NOTICE: All slip opinions and orders are subject to formal
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SJC-12231

                JOSEPH FERGUS   vs.   STEVEN A. ROSS.1

            Suffolk.     April 4, 2017. - August 2, 2017.

 Present:    Gants, C.J., Lenk, Hines, Gaziano, Lowy, & Budd, JJ.

Agency, Scope of authority or employment.     Attorney at Law,
     Attorney-client relationship.

     Civil action commenced in the Superior Court Department on
August 31, 2010.

     The case was heard by Frances A. McIntyre, J.

     After review by the Appeals Court, the Supreme Judicial
Court granted leave to obtain further appellate review.

     Arnold E. Cohen for the defendant.
     Gordon E. Feener (Danielle F. Wehrli also present) for the
plaintiff.

     LOWY, J.    In a jury-waived trial, a Superior Court judge

determined that the defendant, Attorney Steven A. Ross, was

negligent for his part in financing a real estate loan to the

     1
       Individually and as trustee of the Wisconsin Avenue
Lending Trust.
                                                                     2

plaintiff, Joseph Fergus.    The judge found that the defendant

had conferred apparent authority on an individual, Bernard

Laverty, Jr., to act as his agent for the loan.     In the course

of arranging the loan, unbeknownst to the defendant, Laverty

asked the plaintiff to use a portion of the loan from the

defendant to make a secured "side loan" to Laverty.    The

plaintiff agreed.   Ultimately, however, the side loan was

unsecured and Laverty defaulted.     Relying on the rule that

imputes the knowledge of an agent to the principal, the judge

found that the defendant was negligent for failing to inform the

plaintiff prior to the closing that the side loan was not

secured.   We now reverse, concluding that the facts found by the

trial judge failed to establish that Laverty had the apparent

authority to bind the defendant with respect to the side loan.

    Background.     The judge made the following factual findings,

which the parties do not dispute on appeal.

    The plaintiff, a regular purchaser and seller of real

estate, needed between $75,000 and $100,000 to complete

renovations of a property in the Dorchester section of Boston.

Unable to acquire conventional financing for the project, he

inquired about private financing through a mortgage broker, who

referred the plaintiff to Laverty.

    Laverty had an existing relationship with the defendant,

who operated a private lending operation through his law firm.
                                                                    3

Laverty had received five or six loans from the defendant and

had previously referred potential borrowers to the defendant.

Laverty informed the defendant of the plaintiff's desire for a

loan.   Although the defendant had paid Laverty referral fees on

other occasions, he did not do so for the plaintiff's loan.

    When the plaintiff and Laverty met, Laverty implored the

plaintiff to seek more money than he needed for the renovations,

so that the plaintiff could make a side loan to Laverty.

Laverty needed $120,000 to close on a residential property in

Marshfield.    Laverty offered to provide the plaintiff "a deed-

in-lieu" of a mortgage to secure the side loan.    The plaintiff

agreed.   Notwithstanding his ultimate failure to do so, Laverty

intended to provide the deed-in-lieu and to repay the $120,000.

    Prior to the closing, the plaintiff had no direct contact

with the defendant.    Rather, all discussions with the defendant

and the law firm regarding the loan were conducted by Laverty,

outside of the plaintiff's presence.    Although the defendant

insulated himself from any direct contact with the plaintiff,

the parties arranged, through Laverty, for the defendant's wife

to inspect the Dorchester property, on the law firm's behalf.

She was told that the proceeds of the loan would be used for the

renovations.

    The law firm set the value of the loan to the plaintiff at

$260,000, which included the costs of the loan itself such as
                                                                   4

prepaid interest, origination fees, and appraisal and legal

fees.   This amount provided sufficient funds for the plaintiff

to spend the necessary $75,000 to $100,000 on renovations at the

Dorchester property and make the $120,000 side loan to the

defendant.   The law firm created an entity for the sole purpose

of providing the loan, as had apparently been its practice for

other loans, called the Wisconsin Avenue Lending Trust (trust).

The trustee for this entity was an apparently fictitious

individual named "Ronald Williams," although it was not clear

that the entire trust was built of straw.

     The trust formally communicated its offer for the $260,000

loan (Dorchester loan) by way of a commitment letter, signed by

the defendant on behalf of the trust.   On September 10, 2007,

Laverty brought the commitment letter specifying the terms to

the plaintiff, who accepted that day.   The plaintiff also agreed

to pay the $2,500 legal fees of the lender.   The letter did not

mention the side loan.   Nevertheless, the plaintiff signed the

letter and gave it to Laverty to give to the law firm, relying

on Laverty's representations that the defendant would serve as

the closing agent for both the Dorchester loan and the side

loan.

     On the same day, the plaintiff also handwrote a letter to

the defendant, explaining that Laverty was to receive a $120,000

loan from the plaintiff, drawn from the proceeds of the
                                                                    5

Dorchester loan.   The letter authorized the defendant to arrange

the requisite paperwork for the side loan.     Laverty also took

this letter, representing to the plaintiff that he would deliver

it to the defendant.   He never did so.

    The next day, Laverty drove the plaintiff to the

defendant's office for the closing, where the plaintiff and the

defendant met for the first time.   The plaintiff signed all of

the loan documents, without reading them, but with an

understanding of the fundamental requirements:     he would be

obligated to pay back the principal within ninety days and he

was granting a mortgage.   The side loan, however, was not

mentioned at the closing or referenced in any of the documents.

Nor did Laverty have title to the Marshfield property such that

he could provide the plaintiff a deed-in-lieu of a mortgage.

The plaintiff signed the documents with a willingness to be

bound by them.   The next day, the plaintiff obtained a bank

check in the amount of $120,000, payable to Laverty.     Laverty

subsequently declared bankruptcy and did not repay the

plaintiff.

    The judge concluded that the defendant had a duty as the

"closing agent" for the transaction to advise the plaintiff

regarding the deficiencies of the side loan.    Although the

defendant did not have actual knowledge of the side loan or its

terms, the defendant was deemed to have constructive knowledge
                                                                      6

through his agent, Laverty.     The defendant did not inform the

plaintiff that Laverty lacked title to the property that was to

serve as security for the side loan, and thus, the judge found,

the defendant committed a breach of this duty.     The judge

credited the plaintiff's testimony that he would not have

proceeded with the side loan if he had known it was unsecured.

     The defendant timely appealed, and the Appeals Court

affirmed.     Fergus v. Ross, 89 Mass. App. Ct. 528, 535-536

(2016).     We granted the defendant's application for further

appellate review and now reverse.

     Discussion.     On appeal, the defendant argues that the judge

erred in two key respects.     First, the defendant argues that the

judge lacked an adequate basis to find that the defendant had

conferred apparent authority on Laverty with respect to the side

loan.   Second, the defendant claims that he owed no duty to the

plaintiff regarding the side loan as the "closing agent" for the

Dorchester loan.

     We agree that there was an insufficient basis to conclude

that the defendant conferred apparent authority on Laverty for

the side loan.     As a result, the defendant lacked constructive

knowledge of the side loan, which was essential to the breach of

the alleged duty.     Thus, the finding of negligence must be

reversed.
                                                                       7

    1.   Agency.   "[T]he question of agency is usually an issue

for the fact finder."     Theos & Sons, Inc. v. Mack Trucks, Inc.,

431 Mass. 736, 742 (2000) (Theos).     Thus, the question before us

is whether there was an adequate basis for the judge to conclude

that an agency relationship existed, pursuant to Laverty's

apparent authority.

    Generally, an agency relationship is created by express or

implied mutual consent that an agent will "act on behalf and for

the benefit of the principal, and subject to the principal's

control."   Theos, 431 Mass. at 742.    See Restatement (Third) of

Agency § 1.01 (2006).     See also Haufler v. Zotos, 446 Mass. 489,

498 (2006) (judge's finding of agency not clearly erroneous).

The agent may impose legal obligations or otherwise bind the

principal, based on the agent's either actual or apparent

authority to do so.     Theos, supra at 743.   A principal is liable

for the agent's conduct when the agent acts with "the actual or

apparent authority of the principal in that transaction."        Id.

In this case, the judge found an agency relationship between the

defendant and Laverty based exclusively on apparent authority.

    Apparent authority exists when the principal, by his or her

words or conduct, causes a third person to reasonably believe

that the principal consents to the agent acting on the

principal's behalf.     Licata v. GGNSC Malden Dexter LLC, 466

Mass. 793, 801 (2014).    Critically, "[o]nly the words and
                                                                      8

conduct of the principal, . . . and not those of the agent, are

considered in determining the existence of apparent authority."

Id.   The principal's manifestation of apparent authority does

not need to be direct communication with the third party.    See

Restatement (Third) of Agency, supra at §§ 2.03, 3.03.     See also

Menard & Co. Masonry Bldg. Contractors v. Marshall Bldg. Sys.,

Inc., 539 A.2d 523, 526 (R.I. 1988).   The principal can also

ratify an agent's conduct after the fact, by "acquiesc[ing] in

the agent's action, or fail[ing] promptly to disavow the

unauthorized conduct after disclosure of material facts"

(citation omitted).   Licata, supra at 802.

      The judge found that the defendant's conduct allowed the

plaintiff reasonably to conclude that Laverty had the authority

to act on the defendant's behalf with respect to the side loan,

relying primarily on four facts.   First, the defendant had no

contact with the plaintiff until the closing.   All communication

from the defendant to the plaintiff, and vice versa, went

through Laverty.   Thus, it was through Laverty that the

defendant's wife inspected the property on behalf of the law

firm.   Second, the plaintiff never requested a specific amount

for the loan, but rather the terms in the commitment letter were

set by the law firm, ostensibly pursuant to Laverty's

representations.   Third, Laverty had, in the past, referred

borrowers to the defendant in exchange for a fee, although no
                                                                      9

such fee was paid in this case.   Fourth, the closing took place

in the law firm's office, where Laverty brought the plaintiff.

Laverty remained there throughout the closing, urging the

plaintiff to sign the papers.

     These facts may well have been sufficient to conclude that

Laverty was the defendant's agent with respect to the Dorchester

loan.    See DeVaux v. American Home Assur. Co., 387 Mass. 814,

816-817, 819 (1983) (fact finder could conclude that attorney's

secretary, who answered telephone, gave advice to prospective

client, and misfiled client's letter requesting service, had

apparent authority to bind attorney who lacked actual

knowledge).   As such, the defendant could have been liable for

any fraudulent, negligent, or deceitful conduct by Laverty.     The

judge, however, specifically found that Laverty lacked any

fraudulent intent, and she did not make any finding that Laverty

was negligent.2

     2
       We note also that, although the judge found that the
defendant "entirely insulated himself" from direct contact with
the plaintiff, the judge did not find that the defendant was
wilfully ignorant of the side loan. See Licata v. GGNSC Malden
Dexter LLC, 466 Mass. 793, 802 (2014) (there may be ratification
of agent's conduct "when [the principal] shuts his eyes to means
of information within his own possession and control, and
ratifies an act deliberately" [citation omitted]). Furthermore,
the judge rejected the plaintiff's claims pursuant to G. L.
c. 93A, for breach of contract, and for fraudulent
misrepresentation, and the plaintiff does not appeal from those
rulings.
                                                                    10

    Instead, the defendant's liability was premised on

Laverty's theoretical apparent authority to bind the defendant

to assume some form of responsibility for the side loan.     Yet,

the judge did not find any conduct of the defendant that related

specifically to his acquiescence to, or ratification of,

Laverty's conduct regarding the side loan.

