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In recent years, the Judicial Hellholes report has given Pennsylvania credit for improving its litigation environment by instituting procedural safeguards that made it less welcoming to out-of-state plaintiffs. But now, those who do business and face lawsuits in the state are concerned that the Pennsylvania Supreme Court may take a liability-expanding turn. Recent rulings also indicate that Pennsylvania’s intermediate appellate courts have swung courtroom doors open to out-of-state plaintiffs whose claims have no connection to the state. As key cases reach the state high court, it will have a choice as to whether to adhere to traditional principles of tort liability and follow statutory law, or accept the plaintiffs’ bar’s invitation to expand liability and welcome more lawsuits to Pennsylvania.
Historically, Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (“UTPCPL”) was limited to Pennsylvania plaintiffs who alleged wrongful acts that had a “sufficient nexus” to Pennsylvania. In February 2018, however, the Pennsylvania Supreme Court unanimously overturned years of precedent and ruled that non-Pennsylvanians could sue Pennsylvania-based businesses for out-of-state transactions no matter how tenuous their relationship to the state.
In Danganan v. Guardian Protection Services, the plaintiff sued a Pennsylvania-based home security company for allegedly continuing to bill him for his Washington D.C. home security system after he moved to California. The justices decided the language of the UTPCPL evidenced no geographic or residency requirement, despite over ten years of precedent saying otherwise. In the end, the entire Pennsylvania Supreme Court sided with the out-of-state plaintiff to the detriment of Pennsylvania businesses.
As one Philadelphia attorney observed, the ruling “may encourage these plaintiffs to bring suit in Pennsylvania rather than their home states or in the state where the acts occurred in the hopes that courts will apply the UTPCPL.” “While that may seem like a hassle, the broad remedies of the UTPCPL, including treble damages and attorneys’ fees, could make it a worthwhile effort for plaintiffs and their counsel,” he noted.
WILL THE COURT RECOGNIZE THE MODERN REALITIES OF LITIGATION AND MEDIA?
Speaking of anti-business, a Pennsylvania appellate court recently adopted one of the most restrictive views of the attorney-client privilege in the country.
In BouSamra v. Excela Health, an intermediate appellate court ruled that a company waived the attorney client privilege by forwarding a communication between inside and outside counsel to a public relations consultant who was retained to develop a media plan and plan a press conference regarding its defense in a defamation action. The court failed to understand the relationship between lawyering and communications in a modern business and the public interest served by respecting the confidentiality of such communications.
In January 2018, the Pennsylvania Supreme Court granted review. ATRA filed an amicus curiae brief arguing that a privileged document should not lose its protections merely because a general counsel, or other lawyer for a company, shares that document with non-lawyers responsible for working with the company to navigate a multi-dimensional legal issue. The court heard oral argument in October 2018.
WILL THE COURT EXPAND MEDICAL LIABILITY?
Another case argued before the Pennsylvania Supreme Court that month will decide whether plaintiffs can file medical malpractice claims long after the period set by the legislature to do so has ended.
In Yanakos v. University of Pittsburgh Medical Center, plaintiffs have urged the Supreme Court to adopt an exception to the state’s seven-year time limit to bring medical liability claims. There, the plaintiffs filed a lawsuit twelve years after a failed liver transplant, and said that they had not discovered the patient’s medical condition until after the seven-year period expired. While the legislature carved out other exceptions to the statutory period, and had not done so for this situation, the plaintiffs asked the court to find the statute unconstitutional and apply its own exception.
WILL THE COURT REQUIRE DEFENDANTS TO PAY MORE THAN THEIR FAIR SHARE IN ASBESTOS AND OTHER PRODUCT LIABILITY CASES?
On July 21, 2018, the Pennsylvania Supreme Court granted review of a Superior Court decision holding that a state law that imposes liability in proportion to a defendant’s level of responsibility for an injury, known as the Fair Share Act, applies to asbestos cases.
The Superior Court had reversed a Philadelphia Court of Common Pleas ruling that exempted asbestos cases from the same rules for allocating fault that apply in other cases. Without such a rule, a single business that is found to have contributed to a plaintiff ’s exposure to asbestos could end up having to pay the entire damage award, even if the plaintiff ’s exposure was largely caused by others. Under the Fair Share Act, a defendant can be required to pay the full award only if found more than 60% responsible. In addition, the ruling could more broadly exempt other strict product liability cases from the Fair Share Act.
The Supreme Court also will have the opportunity to require plaintiffs to provide the court with any evidence of bankruptcy trust claims or settlements. The Superior Court appropriately held that when a jury apportions fault among potentially responsible parties, the Fair Share Act requires that they consider evidence of any settlements by the plaintiffs with bankrupt entities. Ideally, the Supreme Court should require plaintiffs to provide all evidence of past and future bankruptcy trust claims and settlements, or consider them waived. If the high court does not do so, or worse, blindfolds juries from considering such settlements, passing a law to provide transparency in claims made against asbestos-related bankruptcy trusts, like H.B. 238, will become even more critical.
As of publication, this closely-watched case, Roverano v. John Crane, Inc., is pending before the Pennsylvania Supreme Court with no date yet set for oral argument.
Pennsylvania courts have been slow to apply the U.S. Supreme Court’s 2017 ruling instructing state courts to dismiss cases that have no connection to the state. In Bristol-Myers Squibb Co. v. Superior Court of California, the Court held that a state cannot exercise personal jurisdiction over a company that is not incorporated or headquartered in that state when the plaintiffs do not live in the state and events related to the alleged injury did not occur there.
The first opportunity for a Pennsylvania Superior Court to properly apply the BMS ruling on claims brought by out-of-state plaintiffs was in Hammons v. Ethicon. The facts were similar to BMS—an out-of-state plaintiff brought suit in Philadelphia against Ethicon and its parent company Johnson & Johnson, neither of which are incorporated or headquartered in Pennsylvania. The plaintiff did not receive medical treatment in Pennsylvania, and all of the relevant actions related to her claim alleging a pelvic mesh device was defective took place where she lived, Indiana, or where Ethicon is based, New Jersey.
The only connection between the parties and Pennsylvania was that Ethicon had contracted with a Pennsylvania company to “design, test, and manufacture” the mesh and the plaintiff decided it would be a more favorable jurisdiction. Doing business with third parties does not automatically subject an out-of-state business to personal jurisdiction where that company is located unless there is a specific connection between the forum and the injury. The U.S. Supreme Court in BMS held that the “bare” decision to contract with a California company to distribute the drug nationally did not provide a sufficient basis for jurisdiction in California. As in BMS, Ethicon’s link to a Pennsylvania company should not have provided a sufficient basis for a Pennsylvania court to decide the case.
