’ case is § 414, which reads:

"NEGLIGENCE IN EXERCISING CONTROL RETAINED BY EMPLOYER. One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care.”

Comment a, cited to this Court by appellants, states:

"[An employer of an independent contractor] may retain only the power to direct the order in which the work shall be done, or to forbid its being done in a manner likely to be dangerous to himself or others. Such a supervisory control may not subject him to liability under the principles of Agency, but he may be liable under the rule stated in this Section unless he exercises his supervisory control with reasonable care so as to prevent the work which he has ordered to be done from causing injury to others.” (Emphasis added.)

Appellants, citing Jamison v. Byers Co., 330 F.2d 657 (3rd Cir.) cert. denied, 379 U.S. 839 (1964), urge this Court to hold that the vessel owner’s authority to stop the unloading procedure was a retention of control sufficient to subject it to liability under § 414 for the consequences of its failure to do so. In response, U. S. Lines cites Hurst v. Triad Shipping Co., 554 F.2d 1237, 1251 (3rd Cir.) cert. denied, 434 U.S. 861 (1977), for the proposition that "the simple allegation that a shipowner had control over loading and unloading operations will not suffice to establish a duty to the employee of an independent contractor who is injured in the course of that work.” The Court in Hurst, quoting Comment c to § 414, found that the ultimate power to terminate work was not the kind of control contemplated by § 414:

"In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed.... There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.”

To hold otherwise would be inconsistent with Congress’ intention in enacting the Longshoremen’s Act to hold the vessel liable only for its own negligence. We think, however, that the longshoremen in Hurst were asking for infinitely more protection under § 414 than the appellants here. Under Hurst and Lubrano as well, the injured longshoremen were urging the courts to hold that the vessel owners’ general duty to stop operations could render them liable for any injury that occurred down the line once the longshoremen’s operations had begun.

Under the facts of this case, however, appellants are not attempting to render U. S. Lines the guarantor of the safety of all workmen against any accident for whatever reason. They only seek to hold U. S. Lines responsible in tort for their initial failure to suspend the operations when they clearly should have done so. In such circumstances as these, "control” in terms of the power to terminate operations is very significant.

We only .conclude, with regard to § 414 of the Restatement, that "while not irrelevant, [it] do[es] not furnish sure guidance.” Scindia Steam Navigation Co. v. Santos, supra, at 4408-09.

In deciding here what "reasonable care under all the circumstances” required of U. S. Lines, we bear in mind several points. First, it must be remembered that the Longshoremen’s Act is a remedial statute enacted to protect the longshoremen. As such, doubts should be resolved in favor of the longshoremen. See Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, rehearing denied, 444 U.S. 889 (1979).

More importantly, each party should bear the cost of his own negligence. The concept of comparative negligence is adopted in admiralty law so that the courts may inquire into the reasonableness of each party’s conduct under the circumstances. Thus, in addition to what appears to be the primary negligence of the M.P.A. in failing to suspend unloading operations when the weather conditions necessitated it, the vessel owner may also be partially responsible for his own failure to do so.

We cannot but conclude that U. S. Lines may be, in at least some part, liable for the consequences of its failure to call off unloading operations in the face of the perilous gusting winds. The burden on the vessel in calling for the suspension of the unloading operations was small relative to the probability and severity of harm in their continuation. This Court takes judicial notice of the fact that because a ship that is not moving is costing money, vessel owners are anxious to get their vessels into and out of port as expeditiously as possible. If they are not willing to deal with that cost, they must face responsibility for the human cost that results in their inaction.

The reasonableness standard, we think, imposes on a vessel coming into port the duty to call off unloading operations where such operations would be rendered hazardous by known or obvious weather conditions. That duty attaches at that point in time when the vessel owner reasonably believes preparations will begin on shore for the unloading of its own vessel. Whether U. S. Lines reasonably believed that port employees had begun such preparations is a factual question which can only be answered after a full trial on the merits of the claim.

The question for our consideration — whether the allegations of the second amended complaint form the basis for a cause of action upon which relief may be granted — must be answered affirmatively with regard to U. S. Lines. In negligence actions, a declaration need only allege, with certainty and definiteness, facts and circumstances sufficient to set forth a duty owed by the defendant to the plaintiff, a breach of that duty, and injury proximately resulting from that breach. Bramble v. Thompson, 264 Md. 518, 520-21 (1972); Read Drug & Chemical Co. v. Colwell Constr. Co., 250 Md. 406, 412 (1968).

