     OPPTCE   OF THE ATTORNEY   GENERAL   STATE   OF TEXAS

    JOHN      CORNYN

                                              December 22.2000

The Honorable Michael P. Fleming                             Opinion No. K-0319
Harris County Attorney
1019 Congress, 15th Floor                                    Re: Whether a county commissioners court may
Houston, Texas 77002-1700                                    condition acceptance of bids for county public
                                                             works project on attendance at amandatoryprebid
                                                             conference   (RQ-266)

Dear Mr. Fleming:

       You ‘ask whether a county commissioners court may condition acceptance of bids for a
county public works project on attendance at a mandatory prebid conference. We conclude that a
commissioners court may not do so.

         As background to your request, you explain that the county engineer in your county would
like “to impose mandatory pre-bid conferences on selected public works projects in order to ensure
that all bidders are aware of the intricacies of the project” and to enable the county to “answer
questions related to the scope ofwork.“r We understand you to ask whether a county commissioners
court may condition acceptance of bids for county public works projects on attendance at a
mandatory prebid conference under the County Purchasing Act, subchapter C of chapter 262 of the
Local Government Code. See Request Letter, note 1, at 1.

        Section 262.023 of that subchapter generally requires a county to purchase               goods and
services according to competitive bidding or competitive proposals:

                       (a) Before a county may purchase one or more items under a
                   contract that will require an expenditure exceeding $25,000, the
                   commissioners court of the county must comply with the competitive
                   bidding or competitive proposal procedures prescribed by this
                   subchapter. All bids or proposals must be sealed.

                       (b) The competitive bidding and competitive proposal require-
                   ments established by Subsection (a) apply only to contracts for which
                   payment will be made t?om current funds or bond funds or through

           ‘Letter from Honorable Michael P. Fleming, Harris County Attorney, to Honorable John Comyn,   Texas
Attorney    General at I (Aug. 8,200O) (on tile with Opinion Committee) [hereinafter Request Letter].
The Honorable Michael P. Fleming             - Page 2       (JC-0319)

                   time warrants. However, contracts for which payments will be made
                   through certificates of obligation are governed by The Certificate of
                   Obligation Act of 1971 (Subchapter C, Chapter 271). Contracts for
                   which payment will be made through anticipation notes are subject
                   to the competitive bidding provisions ofThe Certificate ofobligation
                   Act of 1971 (Subchapter C, Chapter 271) in the same manner as
                   certificates of obligation.

TEX.LOC.      GOV’TCODEANN.        $262.023(a),   emon Supp. 2000) (footnote omitted). We assume
                                                   (b) (V
you ask about purchases exceeding $25,000 that are not exempt from section 262.023 by section
262.024. See id. 5 262.024 (Vernon 1999) (items exempted from competitive bidding). As the
memorandum brief submitted with your query focuses on the requirements of competitive bidding
and the County Purchasing Act,’ we also assume that your question does not pertain to competitive
sealed proposals or to contracts subject to the Certificate of Obligation Act of 1971.

         The County Purchasing Act requires a county to publish notice of a proposed purchase
including spetiifications about the item to be purchased and other information about the purchase.
Id. § 262.025. All bids for an item must be opened at the same time. See id. 5 262.026 (Vernon
Supp. 2000). After bids for an item have been opened, the officer in charge ofopening the bids must
present them to the commissioners court. See id. 9 262.027(a) (Vernon 1999). Section 262.027
requires a commissioners court to award the contract to the lowest responsible bidder, providing in
pertinent part:

                       (a)        Except as provided by Subsection (e), the court shall:

                             (1) award the contract to the responsible bidder who submits
                                 the lowest and best bid; or

                             (2) reject all bids and publish a new notice.

                      @) If two responsible bidders submit the lowest and best bid, the
                   commissioners court shall decide between the two by drawing lots in
                   a manner prescribed by the county judge.

                       (c) A contract may not be awarded to a bidder who is not the
                   lowest dollar bidder meeting specifications unless, before the award,
                   each lower bidder is given notice ofthe proposed award and is given
                   an opportunity to appear before the commissioners court and present
                   evidence concerning the lower bidder’s responsibility.

           2See Brief from Honorable Michael P. Fleming, Harris County Attorney,   to Honorable   John Comyn, Texas
Attorney    General (Aug. 8,200O) (on tile with Opinion Committee).
The Honorable Michael P. Fleming       - Page 3 (JC-0319)

Id. 5 262.027(a), (b), (c).

         Subsections(d) and(e) of section 262.027 provide special criteria for determining the lowest
and best bid for a contract for the purchase of certain equipment and materials not relevant here. In
addition, section 262.0275 provides that in determining who is a responsible bidder, the
commissioners court may take into account the safety record of the bidder, if:

                      (1) the commissioners court has adopted a written definition and
                 criteria for accurately determining the safety record of a bidder;

                     (2) the governing body has given notice to prospective bidders in
                 the bid specifications that the safety record of a bidder may be
                 considered in determining the responsibility of the bidder; and

                    (3) the determinations   are not arbitrary and capricious.

Id. 5 262.0275

         The County Purchasing Act must be construed in light of counties’ limited jurisdiction. In
Attorney General Opinion JM-1215, for example, this office considered whether Harris County was
authorized to prescribe a prevailing wage for nonpublic works contracts awarded under the County
Purchasing Act. As this office noted, “[clounties may do only those things that they are authorized
to do, either expressly or by necessary implication. Canales v. Laughlin, 214 S.W.2d 451 (Tex.
1948); Anderson v. Wood, 152 S.W.2d 1084 (Tex. 1941); Childress County v. State, 92 S.W.2d
 1011 (Tex. 1936)” Tex. Att’y Gen. Op. No. JM-1215 (1990) at 2; seealsoTex. Atty. Gen. Op. No.
JC-0171 (2000) at 1 (“It is well settled that the authority of the commissioners court to contract [o]n
behalf of the county is limited to that conferred either expressly or by necessary implication by the
constitution and laws of this state.“). This office concluded that Harris County was not authorized
to prescribe a prevailing wage: “While the legislature has required that counties determine and pay
local prevailing wage rates on public works contracts, it has made no such requirement in regard to
other contracts.      [Clhapter 262 does not require the payment of prevailing wages generally. Nor
do we find any other statute that expressly requires or necessarily implies that the commissioners
court establish prevailing wage rates for contracts other than public works contracts.” Tex. Att’y
Gen. Op. No. JM-1215 (1990) at 2.

         Here, the County Purchasing Act does not expressly authorize a county to require mandatory
prebid conferences. Nor do we believe such authority must be necessarily implied from the County
Purchasing Act as a county may convey information about a project to potential bidders in writing.
Furthermore, we have identified two Texas statutes that expressly authorize political subdivisions
to require bidders to attend prebid conferences. Significantly, the Water Code expressly authorizes
a water district to “require attendance by a principal of each prospective bidder at mandatory prebid
conferences.” TEX. WATER CODE ANN. 5 49.271 (Vernon 2000). A water district, like a county,
exercises only such powers as have been expressly delegated to it by the constitution or the
The Honorable Michael P. Fleming       - Page 4      (JC-0319)

legislature or which exist by clear and unquestioned implication. See Tri-City Fresh Water SuppZy
Did. No. 2 of Harris County v. Mann, 142 S.W.2d 945 (Tex. 1940); Franklin County Water Did.
v. Majors, 476 S.W.2d 371 (Tex. Civ. App.-Texarkana        1972, writ ref d n.r.e.) (a water district may
do only that which is authorized by the statute creating it). In addition, the Health and Safety Code
authorizes political subdivisions     to require prebid conferences to coordinate geotechnical
investigation of a project site and prohibits such bodies from considering the bids of bidders who
fail to attend a mandatory prebid conference. See TEX. HEALTH & SAFETY CODE ANN. 5 756.023
(Vernon Supp. 2000) (authorizing political subdivision on a project in which trench excavation will
exceed five feet to require bidders to attend prebid conference to coordinate geotechnical
investigation of project site). The legislature’s enactment of these statutes supports our conclusion
that the authority of a limited-power political subdivision to condition acceptance of bids on
attendance at a prebid conference must be expressly authorized by statute and may not generally be
implied.

         In sum, because the County Purchasing Act does not expressly or impliedly authorize a
county to condition acceptance of a bid on the bidder’s attendance at a prebid conference, such a
condition is therefore beyond the authority of a commissioners court when it solicits bids under that
statute. You also ask whether a bidder’s proposal may be returned unopened if the contractor fails
to attend a prebid conference. See Request Letter, supua, note 1, at 1. Given our conclusion that a
county may not require mandatory prebid conferences, it follows that a county may not return a bid
unopened because the contractor failed to attend a prebid conference. As we have noted, however,
a county is authorized to require a prebid conference with respect to a project to the extent it
will involve trench excavation that will exceed five feet. See TEX. HEALTH & SAFETY CODE ANN.
$756.023 (Vernon Supp. 2000). Finally, we note that the County Purchasing Act does not preclude
a county from holding nonmandatory prebid conferences with interested bidders, provided that it
does not take attendance at such conferences into account in awarding contracts.
The Honorable Michael P. Fleming    - Page 5 (X-0319)

                                      SUMMARY

                       A county commissioners court may not condition acceptance
               of bids for a county public works project solicited pursuant to the
               County Purchasing Act, TEX. Lot. Gov’TCODEANN. ch. 262, subch.
               C (Vernon 1999 & Supp. 2000), on attendance at a mandatory prebid
               conference.