Nevertheless, in June 2018, the Superior Court declined to throw out a $12.8 million judgment reached in Philadelphia’s mass tort program in late 2015. The court never explained how a third party’s actions specifically contributed to the plaintiff ’s specific injury. Ethicon filed a petition for appeal to the Pennsylvania Supreme Court in September 2018, which, as of publication, is pending.
A few days after the Hammons decision, another Superior Court panel came down with a ruling that was even more extreme. In Webb-Benjamin, LLC v. International Rug Group, LLC, a dispute arose over commissions from a furniture sale that took place in Canada. After the event, the nonresident defendant registered to do business in Pennsylvania as a foreign corporation. The panel held that if a corporation registers to do business in Pennsylvania, it consents to personal jurisdiction in the state.
While there is hope the tide of jurisdictional overreach will subside, ATRA urges the Pennsylvania Supreme Court to show leadership by giving clear guidance to lower courts to end litigation tourism.
bad faith lawsuits, where plaintiffs challenge the timeliness or manner in which an insurance claim is paid. While the court’s 2017 decision in Rancosky v. Washington National Insurance Co. “could have been worse,” its failure to explicitly find that “bad faith” claims always require an insurer to act with “bad faith” helped land the Pennsylvania Supreme Court on the 2017-2018 Watch List.
Fortunately, a state appellate court drew the line in a bad faith claim in April 2018 when it reversed a $21 million judgment in Berg v. Nationwide Mutual Insurance. A divided three-judge panel found that the trial court judge who imposed the monstrous award, Judge Jeffrey Sprecher, acted with clear bias towards the insurance industry. There was no evidence, the appellate court found, that Nationwide engaged in bad faith when it asked an auto shop to repair a Jeep Grand Cherokee that had been damaged in an accident rather than write it off as a total loss.
When Judge Sprecher reached the multimillion-dollar bad faith verdict he issued an opinion that spanned more than 100 pages. Rather than focus on whether Nationwide committed bad faith, which was the issue before the court, the Berks County judge commented at length on the profitability and power of insurance companies, and their “massive assets.” Lawyers representing the insurer argued on appeal that Judge Sprecher had gone on a “tantrum” against the carrier, assailing everything from its litigation tactics to its advertising practices.
The appellate court found that “[t]he relative power and wealth of the insurer as compared to the insured is not relevant to whether bad faith occurred in a particular case, unless some factual basis can be shown that the insurer used its wealth to engage in bad faith.” To recover, the insured must show bad faith, the court reminded, and did not do so. The appellate court’s ruling not only threw out the award of $18 million in punitive damages and $3 million in attorneys’ fees, but entered judgment for the insurer.
The plaintiff filed a petition for appeal with the Pennsylvania Supreme Court in September 2018, which will continue litigation over a car accident in which no one was hurt that began a decade ago. As of publication, the high court has not decided whether to review the appellate court’s decision.

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UNITED FIRE & CASUALTY COMPANY, Plaintiff–Appellant v. TITAN CONTRACTORS SERVICE, INC., Defendant–Appellee.
Before GRUENDER, BRIGHT, and MELLOY, Circuit Judges. Mary Adina Johnson, argued, Saint Louis, MO (David Karl Simkins, on the brief), for appellant. Cynthia Juedemann, argued, Saint Louis, MO (Russell F. Watters, on the brief), for appellee.
United Fire and Casualty Company (“United”) brought this declaratory judgment action against Titan Contractors Services, Inc. (“Titan”), and Titan counterclaimed for declaratory relief. United appeals the district court's grant of summary judgment in favor of Titan on United's claim and Titan's counterclaim, as well as the district court's denial of United's motion for summary judgment. For the reasons discussed below, we vacate and remand.
Titan provides construction-cleanup services, including cleaning and sealing concrete floors. At all relevant times, Titan was insured under a commercial general liability insurance policy provided by United. The policy excluded from coverage “ ‘[b]odily injury’ or ‘property damage’ which would not have occurred in whole or part but for the actual, alleged or threatened discharge, dispersal, seepage, migration, release or escape of ‘pollutants' at any time.” The policy defines “pollutant” as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste.” This provision, typically denominated the “absolute pollution exclusion,” appears in many commercial general liability insurance policies. See William P. Shelley & Richard C. Mason, Application of the Absolute Pollution Exclusion to Toxic Tort Claims: Will Courts Choose Policy Construction or Deconstruction?, 33 Tort & Ins. L.J. 749, 752–53 & n.13 (1998).
In March 2009, three women brought negligence claims against Titan in Illinois state court. They alleged that on April 20, 2007, Titan applied TIAH, an acrylic concrete sealant, to the floor in a portion of the office park in which they worked. Because Titan failed to ventilate its worksite properly, the TIAH infiltrated the women's office. They were exposed to TIAH and developed significant physical ailments, including acute chemically-induced asthma and vocal cord dysfunction.
Titan gave notice and tendered defense of the lawsuit to United pursuant to the policy. United commenced defense of Titan against the negligence claims subject to a reservation of rights. United then filed this action seeking a declaration that it did not owe a duty to defend or indemnify Titan against the pending state-court lawsuit because the policy's absolute pollution exclusion barred coverage for the claims raised in the lawsuit. United also sought recovery of the costs it had expended thus far defending the state-court lawsuit. Titan counterclaimed, seeking a declaration that United owes duties to defend and indemnify it against the state-court lawsuit. The parties filed cross-motions for summary judgment. The district court granted Titan's motion and denied United's, entering a judgment declaring that United owes a duty to defend and indemnify Titan against the state-court lawsuit. The district court reasoned that TIAH did not constitute a “pollutant” and, thus, that the absolute pollution exclusion did not apply to exclude coverage for the claims raised in the state-court lawsuit. United timely appealed both the grant of summary judgment in favor of Titan and the denial of its own motion for summary judgment.
We review both the district court's grant of summary judgment and its interpretation of the insurance policy de novo. Bethel v. Darwin Select Ins. Co., 735 F.3d 1035, 1038 (8th Cir.2013). Summary judgment is proper only if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The parties agree that Missouri substantive law governs this diversity action. As such, “we are bound by the decisions of the Supreme Court of Missouri. If the Supreme Court of Missouri has not addressed an issue, we must predict how the court would rule, and we follow decisions from the intermediate state courts when they are the best evidence of Missouri law.” Dannix Painting, LLC v. Sherwin–Williams Co., 732 F.3d 902, 905 (8th Cir.2013) (quoting Kingman v. Dillard's Inc ., 643 F.3d 607, 615 (8th Cir.2011)).