    Although the judge identified facts suggesting that Laverty

was, in some capacity, the defendant's agent, they do not

connect any manifestation of acquiescence by the defendant to

the side loan.   See Licata, 466 Mass. at 801-802 (alleged

agent's signature as authorized representative did not establish

apparent authority in absence of manifestation of assent by

principal).   To the contrary, the plaintiff knew from the outset

that he was receiving a loan from the trust, through the

defendant and his law firm, and the judge did not find that the

plaintiff believed that Laverty was the defendant's employee.

Contrast DeVaux, 387 Mass. at 819 & n.10 (factual question

whether attorney's secretary had actual or apparent authority to

establish attorney-client relationship).   Only the words and

conduct of the would-be agent, Laverty, connected the defendant

to the side loan, and they are insufficient to create apparent

authority as to the side loan.   See Licata, supra at 801; Theos,

431 Mass. at 745.
                                                                  11

     Nor do the findings of the judge support a conclusion that

the defendant ratified Laverty's representations after the fact.

Where authority is premised on ratification by the principal,

the "[r]atification must be based upon full knowledge of all

material facts," or evidence of wilful ignorance.   Licata, 466

Mass. at 802, quoting Kidder v. Greenman, 283 Mass. 601, 615

(1933).   By the same token, a principal does not have an

obligation to disavow the agent's conduct, in the absence of

actual knowledge.   Licata, supra at 803, citing See v. Norris,

234 Mass. 345, 348 (1920).   The judge did not find that the

defendant knew about the side loan, and specifically found that

the defendant did not know that Laverty lacked the title for the

property intended to serve as security for the side loan.3

     3
       The Appeals Court and the parties have made much of the
judge's "belie[f]" that the defendant "may well have known"
about the side loan, based on the amount by which the Dorchester
loan exceeded the cost of the renovations. See Fergus v. Ross,
89 Mass. App. Ct. 528, 533-534 (2016). Whether this constitutes
a finding that the defendant knew generally of the side loan is
not clear. The judge's findings, however, are clear that the
defendant did not actually know the details of the side loan
that he failed to disclose (i.e., that the side loan was not
secured). Instead, the defendant's liability was premised
exclusively on constructive knowledge pursuant to his agency
relationship with Laverty. Therefore, anything that the
defendant might -- or should -- have known about the side loan
or Laverty's lack of title is irrelevant to the theory of
negligence for which the defendant was ultimately found liable.
We make no ruling as to whether the defendant could have been
found liable using a different theory of negligence on these
facts.
                                                                    12

Further, the judge did not find that the defendant was wilfully

ignorant of these facts.

     Moreover, the commitment letter and loan documents prepared

by the defendant made no mention of the side loan.    Thus, if the

plaintiff had read the documents, he would have seen that the

defendant was not contemplating the side loan to Laverty as part

of the Dorchester loan to the plaintiff.    See Licata, 466 Mass.

at 802.   See also Haufler, 446 Mass. at 501 ("The general rule

is, that, in the absence of fraud, one who signs a written

agreement is bound by its terms whether he reads and understands

it or not" [citation omitted]).    Based on these findings by the

judge, it was not reasonable for the plaintiff to rely "on

everything that was told [to him by Laverty] about getting this

loan," instead of the contents of the loan documents.4    See

Licata, supra.

     2.   Duty of care.   The defendant also argues that he could

not owe a duty to the plaintiff as a "closing agent" for the

transaction, where the judge found that the defendant and

plaintiff did not form an attorney-client relationship.     We need

     4
       The judge found that the plaintiff expected to receive the
deed-in-lieu of a mortgage for the Marshfield property at some
later point in time. The judge's findings do not specify
whether the plaintiff understood that he was not signing any
documents related to the side loan at the closing. The judge's
findings, however, appear to reflect that the plaintiff did not
understand the documents he was signing, and also that he did
not read them.
                                                                   13

not examine whether a duty would have been owed if Laverty had

possessed the apparent authority to impose a duty of care upon

the defendant, or whether Laverty's representation that the

defendant would "take care of everything" constituted an

enforceable promise on these facts.    See Robertson v. Gaston

Snow & Ely Bartlett, 404 Mass. 515, 524, cert. denied, 493 U.S.

894 (1989) ("[A]n attorney owes a duty to nonclients who the

attorney knows will rely on the services rendered").

    In this case, the theory of negligence was premised on

imputing Laverty's knowledge of the side loan to the defendant,

as a result of their agency relationship.    See Sunrise Props.,

Inc. v. Bacon, Wilson, Ratner, Cohen, Salvage, Fialky &

Fitzgerald, P.C., 425 Mass. 63, 66-67 (1997) (agent's knowledge

imputed to principal in absence of fraud by agent that does not

benefit principal).    Because Laverty lacked the requisite

apparent authority, Laverty's knowledge is not imputable to the

defendant.   See id.   Therefore, the defendant cannot be

negligent for failing to disclose or disavow that which he did

not know, either actually or constructively.

    Conclusion.    The facts found by the judge are insufficient

to conclude that Laverty had apparent authority from the

defendant to bind the defendant as a closing agent for the side

loan.   No conduct of the defendant manifested acquiescence to

participation in the side loan.   Nor did the defendant ratify
                                                                14

Laverty's conduct after the fact, because the loan documents

drafted by the defendant contained no reference to the side

loan.   Thus, the theory of negligence on which the defendant was

found liable fails, because it was premised on the imputation of

Laverty's knowledge to the defendant pursuant to the alleged

agency relationship.

                                    Judgment reversed.


517 F.2d 692
Walter C. ATCHLEY, Plaintiff-Appellant,v.Joe R. GREENHILL, Chief Justice, et al., etc., Defendants-Appellees.
No. 74-2187.
United States Court of Appeals,Fifth Circuit.
Aug. 15, 1975.

Pat S. Holloway, Dallas, Tex., for plaintiff-appellant.
John L. Hill, Atty. Gen. of Tex., Larry York, Asst. Atty. Gen., David M. Kendall, First Asst. Atty. Gen., Lonny F. Zwiener, Asst. Atty. Gen., Austin, Tex., for Greenhill et al.
Allen Wood, Luther E. Jones, Jr., Corpus Christi, Tex., for Miller.
Appeal from the United States District Court for the Southern District of Texas.
Before COLEMAN, MORGAN and CLARK, Circuit Judges.
PER CURIAM:

1
This is a civil rights suit, 42 U.S.C., § 1983.  It seeks relief from unsuccessful efforts to obtain Texas Supreme Court review of Atchley v. The Superior Oil Company, 482 S.W.2d 883 (Tex.Civ.App., 1972).  The litigation involved the legal title to certain valuable oil lands in Texas.  No petition for certiorari was filed with the Supreme Court of the United States seeking review of the action of the Texas Supreme Court.

2
The District Court dismissed the suit on several grounds, particularly for lack of jurisdiction over the subject matter, Rule 12(b)(1) F.R.Civ.P.

3
Upon consideration of the record, briefs, and oral argument heard in Atlanta on May 20, 1975, we are of the opinion that the judgment of the District Court is due to be affirmed.  See, e. g., Rooker v. Fidelity Trust Company, 263 U.S. 413, 44 S.Ct. 149, 68 L.Ed. 362 (1923);1  Hill v. McClellan, 5 Cir., 1974, 490 F.2d 859; Hanna v. Home Insurance Company, 5 Cir., 1960, 281 F.2d 298, cert. denied 365 U.S. 838, 81 S.Ct. 751, 5 L.Ed.2d 747.

4
Affirmed.

1
 "If the constitutional questions stated in the bill actually arose in the cause, it was the province and duty of the state courts to decide them, and their decision, whether right or wrong, was an exercise of jurisdiction.  If the decision was wrong, that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding.  Until and unless so reversed or modified, it would be an effective adjudication.  (Citations omitted) Under the legislation of Congress, no court of the United States other than this Court could entertain a proceeding to reverse or modify the judgment for errors of that character.  (Citations omitted) To do so would be an exercise of appellate jurisdiction.  The jurisdiction possessed by the District Courts is strictly original."  263 U.S. at 415, 416, 44 S.Ct. at 150