                                             Yo   s ve   truly,

                                            4&C-
                                             JOHN     CORNYN
                                             Attorney General of Texas

ANDY TAYLOR
First Assistant Attorney General

CLARK KENT ERVIN
Deputy Attorney General - General Counsel

SUSAN D. GUSKY
Chair, Opinion Committee

Mary R. Crouter
Assistant Attorney General - Opinion Committee


15-2188-cr
United States v. Richards

15-2188-cr
United States v. Richards

                                   UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this Court, a party must cite either the Federal Appendix or an
electronic database (with the notation “summary order”). A party citing a summary order
must serve a copy of it on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 12th day of July, two thousand sixteen.

PRESENT:               JOSÉ A. CABRANES,
                       CHRISTOPHER F. DRONEY,
                                    Circuit Judges,
                       JEFFREY ALKER MEYER,
                                    District Judge.*

UNITED STATES OF AMERICA,

                              Appellee,

                              v.                               No. 15-2188-cr

IRA RICHARDS, ALSO KNOWN AS IRA RICHARD, ALSO
KNOWN AS MR. 95, ALSO KNOWN AS SHYNE, ALSO
KNOWN AS SEALED DEFENDANT 1, ALSO KNOWN AS
IRA RICHERDS, ALSO KNOWN AS SHYNE JONES,

                              Defendant-Appellant.

FOR THE UNITED STATES OF AMERICA:                          SAMSON ENZER (Anna M. Skotko, on the
                                                           brief), Assistant United States Attorneys,

     *
    The Honorable Jeffrey Alker Meyer of the United States District Court for the District of
Connecticut, sitting by designation.

                                                       1
15-2188-cr
United States v. Richards

                                                             for Preet Bharara, United States Attorney
                                                             for the Southern District of New York,
                                                             New York, NY.

FOR DEFENDANT-APPELLANT:                                     ALLEGRA GLASHAUSSER, Of Counsel,
                                                             Appeals Bureau, Federal Defenders of
                                                             New York, Inc., New York, NY.

       Appeal from the June 24, 2015 judgment of the United States District Court for the
Southern District of New York (Lewis A. Kaplan, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED.

        Defendant-appellant Ira Richards appeals from the District Court’s June 24, 2015 judgment
of conviction, which followed his guilty plea before a magistrate judge. Richards argues that his plea
should be vacated because the magistrate judge failed to warn him that it could result in his
deportation from the United States. According to Richards, the magistrate judge’s failure to do so
violated his rights under Rule 11 of the Federal Rules of Criminal Procedure and the Due Process
Clause of the Fifth Amendment.1 Although we agree that the plea colloquy did not comply with
Rule 11, we conclude that Richards cannot show that any error under Rule 11 or the Due Process
Clause affected his substantial rights, and we therefore affirm the judgment of the District Court.

         “[T]he Supreme Court has held that” where, as here, “a defendant has failed to object in the
district court to a violation of Rule 11, reversal is appropriate only where the error is plain and
affects the defendant’s substantial rights.” United States v. Pattee, 820 F.3d 496, 503 (2d Cir. 2016)
(citing United States v. Vonn, 535 U.S. 55, 58–59 (2002)); see Def.’s Br. 3 (“[T]his Court should review
for plain error.”). To satisfy this standard, Richards must “demonstrate that (1) there was error, (2)
the error was plain, (3) the error prejudicially affected his substantial rights, and (4) the error
seriously affected the fairness, integrity or public reputation of judicial proceedings.” Pattee, 820 F.3d
at 505 (internal quotation marks omitted).

         With respect to the third prong, Richards “must show that there is a reasonable probability
that, but for the error, he would not have entered the plea. If the misinformation in all likelihood
would not have affected [his] decision-making calculus, then the error would be harmless, and the
guilty plea need not be vacated.” Id. (citations and internal quotation marks omitted). Importantly,

     1
     Rule 11(b)(1)(O) provides that, “[b]efore the court accepts a plea of guilty . . . , [it] must inform
the defendant of, and determine that the defendant understands . . . that, if convicted, a defendant
who is not a United States citizen may be removed from the United States, denied citizenship, and
denied admission to the United States in the future.” Fed. R. Crim. P. 11(b)(1)(O).

                                                    2
15-2188-cr
United States v. Richards

“[w]here a defendant, before sentencing, learns of information erroneously omitted in violation of
Rule 11 but fails to attempt to withdraw his plea based on that violation, there can be no reasonable
probability that, but for the Rule 11 violation, he would not have entered the plea, and the plain
error standard is not met.” United States v. Tulsiram, 815 F.3d 114, 120 (2d Cir. 2016) (internal
quotation marks omitted).

         Richards cannot make the showing required by the third prong here, because he learned of
the erroneously omitted information before sentencing but did not seek the withdrawal of his plea
on that ground. As the presentence report prepared by the United States Probation Office clearly
stated, “Although Richards claims to have derived U.S. citizenship through his father, a U.S. citizen,
available immigration records indicate that he is a permanent resident. The records also note that as
a result of his conviction in this offense, [he] may face deportation proceedings in the future.”
PSR ¶ 68; see id. at 23 (same). At sentencing, Richards’s counsel acknowledged that Richards had
read the presentence report. A-72. What is more, Richards’s counsel relied on the possibility that
Richards might be deported in arguing for a below-Guidelines sentence. As Richards’s counsel wrote
in his sentencing submission, “No amount of imprisonment above 120 months will meaningfully
contribute to true public safety. Indeed, if the probation department is correct, then [Richards] will
be deported at the conclusion of his incarceration term.” A-62.

         Although Richards is unable to show prejudice from the error that occurred in his plea
proceedings, it is clear that the type of error in this case may be easily avoided by means of strict
adherence to the requirements for guilty plea proceedings that are set forth in Rule 11. As we have
recently observed, “compliance with Rule 11 is not a difficult task,” and “[t]echnical errors can be
avoided if a district or magistrate judge has a standard script for accepting guilty pleas, which covers
all of the required information.” Pattee, 820 F.3d at 503. Because it is possible that a district or
magistrate judge may inadvertently omit an advisory that is required under Rule 11, the best practice
is for counsel to maintain a checklist or similar tracking procedure in order to detect any
shortcoming, and to call any possible deficiency to the attention of the judge at the time of the plea
proceeding. See id. at 504 (noting that “[p]rosecutors and defense attorneys also have an obligation to
make sure that the Rule is followed”).

         We note as well an additional error that occurred during the course of the sentencing
proceeding but that does not furnish a ground for relief in this case, because it was neither raised by
Richards on appeal, nor adopted and pressed by his appellate counsel when raised by this Court sua
sponte at oral argument. The District Court at sentencing asked defense counsel if “you and Mr.
Richards had the presentence report for the necessary period and have both read it,” to which
defense counsel replied, “Yes, sir.” A-72. This query was not sufficient. Rule 32 of the Federal Rules
of Criminal Procedure requires that a district court “must verify that the defendant and the
defendant’s attorney have read and discussed the presentence report and any addendum to the report.”
Fed. R. Crim. P. 32(i)(1)(A) (emphasis supplied). Here, the District Court at sentencing did not

                                                   3
15-2188-cr
United States v. Richards

inquire whether counsel had discussed the presentence report with Richards prior to the sentencing.
See United States v. DeLeon, 704 F.3d 189, 196 (1st Cir. 2013) (noting “the better practice for trial
courts to address the defendant directly in order to establish that he or she has had the opportunity
to read the PSR and to discuss it with his/her counsel” (alterations omitted)).

        Because Richards cannot show that any error that occurred at his guilty plea or sentencing
proceeding affected his substantial rights, he cannot show plain error.2 And because he cannot show
plain error, we affirm.3

                                            CONCLUSION

        We have considered all of Richards’s arguments on appeal and found them to be without
merit. Accordingly, the judgment of the District Court is AFFIRMED.

                                                         FOR THE COURT:
                                                         Catherine O’Hagan Wolfe, Clerk

     2
     We note that the magistrate judge’s omission of the information required by Rule 11(b)(1)(O),
while undoubtedly erroneous, is perhaps more understandable in this context than it would be in
many others. During Richards’s plea allocution, the magistrate judge asked him, “Are you a United
States citizen?” Richards responded, “Yes.” A-28.
     3
      Richards’s due-process claim fails for the same reason as does his Rule 11 claim—his inability
to satisfy the third prong of the plain-error standard. See Def.’s Br. 23 (“[T]his Court reviews . . . the
due process errors under plain error review.”).

                                                    4


                                                                         FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit

                     UNITED STATES COURT OF APPEALS                  April 25, 2008
                                                                  Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                     Clerk of Court

    DUHHAINE WAEKER;
    HOLLIE WAEKER,

                Plaintiffs-Appellants,                  No. 07-3139
                                                (D.C. No. 05-CV-1347-MLB)
    v.                                                    (D. Kan.)

    AMERICAN FAMILY MUTUAL
    INSURANCE COMPANY,

                Defendant-Appellee.

                             ORDER AND JUDGMENT *

Before LUCERO and PORFILIO, Circuit Judges, and BRORBY, Senior Circuit
Judge.

         This diversity action arises from Duhhaine and Hollie Waeker’s insurance

claim for personal property theft loss. They filed their claim pursuant to the

terms of a comprehensive homeowners’ insurance policy issued by American

Family Mutual Insurance Company (“American Family”). After American Family

*
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
denied the Waekers’ claim, they brought suit alleging that (1) American Family

breached its contract with them by refusing to pay a valid claim and (2) the

doctrines of waiver and estoppel precluded American Family’s denial of

coverage. 1 Applying the substantive law of Kansas, which the parties agree

governs this case, the district court granted American Family’s motion for

summary judgment. This appeal followed. 2 Our jurisdiction arises under 28

U.S.C. § 1291, and we affirm.