Under Missouri law, an insurer owes a duty to defend its insured whenever the complaint in the underlying lawsuit “alleges facts that give rise to a claim potentially within the policy's coverage.” McCormack Baron Mgmt. Servs., Inc. v. Am. Guar. & Liab. Ins. Co., 989 S.W.2d 168, 170 (Mo. banc 1999). “The duty to defend is determined by comparing the language of the insurance policy with the allegations in the [underlying] complaint.” Id. The parties agree that the claims raised in the state-court lawsuit fall within the general inclusionary terms of the policy. So here, United owes Titan a duty to defend so long as those claims potentially fall outside the scope of the absolute pollution exclusion. Because an insurer's duty to defend is broader than its duty to indemnify, id., if United owes no duty to defend, it likewise owes no duty to indemnify, Trainwreck West Inc. v. Burlington Ins. Co., 235 S.W.3d 33, 44 (Mo.Ct.App.2007).
The interpretation of an insurance policy is a question of law. Schmitz v. Great Am. Assurance Co., 337 S.W.3d 700, 705 (Mo. banc 2011). If the policy language is unambiguous, “the contract will be enforced as written.” Rice v. Shelter Mut. Ins. Co., 301 S.W.3d 43, 47 (Mo. banc 2009) (quotation omitted). But if the policy language is ambiguous, it will be construed against the insurer. Id. “An ambiguity exists when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy. Language is ambiguous if it is reasonably open to different constructions.” Jones v. Mid–Century Ins. Co., 287 S.W.3d 687, 690 (Mo. banc 2009) (quotation omitted). When interpreting insurance policies, Missouri courts “appl[y] the meaning [that] would be attached [to the policy] by an ordinary person of average understanding if purchasing insurance.” Burns v. Smith, 303 S.W.3d 505, 509 (Mo. banc 2010) (quotation omitted).
This case turns, then, on whether an ordinary person of average understanding purchasing the policy would consider TIAH to fall unambiguously within the policy's definition of “pollutant.” We conclude that she would. The policy defines “pollutant” to include an “irritant,” but it does not define the latter term. When a term “is not defined in the policy, ․ it is necessary to use the ordinary meaning of the word, as set forth in the dictionary.” Schmitz, 337 S.W.3d at 708; see also Burns, 303 S.W.3d at 512 n.5 (“This Court looked to the dictionary definition ․ to determine what the ordinary layperson would interpret as the meaning of that word.”). An irritant is “something that irritates,” that is, that “produce[s] irritation.” Webster's Third New International Dictionary 1197 (2002). There can be little doubt that TIAH falls within that definition. TIAH's material safety data sheet1 warns that the substance “may produce irritation to the nose, throat, respiratory tract, and other mucous membranes”; may be “irritating” to the eyes and skin; is “toxic”; and can cause serious injury, including “permanent brain and nervous system damage.” Similarly, promotional materials from TIAH's manufacturer caution that TIAH can “cause irritation of the eyes and/or skin” and that TIAH vapors might “result in transient central nervous system depression.” This evidence shows clearly that TIAH produces irritation. An ordinary insurance purchaser would conclude from this that TIAH constitutes an irritant and, in turn, a pollutant under the absolute pollution exclusion. That conclusion is buttressed by the fact that the federal Clean Air Act classifies xylene, one of TIAH's constituent chemicals, as a “pollutant.” See 42 U.S.C. § 7412(b)(1). While perhaps not dispositive, federal statutory classification of a substance as a pollutant can put an insurance purchaser on notice that the substance might trigger the absolute pollution exclusion. See Porterfield v. Audubon Indem. Co., 856 So.2d 789, 805 (Ala.2002); Quadrant Corp. v. Am. States Ins. Co., 110 P.3d 733, 741–42 (Wash.2005). Thus, TIAH unambiguously constitutes a pollutant under the absolute pollution exclusion.
Titan does not seriously contest the foregoing analysis but instead contends that such strict fidelity to the policy's text conflicts with the Missouri Court of Appeals's decision in Hocker Oil Co. v. Barker–Phillips–Jackson, Inc., 997 S.W.2d 510 (Mo.Ct.App.1999). In Hocker Oil, 2,000 gallons of gasoline leaked from the insured's gas station onto adjacent property. Id. at 512. The court found it to be ambiguous whether gasoline constituted a pollutant under the insurance policy's pollution exclusion and thus construed the provision against the insurer. Id. at 518. The insurer had issued the policy through its “Gasoline Department,” id. at 515, and the insured's business consisted entirely of operating gas stations, id. at 514. The court observed that “it would be an oddity for an insurance company to sell a liability policy to a gas station that would specifically exclude that insured's major source of liability.” Id. at 518. As such, the insured reasonably could have concluded that gasoline was a “product it sells” rather than a pollutant. Id. Titan seeks to analogize this case to Hocker Oil, claiming that TIAH is a “product it sells” and thus that it reasonably could conclude that TIAH is not a pollutant.
We reject Titan's reliance on Hocker Oil for two reasons. First, we doubt that the Supreme Court of Missouri would apply Hocker Oil in the manner urged by Titan. As we recently observed, Hocker Oil's approach “was a minority position when adopted, has been almost uniformly rejected by appellate courts in other jurisdictions, and has not since been cited or referred to favorably by the Supreme Court of Missouri.” Doe Run. Res. Corp. v. Lexington Ins. Co., 719 F.3d 868, 875 (8th Cir.2013) (applying Missouri law and rejecting insured's reliance on Hocker Oil ). Indeed, not even Missouri's intermediate appellate courts have relied on this aspect of Hocker Oil in the fifteen years since the case was decided. This should come as no surprise, since Hocker Oil seems out of step with Missouri's deeply-entrenched rule that a court “may not ‘create an ambiguity in order to distort the language of an unambiguous policy, or, in order to enforce a particular construction which it might feel is more appropriate.’ “ Id. at 875–76 (quoting Rodriguez v. Gen. Accident Ins. Co., 808 S.W.2d 379, 382 (Mo. banc 1991)). Thus, we do not find Hocker Oil probative of how the Supreme Court of Missouri would decide this case.