When judged against these principles, it becomes clear that the declaration at issue has stated a cause of action against U. S. Lines. It sufficiently alleges a duty on the part of U. S. Lines to suspend the unloading operations begun by the M.P.A.’s employees, appellants’ decedents. That appellants used a conclusory term such as "control” in their declaration will not defeat its sufficiency.

There is also sufficient allegation that U. S. Lines’ failure to suspend operations was the proximate cause of the deaths of Park and Bridges. It is not necessary, as U. S. Lines suggests, that appellants contend that U. S. Lines "pushed, pulled or otherwise motivated the cranes.” It is sufficient that appellants allege that U. S. Lines owed a duty to suspend operations in the face of the wind conditions and to restrict access to the cranes; and that as a result of their failing to do so, appellants’ decedents, who were in the cranes during the wind conditions, were blown off the pier and into the water where they drowned.

For these reasons, we disagree with the trial court’s conclusion that appellants failed to state a cause of action in negligence against U. S. Lines.

Duty Imposed oti Remaining Appellees by the Reasonableness Standard

With regard to the remaining appellees, however, we conclude that the declaration is insufficient to state a cause of action.

As the Court of Appeals has stated regarding the sufficiency of a declaration in negligence:

"If the facts alleged in the declaration would lead reasonable men to unite in the conclusion that defendant has violated no duty owed the plaintiff, the court may declare as a matter of law that the declaration is insufficient to state a cause of action despite words therein which allege negligence, as a conclusion of the pleader.” W. B. Bradley, Inc. v. N. H. Yates, 218 Md. 263, 268 (1958).

We would agree that there is no such duty imposed on the remaining appellees and we so hold as a matter of law.

There is no relationship of any type between the M.P.A. or its employees and I.T.O., the stevedoring company employed by U.S. Lines to unload the American Legend. The M.P.A. and I.T.O. are separate and distinct independent contractors with altogether separate and distinct jobs. The only relationship that exists between the two is that I.T.O. contracted to use the M.P.A. cranes in the fulfillment of its contractual obligation to unload the American Legend. There is no duty owed by I.T.O. to the M.P.A. or its employees under these circumstances.

The joining of the owners and agents of the Albert Maersk, the ship docked at the adjoining pier, Moller Steamship Company, Inc., the company employing stevedores to unload the vessel, and Clark & Son, the stevedores employed to unload the Albert Maersk, seems to be a dragnet effort to include any conceivable defendants. No facts were alleged by appellants which would in any way show an obligation of the owners or agents of the Albert Maersk, or the stevedoring company employed to unload it. Their demurrers were properly sustained.

JUDGMENT AFFIRMED as to I.T.O. Corporation of Baltimore; Quivira Shipping Company, Ltd.; Moller Steamship Company, Inc.; A/S D/S Svendborg; D/S af 1912 A/S; Maersk Line Agency, Inc.; and John T. Clark and Son of Maryland, Inc.;

JUDGMENT REVERSED as to United States Lines, Inc., and United States Lines Company; and remanded for trial;

United States Lines, Inc., and United States Lines Company to pay one-half the costs; and appellant to pay one-half the costs.

      . See discussion in Gilmore & Black, Admiralty (1st ed.)§ 1-16 at 40-42.

      . Act of March 4, 1927, ch. 509, 44 Stat. 1424 (codified at 33 U.S.C. §§ 901-50 (1970).

      . Section 933, so redesignated by the 1972 Amendments to the Act, provides:
      "If on account of a disability or death for which compensation is payable under this chapter the person entitled to such compensation determines that some person other than the employer or a person or persons in his employ is liable in damages, he need not elect whether to receive such compensation or to recover damages against such third person.”

      . For earlier negligence cases, see Anderson v. Lorentzen, 160 F. 2d 173 (2d Cir. 1947); Grillo v. Royal Norwegian Govt., 139 F.2d 237 (2d Cir. 1943). Between 1946 and 1972, however, longshoremen brought their actions on the basis of "unseaworthiness” of the vessel rather than negligence because fault did not have to be shown. Seas Shipping Co. v. Sieracki, 328 U.S. 85, 90-94 (1946). The 1972 Amendments to the Longshoremen’s Act made negligence the exclusive remedy of the longshoreman against the vessel owner, however, by providing that liability of the vessel in such third party actions "shall not be based upon the warranty of seaworthiness or a breach thereof

      . The House Reports state that under the Act, "a vessel shall not be liable as a third party unless it is proven to have acted or have failed to act in a negligent manner such as would render a land-based third party in nonmaritime pursuits liable under similar circumstances.” Report of the House Education and Labor Committee, H.H.Rep. No. 1441, 92d Cong., 2d Sess., reprinted in [1972] U.S. Code Cong. & Adm. News 4698, 4704.