      We review de novo the district court’s grant of summary judgment,

applying the same legal standard used below. Doña Ana Mut. Domestic Water

Consumers Ass’n v. City of Las Cruces, 516 F.3d 900, 906 (10th Cir. 2008).

Summary judgment is appropriate “if the pleadings, the discovery and disclosure

materials on file, and any affidavits show that there is no genuine issue as to any

material fact and that the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(c). “In ruling on summary judgment, the court must resolve all

1
      The Waekers have expressly abandoned their claim for “unlawful insurance
claims practices” on appeal.
2
       The Waekers are represented by counsel. Counsel bears the responsibility
to “file an appendix sufficient for considering and deciding the issues on appeal,”
10th Cir. R. 30.1(A)(1), and when a party fails to do so, “the court may decline to
consider” the issues, 10th Cir. R. 10.3. By itself, the Waekers’ appendix is
inadequate to allow us to review their arguments. However, because American
Family filed a supplemental appendix containing the relevant district court
filings, see 10th Cir. R. 30.2(A)(1), the record as a whole is sufficient to permit
review, see Scott v. Hern, 216 F.3d 897, 912 (10th Cir. 2000). We proceed to the
merits of the appeal, but remind counsel of the duty to follow this circuit’s rules.

                                         -2-
ambiguities and draw all factual inferences in favor of the non-moving party.”

Doña Ana, 516 F.3d at 906 (quotation omitted). “We review the district court’s

determination of state law de novo.” Id.

      The district court detailed the facts and procedural history involved in this

case, and we need not repeat that material here. Waeker v. Am. Family Mut. Ins.

Co., No. 05-1347-MLB, slip op. at 2-11 (D. Kan. Apr. 27, 2007). Suffice it to say

that the “COVERAGE B - PERSONAL PROPERTY” section of the insurance

policy at issue states:

      We cover risks of accidental direct physical loss to property
      described in Coverage B-Personal Property when caused by a peril
      listed below, unless the loss is excluded in this policy.
      ....
             9.    Theft, including damage from attempted theft, and loss
                   of property from a known place only when it is likely
                   that a theft occurred.

                    a.   We do not cover:
                    ....
                         (2) theft from the insured premises while the
                         dwelling is under construction, until the dwelling
                         is completed and occupied.

(emphasis added). The district court noted that the Waekers did “not controvert

the fact that their dwelling had not been ‘completed.’ In fact, [they] admit[ed]

that the construction on their home was ongoing.” Thus, the district court

rejected the Waekers’ breach-of-contract claim, stating:

      Because the policy precludes coverage for theft when the dwelling
      under construction is not “completed and occupied,” plaintiffs have
      not stated a genuine issue of material fact with respect to whether

                                           -3-
      defendant breached the insurance contract. Reliance on this policy
      term is clearly permitted by the policy and defendant could not have
      breached the insurance contract when it denied plaintiffs[’] claim.
             ....
             It was plaintiff[s’] burden to prove that their loss was of the
      type included within the coverage of the policy. See Clark Equip.
      Co. v. Hartford Accident & Indem. Co., [608 P.2d 903, 906 (Kan.
      1980)]. Plaintiffs did not do so and defendant was justified in
      denying plaintiffs’ claim. Therefore, the claim of breach of contract
      fails because plaintiffs cannot show a breach of the insurance policy.

      The Waekers also argued that American Family should be estopped from

denying coverage on the basis of the “completed and occupied” language, or had

waived its right to rely on this language, because it knew when it sold the

Waekers their policy that their dwelling was under construction. The district

court rejected this argument as well, stating:

      Kansas cases have consistently held that waiver and estoppel cannot
      be used to expand coverage of an insurance policy where the policy
      unambiguously excludes coverage for the insured’s claim. Von
      Hillman v. Colonial Penn. Ins. Co., [869 P.2d 248, 249 (Kan. Ct.
      App. 1994)]. . . . Because the insurance policy unambiguously
      excludes coverage of the claim made in this case, plaintiffs may not
      invoke the principles of waiver and estoppel.

      On appeal, the Waekers challenge the district court’s rejection of their

breach-of-contract claim, arguing that the court improperly weighed the evidence;

erroneously placed the burden of proof on them; and incorrectly found that their

home was under construction, incomplete, and unoccupied at the time of the theft

loss. They also contend that the district court erred in determining that the

doctrines of waiver and estoppel are inapplicable because “the ‘completed and

                                         -4-
occupied’ language relied on by American Family is . . . exclusionary” language,

not “coverage language.”

      None of the Waekers’ arguments is meritorious. Having carefully reviewed

the briefs, the appendix, and the applicable law pursuant to the above-mentioned

standards, we conclude that the Waekers have failed to identify any reversible

error in this case. We therefore AFFIRM the judgment of the district court for

substantially the same reasons stated in its thorough memorandum and order dated

April 27, 2007.

                                              Entered for the Court

                                              Carlos F. Lucero
                                              Circuit Judge

                                        -5-


66 B.R. 3 (1985)
In re Raymond Bill COOK, Theresa Ann Cook, Debtors.
Bankruptcy No. WF7-84-01812.
United States Bankruptcy Court, W.D. Wisconsin.
February 6, 1985.
Sheree L. Gowey, Asst. U.S. Atty. Madison, Wis., for Farmers Home Admin.
Terrence J. Byrne, Wausau, Wis., for debtors.

FINDINGS OF FACT, CONCLUSION OF LAW AND ORDER AVOIDING LIEN IN PART
WILLIAM H. FRAWLEY, Bankruptcy Judge.
Debtors Raymond Bill and Theresa Ann Cook, by Attorney Terrence J. Byrne, having filed an amended application for avoiding lien; and the Farmers Home Administration (FmHA), by Assistant United States Attorney Sheree L. Gowey, having objected; and a hearing having been held; and briefs having been submitted; the Court, being fully advised in the premises, FINDS THAT:
1. Debtors Theresa Ann and Raymond Bill Cook seek to avoid a Farmers Home Administration (FmHA) security interest in *4 certain items which, they assert, are for personal, family or household use, 11 U.S.C. sec. 522(f)(2)(A), or are tools of the Debtors' trade, i.e., dairy farming, 11 U.S.C. sec. 522(f)(2)(B). Included in the Debtors' list are:

      8   cows
      4   acres of corn
    800   bales of hay
    300   bales of straw
    200   bushels of oats

claimed as exempt under Wis.Stats. sec. 815.18(6). (FmHA has not objected to the Debtors' exemption claim. See Fed.R. Bankr.P. 4003(b) (creditor must object within 30 days after first meeting of creditors has concluded).)
2. FmHA objects to the avoidance of its lien in cows and feed not required for household milk consumption. Mr. Cook testified that:

      2   cows
    6-7   acres of corn
    500   bales of hay
    150   bales of straw
150-200   bushels of oats

are required to produce milk for his family for one year.
3. Mr. Cook testified that two additional cows a year were culled from his dairy herd for slaughter. While, as FmHA asserts, Mr. Cook may not have explicitly testified that the cows were slaughtered to provide meat for his family of six, the context of Mr. Cook's testimony makes it clear that he annually devotes four cows for personal, family or household use. Cf. In re Thompson, 750 F.2d 628, (8th Cir. 1984) (avoidance not permitted where there was no testimony to establish that pigs were not raised for sale).
4. The Debtor seeks to avoid the lien on the four remaining cows as tools of the trade of dairy farming.
5. The Bankruptcy Code does not provide a definition of tools of trade. The accompanying reports do not discuss lien avoidance of tools of trade, but state that 11 U.S.C. sec. 522(f) "protects the debtor's exemptions, his discharge, and thus his fresh start by permitting him to avoid certain liens on exempt property", H.R.Rep. No. 595, 95th Cong., 1st Sess. 362 (1977), reprinted in 1978 U.S.Code Cong. & Ad. News 5787, 5963, 6318; S.Rep. No. 989, 95th Cong., 2nd Sess. 76 (1978) (under subsection (e)), reprinted in 1978 U.S.Code Cong. & Ad.News 5787, 5862. Accordingly, the scope of 11 U.S.C. sec. 522(f)(2)(B) has been left to developing case law. See Annot., 55 A.L.R.Fed. 353 sec. 12 (cases collected).
6. Functional Approach. Some courts  this Court included  have defined tools of trade as those items of personal property which a debtor requires and uses to carry on a trade. E.g., In re Pockat, 6 B.R. 24, 25 (Bankr.W.D.Wis.1980) (over-the-road cab-tractor), In re Nowak, 43 B.R. 545, 547 (Bankr.W.D.Wis.1984) (salesman's automobile), rev'd, 48 B.R. 290 (W.D. Wis.1984) (discussed below), Middleton v. Farmers State Bank, 41 B.R. 953 (D.Minn. 1984) (farm machinery). See generally 3 L. King, Collier on Bankruptcy para 522.15 (15th ed. 1984) ("section 522(d)(6) is designed to help preserve the debtor's means of earning a living").
7. It is self-evident that a dairy farmer requires dairy cows to conduct a trade and earn a living. A dairy cow is not the product of the Debtors' trade; rather, it is the apparatus which the Debtors operate to produce their product.
8. Textural Approach. Some courts reason that section 522(f)(2)(B) tools of trade are those items which may be exempted as tools of trade under 11 U.S.C. sec. 522(d)(6), that section 522(d)(6) does not contain a list of specific items which are listed elsewhere in section 522(d) and that, accordingly, such items must have been purposefully excluded from clause 6.[1]*5 E.g., In re Sweeney, 7 B.R. 814, 818-819, 6 B.C.D. 1377, 1379-1380 (Bankr.E.D.Wis. 1980) (assorted items), aff'd on other grounds sub nom. In re Gifford, 688 F.2d 477, 9 B.C.D. 730 (7th Cir.1982) (en banc). Thus, it is possible to argue that the express reference to animals in section 522(d)(3) indicates that Congress did not intend to permit the exemption of any animal as a tool of trade under section 522(d)(6).[2]In re Yoder, 32 B.R. 777, 781 (Bankr.W.D.Pa.1983) (breeding stock).
9. However, a careful examination of the text of section 522(d)(3) reveals that the word "animals" is used to limit the exemption for property held for household use[3]  the fact that the tool of trade exemption contains no limiting language demonstrates that Congress intended that it not be limited. The conclusion that animals used as tools of trade fall within section 522(d)(6) is bolstered by the absence of a separate and distinct federal exemption provision for farmers and ranchers. Cf. Wis.Stats. sec. 815.18(6) & (8) (exemption for livestock and farm implements is separate and distinct from exemption for tools of trade).
10. Nowak Approach. In In re Nowak, 48 B.R. 290 (W.D.Wis.1984), the District Court for the Western District of Wisconsin appears to take a practical approach: holding that a standard automobile is not a tool of trade within the meaning of 11 U.S.C. sec. 522(f)(2)(B), while citing, without comment, cases which permitted the avoidance of liens on an over-the-road cabtractor, a van with specialized equipment and large farm implements.
11. It is reasonable to assume that Congress did not contemplate the application of section 522 in an agricultural context. That the resulting problem of the classification of farm animals within section 522 admits no easy solution is no reason for this Court to avoid the task. See Middleton, Paragraph 6 supra, at 955 ("a narrow construction punishes the farmer for being inadvertently dependent on expensive tools of the trade").
12. Draft horses, which are held to facilitate farming operations, can be likened to machines; and beef cattle, which are held for fattening and sale, can be likened to raw materials and finished products; however, dairy cows, which are held for their ability to manufacture a distinct finished product from raw materials, can not be readily matched with a non-agricultural counterpart.[4]
13. This Court is of the opinion that, as a practical matter, dairy cows are specialized tools of the trade of dairy farming. Cf. 34 Am.Jur.2d Federal Taxation para. 5515 (1984) (livestock held for dairy, *6 breeding or draft purposes depreciable as property used in the taxpayer's trade or business).