We are mindful of the concern that an unbounded pollution exclusion could swallow up the inclusionary provisions of a policy. See Pipefitters Welfare Edu. Fund v. Westchester Fire Ins. Co., 976 F.2d 1037, 1043 (7th Cir.1992). But the text of the exclusion imposes limitations on its own scope separate from the definition of pollutant. For example, the absolute pollution exclusion applies only to harm caused by the “discharge, dispersal, seepage, migration, release or escape” of a pollutant. Thus, the exclusion will not apply, even in cases involving a pollutant, if the pollutant did not propagate in one of these enumerated ways. See, e.g., Porterfield, 856 So.2d at 805–06 (holding that, although lead paint constitutes a “pollutant,” the absolute pollution exclusion did not apply because flaking of lead paint from walls did not constitute “discharge”); cf. 9 Couch on Insurance § 127:9 (3d ed.2013) (collecting cases). So “if a child were injured because he drank from a bottle of ․ [a] household product, even if that product properly could be classified as a ‘pollutant,’ the injury would not be covered by the pollution exclusion because the pollutant was not disseminated by one of the prescribed methods.” Lefrak Org., Inc. v. Chubb Custom Ins. Co., 942 F.Supp. 949, 954 (S.D.N.Y.1996). Similarly, textual analysis might also avert “absurd results,” such as the speculation that the exclusion “would bar coverage for bodily injuries suffered by one who slips and falls on the spilled contents of a bottle of Drano.” Pipefitters, 976 F.2d at 1043. As we have noted previously, the absolute pollution exclusion will not necessarily apply where the substance causing injury has the potential to irritate but has—like the Drano in the hypothetical—caused harm in a manner other than by irritating. See Sargent Const. Co. v. State Auto Ins. Co., 23 F .3d 1324, 1327 (8th Cir.1994) (applying Missouri law).3 We believe that these interpretive principles, grounded in the text of the policy, substantially limit the scope of the absolute pollution exclusion without deviating radically from its actual language.
We therefore conclude that TIAH unambiguously constitutes a pollutant under the absolute pollution exclusion. The district court rested its grant of summary judgment in favor of Titan exclusively on the ground that TIAH is not a pollutant, and Titan did not present any alternate grounds for affirming that decision. Accordingly, we vacate the district court's grant of summary judgment.
United also asks that we reverse the district court's denial of its summary judgment motion. Ordinarily, we cannot review the denial of a motion for summary judgment, because it does not constitute a final order. Nyari v. Napolitano, 562 F.3d 916, 922 (8th Cir.2009); see also 28 U.S.C. § 1291. However, when a party appeals both the denial of its motion for summary judgment and the grant of summary judgment in favor of the appellee, we may review both orders and, if appropriate, direct the entry of summary judgment in favor of the appellant. Nyari, 562 F.3d at 922. Under such circumstances, the denial of summary judgment “merge[s] into” the final order granting summary judgment and thereby becomes reviewable. Swaback v. Am. Info. Techs. Corp., 103 F.3d 535, 543 (7th Cir.1996).
Because the district court premised its denial of United's motion for summary judgment exclusively on the erroneous conclusion that TIAH does not constitute a pollutant, we vacate the district court's order. However, we decline to direct the entry of summary judgment in favor of United. In addition to contesting whether TIAH constitutes a pollutant, Titan also argued to the district court that the complaint in the underlying state-court case did not allege the “discharge, dispersal, seepage, migration, release or escape” of TIAH. This contention, if correct, would render the absolute pollution exclusion inapplicable in this case. The district court did not reach this issue, and the parties have not addressed it on appeal. Because this argument raises complex factual and legal questions, we believe that “it would be beneficial for the district court to consider this issue in the first instance.” Loftness Specialized Farm Equip., Inc. v. Twiestmeyer, 742 F.3d 845, 851 (8th Cir.2014). Accordingly, we vacate the denial of United's motion for summary judgment and remand for further proceedings.
For the foregoing reasons, we vacate the district court's grant of summary judgment in favor of Titan and its denial of United's motion for summary judgment, and we remand this case to the district court for further proceedings consistent with this opinion.
Under Missouri law, ambiguity exists in an insurance policy “ ‘when there is duplicity, indistinctness, or uncertainty in the meaning of the language in the policy’ “ ‘ and “ ‘[l]anguage is ambiguous if it is reasonably open to different constructions.’ “ ‘ Daughhetee v. State Farm Mut. Auto. Ins. Co., 743 F.3d 1128, 1132 (8th Cir.2014) (quoting Burns v. Smith, 303 S.W.3d 505, 509 (Mo.2010) (en banc)). In construing the terms of an insurance policy, this court “must apply ‘the meaning which would be attached by an ordinary person of average understanding if purchasing insurance.’ “ ‘ Id. (quoting Seeck v. Geico Gen. Ins. Co., 212 S.W.3d 129, 132 (Mo.2007) (en banc)). Additionally, under Missouri law, we strictly construe ambiguous policy exclusions and limitations against the insurer. Capitol Indem. Corp. v. 1405 Assocs., Inc., 340 F.3d 547, 550 (8th Cir.2003) (citing Standard Artificial Limb, Inc. v. Allianz Ins. Co., 895 S.W.2d 205, 209 (Mo .Ct.App.1995)); Burns, 303 S.W.3d at 509–10.
Here, a reasonable policy holder would expect that a liability insurance policy issued to a contractor in the business of cleaning and sealing concrete floors would cover injuries suffered as a result of exposure to the products used in cleaning and sealing floors. As much as twenty-five percent of Titan's business includes applying concrete sealant after the completion of new construction. Thus, similar to the gasoline at issue in Hocker Oil Co., Inc. v. Barker–Phillips–Jackson, Inc., TIAH “is not a pollutant in [Titan's] eyes.” 997 S.W.2d 510, 518 (Mo.Ct.App.1999). Rather, TIAH “belongs in the environment in which [Titan] routinely works” and “in that environment, [TIAH] is not a pollutant.” Id. Furthermore, in that environment, with ordinary ventilation, the product can be used safely. If any uncertainty exists as to whether the policy's “pollution” definition excludes TIAH, the policy must be ambiguous. See Daughhetee, 743 F.3d at 1132. Moreover, this court has previously concluded that identical language defining “pollutant” is ambiguous. See Sargent Constr. Co., Inc. v. State Auto Ins. Co., 23 F.3d 1324, 1327 (8th Cir.1994) (applying Missouri law).
Because the operative policy language is ambiguous, Titan's interpretation of the pollution exclusion language controls. Therefore, I would affirm the district court.
1. Federal law requires manufacturers to furnish material safety data sheets identifying the potential risks of all “hazardous chemicals” that they produce or import. 29 C.F.R. § 1910.1200(g). Similarly, employers must “have a safety data sheet in the workplace for each hazardous chemical [that] they use.” Id.