71 Ariz. 271 (1951)
226 P.2d 165
GLENN et al.
v.
CHENOWTH.
No. 5241.
Supreme Court of Arizona.
Decided January 16, 1951.
*272 Marks & Polley, Bisbee, for appellants.
I.B. Tomlinson, Bisbee, for appellee.
DE CONCINI, Justice.
Amos Chenowth, plaintiff, brought an action against Joe Glenn and Fred Darnell alleging that Darnell made an unlawful, wanton attack and assault upon plaintiff; that while he was defending himself against Darnell, Glenn made an unprovoked assault on plaintiff from the rear by striking plaintiff's head with his fists. Chenowth alleged $5,000 damages. Upon a trial by jury he was awarded judgment of $500 against each defendant.
The circumstances giving rise to this lawsuit were as follows: All three participants are cowboys. They were attending a rodeo in Douglas on April 4, 1948 as contestants. Chenowth and one Sanders were partners in a team-tying event. Chenowth roped the head of the animal; Sanders missed his first loop at the heels but caught the second loop and stretched the animal prone. Chenowth dismounted and in tying the animal's feet used an unusual type knot. The field judge declared the knot illegal. Darnell who was acting as arena director passed final judgment and upheld the field judge's decision. However the fact that it was an illegal knot made no difference in the possibility of their winning any prize money because they had consumed too much time when the first loop was missed and for that reason were outclassed.
As they were leaving the field Chenowth rode alongside Darnell and called him a ____ ____ liar in reference to an asserted previous statement made by Darnell to Chenowth that it was okay to use that type of a knot. After the rodeo events were over they met at the cattle barns to examine the rule book on this question. When the argument as to the knot's illegality was settled, Darnell took Chenowth by the arm and demanded an apology or in the alternative, ordered him to take off his glasses. Chenowth handed his glasses to a bystander and "squared off" for a *273 fight. The evidence is not clear as to who hit the first blow. Suffice it to say that from the time Chenowth removed his glasses they were both ready, willing and able to fight. While they were fighting over a space of about 20 to 30 feet, Darnell back Chenowth towards the front bumper of a car. It was at this stage of the fight that Glenn appeared. The evidence is conflicting as to his part in the fight. A few minutes later a deputy sheriff interceded and stopped the fight.
The defendants Glenn and Darnell appeal and assign 10 errors of the trial court.
Defendants' assignments of error 3 and 5 go to plaintiff's requested instructions 5 and 6 respectively as follows:
"5. You are further instructed there is, ordinarily, no duty to retreat when attacked especially where immediate action seems necessary.
"6. You are further instructed that all persons participating in an unlawful or unjustified assault or an unlawful and unjustified assault and battery are jointly and severally liable in damages to the person assaulted."
Defendants contend that instruction No. 5 has no application to the facts in this case and is merely an abstract statement of law. This instruction is taken word for word from 6 C.J.S., Assault and Battery, § 18, Self Defense, pg. 813. While it is a correct statement of the law it has no application here because neither party relied on self defense. Abstract propositions of law even though correct are not favored in Arizona. Butane Corp. v. Kirby, 66 Ariz. 272, 187 P.2d 325.
The instruction was susceptible of conveying the impression to the jury that the trial judge may possibly have thought that Chenowth had been attacked by Darnell. While the numerical weight of the evidence is that Darnell struck the first blow, there is no evidence that he took Chenowth by surprise. The evidence was that Chenowth handed his glasses to Keyes, both parties were "squared off" and in sparring positions and that they hit each other's fists before the first blows connected. The jury may have believed that the instruction was calculated to impress them that it was the judge's opinion that Darnell was the attacker. The giving of such an instruction constituted error.
Chenowth's testimony on cross-examination in part is as follows:
"Q. What did you do then? A. I took off my glasses and handed them to a man and he hit me.
"Q. You didn't have your hands up or anything? A. When he throwed my
"Q. At what stage did you throw the first blow? A. I throwed the first blows.
"Q. Did these all take effect? A. I wouldn't swear to that.
"Q. You might have missed some of them? A. That's right." (Emphasis supplied.)
*274 Chenowth's answer underlined above indicates that he was asking a question. However we did not hear the inflection of his voice. If there was any doubt as to what he meant, that was for the jury to decide without an instruction which might indicate the trial judge's opinion.
Defendants contend that instruction No. 6, supra, is faulty in several respects: a) It is an abstract statement of law. b) It eliminates the necessity of the jury finding a concert of of action between Darnell and Glenn.
The instruction is taken from the first two sentences of 6 C.J.S., Assault and Battery, § 27b, pg. 831. But the third sentence of that section reads as follows: "There can be no joint liability, however, unless there is concert of action between those who are charged jointly, * * *." In this case Chenowth did not allege nor prove concert of action between Darnell and Glenn.
The trial court erred in giving both instructions No. 5 and 6, supra.
Defendants' assignment of error 4 involved the giving of plaintiff's requested instruction No. 7 which was as follows: "You are further instructed that a party is entitled to compensatory damages regardless of provocation which prompted the assault, if unaccompanied by any act of hostility on the part of the alleged assaulter."
In settling the requested instructions by counsel, the trial judge said, "No. 7 is denied." However, he gave the instruction as above set out. The first part of the instruction ending with the word "assault" is faulty in that it is an incorrect statement of the law and is diametrically opposed to plaintiff's requested instruction No. 3, which the court did give and which was a correct statement of the law. The second and last phrase of instruction No. 7 merely adds confusion to an incorrect statement of the law.
It is a well-settled proposition of law that instructions must not be conflicting or contradictory. Arizona Copper Co. v. Burciaga, 20 Ariz. 85, 177 P. 29; Westberg v. Willde, 14 Cal.2d 360, 94 P.2d 590; Winn v. Corey, 179 Okl. 305, 65 P.2d 522; Wilder v. Bailey, 233 Ky. 238, 25 S.W.2d 381.
Plaintiff contends that defendants have no right to object to the court's error in giving instruction No. 7 because a) it was not urged in their motion for a new trial and b) defendants failed to protect their record in the trial court. Plaintiff cites no authority for his first contention nor does he argue it in his briefs. Under Rule VI, subdivision 2(f), Arizona Supreme Court Rules, such an assignment need not be considered. S.H. Kress & Co. v. Evans, 69 Ariz. 366, 213 P.2d 901.
As for his second contention, we must look to the record to see if counsel complied *275 with the law. Sec. 21-1019, A.C.A. 1939, provides for the manner and method in which to request and object to proposed instructions to the jury. The last sentence reads "Opportunity shall be given to make the objection out of the hearing of the jury."
The judge and counsel conferred in the absence of the jury. Defendants' counsel objected to plaintiff's instruction No. 7, supra, and the trial judge denied same.
The question then arises: Must counsel again object to the giving of an instruction that is not good law when the judge has once told counsel he would not give the instruction?
We do not think it necessary for counsel to reassert his objections in the presence of the jury after the instructions were given. We hold that when instructions are objected to and settled by the judge in the absence of the jury, counsel have a right to rely thereon, and if the judge gives such an erroneous instruction it constitutes error and counsel need not object to it again to protect their record.
It is not necessary for the court to consider the other assignments of error to dispose of this appeal.
Judgment reversed and case remanded for a new trial.
UDALL, C.J., and STANFORD, PHELPS and LA PRADE, JJ., concur.


Matter of King v Keyser (2019 NY Slip Op 02942)

Matter of King v Keyser

2019 NY Slip Op 02942

Decided on April 18, 2019

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: April 18, 2019

527645

[*1]In the Matter of JAMIR KING, Petitioner,
vWILLIAM KEYSER, as Superintendent of Sullivan Correctional Facility, Respondent.

Calendar Date: March 15, 2019

Before: Garry, P.J., Lynch, Devine, Aarons and Rumsey, JJ.

Jamir King, Malone, petitioner pro se.
Letitia James, Attorney General, Albany (Marcus J. Mastracco of counsel), for respondent.

MEMORANDUM AND JUDGMENT
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Sullivan County) to review a determination of respondent finding petitioner guilty of violating certain prison disciplinary rules.
Determination confirmed. No opinion.
Garry, P.J., Lynch, Devine, Aarons and Rumsey, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.


80 Mich. App. 663 (1978)
264 N.W.2d 89
MERRITT
v.
NICKELSON
Docket No. 77-1034.
Michigan Court of Appeals.
Decided January 5, 1978.
Jennings & DeVries, for plaintiff.
Zerafa, Zerafa & Christian, P.C., for defendants.
Before: R.M. MAHER, P.J., and M.F. CAVANAGH and N.J. KAUFMAN, JJ.
PER CURIAM.
Defendant Marie Ledford appeals as of right from a January 26, 1976, judgment after a nonjury trial in which $137,800 in damages were awarded to plaintiff against both defendants Marie and James Ledford. The trial court found both defendants negligent in the operation of a race track which functioned primarily as a drag strip. Prior to May 6, 1970, defendant Marie Ledford was the sole owner of the land, approximately 25 acres, on which the drag strip was built. On *665 that date she deeded the property to herself and to her son, defendant James Ledford, as tenants in common by a quitclaim deed for a consideration of $500.
On May 30, 1970, the first day that the drag strip had been opened to the public, defendant Howard Nickelson, one of the participants at the track, while racing his car, was shifting into third gear when his clutch came apart and the flywheel disintegrated. Pieces of the steel flywheel tore holes in the floorboard and roof of his car; one of the pieces was thrown through the air and injured Alan Merritt, a spectator. Merritt died from the injury.
The driver of the car, Nickelson, through his insurance company, paid the plaintiff's estate the sum of $8,500.
Plaintiff, as administratrix of Alan Merritt's estate, claimed that defendants, Marie and James Ledford, as owners and operators of the track, were negligent in failing to make a safety inspection of the cars and in not requiring that the cars be equipped with a scatter shield for the flywheel. Rules promulgated by the National Hot Rod Association recommend that cars engaged in drag racing have scatter shields to contain pieces of the flywheel in the event it disintegrates. The trial court found both defendants negligent and further held that their negligence was the cause of Mr. Merritt's death.
On appeal, defendant Marie Ledford claims that mere ownership of property by one co-tenant is not a sufficient basis on which to impose liability for the negligent acts of another co-tenant. We agree.
Nothing in the record discloses that Marie Ledford operated the drag strip: to the contrary, uncontradicted testimony at trial made it clear that *666 Marie Ledford was in no way involved in the operation of the drag strip. She was merely, along with her son, James Ledford, a tenant in common of the property.
Tenants in common are persons who hold land or other property by unity of possession. When two or more persons are entitled to land in such a manner that they have an undivided possession, but separate and distinct freeholds, they are tenants in common. Not only is the possession of one the possession of all, but the tenants respectively have the present right to enter upon the whole land, and upon every part of it, and to occupy and enjoy the whole. Fenton v Miller, 94 Mich 204; 53 NW 957 (1892), Metcalfe v Miller, 96 Mich 459; 56 NW 16 (1893), Tiffany, The Law of Real Property (3d ed), § 426, p 212.
Ordinarily, negligence of one co-owner is not imputed to the other co-owner. Mortensen v Knight, 81 Ariz 325; 305 P2d 463 (1956). The fact that one party is a tenant in common with a second party does not ipso facto render the first party liable for acts of the second party when that second party has exclusive control. McDonald v Standard Gas Engine Co, 8 Cal App 2d 464; 47 P2d 777 (1935).
To argue, as plaintiff does, that a co-owner's right to possession of the premises is sufficient to hold that co-owner liable for all injuries on the premises is to be simplistic. The issue of control is preeminent.
"[T]he rights and liabilities arising out of the condition of land, and activities conducted upon it, have been concerned chiefly with the possession of the land * * * for the obvious reason that the man in possession is in a position of control, and normally best able to prevent *667 any harm to others." Prosser, Law of Torts (3d ed), § 57, p 358. (Footnote omitted.)
"Possession" differs from the "right to possession" and "ownership" because of the concept of control. Possession is the detention and control of anything which may be the subject of property, for one's use and enjoyment. Blacks Law Dictionary (4th ed), p 1325. The mere "right to possession" does not necessarily entail the control inherent in the nature of "possession".
It has been recognized in this state that control and possession are the determinative factors in the imposition of liability.
"It is a general proposition that liability for an injury due to defective premises ordinarily depends upon power to prevent the injury and therefore rests primarily upon him who has control and possession." Dombrowski v Gorecki, 291 Mich 678, 681; 289 NW 293 (1939), citing Bannigan v Woodbury, 158 Mich 206; 122 NW 531 (1909).
See also Nezworski v Mazanec, 301 Mich 43; 2 NW2d 912 (1942), and Paisley v United Parcel Service, Inc, 17 Mich App 672; 170 NW2d 283 (1969).
In the instant case, defendant James Ledford had complete control over the drag strip according to trial testimony which plaintiff did not refute. Appellant Marie Ledford was merely a co-owner with no control whatsoever. In analogous situations, owners of land as tenants by the entirety or as joint tenants do not share liability when injury or negligence is attributable to the independent act of a single tenant who has exclusive control of the premises. Dombrowski v Gorecki, supra, Maynard v Hawley, 331 Mich 123; 49 NW2d 92 (1951).
*668 Kearns v Steinkamp, 184 Ark 1177; 45 SW2d 519 (1932), is characteristic of this class of cases. A husband had constructed and operated a swimming pool owned jointly with his wife. The wife was held to be not liable for injuries to a swimmer using the pool, since she exercised no control over its operation and there was no relation of master and servant or principal and agent subsisting between husband and wife.
It is likewise true that a tenant in common cannot be held liable for injury caused by a cotenant who has exclusive control of the object of common ownership.
"It is a general principle of tort law that a person is liable only as he participates in an activity giving rise to a tort. Mere co-ownership of land standing alone will not subject a person to liability for torts committed in the land by the other co-owners." Musser v Loon Lake Shores Association, Inc, 384 Mich 616, 622; 186 NW2d 563 (1971).
Marie Ledford had no control over the condition of the drag strip or the cars driven there. As she did not participate in the operation of the raceway nor have any interest in it other than her status as a tenant in common, she cannot be held liable for injuries which occurred as a result of the race track's operation.
We see nothing in the case warranting a new trial. However, plaintiff may have believed that for purposes of liability she need only show that Marie Ledford was a co-tenant of the property. Plaintiff may be able to present evidence which proves that Marie Ledford was more than a mere co-tenant and that she had some degree of possession and control. Mindful of this possibility, we remand this cause for a hearing before the trial judge at *669 which time plaintiff may make an offer of proof of Marie Ledford's status as possessor and controller of the property.
Should the offer of proof disclose a possible basis for liability, the judge will reopen the trial on the issue of liability alone. If the judge is satisfied that the proof plaintiff offers will be an insufficient basis on which to find Marie Ledford liable, the judgment of the trial court as to appellant is reversed. In either case, the damages remain the same.