CONCLUSION OF LAW
The Debtors' application to avoid the FmHA lien should be granted except to the extent that the feed claimed as exempt exceeds the amount necessary to feed two cows for one year.

ORDER
IT IS ORDERED THAT Raymond Bill and Theresa Ann Cook's application for avoiding of the lien of the Farmers Home Administration be, and the same hereby is, GRANTED except as to 300 bales of hay and 150 bales of straw.
NOTES
[1]  Section 522(d) provides, in pertinent part:

(d) The following property may be exempted under subsection (b)(1) of this section:
. . . . .
(2) The debtor's interest, not to exceed $1,200 in value, in one motor vehicle.
(3) The debtor's interest, not to exceed $200 in value in any particular item, in household furnishings, household goods, wearing apparel, appliances, books, animals, crops, or musical instruments, that are held primarily for the personal, family, or household use of the debtor or a dependent of the debtor.
. . . . .
(6) The debtor's aggregate interest, not to exceed $750 in value, in any implements, professional books, or tools, of the trade of the debtor or the trade of a dependent of the debtor.
The textural argument is most often made in the context of a motor vehicle. Since Congress explicitly and separately exempted motor vehicles at section 522(d)(2), the argument goes, its silence in section 522(d)(6) demonstrates an intention to not include motor vehicles as tools of trade. However, finding Congressional intent in silence is a game of mirrors  isn't it equally plausible that, "given the well-known rule that exemption statutes are to be liberally construed", In re Sweeney, Paragraph 8 supra, 7 B.R. at 819, 6 B.C.D. at 1380, Congress intended to not exclude motor vehicles as tools of trade? See 73 Am.Jur.2d Statutes, sec. 212 (1974) ("The maxim `expressio unius est exclusio alterius' . . . requires great caution in its application." (footnote omitted)).
[2]  Many farmers and ranchers find that adverse terrain, unfavorable weather conditions or tight working conditions (e.g., inside corrals) dictate the use of horses to carry on their trade. Carried to its logical extreme, the syllogism set forth in the text would require the conclusion that horses so used are not tools of trade.
[3]  In contrast, the phrase "motor vehicles" is used in section 522(d)(2) to establish a separate and distinct exemption for motor vehicles. See Footnote 1 supra.
[4]  The closest parallel might be to a moonshiner's still. More strained would be a comparison to a chemist's lab or, perhaps, an artisan's kiln.


196 So.2d 211 (1967)
FIRST NATIONAL BANK OF TAMPA, As Guardian of the Property of Catherine E. Sharp, a/k/a Kathryn Sharp, a/k/a Kathryn Ron Sharp, Incompetent, Appellant,
v.
FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF TAMPA, and Mrs. Viola Jones, Appellees.
No. 7240.
District Court of Appeal of Florida. Second District.
February 22, 1967.
Rehearing Denied March 28, 1967.
*212 Morrice S. Uman, Tampa, for appellant.
Wm. Terrell Hodges, of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellee Jones.
ALLEN, Chief Judge.
The appellant, plaintiff below, appeals from a final decree entered by the Circuit Court of Hillsborough County finding: that account No. 4001 in the Tampa Federal Savings & Loan Association is a Totten Trust; that the Guardian of Mrs. Catherine E. Sharp was without authority to withdraw said funds; and that the defendant below, Viola Jones, is entitled to have the funds, withdrawn from said account, returned to the Tampa Federal Savings & Loan Association to abide the demise of Mrs. Sharp.
This appeal is based on the counterclaim of Mrs. Viola Jones, which alleged that the plaintiff-bank, as Guardian of the property of Mrs. Sharp, had withdrawn from the Tampa Federal Savings & Loan Association the sum of $12,769.80 then being held in the Tampa Federal Savings & Loan Association in account No. S-4001, the card of which showed on its face that it was an individual trust account in the name of Mrs. Kathryn Sharp, Trustee; Mrs. Viola Jones, beneficiary.
The account was dated January 4, 1957. The signature of Kathryn Sharp appeared before the word "Trustee," and the card carried the following language on its face:
"As specified in trust agreement on reverse side hereof."
The reverse side of the Individual Trust Account card carried the following provisions:
"I, the undersigned Grantor do hereby give and grant the Savings Account applied for on the reverse side hereof, together with all payments and earnings thereon, to the Trustee named on the reverse side hereof; to have and to hold the same in trust, for the beneficiary named on the reverse side hereof, for the following uses and purposes, to-wit:
"To withdraw and transfer the same in whole or in part, and to exercise full control over the participation value thereof as though the account were held absolutely free and discharged of any trust, and without obligation on the part of the Association to look to the application of the fund.
"In the event of the death of the Trustee, the Association shall, if the beneficiary has attained the age of ____ years, transfer or pay the withdrawal value of the account to the beneficiary, free and discharged of any trust; and if at the death of the Trustee named the beneficiary has not attained such age, the Association is authorized to name and appoint a suitable person or persons as successor Trustees to hold the account until the beneficiary has attained such age, at which time such successor Trustees shall transfer and assign to the beneficiary the account, free and discharged of any trust. Such successor Trustees shall have the same powers and control over the account as the Trustee herein named."
Much of the language set forth in this trust agreement does not concern the present trust but is a part of a form used by banks all over the state. Although the trustee's signature appears before the trust agreement, it was printed on the face of the card "as specified in trust agreement on reverse side hereof."
The counterclaimant's theory of the account was that it was a Totten Trust and *213 that because of the incompetency of Mrs. Sharp the said fund, represented by account No. S-4001, should remain inviolate until the death of Mrs. Sharp unless Mrs. Jones predeceased her.
We agree with the lower court that the account constituted a Totten Trust.
Apparently the name "Totten Trust" was derived from the name of William H.B. Totten, as administrator, who was one of the parties in the leading case, In re Totten, 179 N.Y. 112, 71 N.E. 748, 70 L.R.A. 711 (1904). In that case the New York Court of Appeals held that a person depositing his own money in a savings bank in his own name as trustee for another does not establish an irrevocable trust until the depositor completes the gift by some unequivocal act or declaration during his lifetime, or unless the depositor dies before the beneficiary without revocation.
In Totten, the opinion of the Court concluded with the following paragraph:
"While we have considered, we do not cite, the numerous cases decided by the Supreme Court bearing upon the question, owing to the conflict in the opinions of learned justices in different appellate divisions. It is necessary for us to settle the conflict by laying down such a rule as will best promote the interests of all the people in the state. After much reflection upon the subject, guided by the principles established by our former decisions, we announce the following as our conclusion: A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor. This rule requires us to reverse the order of the Appellate Division, and to affirm the decree of the surrogate, with costs to the appellants in all courts."
The record in this case shows that the incompetent Mrs. Sharp had sufficient funds for her own use so it was not necessary to invade the Totten Trust for the use of the ward's support, medical care, etc.
In the case of Rickel v. Peck, 211 Minn. 576, 2 N.W.2d 140, 138 A.L.R. 1375 (1942), the Minnesota Supreme Court, in its opinion, said:
"The Court having jurisdiction of guardianships of incompetent persons has the power to order on behalf of an incompetent ward the revocation of a tentative trust of a savings account. Where the depositor becomes insane and it is necessary for his proper care and support, the court may order a tentative trust revoked * * *. [Cases omitted.]"
In the case of Seymour v. Seymour, Fla. 1956, 85 So.2d 726, our Supreme Court, in an opinion by the late Justice Hobson, said:
"As the circuit judge observed, and as we have held, the banking laws, of which the foregoing is a section, were designed primarily to regulate banks and are not necessarily conclusive of the ownership of deposited money. In this case, however, the situation with which we are confronted is a typical `Totten trust.' The `Totten trust' doctrine was definitely stated in In re Totten, 179 N.Y. 112, 71 N.E. 748, 752, 70 L.R.A. 711. In that case the operation of the doctrine was described as follows:
"`A deposit by one person of his own money in his own name as trustee for another, standing alone, does not establish *214 an irrevocable trust during the lifetime of the depositor. It is a tentative trust merely, revocable at will, until the depositor dies or completes the gift in his lifetime by some unequivocal act or declaration, such as delivery of the passbook or notice to the beneficiary. In case the depositor dies before the beneficiary without revocation, or some decisive act or declaration of disaffirmance, the presumption arises that an absolute trust was created as to the balance on hand at the death of the depositor.' (Emphasis added.)"
It will be observed that the trust funds were not turned over to the appellee in this case but are being held in trust until the eventual death of Mrs. Catherine Sharp.
Affirmed.
SHANNON and HOBSON, JJ., concur.