2. Titan also cites American National Property & Casualty Co. v. Wyatt, 400 S.W.3d 417 (Mo.Ct.App.2013), which held—relying almost exclusively on cases from other jurisdictions—that an ordinary insurance purchaser reasonably could conclude that “pollutant” includes only traditional environmental pollution. Id. at 426. Titan does not urge us to adopt this sweeping rule, which conflicts with several Missouri cases that have applied the absolute pollution exclusion to a wider range of substances. See, e.g., Heringer v. Am. Family Mut. Ins. Co., 140 S.W.3d 100, 105–06 (Mo.Ct.App.2004) (expressly rejecting the argument that “pollutant” is limited to traditional environmental pollution); Boulevard Inv. Co. v. Capitol Indem. Corp., 27 S.W.3d 856, 858 (Mo.Ct.App.2000) (holding that kitchen grease constituted pollutant). Given its limited consideration of Missouri case law and its failure even to address contrary authority such as Heringer and Boulevard, we do not find Wyatt especially instructive as to how the Supreme Court of Missouri would decide this case.
3. Citing Sargent Construction, the dissent states that “this court has previously concluded that identical language defining ‘pollutant’ is ambiguous.” Post at 11. But “[t]he question of ambiguity cannot be viewed in the abstract. A particular word or phrase in any writing is ambiguous only with reference to some specific issue.” State ex rel. Mathewson v. Bd. of Election Comm'rs, 841 S.W.2d 633, 635 (Mo. banc 1992). Thus, a particular policy provision may be ambiguous with respect to the factual situation presented by one claim but unambiguous as to another. See State Farm Mut. Auto. Ins. Co. v. DeCaigney, 927 S.W.2d 907, 909–10 (Mo.Ct.App.1996). The “specific issue” presented in Sargent Construction—whether a substance constitutes an irritant when it causes harm other than by irritating—is wholly unrelated to the question presented here. Thus, Sargent Construction does not control whether the term “pollutant” is ambiguous as to the facts of this case.


Robert E. Kinney, Assistant Federal Public Defender, Las Cruces, New Mexico (Stephen P. McCue, Federal Public Defender, Albuquerque, New Mexico and Shari Lynn Allison, Research and Writing Specialist, Las Cruces, New Mexico, with him on the briefs) for Defendant-Appellant.
Mary Catherine McCulloch, Assistant United States Attorney (Norman C. Bay, United States Attorney, with her on the brief) Albuquerque, New Mexico, for Plaintiff-Appellee.
Before EBEL, HOLLOWAY, and JONES,(*) Circuit Judges.
Appellant, Gordon K., a juvenile, appeals the district court's modification of his original sentence to include an order of restitution. Appellant argues that the district court lacked the authority under Federal Rule of Criminal Procedure 35(c) to modify his original sentence. For the reasons provided below, we REVERSE the district court's order of restitution and remand to the district court with instructions to reinstate the original sentence.
On June 20, 1999, Appellant fatally stabbed Dewey Pollack on the Mescalero Apache Reservation. Appellant was seventeen years old at the time of the slaying. On December 17, 1999, Appellant entered a guilty plea to an information charging him with second degree murder. In exchange for his guilty plea, the United States agreed that Appellant should be placed in the custody of the Cornell Abraxis Youth Development Program subject to the approval of the Bureau of Prisons for a period of 60 months. The Presentence Report indicated Appellant had no assets nor income and he would not be able to earn any income during his incarceration.
On May 5, 2000, at the sentencing hearing, the district court heard victim allocution from the victim's father, mother, and grandmother. After considering the evidence, the court accepted the negotiated plea agreement and sentenced Gordon to 60 months at Cornell-Abraxis with no supervised release period. Because the Presentence Report indicated that Appellant did not have any income or assets, the district court did not order restitution.
Following the hearing, the district court met with members of the victim's family in chambers outside the presence of defense counsel. The court subsequently contacted counsel on May 10, 2000, and stated its intent to modify the judgment to include restitution pursuant to Federal Rule of Criminal Procedure 35. The court informed counsel that the victim's family was very upset about the plea. The family members informed the court that the Mescalero Tribe gives its members dividend payments annually and that these payments constituted an actual or potential source of income available to Appellant. Judge Vazquez noted that had she known of the payments at sentencing, she would have imposed restitution. The defense objected to modifying the sentence because the court lacked jurisdiction to do so. Over the defense's objection, the district court found that it had jurisdiction to modify the previously imposed sentence under Fed. R. Crim. P. 35(c). The district court ordered the Mescalero tribe to send Appellant's checks directly to the Court for disbursement to the victim's family, until the amount of $4, 540.78 had been paid.
Fed. R. Crim. P. 35(c) provides that "[t]he court, acting within 7 days after the imposition of sentence, may correct a sentence that was imposed as a result of arithmetical, technical, or other clear error." Appellant argues that the district court lacked the authority under Rule 35(c) to modify his original sentence. The Government argues that Fed. R. Crim. P. 35(c) poses no obstacle to the district court's post-sentencing order of restitution because Rule 35(c) does not apply to juvenile proceedings. The Government relies on Federal Rule of Criminal Procedure 54(b) which provides that the Federal Rules of Criminal Procedure do not apply to proceedings under the Federal Juvenile Delinquency Act ("FJDA" or "the Act") to the extent that they are inconsistent with that Act. See Fed. R. Crim. P. 54(b)(5); United States v. Edward J., 224 F.3d 1216, 1220, n.4 (10th Cir. 2000); United States v. Allen, 574 F.2d 435, 439, n.10 (8th Cir. 1978). The Government points to several alleged inconsistencies between Fed. R. Crim. P. 35(c) and the Act: (1) Congress intended juvenile dispositions under the Act to be flexible and informal, resulting in a civil determination of status; whereas, adult criminal sentencing cabins the discretion of the sentencing judge and results in a misdemeanor or felony conviction and; (2) Fed. R. Crim. P. 35(c) was enacted to further the goals of the Sentencing Guidelines, which are not applicable to juvenile dispositions.