742 F.Supp. 434 (1990)
Karah Marie FRENCH, a minor who by sues Earl PICKARD, her next friend,
v.
J. Robert WILGUS and Bache Halsey Stuart Shields, Inc., and Prudential-Bache Securities, Inc.
No. 3-89-0936.
United States District Court, M.D. Tennessee, Nashville Division.
August 6, 1990.
*435 Gregory D. Smith, William S. Walton, Dearborn & Ewing, Nashville, Tenn., for plaintiffs.
Richard Lodge, J. Dale Wainwright, Bass, Berry & Sims, Nashville, Tenn., Roger Reid Street, Jr., Franklin, Tenn., for defendants.

MEMORANDUM
JOHN T. NIXON, District Judge.
Pending before the Court are the Bache Halsey Stuart Shields, Inc., and the Prudential Bache Securities, Inc., defendants' 12(b)(6) motion to dismiss the plaintiff's causes of action brought pursuant to § 17(a) of the Securities Act of 1933, 15 U.S.C. § 77q(a), and the Tennessee Consumer Protection Act, T.C.A. § 47-18-101 et seq. from the plaintiff's amended complaint.

DISCUSSION

I. § 17(a) of the Securities Act of 1933

The defendants move for a dismissal of the plaintiff's claims brought pursuant to § 17(a) of the Securities Act of 1933. In response to the defendants' motion to dismiss, the plaintiff asserts that the plaintiff does not seek an independent recovery from the defendants based upon § 17(a) of the Securities Act of 1933. Because the plaintiff does not bring a claim pursuant to § 17(a) of the Securities Act of 1933, the Court can not dismiss such a claim and therefore the defendants' motion to dismiss is DENIED.

II. Tennessee Consumer Protection Act

The defendants move to dismiss the plaintiff's claim under the Tennessee Consumer Protection Act, T.C.A. § 47-18-101 et seq. The defendants rely entirely upon Nichols v. Merrill Lynch, Pierce, Fenner & Smith, 706 F.Supp. 1309 (M.D.Tenn. 1989), and this Court's previous ruling to support their contention that the plaintiff's claim under the Tennessee Consumer Protection Act should be dismissed.
In deciding Nichols, Judge Higgins wrote that the Tennessee Supreme Court, if it were to confront the issue, would hold that the Tennessee Consumer Protection Act does not apply to securities. 706 F.Supp at 1325. Relying in part upon Nichols, this Court dismissed the plaintiff's claim under the Tennessee Consumer Protection Act from the plaintiff's original complaint.
The plaintiff responds to the defendant's reliance on Nichols and this Court's previous decision with two arguments. First, the plaintiff argues that a Tennessee court recently interpreted the Tennessee Consumer Protection Act in such an expansive way as to cast doubt upon both the Nichols decision and this Court's previous decision concerning the Tennessee Consumer Protection Act's applicability to securities. Second, the plaintiff contends that Nichols and this Court's previous ruling can be distinguished from the amended complaint. Each of these arguments will be considered in turn.

a. The Plaintiff's Argument that a Recent Tennessee Court Opinion Evidences Tennessee's Intent to Make the Tennessee Consumer Protection Act Applicable to Securities
The defendant moves for dismissal of the plaintiff's Tennessee Consumer Protection *436 Act claims based upon the Nichols decision and this Court's previous ruling dismissing the plaintiff's Tennessee Consumer Protection Act claims.
The plaintiff, however, argues that the claims should not be dismissed for failure to state a claim because since the decision in Nichols and the ruling by this Court, a Tennessee court has held that the Tennessee Consumer Protection Act covers transactions involving securities.
Indeed, both the Nichols' court and this Court have indicated that a definitive decision by a Tennessee court that the Tennessee Consumer Protection Act applied to securities might alter the interpretation of the Tennessee Consumer Protection Act's scope of coverage. In Nichols, Judge Higgins wrote that "[i]t should hardly be necessary to say that the Tennessee Supreme Court is not bound by the decisions of the courts of any sister state. It can place Tennessee in a minority of one if it wishes." Likewise, this Court, in its previous decision dismissing the plaintiff's Tennessee Consumer Protection Act claim, stated:
Tennessee is not bound by federal court interpretation of state law. Tennessee could apply its consumer protection statutes to the securities field. However, the plaintiff has not cited to any Tennessee authority that suggests to this Court that Tennessee does not share in the majority view that general consumer protection statutes do not regulate the securities area.
The Tennessee state case to which the plaintiff cites is William Davidson et al. v. Davidson Corporation et al., Docket Number 88-2265-II, which was decided by the Chancery Court for Davidson County. In Davidson, Chancellor High denied a motion to dismiss the defendants' counterclaims which alleged that the plaintiffs had violated the Tennessee Consumer Protection Act in the sale of Securities. Chancellor High implicitly rejected the holding in Nichols and the decision of this Court by stating
The sellers have moved for summary judgment claiming ... (2) the Tennessee Consumer Protection Act, T.C.A. § 47-18-101 et seq. does not apply to the sale of securities ...
The language of the Tennessee Consumer Protection Act appears to be broad enough to cover the sale of Securities. Plaintiffs have failed at this point to carry the burden of showing the transaction is exempt from the act.
The Davidson opinion is neither definitive nor persuasive authority. It is not definitive because it is not an opinion of the Tennessee Supreme Court. Similarly, it is not definitive because it is an interim ruling made upon a motion for summary judgment. Chancellor High merely ruled that the plaintiffs had not carried their burden of proof. The Davidson opinion is not persuasive because it is unpublished. The Sixth Circuit Court of Appeals has cautioned against using unpublished Tennessee opinions for their precedential value. In Southern Railway Company v. Foote Mineral Company, 384 F.2d 224 (6th Cir. 1967), the Sixth Circuit held:
Under Tennessee law, an unpublished opinion of the Supreme Court of [Tennessee] is merely the opinion of the judge who filed it and is binding only upon the parties to that particular litigation. The Supreme of Tennessee does not encourage the citing of the unpublished opinions of its members ...
[If an unpublished decision] would not be treated as a binding precedent by the Supreme Court of Tennessee, `it would be incongruous indeed to hold the federal court bound by a decision which would not be binding on any state court.' (citations omitted)
The Davidson opinion is not the type of authority which mandates a reconsideration of the Nichols opinion or this Court's previous ruling.

b. The Plaintiff's Argument that the Amended Complaint Contains Additional Facts Sufficient to State a Cause of Action Under the Tennessee Consumer Protection Act Despite the Nichols Decision and this Court's Previous Ruling
Relying on this Court's previous ruling and the Nichols decision, the defendants *437 argue that the plaintiff's Tennessee Consumer Protection Act claim must be dismissed from the plaintiff's amended complaint.
The plaintiff argues that although the Nichols decision and this Court's prior ruling hold that the Tennessee Consumer Protection Act does not extend to securities transactions, the Nichols decision and this Court's prior ruling do not preclude the plaintiff's reliance on the Tennessee Consumer Protection Act because the amended complaint shows that this cause of action is not based upon a securities transaction, but rather that the defendants fraudulently converted the plaintiff's funds.
In the original complaint the plaintiff was merely alleging that the defendants promised to invest the plaintiff's money in safe and stable investments, but that the defendants really engaged in a series of frequent, speculative, and risky investments that increased commissions of the defendants to the detriment of the plaintiff. Thus, the plaintiff was essentially complaining of churning, misrepresentation, and failure to disclose material information in the purchase and sale of securities. In the amended complaint, however, the plaintiff is alleging that the defendants used misrepresentations to cause the plaintiff, an uneducated consumer, to wire custodial funds into the defendant Wilgus' personal account and that the defendant Wilgus did not use the funds to make prudent investments, but instead used the funds for the defendant Wilgus' personal benefit. The plaintiff alleges that no securities were purchased with this money.
The Tennessee Consumer Protection Act provides that "[u]nfair or deceptive acts or practices affecting the conduct of any trade or commerce are ... unlawful." T.C.A. § 47-18-104. Specifically, the Tennessee Consumer Protection Act prohibits: 1) deceptive representations that "a consumer transaction confers or involves rights, remedies or obligations that it does not have or involve or which are prohibited by law[;][1]" and 2) "[e]ngaging in any other act or practice which is deceptive to the consumers or to any other person.[2]"
The Court finds that the plaintiff's amended complaint contains allegations sufficient to distinguish it from original complaint and from the Nichols case and to enable the amended complaint to state a valid claim under the Tennessee Consumer Protection Act.
The Nichols case and the original complaint both contained allegations of wrongdoing in the marketing, and/or purchase and sale of securities. The Tennessee Consumer Protection Act claims were properly dismissed from those complaints because the Tennessee Consumer Protection Act does not extend to transactions involving the purchase and sale of securities. The Tennessee Consumer Protection Act claim is properly contained in the amended complaint because no securities are involved in the Tennessee Consumer Protection Act claim. The defendants' motion to dismiss the Tennessee Consumer Protection Act from the plaintiff's amended complaint is DENIED.
NOTES
[1]  T.C.A. § 47-18-104(b)(12).
[2]  T.C.A. § 47-18-104(b)(26).