      . See G. Gilmore and C. Black, The Law of Admiralty, pp. 453-455 (1975); 1A E. Jhirad, Benedict on Admiralty §§ 111 et seq. (7th ed. 1977).

      . See Napoli v. Hellenic Lines, 536 F.2d 505 (2d Cir. 1976); Anuszewski v. Dynamic Mariners Corp. Panama, 391 F.Supp. 1143 (D.Md. 1975), aff'd, 540 F.2d 757; Gay v. Ocean Transport & Trading, Ltd., 546 F.2d 1233 (5th Cir. 1977).

      . The first two sections of the Restatement, Title E on Special Liability of Possessors of Land to Invitees, read as follows:

        "§343. Dangerous Conditions Known to or Discoverable by Possessor
      A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
      (a) Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
      (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
      (c) fails to exercise reasonable care to protect them against the danger.
      343A. Known or Obvious Dangers
      (1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.
      (2) In determining whether the possessor should anticipate harm from a known or obvious danger, the fact that the invitee is entitled to make use of public land, or of the facilities of a public utility, is a factor of importance indicating that the harm should be anticipated.”

      . Another issue to be answered at trial is whether the weather conditions were, in fact, obviously dangerous to unloading operations. Appellants’ use of the words "sudden high wind” raises the question in our minds of whether there was a danger that could have been protected against as opposed to an unforeseeable act of God against which no one can have the duty to guard.


author: Gilbert, C. J.,

text:
    IN RE: DAMIEN D.
    [No. 632,
    September Term, 1981.]

      Decided January 6, 1982.

    The cause was argued before Gilbert, C. J., and Morton and Weant, JJ.

      Jayson L. Amster, with whom was Robert M. Price on the brief, for appellant.

      Clarence W. Sharp, Assigned Public Defender, for appellee Damien D. Alan H. Murrell, Public Defender, and Martha Weisheit, Assistant Public Defender, on the brief for appellee Vivian D.
   Gilbert, C. J.,

delivered the opinion of the Court.

As a result of alleged child abuse on the part of his mother, custody of Damien D. was taken from her and vested in the Department of Social Services of Montgomery County. Approximately two years later, young Damien’s aunt, Ms. T, petitioned the District Court of Maryland (Sixth District), sitting as a Juvenile Court, to intervene in the cause. The purpose of the intervention was to obtain custody of Damien.

Following a hearing on April 28, 1981, Judge Douglas H. Moore, "in the best interest of the minor child, Damien,” denied the motion.

Ms. T has appealed.

In this Court, Ms. T argues that Judge Moore should have allowed her to intervene "as a matter of law,” and that he abused his discretion in not authorizing the intervention.

To support her contention that intervention should have been permitted as a matter of law, Ms. T relies upon Maryland District Rules 208 and 1 a 1 as well as Md. Rule D76 a. The reliance is misplaced.

Md. Rules Chapter 900 is the exclusive rule relative to the juvenile courts of this State. It does not provide for the right of intervention in a juvenile proceeding.

The Md. District Court Rules contain no reference whatsoever to juvenile causes, and they have no application to those proceedings.

Md. Rule 208, the sire of M.D.R. 208, is not applicable to juvenile cases. See Md. Rule 1 a 1, which provides in pertinent part: "The Rules in Chapters 100-600 do not apply to the proceedings dealt with in Chapters 700, 800,. 900 and 1000.” (Emphasis supplied.)

Md. Rule D76 a is concerned with adoption and guardianship. That Rule is not an addendum to Chapter 900 and does not pertain to juvenile causes.

Inasmuch as the Maryland Rules do not permit intervention in the juvenile court, it follows that Judge Moore did not abuse his discretion in refusing to authorize Ms. T to do what the law does not allow.

Order denying intervention affirmed.

Costs to be paid by appellant.

      . In Montgomery County the District Court exercises juvenile jurisdiction. Courts Art. § 3-801 (i).

      . Notwithstanding the clear provision of Md. Rule 1097, the appellant’s brief includes the child’s surname.

      . Incorrectly identified in the brief of Ms. T as a Maryland District Rule.

      . See generally News-American v. State, 49 Md. App. 422, 431 A.2d 1387, cert. granted, 291 Md. (1981).