    In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                          No. 14-1058V
                                      Filed: October 5, 2016
                                       Not for Publication

*************************************
SEBASTION J. ROBINSON,                     *
                                           *
              Petitioner,                  *
                                           *
 v.                                        *     Attorneys’ fees and costs decision;
                                           *     respondent does not object
SECRETARY OF HEALTH                        *
AND HUMAN SERVICES,                        *
                                           *
              Respondent.                  *
                                           *
*************************************
Elizabeth M. Muldowney, Richmond, VA, for petitioner.
Camille M. Collett, Washington, DC, for respondent.

MILLMAN, Special Master

                DECISION AWARDING ATTORNEYS’ FEES AND COSTS 1

       On October 30, 2014, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. §§ 300aa-10–34 (2012) (“Vaccine Act”) alleging that he suffered
transverse myelitis as a result of his receipt of the influenza (“flu”) vaccine on November 14,
2011. On June 22, 2016, the undersigned issued a decision awarding compensation to petitioner
based on the parties’ stipulation.

        On October 3, 2016, petitioner filed an unopposed motion for attorneys’ fees and costs.
Petitioner requests $29,281.57 in attorneys’ fees and costs and $28.75 in personal costs for a total
of $29,310.32.

1
  Because this unpublished decision contains a reasoned explanation for the special master’s action in this
case, the special master intends to post this unpublished decision on the United States Court of Federal
Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012)
(Federal Management and Promotion of Electronic Government Services). Vaccine Rule 18(b) states that
all decisions of the special masters will be made available to the public unless they contain trade secrets
or commercial or financial information that is privileged and confidential, or medical or similar
information whose disclosure would constitute a clearly unwarranted invasion of privacy. When such a
decision is filed, petitioner has 14 days to identify and move to redact such information prior to the
document=s disclosure. If the special master, upon review, agrees that the identified material fits within
the banned categories listed above, the special master shall redact such material from public access.
       The Vaccine Act permits an award of reasonable attorneys’ fees and costs. 42 U.S.C. §
300 aa-15(e). Based on the reasonableness of petitioner’s request and the lack of opposition, the
undersigned GRANTS petitioner’s application for attorneys’ fees and costs.

        Accordingly, the court awards:

        a. $29,281.57, representing attorneys’ fees and costs. The award shall be in the form of
           a check made payable jointly to petitioner and Rawls, McNelis and Mitchell, P.C. in
           the amount of $29,281.57; and

        b. $28.75, representing petitioner’s costs. The award shall be in the form of a check for
           $28.75 made payable to petitioner.

       In the absence of a motion for review filed pursuant to RCFC Appendix B, the clerk of
the court is directed to enter judgment herewith. 2

IT IS SO ORDERED.

Dated: October 5, 2016                                                    s/ Laura D. Millman
                                                                            Laura D. Millman
                                                                              Special Master

2
  Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
                                                    2


558 F.2d 790
BUNGE CORPORATION, Plaintiff-Appellant Cross-Appellee,v.M/V FURNESS BRIDGE, her engines, tackle, apparel, etc., inrem, Defendant,Furness Withy & Co., Ltd., in personam, Defendant-AppelleeCross-Appellant.
No. 75-2695.
United States Court of Appeals,Fifth Circuit.
Sept. 2, 1977.

Nigel E. Rafferty, John F. Blackwell, New Orleans, La., for plaintiff-appellant cross-appellee.
Cornelius G. Van Dalen, Leonard A. Radlauer, New Orleans, La., amicus curiae, for Board of Comm. of the Port of New Orleans.
J. Dwight LeBlanc, Jr., New Orleans, La., for defendant-appellee cross-appellant.
Appeals from the United States District Court for the Eastern District of Louisiana.
Before GEWIN, AINSWORTH and SIMPSON, Circuit Judges.
SIMPSON, Circuit Judge:

1
Bunge Corporation, a wharf owner, brought suit in rem against the M/V Furness Bridge and in personam against her owner, Furness Withy and Co., for damage which the vessel inflicted upon a mooring dolphin while attempting to berth at the wharf.*

2
NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

3
The district court held that the negligence of both plaintiff and defendant caused the accident and equally divided the damages.  In reaching this conclusion, the district court emphasized the special characteristics of the Furness Bridge, which was more than twice the length of the Bunge dock and then the largest ship ever to navigate the Mississippi river: "Supertankers may call for super precautions on the part of those who invite them to berth at facilities designed for lesser vessels."  Bunge Corp. v. MV Furness Bridge, 396 F.Supp. 852, 856 (E.D.La.1975).  Taking into account the relative sizes of the ship and the wharf, the district court held Bunge to a stricter standard of care than has ever previously been required of wharfingers.  While we agree that the standard of care must be measured in the context of specific situations, we feel that the district court imposed too stringent a standard on Bunge and reverse on that ground.

I. THE FACTS

4
The district court has concisely set out the facts of this case:

5
Bunge owns and operates a grain elevator and dock.  The dock consists of a steel piled wharf with five mooring dolphins, two located upstream of the wharf and three located downstream of the wharf.  The total distance between the dolphins is 820 feet.  The dolphins are recessed about 2 feet from a line that would run along the face of the wharf, do not serve as breasting dolphins, and do not have fenders.  There should be no contact between them and a ship entering or leaving the dock.  The positions of the mooring dolphins as well as the fact that they do not have fenders is obvious, at least in day light, as they are in plain view.

6
Bunge's wharf has an area capable of withstanding breasting forces 470 foot long.  If the dolphins were capable of withstanding a breasting force, they would add to the frontage against which a vessel might breast; but, as they stand, they do not.  In addition, since their maximum span is 820 feet, they afford no facility for putting out lines fore and aft of the vessel itself.

7
The wharf was designed only to accommodate vessels under a displacement tonnage of 33,750 tons, mooring at a velocity of 1/4 of a foot per second (less than one mile per hour), and approaching the wharf at an angle of 10 degrees or less.  By contrast, the Furness Bridge displaced 112,000 tons.

8
The Furness Bridge is more than twice as long as the wharf; its length and bulk make great care necessary in berthing it, for the unprotected dolphins are not designed to take breasting forces.  Elementary geometry demonstrates that a vessel twice the length of the wharf may strike one of the dolphins if it approaches at an angle of 3 degrees, while a 400 foot vessel would have to approach at a greater angle or miss the wharf completely before striking the dolphin.

9
The Furness Bridge was under the exclusive custody and control of employees of Furness Withy; it was operating under a time charter to Seabridge, who voyage subchartered to Bunge.  Both charters contained "safe berth" clauses but the Bunge-Seabridge charter did not incorporate the Furness Withy-Seabridge charter nor did Bunge make any independent stipulations in favor of Furness Withy.

10
During the daylight hours of January 15, 1974, the Furness Bridge was lying upriver from the Bunge dock.  Toward the end of the day, Bunge ordered the vessel into berth that night.  The master objected and asked that he be permitted to wait until morning.  Bunge replied that, if the vessel was not ready to berth at night, it would be taken off hire until it proceeded.1  The master then undertook to attempt a berth.

11
What happened during the berthing is much disputed but I am persuaded that a preponderance of the credible evidence indicates that Bunge gave only the rudimentary instruction about berthing procedures; it informed the vessel that the custom was to drop both anchors upriver of the berth, then drop back and dock alongside.  The owner's agent sought no instructions as to whether three or four tugs were needed; having docked at New Orleans with three, having no warning that this number would be insufficient, he ordered three.  Hindsight demonstrates that using four would have been much safer.

12
The Furness Bridge was navigated stern first downriver, using the current, and maneuvered in crab-fashion towards the dock, using lines and cables.  When it was about fifty feet off the dock it began to move into the berth.  A line was put ashore from the bow to the upstream dolphin.  A few minutes later the aft line was put ashore.  As the vessel moved in the river the fog increased, obscuring visibility at the river level, although the lights atop the docking facility were clear.  The vessel was moving forward and upriver toward the dock, at an angle of less than 5o , when the starboard side of the bow struck the upriver dolphin.  At the time the vessel was moving at a slow speed, using considerable caution.

13
The vessel thereafter completed berthing and was moored alongside fore and aft at 0025 hours on January 16, 1974.  However, she had to keep one tug in attendance at all times to keep her bow next to the wharf.  In spite of these efforts, she broke away from the wharf at approximately 2020 on January 16.  During the time the vessel was alongside, she pulled 4 bollards or cleats off the Bunge facility.