326 F.2d 971
M. T. CRAIG, Appellant,v.TEXACO, INC., Appellee.
No. 9167.
United States Court of Appeals Fourth Circuit.
Argued January 9, 1964.
Decided January 22, 1964.

Appeal from the United States District Court for the Eastern District of North Carolina, at Wilmington; John D. Larkins, Jr., District Judge.
George Rountree, Jr., Wilmington, N. C. (Rountree & Clark, Wilmington, N. C., on brief), for appellant.
Lonnie B. Williams and Alan A. Marshall, Wilmington, N. C. (Poisson, Marshall, Barnhill & Williams, Wilmington, N. C., on brief), for appellee.
Before SOBELOFF, Chief Judge, and BOREMAN and J. SPENCER BELL, Circuit Judges.
PER CURIAM.

1
This is an action involving defendant's termination of a contract and lease which, it is claimed, were procured through fraud and misrepresentation on the part of the defendant. Upon the record before it, the District Court found that there was no genuine issue as to any material fact and granted defendant's motion for summary judgment. We find no error. D.C., 218 F.Supp. 789.

2
Affirmed.


Abatement Order filed November 8, 2012.

                                        In The

                      Fourteenth Court of Appeals
                                     ____________

                                 NO. 14-12-00643-CR
                                   ____________

                    CHRISTOPHER WASHINGTON, Appellant

                                           V.

                         THE STATE OF TEXAS, Appellee

                      On Appeal from the 248th District Court
                               Harris County, Texas
                          Trial Court Cause No. 1301887

                               ABATEMENT ORDER

      Appellant is represented by appointed counsel, Emily Munoz-De Toto. On
October 8, 2012, time to file appellant’s brief expired without a brief and no motion for
extension of time was filed. See Tex. R. App. P. 38.6(a). Counsel and the trial court
were notified on October 12, 2012, that no brief had been received. No response from
appellant has been received.

      Pursuant to Tex. R. App. P. 38.8(b) (a copy of which is attached) the judge of the
248th District Court shall (1) immediately conduct a hearing, at which appellant,
appellant’s counsel, and state’s counsel shall participate, either in person or by video
teleconference, to determine (a) whether appellant desires to prosecute his appeal; (b)
whether appellant is indigent; (c) if not indigent, whether appellant has abandoned the
appeal or whether appellant has failed to make necessary arrangements for filing a brief;
(d) the reason for the failure to file a brief; (e) if appellant desires to continue the appeal,
a date certain when appellant’s brief will be filed; and (2) prepare a record, in the form of
a reporter’s record, of the hearing. If appellant is indigent, the judge shall take such
measures as may be necessary to assure effective representation of counsel, which may
include the appointment of new counsel. The judge shall see that a record of the hearing
is made, shall make findings of fact and conclusions of law, and shall order the trial clerk
to forward a transcribed record of the hearing, a videotape or compact disc, if any,
containing a recording of the video teleconference, and a supplemental clerk’s record
containing the findings and conclusions. Those records shall be filed with the clerk of
this court on or before December 7, 2012.

       The appeal is abated, treated as a closed case, and removed from this Court’s
active docket. The appeal will be reinstated on this Court’s active docket when the trial
court’s findings and recommendations are filed in this Court.            The Court will also
consider an appropriate motion to reinstate the appeal filed by either party, or the Court
may reinstate the appeal on its own motion. It is the responsibility of any party seeking
reinstatement to request a hearing date from the trial court and to schedule a hearing in
compliance with this Court’s order. If the parties do not request a hearing, the court
coordinator of the trial court shall set a hearing date and notify the parties of such date.

                                       PER CURIAM

                                               2
                          RULE 38. REQUISITES OF BRIEFS

Tex. R. App. P. 38.8. Failure of Appellant to File Brief.

       (b) Criminal Cases.

              (1) Effect. An appellant=s failure to timely file a brief does not authorize
either dismissal of the appeal or, except as provided in (4), consideration of the appeal
without briefs.

              (2) Notice. If the appellant=s brief is not timely filed, the appellate clerk
must notify counsel for the parties and the trial court of that fact. If the appellate court
does not receive a satisfactory response within ten days, the court must order the trial
court to immediately conduct a hearing to determine whether the appellant desires to
prosecute his appeal, whether the appellant is indigent, or, if not indigent, whether
retained counsel has abandoned the appeal, and to make appropriate findings and
recommendations.

              (3) Hearing. In accordance with (2), the trial court must conduct any
necessary hearings, make appropriate findings and recommendations, and have a record
of the proceedings prepared, which recordCincluding any order and findingsCmust be
sent to the appellate court.

              (4) Appellate Court Action. Based on the trial court=s record, the appellate
court may act appropriately to ensure that the appellant=s rights are protected, including
initiating contempt proceedings against appellant=s counsel. If the trial court has found
that the appellant no longer desires to prosecute the appeal, or that the appellant is not
indigent but has not made the necessary arrangements for filing a brief, the appellate
court may consider the appeal without briefs, as justice may require.

                                             3


r

                                               . .. .
     ~).

Q.
“:                                          . ...:....
0
                  OFFICE   OF THE    AlTORNEY             GENERAL    OF    TEXAS
0
                                         AUSTIN

           Hanowbls Oeo. H. Shep,mrd
           Captrollo     OS PubaLa Accounts
           AUBt lo, ?ox8*

           Qe8r Sir:

                                                                  09, 8ddro8B8d to you,
                                                                  bore eeptlon end mm-
           dered our rdv                                     0 UJBOEX
                                                                    the f8QtB whloh you
                                                            t the80 opinlonr  8ro sll
                                                            lng them hereln.
                                                         lnlaw   oited    ebovo dealt   vlth

                                       lmtiom     vhich are edmittsdl~
                                        d instrumeatrlltlee,        euch ee the
                                        the ‘c;aP Dopllrtaont 8nd the De-
                                    orateton, an en&aged ia war vork in
                                    furthemnco     of their *otivitier,
                                  ion8 have ontored      into ‘e08t-plUem
                hmztxuaets with rarlous     private    aontmatora,      uuoh
                as the Fort Worth Aircraft. Asawmbig Pleat mad the
                libergenq   Plpe1lner,    Inc.    In generel there con-
                treata follov   a comon petters,        with provi8lom
                whereby the fedeml sgoncies reimburse the con-
                tmotors   tar matertils     and labor ured by the ~htter,
                                                                          567

Honorable   5eo.   H. Sheppard,   Page 2

     and, In addition,    p~iy to the contmcton    e
      atIgulated  profit.   Although the contrectr   nor-
     mally provide that, subject to aortain oontrols,
      the oontsmctors may themeelver pu~chess the nec-
      essary inatorlals,  the federal agencies reserve
      tho rlght to purohase such mstterihls and to fur-
     nld    them to tho contracton    vhenmor they clo de-
     Bee*

            Ulth reference   to the eativitloa     of the fod-
     ~‘,‘,“~~~t~~~~~~~~~Qr?~)                   %:ooz&~
     (LM rold to the fedexml agenoier and ueod by them;
      b)     motor fuels are sold to the fedoml     egwmiea
     and are then turned    over to the oontractore     for
     use by them; (0) motor fkele am cold to end wed
     by the oontrectors.     ‘phe queurtlona dleoussod In
     our former oplniona save orfsen In conaectlon vlth
     tholsso three ultuatlonB.
           Por purponer of this oplnlon vo roil that It 18 h-
materiel vhether theae f’uela are wed in vshlalsa owned by the
f’ederex agencfes, In vehlolm  ovaed by the oontreetom,  or ln
vehleloe oumd by tho federal ugenolor and leaeed to the con-
tmritoru.

                                  I,
          Motor fuels~sold to end used            fedajral a enelesr
Section 2(d) of the E tor Fuels Tax Act          Article  70 f!!5b V.A.
CA.) provides in ptwt 8s follova~
           “Ho tax shell be Imposed upon the eale, uoe,
     or dL6trlbutlan   of any IlIotor fuel.  the InposIng
     Of vhshichvould mnetitute     an unlevN    burden on
     lntemtate    camuerce and vhifkh Ia not subject to
     be texod under the Constltutl&n of the State of
     Texas and the Gnttod Stu toe. ”
           Although large inroads have been *de      on the doctrine
of Inter-governmental    tax Zmmunlty ae establlahed   by Chief
Justioe Uars~.aall In the aaee of’ MoCulloch v. Blarylati, 4 Wheat
3x6, 4 U.S. 57$(t.    Ed.), the dootrine at111 pereiata et least
to the exteri? or affosc!ing immunity frora utate taxation to the
                                                                               568

    f0th~i 80-mt              it80u    d         to    th000    r040m ag02kt310~
    and laatmmenklltl~a    whlah Coajpora lm8 ohown to declare
    tax oxompt, Pittman v. H. 0. L. c., 508 U.S. 21, 84 L. M.
    11, 60 aup. Ct. 15. Typltml of ti l8tter typa at 4eney
    is tho 4foa~o   Plant Corporcrtlon, whloh la saatlon 610 of
    Tlt10 15, U.S.O.A., the aongPoaa hr 4loakPed to he exempt
    into all   H~OB,    wo,       atom&e     and       -H         tax.8   lmpoaed   by
    any lkk    or polltiM    8ubdlvlolarr.   We are of the oplalon
    that tuB &ootPlae    @ad tb above qwted pPovl*ltfa of mm
    tax rtatcto p~~aluao tbo irporltian 0r ommotor       a018 tax
    upon Sal.8 0Pua.l    er the fml~lwlgov*rmuitmd~         radonrl
    lg e a o aJld
              lo il
                  lnat-ta11ti.a       vhloh Csagrera b&a oxapted.
    ConaoquemtS~,yms m-0 napoetfull~       ad*imd tlmt  a0 tu
    should k lwlad or eolleoted upcrmauah nlar OP uaea.
                                           II.
               Motor faola aold to toderrl 4uwlom uul uati W
    oantrrotona    Won c~~motorfwlr       Lua  males Lu, doubt-
    ma th-r0d0~i ~OVOPXBIW~~~OXOBP~~~~~~~ 40mea                 urd
    lad-talltlea       oould pwobB~0   the fu.1 w    pmlu~l~~    wo
    by tholr aaaItMotoM lahaut     th4 l.aeuPPwam
    llat&lyf&rBl&ah     ax.        WP, OUP tax pla %a7   iBBeP0
                     .  moti6a""t20) of tba t8x rtatutepPwldea
    in partt
                l
                nlePedullk a a dlB h e P m b y levLo dua
         posti (axoopt aa benlwtter     prov&M) apon the
         riw   ~10, ai8tributiak    or ~0 0f rotor lhui in
                                      or oxoin  tu of PmIP

         g8llQab*beello0llMted*                       the rid    tax ahsllk
         a d& te
              e&th e
                   l*ll.iry p