The Government's argument is without merit. The Advisory Committee Notes to Rule 54(b)(5) provide that "[t]he purpose of excepting proceedings under the [Federal Juvenile Delinquency] Act is to make inapplicable to them the requirement of an arraignment in open court (Rule 10) and other similar provisions." Fed. R. Crim. P. 54(b)(5), cmt. n.4. Compare 18 U.S.C. § 5038 (e) ("Unless a juvenile who is taken into custody is prosecuted as an adult neither the name nor the picture of any juvenile shall be made public in connection with a juvenile delinquency proceeding.") with Fed. R. Crim. P. 10 ("Arraignment shall be conducted in open court . . . ."). Thus, the clear import of Rule 54(b)(5) is to exempt those Federal Rules of Criminal Procedure that are in direct conflict with the provisions of the FJDA.
The Government cannot point to a single provision of the Act that conflicts with Rule 35(c). Significantly, the Act does not authorize what Rule 35(c)--in all but a few instances--clearly forbids; i.e., the modification of sentences after they have been imposed. The Government correctly notes that there are important differences between adult and juvenile sentencing such as the informal and individualized context in which juvenile sentencing takes place. However, Rule 35(c) in no way interferes with the judge's ability to impose a juvenile sentence in a forum characterized by flexibility and informality. Rather, Rule 35(c) limits what the judge may do after the sentence is imposed. Cf. McKeiver v. Pennsylvania, 403 U.S. 528, 534, 91 S.Ct. 1976, 1981, 29 L.Ed. 2d 647 (1971) (Supreme Court decisions holding that the right to notice, to counsel, and to confrontation apply to juvenile proceedings "do not spell the doom of the juvenile court system or even deprive it of its informality, flexibility, or speed") (quotations omitted); In re Gault, 387 U.S. 1, 18, 87 S.Ct. 1428, 1438-39, 18 L.Ed.2d 527 (1967) ("Juvenile Court history has . . . demonstrated that unbridled discretion, however benevolently motivated, is frequently a poor substitute for principle and procedure.").
Finally, the Government argues that since the Sentencing Guidelines do not apply to juvenile dispositions, Rule 35(c) is also inapplicable because Rule 35(c) was enacted to further the goals of the Sentencing Guidelines. The premise of this argument--that the Sentencing Guidelines do not apply to juvenile proceedings--ignores several points of intersection between the Guidelines and juvenile proceedings. First, under the FJDA, the sentencing court is required to consider the policy statements of the United States Sentencing Commission. See 18 U.S.C. § 5037(a). Second, the Supreme Court has held that when the FJDA speaks of the maximum term of imprisonment that would be authorized if a juvenile had been convicted as an adult,(1) it means the maximum period of custody that an adult would face under the Sentencing Guidelines. See United States v. R.L.C., 503 U.S. 291, 294, 112 S.Ct. 1329, 1333 (1992). Thus, a Sentencing Guideline calculation is still necessary to determine the upper limit for a juvenile custody sentence.
In sum, the application of Fed. R Crim. P. 35(c) to juvenile proceedings does not conflict with the Federal Juvenile Delinquency Act; therefore, we hold that Rule 35(c) applies to juvenile proceedings under the FJDA.
Having determined that Fed. R. Crim. P. 35(c) is applicable to juvenile proceedings, the question remains whether that rule authorized the district court's modification of Appellant's original sentence to include restitution.
There is no dispute that the district court modified the original sentence within the 7 day window provided for under Fed. R. Crim. P. 35(c). In addition, there is no dispute that the original sentence did not contain an arithmetic or technical error. Thus, the only issue is whether the court's failure to order restitution in the original sentence was clear error.
The Advisory Committee Notes to Rule 35(c) state that "[t]he authority to correct a sentence under this subdivision is intended to be very narrow. . . The subdivision is not intended to afford the court the opportunity to reconsider the application or interpretation of the sentencing guidelines or for the court simply to change its mind about the appropriateness of the sentence. Nor should it be used to reopen issues previously resolved at the sentencing hearing . . . ." In the case at bar, the district court changed its mind about the appropriateness of ordering the defendant to pay restitution in light of new information concerning his ability to pay.(2) Because Rule 35(c) does not permit modification of a sentence based on new information, the district court lacked the authority to modify Appellant's sentence. See United States v. Skufca, No. 96-1225, 1997 WL 139763 at *1 (10th Cir., March 24, 1997) ("revocation of [defendant's] original sentence was not based on arithmetical, technical or other clear error, but rather on additional evidence at the subsequent hearing and based on the court's change of heart.") (unpublished opinion); United States v. Lopez, 26 F.3d 512, 519 (5th Cir. 1994) ("[to allow] the sentencing judge to modify a sentence based upon new information would defeat Congress' intent to provide finality in sentencing and would create an unacceptably large realm of postsentencing discretion.") (quotations omitted).
Accordingly, we REVERSE the district court's order of restitution and remand with instructions to reinstate the original sentence.
*. The Honorable Nathaniel R. Jones, United States Circuit Judge for the Sixth Circuit, sitting by designation.
1. See 18 U.S.C. § 5037 (c)(1)(B) ("The term for which official detention may be ordered for a juvenile found to be a juvenile delinquent may not extend in the case of a juvenile who is less than eighteen years old, beyond (A) the lesser of the date when the juvenile becomes twenty-one years old; or (B) the maximum term of imprisonment that would be authorized if the juvenile had been tried and convicted as an adult.").
2. The decision to order restitution is discretionary, not mandatory. See 18 U.S.C. §3663 ("The court, when sentencing a defendant convicted of an offense under this title . . . may order . . . that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim's estate. . . .) (emphasis added).


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CHICAGO v. ATCHISON, T. & S. F. R. CO.
After the railroads operating in and out of Chicago had for many years utilized an old motor carrier to transfer interstate passengers and their baggage between different railroad terminals in the City, the railroads terminated that arrangement and engaged a newly organized motor carrier to provide the same service. The City then amended its municipal code so as to require, in effect, that the operator of any new transfer service must obtain a certificate of convenience and necessity from the Commissioner of Licenses and the approval of the City Council before it could lawfully transfer any passengers for the railroads. The new motor carrier refused to apply for a certificate of convenience and necessity, and the City threatened to arrest and fine its drivers if they operated unlicensed vehicles. The new motor carrier and the railroads then sued in a Federal District Court for a judgment declaring the city ordinance either inapplicable or invalid. The old motor carrier intervened as a defendant. The District Court dismissed the complaint. The Court of Appeals reversed, holding that the city ordinance, as applied, was repugnant on its face to the Constitution and laws of the United States. Held: The judgment is affirmed. Pp. 78-79.
1. The judgment of the Court of Appeals was a proper subject of an appeal to this Court under 28 U.S.C. 1254 (2), since it held a state statute invalid as repugnant to the Constitution and laws of the United States, and it was a "final" judgment within the meaning of that section. Pp. 82-83.