14
The M/V Furness Bridge redocked a day later in daylight using 4 tugs.2  This time the docking was without incident.

15
396 F.Supp. at 854-55.

II. THE APPLICABLE STANDARD OF CARE

16
" It is well established that there is a presumption of fault against a moving vessel that strikes a stationary object, such as a dock or navigational aid."  Freeport Sulphur Co. v. S/S Hermosa, 368 F.Supp. 952, 953 (E.D.La.1973); Brown & Root Marine Operators, Inc. v. Zapata Off-Shore Co., 377 F.2d 724 (5th Cir. 1967).  "In admiralty, this presumption does more than merely require the ship to go forward and produce some evidence on the presumptive matter.  The moving vessel must show that it was without fault or that the collision was occasioned by fault of the stationary object or was the result of inevitable accident".3  Patterson Terminals, Inc. v. S/S Johannes Frans, 209 F.Supp. 705, 707 (E.D.Pa.1962), citing Carr v. Hermosa Amusement Corp., Ltd., 137 F.2d 983, 985 (9th Cir. 1943).  We have held that "(t)he burden is heavily upon the vessel asserting (the inevitable accident) defense.  'Such vessels "must exhaust every reasonable possibility which the circumstances admit and show that in each they did all that reasonable care required." ' " Brown & Root Marine Operators, Inc., supra, 377 F.2d at 726.  Furthermore, the presumption of negligence is amply supported by logic and experience:

17
The common sense behind the rule makes the burden a heavy one.  Such accidents simply do not occur in the ordinary course of things unless the vessel has been mismanaged in some way.  It is not sufficient for the respondent to produce witnesses who testify that as soon as the danger became apparent everything possible was done to avoid an accident.  The question remains, How then did the collision occur?  The answer must be either that, in spite of the testimony of the witnesses, what was done was too little or too late or, if not, then the vessel was at fault for being in a position in which an unavoidable collision would occur.

18
Patterson Oil Terminals v. The Port Covington, 109 F.Supp. 953, 954 (E.D.Pa.1952).

19
Where a berthing facility has been damaged, the shipowner may rebut the presumption of negligence by proving that the wharfinger violated the standard of care to which he is held and that this violation was the proximate cause of the damage claimed.  Regarding the wharfinger's duty, we have stated the prevailing view as follows:

20
It is well settled that a wharfinger is not the guarantor of the safety of a ship coming to his wharf.  He is, however, under a duty to exercise reasonable diligence to furnish a safe berth and to avoid damage to the vessel.  This includes the duty to ascertain the condition of the berth, to make it safe or warn the ship of any hidden hazard or deficiency known to the wharfinger or which, in the exercise of reasonable care and inspection, should be known to him and not reasonably known to the shipowner.

21
Trade Banner Line, Inc. v. Caribbean Steamship Co., S.A., 521 F.2d 229, 230 (5th Cir. 1975).  The wharfinger's duty to warn applies only to "any hidden hazard or deficiency . . .  not reasonably known to the shipowner".  Id.  Thus, no warning is required "where the alleged obstruction or condition is open and obvious to those in charge of the vessel's management" or where those in control of the vessel have actual knowledge.  General Construction Co. v. Isthmian Lines, Inc., 259 F.Supp. 336, 339 (D.Or.1966).  See also Sabine Towing and Transportation Co. v. St. Joe Paper Co., 297 F.Supp. 748 (N.D.Fla.1968).

III. THE DISTRICT COURT'S CONCLUSIONS OF LAW

22
To find Bunge contributorily negligent, the district court evaluated the wharfinger's duty in light of two factors present in the case: (1) The size of the Furness Bridge adversely affected its maneuverability in comparison to smaller vessels and increased its force of impact, and (2) the Bunge docking facility was not adequate for vessels the size of the Furness Bridge.  These factors greatly enhanced the chance of a mishap, requiring "extra care" on the part of wharfinger and shipowner alike.

23
The degree of "extra care" that the district court required of the wharfinger departed significantly from the less stringent traditional standard.  Specifically, the district court noted that the wharf owner "knows hazards not fully perceived by the mariner even though the physical objects creating them may be in plain sight".  396 F.Supp. at 856.  This superior knowledge led the district court to conclude that Bunge had acted negligently in the following respects:

24
It failed to give full caution about the size and structure of the wharf, about the hazards of the unfendered dolphins just a short distance past the line of the wharf, about the need of so large a vessel using four tugs, and it urged berthing at night.

25
. . .  Bunge, being a subcharterer, knew the precise characteristics of the vessel.  Bunge also knew of the current in the river, the layers of river fog, the visibility problems encountered in docking at night, and the exact limitations of its wharf.  It failed to take all these factors into account and give the necessary warnings to the master or take other precautions against damage.

26
396 F.Supp. at 857, 858.

IV. APPLICATION OF THE RELEVANT STANDARD

27
In the abstract, the district court correctly described the standard of care to which wharfingers are held.  If a mariner cannot fully perceive hazards even though the physical objects creating them are in plain sight, then the duty to warn attaches.  For example, in Medomsley Steam Shipping Co. v. Elizabeth River Terminals, 354 F.2d 476 (4th Cir. 1966), a shipowner recovered damages from the wharfinger after a defect in a mooring cleat caused the ship to come adrift and go aground.  Similarly, in White Stack Towing Corp. v. Hewitt Oil Co., 216 F.2d 776 (4th Cir. 1954), a dock owner was denied recovery against a vessel that had damaged a breasting dolphin in attempting to dock; the Court found that the dolphins had been negligently constructed in that their design was faulty.  As we interpret these cases, a wharfinger is required to warn of latent defects because he is the only one who can avert an accident when the mere visibility of the dangerous physical structure is not sufficient to inform the mariner of a hidden condition.

28
In the instant case, the damage inflicted was not caused by a defect or dangerous condition solely within Bunge's knowledge and not discoverable by the Furness Bridge.4  Thus, we conclude that the rule regarding hidden dangers did not come into play.  There was nothing about which Bunge should have warned the vessel that the master of the vessel did not already know or that was not solely within the master's navigational responsibilities.

29
In further explication of our holding, we will examine point by point the omissions cited by the district court as constituting a breach of Bunge's legal duty.

30
1. Failure "to give full caution about the size and structure of the wharf": With regard to the structure of the wharf, the district court noted that it was designed to accommodate vessels under a displacement tonnage of 33,750 tons; the Furness Bridge displaced 112,000 tons.  Had the vessel collided with the wharf and damaged it or suffered damage, Bunge might be held negligent for failing to warn about the wharf's structural limitations.  Here, however, these limitations were irrelevant to the damage inflicted by the Furness Bridge which, in fact, successfully breasted against the wharf.

31
Although the size of the wharf was relevant to the vessel's docking maneuversand, hence, to the damage it caused, this characteristic was obvious indeed, unmistakable and required no warning.  Photographs in the record and the diagram herein reproduced reveal that the 965-foot vessel was more than twice as long as the 470-foot long wharf.  Those in control of the Furness Bridge must be charged as a matter of law with knowledge of the comparative sizes of their vessel and the Bunge wharf.  It is further apparent that the master and pilot of the ship were in fact aware of the length of the dock.  As the vessel attempted to berth, although at night and with fog forming, "(v)isibility was still good, we could still see the dock quite clearly".  (R. 586, testimony of John Shewan Leask, master of the Furness Bridge).  The ship's master also testified:

32
Q: Did anyone mention the length of the dock, by that now I am referring to the concrete dock?

33
A: I am sure I did know what it was, but I don't specifically remember being told the length of the dock.  (R. 644)

34
Finally, the compulsory pilot responsible for navigating the ship during the berthing in question had docked ships at the Bunge facility 15 to 25 times.  (R. 957, testimony of Myron J. Watson).

35
2. Failure "to give full caution about . . .  the hazards of the unfendered dolphins just a short distance past the line of the wharf ": As with the dock, the ship's master and pilot knew or should have known of the presence of at least mooring dolphin No. 1, the one that was struck.  The master testified that while he had seen the No. 1 dolphin in the daylight, he had not looked to see if it bore fenders necessary to withstand breasting forces, and had proceeded to dock with little or no concern over whether the vessel landed against the dolphins:

36
Q: Did you have an opportunity to see these dolphins on the passage from St. Maurice Street wharf to Destrahan?

37
A: I saw them on the way up to the anchorage, and there was a ship on the berth when we passed and that that is the only opportunity that I had of seeing the dolphins of the wharf before I went alongside.

38
Q: Yes, sir.  Did you see the dolphins at that time?

39
A: I saw possibly one, the upriver one, the upstream one, it was clear of the bow of the ship.

Q: That's the dolphin

40
A:  the that's Number 1 dolphin, the one that we have had all the top dolphin that we use for mooring into when we came alongside.

41
Q: When you see that (dolphin), you see it's obviously not fitted to come in contact with the side of the ship?

42
A: I couldn't say that I could state that clearly on the way up the river, no, sir.

43
Q: You could see it didn't have any fendering around it, couldn't you?

44
A: Not clearly, no, sir.

45
Q: Did you see any fendering?

46
A: No, I didn't see any fendering, and I wouldn't say I was looking for any fendering.  (R. 645-46)

47
Q: What is your understanding as to the first part of the wharf or the upstream mooring dock on the whole facility that was contacted by the ship?

48
A: Coming alongside the wharf similar to this one against the current, it's normal to land the vessel forward and then steer in alongside the wharf.