I
Hcuio~blo 0.0. R. Sheppard, Fag. 4

           I(oroovoc, SootIon (d) provldu    In part:
            “In tha wont this Artlole Is In oonfliat
      vlth tha Conatltutlon or any law ot the 0hIt.d
      Stat.8 vlth ns~at       to the tax lovhd upan the
      rim    ~ls,  di6ttibai0tb     0~ ~0   0f wt0r  ~1
      ia thI6 aata,    then it ti brro~ doolasod to k
      the IntentIon of thie Artiolo     to Impore the tax
      1evi.d horan   upon tb rirot     6ubrequeJat aale,
      dI6trIbutlon, or us0 of aaid rotor fwZ vhloh
      may be rubjoot to beln# tutod.”

           lbghdle88 of how our to&r       motor ml6    tax atrt-
ute (Aat6 1993, 43r4 Lag., p.        ah. 44, 88 ammded by hots
1935, 44th Leg., p. 558, ah. 2?8 j m¶.@t    hva m      oanatruod,
wo em utIrfled      that tb legal Inoldonoo of tha prosenttax
ir upon tba tlltlmate usor or uomumr      of motor -16    8ad t&t
th6 6tatutorllJ   dafixmd %l8tributor”    of lwh fuel.a I# wrml~
a bonded ftdualary or agent of the Stak for tha purpou of
aiding tn the sollootlon of the tax. Moreovo~, In vleu of the
portlam of Sekotlan (d) quoted supm, w feel that own: though
the "6alo" oi motor    fuolr to the fodorrl govemmmt or aortain
o$’Its IrgonaIo6 might 80 tas oxmpt, it nr the lskmtloa of
the legIa&rtum to levy 8 tax on          aubamt     “uam’ of luoh
fuelm vhleh right aonatltuttona1l.y70     tuod.   It ml.lu    to k
soon uWtber the tax mar aonatttut%65ally bm loviod upon 00~1
tmatura of the typo     under diaouaaion who use lwh fuels.
            That awoh mat-plus   oontraatora lu noithec agonaloa
nor  %natruwntalItIoa of ths fodorrl gov*nrmt       la va iael,
lettlod W the OC.S~Sof Alabara v. Xlng & Booaer, 62 Sup. Ct.
43, 66 L. M. la snd Ckwy v. Wted        stataa, 62 mp.. ct. 48,
86 L. gd. 9. Thase waw        am quoted end disowud    at loagth
in our Oplnian Ilo. O-4389, and ve adhan to the ana1~606 of the
086.6 thorn made. Hovover, oven though the aantmoton        tamp-
8olvos are nelthor fedelrl agamI*a m-t* InatmmaitalItIoa,       tlaa
aqpmont ia r&o that a tax upon the use of rator%alr by aort-
~1x16 aontrrotor6  Is i;l offoot 6 tu upon * hdorel    lgema~ or
lnatnmonta1l.t~ alnae the 8mwit of the tax will ba nilmated
In th8 lnoruud     oost of the mtwlal6    to the organIution6
which oaploy lwh oontrrretora.     5% r o w0OS lua h  8narguwnt
Is deatroywl when eonaldrrrd in the ll@tt of the nuwroua re-
sent oases tmlah hold that a general, mm-diaarkixmtory       tax
16 not const:tutiomlly     objectionable    merely because its
imp~oait:on upon G vendor or contractor      may reeult in a
slight  incream in the cost of goods or services acquired
by the federal ~overnmcnt.      Tnus, in ; l&ama v. King F:
Boozer,  stipra,  Chief Juatlce   Stone ecrldr
           “The mlrerted right of tks one (government)
     to be free of taxation by the other doea not
     spell lmmunlty from pay*     th6 added co*t sttrl-
     butable to the taxation of thosa who fUurai6h cup-
     ~1106 to the government and vho have been granted
     no tax Inanun1ty. so far an 0 d!.ffbrent viev ham
     prevailed,  608 Panhandle 011 Co. v. )II66i68lppi
     and Graves v. Texar Co., supra, ve think It no
     longer tenable. * (Parenthetical   word added)
           LIkevise,     in Curry v. United States,         aupm,    the
Chief Yustios aaid:
             “If the atats law laya the tax upon tti
      (coat-plus   contractors)    rather than the indivld~l
     with whom they enter into a cost-plus             oontmot
     1lJm the present one, then it affect8             the Govern-
     ment, like the indlvldual,         only a6 the eoonomlc
     burden is shifted       to It through operation of the
     contract.     As pointed out In the opinion in the
     gin&J  $2 BOOBctPt%ASe,   b  OOIltW68iO~    Of  the   ~VOXll-
     ment and on authority,       the Cozmtltutlon,        wlthout
     lmplemmtatlon      by oongresslonel      legislation,       doen
     not prohibit    a tax upon Oovernwnt contractors              be-
     cause lta burden Is pssaed on economlcelly              by the
     term6 of the oOntr8Ot or othervise a6 a
     the conrrtruotion oost to the Oovernmsnt. “r&n-
     ~thetlcal vord added)
See also James v. Dravo Contmcting   Co., 302 U.S. 134, 58 Sup.
ct. 208, 82 L. I%%. 155; Federal Lsnd ~cnk of St. ma   V. CQ
Rochford, 287 E.W. 522 (E.D.); Western LithoUr&    co. v. state
Board of Equslleation,  11 C&l. (26) 156, 78 P. ph
                                                 26) 731.
            Conaequontly, you are reopectfully edvised that when
n tax exempt fedeml agency purchase8 motor fuel6 in this State
and permits the u6e of such fuel6 by It6 cost-plus    contractors,
our motor fuels ttax attaches to the use of such fuels nnd the
contractors   are llebte  for nuoh tax.
                                                                               571

                          Page 6
Rcootiblm0.0. H. Sheppaxdd.

                                    III.
           HOtOr    fUO16    sold   t0   and used w         the aOntmatOm8
~Tbsabon disouastonaapalr tbo oonaluslcmtint the rotor
fwla  tax aoorwa in a sltwtion when motor fuolo are both
sold to and used by a aoat-plw    aontrrator   of the typa wdor
dlaowalen,  and rou arm napoatfully     advised that tha tu Is
duo in a wh   a   lltwtlw.

                            amplltioaant4asrim8 the aon-
           T h is oplnlenwnly
olualma raaabodin our oplnlonlo.0-4I&P,ud In lnnowy
lntmdod torlkrruob0piaIon.     8iaoo thla oplnloala in
dlmot o&lot   ylth moat of tba statemoats awl eonolwIonm
Inoro&lntw~~0-5309,                 the latter   @pinion       la hereby      over-
                        .
           Trusting    that    the iongol@g      aatiafaetorllf           na6lvma
my aonfllatavhloh may have existedIn                  the    oplnlwa      of thla
dopwtamt, w am

                                                  vary       truly     yew6

                                             A¶ToltxY        -0FTXA8


               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT

                           No. 97-50206
                        (Summary Calendar)

UNITED STATES OF AMERICA,

                                         Plaintiff-Appellee,

                              versus

GREGORY LEON PALMER,

                                         Defendant-Appellant.

                        - - - - - - - - - -
          Appeal from the United States District Court
                for the Western District of Texas
                      (USDC No. MO-96-CR-86)
                        - - - - - - - - - -
                          January 6, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

     Gregory Leon Palmer appeals his conviction and sentence for

possession with intent to distribute cocaine base (“crack”) in

violation of 21 U.S.C. § 841(a)(1).       Palmer argues that the

district court committed reversible error by failing to instruct

the jury on the defense of entrapment as requested.    Palmer failed

to make a prima facie showing that “the government’s conduct

created a substantial risk that an offense would be committed by a

person other than one ready to commit it,” and thus was not

     *
        Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
entitled to an entrapment instruction.       See United States v.

Bradfield, 113 F.3d 515, 520-21 (5th Cir. 1997).

     Palmer next argues that district court erred by failing to

depart downwardly from the sentencing guidelines for sentencing

entrapment. We lack jurisdiction to review a defendant's challenge

to his sentence for mere dissatisfaction with the court’s refusal

to grant a downward departure.   United States v. Palmer, 122 F.2d

215, 222 (5th Cir. 1997); United States v. DiMarco, 46 F.3d 476,

477 (5th Cir. 1995).

     Palmer also argues that the district court clearly erred in

finding that he indirectly threatened or intimidated witnesses and,

as a result, increasing his base offense level for obstruction of

justice.    The government demonstrated by a preponderance of the

evidence that Palmer indirectly threatened and intimidated witness

Sarah Baldwin.   Despite Palmer’s assertions to the contrary, the

record reflects that Baldwin identified who made the threat,

disclosed the substance of the threat, and directly linked Palmer

to the threat.    As the district court’s finding was not clearly

erroneous, that court did not err by applying the obstruction of

justice increase.   See U.S.S.G. § 3C1.1, comment. (n.3(a)); United

States v. Graves, 5 F.3d 1546, 1555 (5th Cir. 1993).

AFFIRMED.

                                 2


756 F.Supp. 261 (1991)
BUNGE EDIBLE OIL CORPORATION
v.
M/V TORM RASK and M/V FORT STEELE, et al.
Civ. A. No. 89-5514.
United States District Court, E.D. Louisiana.
January 15, 1991.
*262 Francis A. Courtenay, Jr., Donald J. Volpi, Jr., Courtenay, Forstall, Guilbault, Hunter & Fontona, New Orleans, La., for plaintiff.
James L. Schupp, Jr., Terriberry, Carroll & Yancey, New Orleans, La., James H. Roussel, Michael L. Armitage, Stephanie G. *263 McShane, Phelps Dunbar, New Orleans, La., Conrad S.P. Williams, III, New Orleans, La., for defendants.

ORDER AND REASONS
FELDMAN, District Judge.
Before the Court are three motions. Defendant Dampskibsselskabet Torm (Dampsk. Torm), owner of the M/V TORM RASK, and the Canadian Pacific defendants move for a summary judgment that the cargo claim of Bunge Edible Oil Corporation (Bunge) against the defendants is barred by the time limitation period provided in COGSA. The Canadian Pacific defendants also move for an order staying this lawsuit pending arbitration pursuant to a provision of the charter agreement between one of the Canadian Pacific companies and Dampsk. Torm. For the reasons that follow, the motion for summary judgment is GRANTED in part and the motion to compel arbitration is DENIED.