3. There being no ambiguity in the city ordinance and no doubt that it applied to the new motor carrier, the courts below properly passed upon its validity without awaiting its interpretation by the state courts. P. 84.
4. The city ordinance, as applied to the new motor carrier, is repugnant on its face to the Constitution and laws of the United States, because the City has no power to decide whether the new motor carrier can operate a transfer service between terminals for the railroads, which is an integral part of interstate railroad transportation authorized and subject to regulation under the Interstate Commerce Act. Pp. 84-89.
5. Since the city ordinance is completely invalid insofar as it applied to the new motor carrier, that company was not obligated to apply for a certificate of convenience and necessity and submit to administrative procedures incident thereto before bringing this action. P. 89.
[ Footnote * ] Together with No. 104, Parmelee Transportation Co. et al. v. Atchison, Topeka & Santa Fe Railway Co. et al., on appeal from, and petition for certiorari to, the United States Court of Appeals for the Seventh Circuit, argued March 6, 1958.
Joseph F. Grossman argued the cause for petitioner in No. 103. With him on the brief was John C. Melaniphy.
Philip B. Kurland argued the cause for appellants-petitioners in No. 104. With him on the brief were Lee A. Freeman and Brainerd Currie for the Parmelee Transportation Co., appellant-petitioner. John C. Melaniphy filed an appearance for the City of Chicago, appellant-petitioner.
Amos M. Mathews argued the causes for respondents in No. 103 and appellees-respondents in No. 104. On the briefs were Jerome F. Dixon and Albert J. Meserow for the Railroad Transfer Service, Inc., and Mr. Mathews and J. D. Feeney, Jr. for the Atchison, Topeka & Santa Fe Railway Co. et al., respondents in No. 103 and appellees-respondents in No. 104.
Chicago is one of the Nation's great rail centers. Each day thousands of railroad passengers travel through that City on continuous journeys from one State to [357 U.S. 77, 79] another. Since the lines of all railroads which carry passengers into and out of Chicago come to an end in one of that City's eight terminals, through passengers frequently arrive at a station different from the one where they are to board their outgoing train and must transfer with their baggage in order to continue their trip. Because of the serious problems of scheduling and passenger convenience involved in this interchange, the railroads, as a group, have long provided for the transfer of through passengers from one station to another by a systematic and highly organized motor carrier operation. Generally the passengers receive a coupon covering this transfer service, without special charge, as part of their through ticket.
For many years the railroads had an arrangement with Parmelee Transportation Company under which it carried through passengers between stations. Apparently finding its service no longer desirable, the railroads notified Parmelee in June 1955 that they would discontinue using its transfer vehicles as of October 1, 1955. Subsequently they engaged Railroad Transfer Service, a corporation specially organized at their request for that purpose, as their exclusive transfer agent for a five-year period commencing with the termination of Parmelee's service.
At the time the railroads gave Parmelee their notice the City of Chicago had in effect a detailed plan for the regulation and licensing of public passenger vehicles for hire. Among other things, operation of any public passenger vehicle, including a vehicle engaged in the transfer of passengers between railroad stations, was prohibited unless it had been licensed by the City. Any person who operated one of these vehicles without a license was subject to arrest and punishment.
After the railroads announced they intended to use the facilities of Railroad Transfer Service instead of those of [357 U.S. 77, 80] Parmelee, the City Council proceeded to amend the Municipal Code so as to effect certain important changes with regard to the licensing of transfer vehicles. A new section, 28-31.1, was added. In substance, it provided that no license for a transfer vehicle would issue unless the City Commissioner of Licenses first determined that public convenience and necessity required additional interterminal service. In that event, the City Council reserved final discretion to determine how many, if any, new licenses were to be issued. In making his determination the Commissioner was authorized to consider public demand for the proposed additional transfer service, its economic feasibility, public safety and, generally, any other facts he might think relevant. 1 If 28-31.1 validly [357 U.S. 77, 81] applied to Railroad Transfer Service that company was required to secure a certificate of convenience and necessity from the Commissioner plus the approval of the City Council before it could lawfully transfer any passengers for the railroads. On the other hand, Parmelee was permitted to continue operating without leave from the City since an exception in 28-31.1 provided that no certificate was necessary for the renewal of an existing license. Parmelee's vehicles were all licensed, of course, at the time the section became effective.
"1. Whether Parmelee Transportation Co. has standing to seek review here on appeal or by writ of certiorari.
"2. Whether the judgment of the Court of Appeals is `final' so as to permit review by way of appeal under 28 U.S.C. 1254 (2). Cf. Slaker v. O'Connor, 278 U.S. 188, 189 ; South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901 ."
First. The judgment of the Court of Appeals is the proper subject of an appeal. Under 28 U.S.C. 1254 (2) this Court may review cases on appeal where a Court of Appeals has held a state statute invalid as repugnant to the Constitution, treaties or laws of the United States. In Slaker v. O'Connor, 278 U.S. 188, 189 , the Court construed the substantially identical predecessor of 1254 (2) 3 as requiring a "final" judgment in a case before an appeal could be taken. The Slaker case was followed without comment, as to 1254 (2) itself, by the per curiam opinion in South Carolina Electric & Gas Co. v. Flemming, 351 U.S. 901 . Counsel for Parmelee, relying [357 U.S. 77, 83] on the language and legislative history of 1254 (2) and its predecessor, forcefully argue that the requirement of finality announced in the Slaker case is erroneous and should be overruled. We find it unnecessary however to pass on this contention here because we are convinced that the judgment below was "final" by any relevant standard.
By its decision the Court of Appeals resolved all disputed questions between the parties. From the beginning the only issues in the case were whether 28-31.1 was applicable to Transfer and, if applicable, whether that section was consistent with federal law. The Court of Appeals held the section applied to Transfer but was unconstitutional. There was nothing more to litigate; all that remained for the District Court on remand was to formally enter judgment for the plaintiff. Compare Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 381 -383.
Third. There is still another preliminary point which must be decided. The City argues that the courts below should not have passed on the validity of 28-31.1 until state courts had authoritatively ruled that Transfer's terminal vehicles came within its provisions. The City asks that we vacate the judgment of the Court of Appeals and remand to the District Court with directions to hold the case until efforts to obtain an adjudication in the state courts have been exhausted. Under the circumstances we do not believe this procedure is warranted.