49
Q: Is that what you were trying to do in this instance?

50
A: This is what we did in this particular case.

51
Q: When you say forward, are you talking about the concrete wharf or are you saying

52
A:  concrete wharf or the upstream part of the wharf, it would have to be possibly the upstream extremity of the dock, the vessel leans against the upstream part and then comes alongside.

53
Q: Are you speaking of the dolphins?A: In this case it would be the dolphins, yes.

54
Q: You were trying to land on the dolphins?

55
A: I wasn't trying to land on the dolphins, not directly, but I wasn't too concerned if we did there, to me, it would have been a perfectly normal landing to come in and approach the upstream part of the dock and the vessel swing in and come alongside at a small angle.

56
Q: So you were not particularly concerned about the bow of the ship striking the upstream mooring dolphin?

57
A: The vessel didn't strike, we just landed subsequently on the dolphin and then came alongside.  I wasn't concerned about the fact this is the way they were doing it.  This is perfectly normal procedure, to come alongside at a slight angle and then come alongside of the wharf.  (R. 656-57)5

58
Given the master's awareness of the presence of mooring dolphin No. 1 and his lack of concern as to whether his mammoth vessel came into contact with it, we conclude that a warning by Bunge was unnecessary and likely would have been in any case a futile gesture.  Bunge, the dock owner, had no duty to supervise the Furness Bridge's docking procedure, absent, perhaps, a hidden defect in the docking facilities.  Rather, the master, an expert mariner, is responsible for the docking of his ship.6  Cf. Trade Banner Inc., supra, 521 F.2d at 231.  Here, the master must be charged with the natural, foreseeable consequences of his docking maneuver.  As the district court noted, "(e)lementary geometry demonstrates that a vessel twice the size of the wharf may strike one of the dolphins if it approaches at an angle of 3 degrees".   396 F.Supp. at 855.  Under these circumstances, the duty of care lay solely with the Furness Bridge:

59
The striking of a fixed object on the dock by a moving steamer constitutes damage not ordinarily done by a boat under control and carefully managed, and is prima facie evidence of negligence.  Plaintiff was not bound to assume possible negligence on the part of the Bradley, nor was it bound to take any action with reference to a navigation operation which was wholly within defendant's control.  (emphasis added; citations omitted)

60
Ford Motor Co. v. Bradley Transportation Co., 174 F.2d 192, 196 (6th Cir. 1949).

61
3. Failure "to give full caution . . .  about the need of so large a vessel using four tugs : " We have found no evidence in the record establishing that a safe docking could not have been accomplished with three tugs instead of four.  As it happened, the Furness Bridge attempted to dock on the night of January 15, 1974, using three tugs and collided with a mooring dolphin; the following night it docked safely with four tugs.  Earlier, however, it had docked without incident at New Orleans using only three tugs.  The district court did not indicate how Bunge could have known that four tugs were necessary7 and, in fact, held the captain of the Furness Bridge negligent on this point: "While three tugs might have been adequate, four would, he knew from his own experience, have been better; he chose to save cost".8  396 F.Supp. at 858.

62
Under these circumstances we refuse to impose upon a wharfinger the duty of assessing the number of tugs needed by a particular vessel in docking.  Use of tugs is an integral part of docking procedure and as such is a navigational operation for which the ship's master has exclusive responsibility.  See A/S Atlantica v. Moran Towing & Transportation Co., Inc.,498 F.2d 158, 161 (2d Cir. 1974); Al Johnson Construction Co. v. S.S. Rio Orinoco, 249 F.Supp. 182, 187 (E.D.Pa.1965).  Bunge never attempted to assert control over this aspect of the Furness Bridge's navigation.  As the district court noted, the vessel "was under the exclusive custody and control of employees of Furness Withy".  396 F.Supp. at 855.  This finding is not altered by the fact that the vessel was voyage subchartered to Bunge by the original time charterer, Seabridge:

63
Under a voyage charter, the shipowner retains full control over the navigation and operation of the vessel . . .  The owner assumes the risks of insufficient speed, excessive fuel consumption, and all perils of navigation.9

64
In short, the master, and not the wharfinger, "was in charge of the operation and navigation of the vessel at all times and it was his duty to exercise a high degree of care in accordance with the skill necessary in the control and management of a modern oceangoing tankship to avoid injury to" the docking facility.  Esso Standard Oil, S.A. v. The S.S. Sabrina, 154 F.Supp. 720, 724 (D.Canal Zone 1957).

65
4. Bunge "urged berthing at night" and failed to warn about "the layers of river fog" and "the visibility problems encountered in docking at night": Bunge cannot be held negligent for urging the Furness Bridge to dock at night.  Responsibility for that decision must rest with the master, and the record is clear that Captain Leask voluntarily decided to berth in darkness although his preference was to wait for daylight.  R. 581, 850-51; Defendant's Exhibit No. 10.  The district court hinted at coercion by Bunge when it found that Bunge threatened to take the Furness Bridge "off hire" until it proceeded and was ready to berth at night.  396 F.Supp. at 855.  The district court apparently based this finding of fact on the testimony of Captain Leask, who used the words "off hire".  R. 581-82, 687.  However, since the Furness Bridge was not under a time charter to Bunge, we doubt that Bunge had the power to take the vessel "off hire".10  It is likely more precise to say that Bunge told the master that the vessel would not be paid lay time for the period during which it refused to berth.11  According to Bunge's voyage subcharter, "(n) otification of the vessel's readiness to discharge must be delivered . . .  before 4 p. m.  . . .  and the laydays will then commence at 7 a. m. on the next business day whether in berth or not".  Defendant's Exhibit No. 6.  As Bunge points out in its brief, "it is difficult to understand how a ship can be ready to load while refusing to come to berth".  Brief for Appellant at 6 n. 26.  Thus, Bunge's refusal to pay lay time while the vessel refused to berth appears to have been no more than an assertion of its contractual rights and cannot be viewed as a form of coercion sufficient to impose liability for negligence.

66
Nor can we hold Bunge to a greater standard of care because the vessel, for whatever reason, docked at night in dense fog.  Captain Leask testified that from his and the pilot's position on the ship's bridge, "even without the fog, I doubt . . .  we would have been able to actually have seen the dolphin due to the height of the vessel and the position of the dolphin".  R. 681.  (See diagram).  Moreover, the vessel's negligence is not measured with reference only to what was actually visible to the master or pilot:

67
It is a primary rule of navigation that all moving vessels shall maintain a careful and efficient lookout.  The lookout is "both eyes and ears of the ship"; he must be properly stationed on the forward part of the vessel and must be held to a high degree of vigilance in that position.  Neither the captain nor the helmsman in the pilot house can be considered to be "lookouts" within the meaning of the maritime law.

68
Dahlmer v. Bay State Dredging & Contracting Co., 26 F.2d 603 (1st Cir. 1928).  If the master continues to navigate his vessel knowing that dense smoke or fog will "f event his lookouts from keeping an adequate watch", then he will be held liable for any resulting damage caused by his vessel.  Ford Motor Co., supra, 174 F.2d at 195.

69
Here there is no suggestion that the darkness or fog prevented lookouts on the ship's bow from seeing the mooring dolphin.  The compulsory harbor pilot testified as follows:

70
And I knew I was coming in slowly at this time.  So the next thing I knew, some the mate yelled back to the captain that the catwalk had fell into the river . . .  and that's the only information I have about coming into contact with the dock at all.  (R. 951)

Captain Leask was more specific:

71
Q: . . .  did you get any reports from the bow as to the position of the vessel during this time?

72
A: We got a report that the ship was approximately 15 feet off the wharf, and then next we got a report that there was something wrong up forward.  (R. 590-91)

73
This testimony makes clear that no message of the impending collision was ever relayed.  The lookouts on the bow thus failed to exert the "high degree of vigilance" required of them.  They were in a position to warn the master about the proximity of the mooring dolphin but failed to do so, thereby violating their legal duty. We repeat that this was an aspect of the vessel's navigation for which the wharfinger cannot be held responsible.

74
The district court's observation that the legal concepts governing the relationship between ships and wharves "must be adjusted to meet the new technology of vessel construction", 396 F.Supp. at 856, may prove in the long run to be accurate.  We attempt no such forecast.  We rest on the conclusion that this is not the day, and this is not the case, for such adjustment to be undertaken.  We adhere instead to the time-honored premise that as between a visible, stationary structure and a moving vessel under the navigation of an expert mariner, the latter is in the superior position to avoid calamity.

V. THE SAFE BERTH CLAUSE

75
The Furness Bridge has cross-appealed on the issue of whether Bunge was under a contractual duty to provide a completely safe berth.  The district court did not expressly decide this issue, but did discuss it in the following terms:

76
Much has been made in briefs about whether, since Bunge subchartered the vessel under a charter party containing a safe berth clause, it had a contractual obligation to provide a secure berth.  The clause is in customary terms; it obliges the vessel to discharge cargo "at any wharf or place that Charterers or their Agents may direct, provided the vessel can safely be always afloat at any time or tide."  Furness Withy argues that the clause implies a duty by the charterer to furnish a safe berth and imposes liability for its failure to do so, and that Bunge is obligated to Furness Withy by it because the charter to Seabridge contained the same clause.  Bunge not only disputes this interpretation of the contract; it contends that, whatever its contractual obligation, the duty was due only to Seabridge; it had no contract with Furness Withy.