I. MOTION FOR SUMMARY JUDGMENT

A. Statute of Limitations
This motion presents a question never before considered in the Fifth Circuit: Does the one year limitation period of COGSA apply although a deviation in the cargo shipment occurred?
Bunge brings this suit as a shipper of cargo for damages that it says occurred while the cargo, a shipment of palm oil, was in transit to New Orleans, Louisiana. Bunge had a contract of carriage with Canadian Pacific (Bermuda) Ltd. (CPB). The bill of lading issued by CPB does not bear the name Canadian Pacific (Bermuda) Ltd. Instead, it names a sister company, Canadian Pacific Steamships London. The bill of lading reflects that the palm oil was received at Gudang, Johore in apparent good order and condition, and that the port of destination is either New York or New Orleans.
Both Bunge, the shipper, and Dampsk. Torm, the vessel owner, charge that, at the direction of CPB, the Torm Rask docked instead in Rotterdam and the palm oil was discharged into a shoreside tank; it was then pumped from the tank to the M/V Steele, a vessel owned and operated by another of the Canadian Pacific defendants. CPB, they further contend, then carried the palm oil to Reserve, Louisiana and pumped it into Barge MMI-307 on or about October 3, 1988. Bunge claims that surveyors' tests of the palm oil after delivery revealed that the quality of the palm oil had diminished to a level unacceptable to its consignees. According to Bunge, the surveyors at Reserve concluded that the diminished quality of the palm oil resulted from contamination by moisture and improper overheating of the cargo while en route from Gudang to Reserve. Bunge notified the Canadian Pacific defendants of its claim for damages to the cargo.
Thereafter, Transatlantic Marine Claims Agency (TMCA), handling Bunge's claim for cargo damages, made repeated written requests to Canadian Pacific Bulkship Service, Ltd. and Canadian Pacific Steamship for information concerning performance of the contract of carriage and the identity of the Canadian Pacific company involved. The exhibits of record show that Canadian Pacific was far from diligent or cooperative in its responses. Despite the fact that Bunge made diligent efforts to get information from Canadian Pacific and to engage Canadian Pacific in settlement discussions, passage of one year's time since delivery of the palm oil, and the one year limitation period set forth in COGSA, drew near.
To prevent Bunge's claim from becoming time-barred, TMCA sought an extension of time from Canadian Pacific. Canadian Pacific responded, agreeing to an extension, subject to a similar agreement by Dampsk. Torm.[1] TMCA continued to ask Canadian Pacific for information and kept trying to start settlement talks. On December 8, 1989 Canadian Pacific told TMCA that because *264 they had not obtained an extension from Dampsk. Torm, Canadian Pacific considered the claim time-barred. Six days later, on December 14, 1989, TMCA obtained an extension of suit from Dampsk. Torm conditioned on a similar agreement by Canadian Pacific.
Defendants argue that no extension of time was ever granted and that, therefore, Bunge's cargo claim is time-barred by section 3(6) of the Carriage of Goods by Sea Act, 46 U.S.C.App. § 1303(6). Bunge counters that COGSA's limitation period is not applicable. When the Canadian Pacific carrier discharged the palm oil at Rotterdam into a shoreside tank and then reloaded it aboard the M/V FORT STEELE, Bunge urges, the carrier committed a per se deviation from the contract of carriage. Bunge concludes that the effect of such an unreasonable deviation is to abrogate the terms of the contract of carriage and to block the carrier from invoking any defense otherwise permitted under COGSA. Thus, according to Bunge, neither the Canadian Pacific carrier nor any of the other defendants[2] can avail themselves of the COGSA time limitation period. The Court disagrees.
Bunge relies on a series of New York district court cases[3] in support of its argument. These district court cases indeed concluded that a deviation, such as the one Bunge points to here, deprives the deviating carrier of the COGSA time limitation defense. See e.g., Italia Di Nav. v. Hermes I, 1984 A.M.C. 485, 564 F.Supp. 492 (S.D.N.Y.1983), aff'd 724 F.2d 21 (2 Cir. 1983); Cerro Sales Corp. v. Atlantic Marine Enterprises, 403 F.Supp. 562 (S.D.N. Y.1975). But because the Court concludes that these cases were incorrectly decided, and are flawed doctrinally, the Court does not find them of any precedential value or guidance.
These decisions seem to have been based on an incorrect interpretation or application of precedent. United States v. Wessel, Duval & Co., 115 F.Supp. 678 (S.D.N.Y. 1953), the district court case relied on in this series of cases as support for the conclusion that a deviation voids the applicability of the limitation period provided in COGSA, does not support such a conclusion. Cerro, 403 F.Supp. at 566, Italia Di Nav., 1984 A.M.C. at 487, 564 F.Supp. 492. To the contrary, Wessel, Duval stands only for the proposition that an unreasonable deviation attributable to a bareboat charterer sued for cargo damage by a time charterer may void the contractual time limitation period contained in the Charter Party. Wessel, Duval, 115 F.Supp. at 683.
In Wessel, Duval, a time charterer, the United States, sued a bareboat charterer, Wessel Duval, for cargo damage caused by a deviation from the Charter Party attributable to the bareboat charterer. Id. The time charterer argued that the "conduct of ... the bareboat charterer ... was such to deprive it of the benefits of the one year limitation in [COGSA]", which the court held had been incorporated by reference into the Charter Party. Id. The time charterer argued that the introductory words "in any event" found in the COGSA's time limitation text mandated that the limitation period apply in all cases, even if a deviation had occurred. Concluding that these seemingly clear and direct words did not preserve the time limitation defense in the face of a deviation, the court explained:
Those words "in any event" may well result in the preserving this statutory limitation even though the ship has been guilty of a deviation. Here, however, the Act has effect only as an agreement of the parties; if the agreement that, unless suit is brought within one year, the ship shall be discharged goes by the board when the ship is guilty of a *265 deviation, the agreement that unless suit is so brought the ship shall be discharged "in any event" will go by the board too. The words "in any event" have no greater sanctity than the rest of the clause.
Id. at 683-684. (emphasis added)
Wessel, Duval's conclusion that a deviation bars one's assertion of the COGSA time limitation provision in a charter party clearly rests on the fact that the limitation provision was applicable only as a provision of the contract; if its application had been mandated by statute, as is the case here, the court noted that the words "in any event" would preserve the statutory limit even if a carrier were guilty of a deviation. Id.
Still another case out of the New York district court the same year as Wessel, Duval supports the conclusion that a deviation will not bar defensive use of the COGSA one year limitation period. Jones v. The Flying Clipper, 116 F.Supp. 386 (S.D. N.Y.1953). It focuses our attention on the conceptual differences between defensive use of the $500 per package limitation and the time limitation period when a deviation has occurred. The Flying Clipper addressed the issue whether a deviation by the carrier would operate to nullify the COGSA $500 per package limitation defense of section 1304(5). Id. In its analysis the court distinguished two earlier decisions[4] which held that a deviation would not bar application of COGSA's one year limitation period. Id. at 389. The court did not find these decisions persuasive because "a time limitations clause raises other issues." The Flying Clipper also pointed out that:
... Judge Augustus N. Hand, writing for the [Second Circuit] Court of Appeals, in reference to the one year provision contained in the English Carriage of Goods by Sea Act, 1924, which like the United States Act, 1936, was based upon the Brussels Convention  Hague Rules, stated: "Nothing resembling a deviation has been shown to deprive the carrier of the benefit of the limitation."
Id. (citing Switzerland General Ins. Co. v. Navigazione Libera Triestina, S.A., 91 F.2d 960, 963 (2 Cir.1944)).
In fact, the analysis of The Flying Clipper supports the conclusion that the time limitation defense is not trumped when a deviation occurs. In concluding that an unreasonable deviation would preclude a carrier's reliance on the COGSA per package limitation, The Flying Clipper correctly noted[5] that because a deviation by the carrier alters the fundamental risk allocation contemplated by the parties to the contract of carriage and the shipper in insuring the cargo, it necessarily nullifies the risk allocation reflected in a monetary limitation provision. Id. at 390. Thus, The Flying Clipper concluded that because COGSA's per package limitation of liability provision implicates the allocation of risk between the parties, a deviation by the carrier must deprive it of the protection afforded. Id. The Flying Clipper exposes the subtle conceptual difference between defensive use of the per package limitation and defensive use of the time limitation in the face of a shipment deviation; a difference which derives the result here. Since a relationship exists between a deviation which increases cargo risk and defensive use of the monetary limitation to a claim for damage to the cargo, it is theoretically *266 appropriate not to let the one who deviates to use the harsh monetary limits defense. But no such relationship exists between deviation and time limits within which to sue.
The COGSA time limitation period does not significantly bear on the allocation of cargo risk contemplated by the parties in negotiating the contract of carriage or by the shipper in procuring insurance. To the contrary, a time for suit limitation reflects only an estimation of a reasonable period in which to file suit. Styling Plastics Co. v. Neptune Orient Lines, Ltd., 666 F.Supp. 1406, 1413 (N.D.Cal.1987) (deviation would not void COGSA time bar). It has no conceptual nexus with cargo risk allocation. COGSA's time for suit limitation, then, merely reflects Congress' estimation of a reasonable time in which a shipper or consignee must pursue one's remedies. See 79 Cong. Rec. 13341 (1935) ("The present law imposes a very limited restriction on the right to bring suits against the carrier for defaults of one sort or another. This enlarges the time within which a shipper who has suffered damage may bring suit against the carrier."). And so, this Court concludes that the cases Bunge invokes are conceptually incorrect.
Although the Fifth Circuit has not addressed this issue, it has held that a deviation voided the COGSA per package limitation, and has employed reasoning which supports the result this Court reaches. Spartus Corp. v. The S/S Yafo, 590 F.2d 1310, 1315-17 (5 Cir.1979). Yafo supports the conclusion that the COGSA time bar differs from the per package defense; the time limitation does not concern the allocation of risk between the carrier and the shipper, and, therefore, a deviation by the carrier ought not deprive the carrier of its benefit.
Moreover, Yafo noted that the language employed in section 1304(5)[6] could support the conclusion that the monetary liability limitation in COGSA mandated its application to all suits on contracts of carriage regardless of deviation, but the court observed that such an interpretation was foreclosed by contrary precedent. Id. at 1317. That contrary precedent seemingly disregarded the statute's text because it was at odds with notions of risk allocation. The time for suit limitation contains similar language: "In any event the carrier and the ship shall be discharged from all liability in respect of loss or damage unless suit is brought within one year after delivery of the goods or the date when the goods should have been delivered." 46 U.S.C. App. § 1303(6) (1970). Without the presence of a risk allocation problem, earlier cases which stray from the statutory text do not instruct or compel this Court not to remain faithful to the text. Thus, because the Court considers the time bar a Congressional mandate and because a time for suit limitation in this context does not relate to the extent to which cargo is put at risk, the Court holds that a carrier's deviation does not block the carrier's defensive assertion of the time limitation period of section 1303(6).
Suits against the noncarrier defendants are not governed by COGSA and, thus, are not covered by its time limits. 46 U.S.C.App. 1300 et seq. (1970). Therefore, the time bar has no effect on Bunge's suit against the noncarrier Canadian Pacific companies or against Dampsk. Torm. Dampsk. Torm. is not a carrier because the bill of lading was neither issued by it or on its behalf. Pacific Employers Ins. v. M/V GLORIA, 767 F.2d 229 (5 Cir.1985); Assoc. Metals & Minerals Corp. v. S/S PROTORIA, 1973 A.M.C. 2095 (5 Cir.1973); Sunil Inds. v. THE OGDEN FRASER, 1981 A.M.C. 2670 (S.D.N.Y.1981); Demsey & Associates, Inc. v. Steamship Sea Star, 321 F.Supp. 663 (S.D.N.Y.1970), reversed in part on other grounds 461 F.2d 1009. The same is not true, however, with regard to an in rem action against the vessel under COGSA; Pioneer Import Corporation v. The Lafcomo, 138 F.2d 907 (2 Cir.1943); Tetley, Marine Cargo Claims at 83 (2d *267 Cir.1978). COGSA applies to the lien action against the ship for safe carriage. Id.
Consequently, unless the time limitation provision was waived or otherwise tolled, as Bunge contends, Bunge's suit against the carrier and the ship in rem is time-barred.