77
At least on its face the safe berth (clause) appears merely to exonerate the owner from any duty to berth the vessel at a place its master deems unsafe.  There are authorities that read the clause more broadly, and find that it implies a contractual duty to provide a completely safe berth.  See, e. g., Venore Transportation Co. v. Oswego Shipping Corp., 2d Cir. 1974, 498 F.2d 469; Paragon Oil Co. v. Republic Tankers, S.A., 2d Cir. 1962, 310 F.2d 169; Park S.S. Co. v. Cities Service Oil Co., 2d Cir. 1951, 188 F.2d 804; Athina Shipping Co. v. Amerada Hess Corp., M.D.Fla.1971, 1972 AMC 796; Universal Tramp Shipping Co. v. Irish Salt Mining Co., D.Mass.1970, 1970 AMC 1783; Red Star Barge Line, Inc. v. Lizza Asphalt Construction Co., E.D.N.Y.1959, 164 F.Supp. 97, aff'd. 2d Cir. 1959, 264 F.2d 467.  But some at least take the view that the clause means merely what it says and does not operate to shift to the wharfinger liability that would otherwise attach to the vessel.  See Gilmore & Black, The Law of Admiralty § 4-4 at 204 (2d ed. 1975).

78
Under the circumstances of this case these authorities appear not to be controlling.  But what is important is that Bunge, being a subcharterer, knew the precise characteristics of the vessel.  Bunge also knew of the current in the river, the layers of river fog, the visibility problems encountered in docking at night, and the exact limitations of its wharf.  It failed to take all of these factors into account and give the necessary warnings to the master or take other precautions against damage.  It has violated a legal duty whether or not it also had a contractual one.

79
396 F.Supp. at 857-58.

80
As we interpret this language, the district court held that the issue of contractual liability was irrelevant in view of its disposition of the case.  We affirm the holding, but of course upon a different basis.

81
The parties have cited no case in which this Court has interpreted the customary safe berth clause.  The instant case does not afford us the opportunity to hold in favor of either the modern or the traditional view, for we are certain, in the circumstances here present, that the parties could not have intended the safe berth clause, whether by charter party or upon a third party beneficiary theory, to warrant the complete safety of the Bunge wharf.  The facility, as it existed at the time when both charter parties were entered into, "was not adequate for vessels the size of the Furness Bridge".  396 F.Supp. at 857.  It was "unsafe" only in that it was too small for this vessel.  Surely none of the parties who might be bound by or claim protection under the safe berth clause intended that Bunge would either rebuild its entire facility or accept absolute liability by virtue of a boilerplate provision.  Under the circumstances, we conclude that there is no contractual liability because of an exception to the safe berth warranty: "When a charter names a port and the master proceeds there without protest, the owner accepts the port as a safe port, and is bound to the conditions that exist there".  Pan Cargo Shipping Corp. v. United States, 234 F.Supp. 623, 638 (S.D.N.Y.1964).  See also Smith, Jr., Time and Voyage Charters: Safe Port/Safe Berth, 49 Tul.L.Rev. 861, 869-70 (1975).

VI. CONCLUSION

82
We see no reason to disturb the traditional standard of care to which the wharfinger is held.  Whether it be tugs or tankers that come to berth at his dock, the wharfinger remains in the same position in terms of his ability to protect his structure.  Those in control of the vessel's navigation must bear the greater responsibility for bringing their ship safely into and out of port.  The dock owner's liability should extend only so far as the vessel's master could not have averted an accident, such as where a hidden hazard is or reasonably should be known to the wharfinger and cannot be known to the master in the exercise of ordinary care.

83
In this case, a wharf structurally sound for most ships was deficient for the Furness Bridge, a super tanker.  The "defect" was obvious and need not have been the subject of a warning by Bunge.  The vessel was under a duty to approach the dock "with reasonable skill and care to avoid injuring it, having in view the difficulties and perils including those caused by the (dock) itself".  Sabine Towing & Transportation Co., supra, 297 F.Supp. at 751.  (emphasis added).  The master and pilot of the Furness Bridge knew that their ship was much longer than the Bunge dock, and knew or should have known that unfendered mooring dolphins lay ahead of the dock, and that special care would be necessary to avoid damage while berthing at this facility.  When the vessel commenced its docking maneuver insensitive to these special needs of the situation, and struck a mooring dolphin causing great damage, a classic prima facie case of negligence arose.  The vessel failed to produce evidence negating the presumption of negligence or demonstrating contributory negligence by Bunge.  Under these circumstances, the vessel was solely liable and damages should not have been divided, but should have been imposed only upon the Furness Bridge and her owner.

84
We have considered the Furness Bridge's claim that Bunge was solely liable by virtue of a contractually assumed duty.  We conclude that, regardless of whether the time or voyage charter created an obligation on Bunge's part toward the vessel, the parties did not intend the safe berth clause to shift liability for the pre-existing condition of the wharf.

85
The judgment appealed from is REVERSED and REMANDED as to the main appeal and AFFIRMED as to the cross-appeal.

*
 This scale drawing is prepared from Exhibits before the trial court

1
 The record is not clear on this point.  See slip 558 F.2d at 799-800, infra

2
 The vessel in fact redocked the following night, in darkness.  Both parties concede that the district court is in error on this point

3
 Cases in this Circuit (See, e. g. Brown & Root v. Zapata Off-Shore, text, supra ) establish that this presumption affects the burden of proof, not merely the burden of going forward with the evidence.  Consequently, we reject the holding of the Third Circuit that when both sides had "fully presented testimony regarding their version as to what happened prior to the collision . . .  the presumption disappeared as a matter of law".  Pennsylvania Railroad Co. v. S.S. Marie Leonhardt, 320 F.2d 262, 264 (3d Cir. 1963).  The Federal Rules of Evidence also reject this "bursting bubble" theory of presumptions.  See Fed.R.Evid. 301 and accompanying Notes of Advisory Committee on Proposed Rules

4
 On cross-examination, the master of the Furness Bridge, Captain Leask, was asked "if there was any condition of that dock that you thought constituted a danger to the ship or to the wharf that was not plainly visible and obvious to you prior to the docking?"  The master replied: "No, there was no nothing I knew about that was there".  R. 649

5
 The testimony of the compulsory pilot is less clear on this point but does suggest a lack of concern over whether any mooring dolphins were struck.  Although he denied that he was trying to come into contact with dolphin No. 1, the pilot stated, "I was just trying to get the ship alongside the dock, I mean the dock or any portion of the dock, I mean just trying to land land the ship".  (R. 955)

6
 During the docking in question, the vessel was being navigated by a compulsory pilot as required by LSA-R.S. 34:1041 et seq.  "The authority of the master of a vessel is not in complete abeyance," however, "while a pilot, who is required by law to be accepted, is in discharge of his functions".  Jure v. United Fruit Co., 6 F.2d 6 (5th Cir. 1925).  Cf. Chesapeake Bay Bridge and Tunnel District v. Lauritzen, 404 F.2d 1001, 1007 (4th Cir. 1968).  In fact, our conclusion as to the respective duties of the parties is strengthened by the presence of the compulsory pilot who must be held to an unusually high standard of care because he "is selected for his personal knowledge of the topography through which he steers his vessel . . .  He must . . .  be familiar with all dangers that are permanently located in the course of the river . . .  All this he must know and remember and avoid".  Atlee v. The Nw. Union Packet Co., 88 U.S.  (21 Wall.) 389, 396, 22 L.Ed. 619, 621 (1875).  See also Petition of M/V Elaine Jones, 480 F.2d 11 (5th Cir. 1973), modified at 513 F.2d 911 (5th Cir. 1975).  "(S)uch skillfulness requires a high degree of knowledge predicated on special training and inquiry, and not casual competence".  Essex County Electric Co. v. Motor Ship Godafoss, 129 F.Supp. 657, 660 (D.Mass.1955).  Thus, absent a finding of actual knowledge, the pilot may be charged with knowledge of a local condition as a matter of law.  See General Construction Co. v. Isthmian Lines, Inc., 259 F.Supp. 336, 339 (D.Or.1966).  In the instant case, the compulsory pilot was charged with constructive, if not actual, knowledge of the mooring dolphins and the risk they presented.  Cf. Standard Dredging Corp. v. S/S Syra, 290 F.Supp. 260 (D.Md.1968)

7
 The district court did state that "Bunge, being a subcharterer, knew the precise characteristics of the vessel".  396 F.Supp. at 858.  While the voyage charter party recited the bare dimensions and weight of the ship, Defendant's Exhibit No. 6, it did not indicate anything as to its maneuverability.  The characteristics with which Bunge was familiar were not sufficient to enable it to judge the number of tugs needed in berthing

8
 Captain Leask testified as follows:
Q: You thought three was adequate?
A: Three was adequate, that's right, sir.
Q: And this was a decision you made?
A: Yes, sir, I did, and the pilot agreed that this was adequate.
Q: You talked this over with the pilot at St. Maurice Street?
A: Yes, on the original docking I did talk this over with the pilot going into St. Maurice Street.
Q: Did you discuss this with Captain Watson prior to the docking?
A: Yes, when Captain Watson came on board they already arranged for three tugs by this time.
Q: And you all were unanimous that three would be enough?
A: Yes, we were.  (R. 651)
If all the navigational experts involved in docking the Furness Bridge agreed that three tugs would be sufficient, we cannot agree that Bunge, not an expert, was negligent in failing to suggest four.

9
 Trowbridge, The History, Development, and Characteristics of the Charter Concept, 49 Tul.L.Rev. 743, 753 (1975)

10
 "Most, if not all, time charters provide that the charterer does not have to pay hire in specific situations whereby time is lost because of failure of the vessel to render service.  Such clauses are described as 'off-hire' ".  O'Brien, Freight and Charter Hire, 49 Tul.L.Rev. 956, 965 (1975)

11
 An agent of Bunge informed Captain Leask that "laytime on subject (vessel) ceases . . .  at 1430 1/15/74 when (vessel) ordered to berth".  Defendant's Exhibit No. 10