B. Waiver of the COGSA Limitation Provision
Bunge next argues that defendants waived the COGSA time limit by granting Bunge an extension of time within which to sue. Defendants insist they granted no extension to Bunge because any agreement was subject to a condition that Bunge failed to fulfil. The Court finds that, although the defendants granted Bunge an extension of time and waived the COGSA one year limitation period, the waiver was, as they contend, subject to a condition that was not fulfilled and therefore without effect.
Although a carrier may waive the right to invoke the COGSA time limitation period, the terms of the waiver must be strictly construed. United Fruit Company v. J.A. Folger, 270 F.2d 666, 669 (5 Cir.1959); General Electric Co. v. M/V Gediz, 720 F.Supp. 29, 30 (S.D.N.Y.1989). The Court must therefore examine the terms of the agreement itself. There is no dispute that the Canadian Pacific interests, presumably CPB and some other Canadian Pacific company, made this response to Bunge's request for an extension: "We hereby grant a time extension up to and including January 1, 1990 without prejudice on behalf of charterers subject to owners granting similar." The words "subject to owners granting similar" make the carriers' agreement to extend conditional  a condition which suspends the agreement's operative effect until the condition is fulfilled. See La.Civ.Code Art. 1767[7] (West 1990).
An agreement which is subject to a suspensive condition is not binding until the condition is fulfilled. See La.Civ.Code Art. 1767 (West 1990). And if an agreement which is subject to a suspensive condition does not provide a period of time in which the condition must be fulfilled, the condition may be fulfilled within a reasonable time. See La.Civ.Code Art. 1773. In this case, the charterers granted the extension on the condition that the vessel's owner would grant a similar extension. Thus, unless Bunge got such an agreement from the vessel within a reasonable time, the agreement to extend cannot be enforced.
Bunge did not seek or obtain a similar agreement from the vessel owner until over two months after the conditional grant by the Canadian Pacific interests and six weeks after the time for suit had passed. Moreover, it was only after receiving notice from the Canadian Pacific interests (that they considered the condition unfulfilled and the claim time-barred) that Bunge tried to obtain such an agreement. Thus, the Court finds that Bunge failed to fulfill the condition of the extension grant within a reasonable time, and that Bunge's suit against CPB, and any other Canadian Pacific defendant determined to be a carrier, is time-barred.
The same reasons apply to Dampsk. Torm. Dampsk. Torm's grant of extension was subject to the condition that Bunge obtain a similar grant from the charterers. The suspensive condition of Dampsk. Torm's agreement was never fulfilled. Before Dampsk. Torm ever indicated its agreement, the Canadian Pacific grant was dissolved or withdrawn. Bunge was unable, subsequent to obtaining the grant from Dampsk. Torm., to obtain a new extension from the Canadian Pacific charterers. Thus, Dampsk. Torm's grant of extension is not binding. Because the Court concludes that the grant is unenforceable due to its unfulfilled suspensive condition, the Court need not address whether it was also invalid because it was obtained after the period for suit had expired.

*268 C. Fraudulent Concealment
In a final effort to avoid application of COGSA's time bar, Bunge asserts that Canadian Pacific fraudulently concealed the identity of the carrier. Bunge contends that its delay in filing suit was caused by fraudulent concealment, and that, as a result, the Canadian Pacific defendants are estopped from invoking COGSA's limitation period to bar Bunge's suit. Bunge is incorrect.
While it is true that fraudulent concealment by a defendant will toll the statute of limitations if the plaintiff acts with reasonable diligence to discover the fraudulent conduct, Pan Am Petroleum Co. v. Orr, 319 F.2d 612, 614 (5 Cir.1963), Bunge does not attribute to the Canadian Pacific defendants acts sufficient to constitute fraudulent concealment. A plaintiff claiming that fraudulent concealment tolls a limitation period must establish that its failure to timely act "was the result of affirmative conduct by the defendant." Conmar Corp. v. Mitsui & Co., 858 F.2d 499 (9 Cir.1988), cert. denied, 488 U.S. 1010, 109 S.Ct. 795, 102 L.Ed.2d 786 (1989). Passive concealment of information does not constitute fraudulent concealment unless the defendant owes a fiduciary duty to disclose information to the plaintiff. Id. Neither silence or mere inaction constitutes fraudulent concealment. Gomez v. Great Lakes Steel Corp., 803 F.2d 250 (6 Cir. 1986). Moreover, not every act of active concealment will toll a limitation period; the concealment must concern a crucial element or defense. Hohri v. United States, 782 F.2d 227 (D.C.Cir.1986), vacated on other grounds, 482 U.S. 64, 107 S.Ct. 2246, 96 L.Ed.2d 51.
Bunge only attributes to the Canadian Pacific defendants passive concealment of, or mere inaction regarding the true identity of the Canadian Pacific carrier. That does not toll COGSA's one year time period. Conmar, 858 F.2d at 505. Further, lack of knowledge of the identity of the particular Canadian Pacific company did not prevent Bunge from being aware of its claim against the Canadian Pacific interests or keep it from filing suit against at least the known Canadian Pacific participants to protect its rights. Hohri, 782 F.2d at 249. (It seems as though Bunge could certainly have filed suit against some of the Canadian Pacific defendants timely, and then amended later to include other parties).
The Court must conclude on this record that fraudulent concealment did not toll the COGSA limitations period. Section 1303(6) time bars Bunge's action against the vessels in rem and against the Canadian Pacific carrier. Canadian Pacific admits that CPB entered into the contract of carriage with Bunge, and Bunge does not refute this fact. Thus, the Court grants defendants' motion with regard to the vessels, the TORM RASK and the FORT STEELE, and the undisputed carrier, CPB. However, the Court denies the motion insofar as it applies to Dampsk. Torm. and the remaining Canadian Pacific defendants.

II. MOTION TO COMPEL ARBITRATION
The Court questions the merit of Canadian Pacific's contention that any of the disputes involved in this litigation, other than disputes between it and Dampsk. Torm, "arise out of" the charter party between it and Dampsk. Torm.[8]Valero Refining, Inc. v. M/T Lauberhorn, 813 F.2d 60, 64 (5 Cir.1987) ("ordinary contract principles determine who is bound by a written arbitration agreement"). However, the Court need not consider this point because Canadian Pacific has waived its right to arbitration over any dispute involved in this litigation; it actively participated in this litigation and failed to move to compel arbitration until shortly before the scheduled trial.
This litigation was started on December 29, 1989. Since then, the Canadian Pacific defendants have cross-claimed against Dampsk. Torm and actively participated in discovery. On December 14, 1990, nearly a *269 full year later, the Canadian Pacific defendants moved to compel arbitration. The motion was set for consideration on January 9, 1991, less than a month before the scheduled trial date.
Even though a strong federal policy favors arbitration, the right to compel arbitration may be waived. Frye v. Paine, Webber, Jackson & Curtis, Inc., 877 F.2d 396 (5 Cir.1989). A court will find such a waiver when the party seeking to invoke arbitration actively participates in litigation, or delays in moving to compel arbitration to the prejudice of the other parties. Id. at 399; Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1158-59 (5 Cir.1986); Miller Brewing Co. v. Fort Worth Distributing Co., 781 F.2d 494, 497 (5 Cir.1986).
The Court finds that the active participation of Canadian Pacific in the litigation, its delay in moving to compel arbitration, and the prejudice that would result to the other parties should arbitration be ordered less than a month before trial of this matter, compel the denial of Canadian Pacific's motion for arbitration.
Accordingly, defendants' motion for summary judgment is GRANTED insofar as it requires dismissal of Bunge's claims against the two vessels in rem and the carrier, CPB (Canadian Pacific (Bermuda) Ltd.), as time-barred under COGSA; and DENIED with regard to the remaining Canadian Pacific defendants and Dampsk. Torm in personam. Canadian Pacific's motion to compel arbitration is also DENIED.
NOTES
[1]  In their response to Bunge's request for an extension of time, the Canadian Pacific defendants stated "We hereby grant a time extension up to and including January 1, 1990 without prejudice on behalf of charterers subject to owners granting similar."
[2]  COGSA does only apply by its terms to carriers.
[3]  Among the cases cited by Bunge is also a district court decision from the Southern District of Florida. Allstate Ins. Co. v. International Shipping Corp., 1982 A.M.C. 1763 (S.D. Fla.1981) (carrier's actions constituted an unreasonable deviation, nullifying any limitations available to it under COGSA.) Because this case relies on the same line of New York district court decisions as authority for its conclusion, it is unnecessary for the Court to treat it because it is implicitly included in the Court's discussion of the New York cases. Id. at 1769.
[4]  See Singer Hosiery Mills v. Cunard White Star, 1951 A.M.C. 988 (New York Municipal Court 1951); Potter v. North German Lloyd, 1943 A.M.C. 738 (N.D.Cal.1943).
[5]  The court stated:

A shipper has the right to assume that the carrier will not deviate and thereby subject the cargo to other than the known risks inherent in a normal route or underdeck stowage. The shipper protects himself by insurance commensurate with such calculated risks. But when the carrier deviates and enters upon "a different venture from that contemplated," he exposes the cargo to unanticipated and additional risks against which [the shipper] has not protected himself.... To uphold the carrier's contention that the limitation of liability is absolute, regardless of a fundamental breach which goes to the very essence of its undertaking, would permit any carrier with recklessness to violate the terms of the bill of lading, knowing it cannot be called upon to pay more than $500 per package.
Id. at 390.
[6]  Section 1304(5) of the Act reads, "Neither the carrier nor the ship shall in any event be or become liable for any loss or damage to or in connection with the transportation of goods in an amount exceeding $500 per package." 46 U.S.C.App. § 1304(5) (1970) (emphasis added).
[7]  Because Admiralty or General Maritime Law provides no guidance in the area of general contract law, the Court will look to state law. St. Hilaire Moye v. Henderson, 496 F.2d 973, 980 (8 Cir.1974) ("admiralty courts may apply state law by express or implied reference when the federal law of admiralty is incomplete").
[8]  The Court is not convinced the disputes between third parties and one of the parties to a charter party containing an arbitration clause can be said to "arise out of" the charter party. Valero, 813 F.2d at 64.