After full argument on that point, both the District Court and a unanimous Court of Appeals held that 28-31.1 applied to Transfer. That was the position of the city in both courts and it made no move there to have the matter remitted to the state courts. After referring to the provisions of 28-31.1 the City declared in its brief in the Court of Appeals: "A more accurate description of the business engaged in by Transfer would be hard to find." We think this is a fair summarization. We see no ambiguity in the section which calls for interpretation by the state courts. Cf. Toomer v. Witsell, 334 U.S. 385 . Remission to those courts would involve substantial delay and expense, and the chance of a result different from that reached below, on the issue of applicability, would appear to be slight.
Fourth. We agree with the Court of Appeals that 28-31.1 is invalid insofar as it requires Transfer to secure a certificate of convenience and necessity before it can operate. By its terms 28-31.1 gives the City Commissioner of Licenses, and ultimately the City Counsel itself, virtually unlimited discretion to determine who [357 U.S. 77, 85] may transfer interstate passengers and baggage between railroad terminals. Although counsel for the City denies that it will use this power to exclude proposed transfer operations wholly or primarily because of economic considerations (cf. Buck v. Kuykendall, 267 U.S. 307 ), it is clear that the City claims at least some power under 28-31.1 to decide whether a motor carrier may transport passengers from one station to another. In our judgment the provisions of the Interstate Commerce Act, 24 Stat. 379, as amended, 49 U.S.C. 1 et seq., preclude the City from exercising any veto power over such transfer service when performed by the railroads or by their chosen agents.
"It shall be the duty of every common carrier subject to this chapter . . . to establish reasonable through routes with other such carriers . . . [and] to provide reasonable facilities for operating such routes and to make reasonable rules and regulations with respect to their operation . . . ."
"All carriers subject to the provisions of this chapter shall, according to their respective powers, afford all reasonable, proper, and equal facilities for the interchange of traffic between their respective lines and connecting lines, and for the receiving, forwarding, and delivering of passengers or property to and from connecting lines . . . ."
As we understand these sections they not only authorize the railroads to take all reasonable and proper steps for the transfer of persons and property between their connecting lines, but impose affirmative obligations on them in this respect. See United States v. Pennsylvania R. Co., 323 U.S. 612 ; Central Transfer Co. v. Terminal Railroad Association of St. Louis, 288 U.S. 469, 473 , n. 1. Although the railroads may not be obligated to furnish transfer service between terminals in every instance, it seems apparent that such service would often be necessary if the statutory requirements were to be observed. On this basis the Interstate Commerce Commission has held that it has authority to require motor service between terminals. See Cartage, Rail to Steamship Lines at New York, 269 I. C. C. 199. Here the railroads have furnished transfer facilities for the heavy flow of traffic between the numerous Chicago terminals for more than a century. It is agreed that transportation by motor vehicle is now the only practical means of moving this traffic from terminal to terminal. We think the transfer service involved is at least authorized, if not actually required, under the Act as a reasonable and proper facility for the interchange of passengers and their baggage between connecting lines.
Moreover, 302 (c) of the Act provides that motor vehicle transportation between terminals, whether performed by a railroad or by an agent or contractor of its choosing, shall be regarded as railroad transportation and shall be subject to the same comprehensive scheme of regulation which applies to such transportation. 6 While [357 U.S. 77, 87] the Interstate Commerce Commission has not yet adopted special regulations for interstation transfer service it obviously can do so at any time under this section. In the meantime many of the Commission's regulations which generally govern railroad transportation apply to this service. And even without Commission action a number of the provisions of the Interstate Commerce Act itself are self-executing in their application.
The various provisions set forth above manifest a congressional policy to provide for the smooth, continuous and efficient flow of railroad traffic from State to State subject to federal regulation. In our view it would be inconsistent with this policy if local authorities retained the power to decide whether the railroads or their agents could engage in the interterminal transfer of interstate passengers. We believe the Act authorizes the railroads to engage in this transfer operation themselves or to select such agents as they see fit for that purpose without leave from local authorities.
National rather than local control of interstate railroad transportation has long been the policy of Congress. It is not at all extraordinary that Congress should extend freedom from local restraints to the movement of interstate [357 U.S. 77, 88] traffic between railroad terminals. Serious impediments to the efficient and uninterrupted flow of this traffic might well result if the City could deny the railroads the right to transfer passengers by their own vehicles or by those of their selected agents. For example, the railroads here undoubtedly have a better understanding of how to handle the transportation problems involved in expeditiously moving thousands of passengers from station to station each day than do local officials. Because of close time schedules, the great volume of traffic and its irregular ebb and flow, the railroads obviously need a cooperative and dependable transfer operator with suitable equipment who is willing to work in close harmony with them. The railroads have rejected as unsuitable the only transfer service now licensed to operate by the City. If local officials can prevent them from providing this service by some other means a breakdown in the organized transfer of passengers could result. At a minimum they would be forced to deal once again with the rejected operator. Moreover, it seems clear that if the City could deny a license to one operator it has the power, at least so far as the Interstate Commerce Act is concerned, to deny a license to all.
We are fully aware that use of local streets is involved, but no one suggests that Congress cannot require the city to permit interstate commerce to pass over those streets. Of course the City retains considerable authority to regulate how transfer vehicles shall be operated. It could hardly be denied, for example, that such vehicles must obey traffic signals, speed limits and other general safety regulations. Similarly the City may require registration of these vehicles and exact reasonable fees for their use of the local streets. Cf. Fry Roofing Co. v. Wood, 344 U.S. 157 ; Capitol Greyhound Lines v. Brice, 339 U.S. 542 . All we hold here, and all we construe the Court of Appeals as holding, is that the City has no [357 U.S. 77, 89] power to decide whether Transfer can operate a motor vehicle service between terminals for the railroads because this service is an integral part of interstate railroad transportation authorized and subject to regulation under the Interstate Commerce Act. Cf. Castle v. Hayes Freight Lines, 348 U.S. 61 .
Fifth. Since we hold that 28-31.1 is completely invalid insofar as it applies to Transfer, that company was not obligated to apply for a certificate of convenience and necessity and submit to the administrative procedures incident thereto before bringing this action. See Smith v. Cahoon, 283 U.S. 553, 562 ; Public Utilities Commission of California v. United States, 355 U.S. 534, 539 -540. Cf. Staub v. City of Baxley, 355 U.S. 313, 319 .
[ Footnote 1 ] In full, the section read: "28-31.1 Public Convenience and Necessity. No license for any terminal vehicle shall be issued except in the annual renewal of such license or upon transfer to permit replacement of a vehicle for that licensed unless, after a public hearing held in the same manner as specified for hearings in section 28-22.1, the commissioner shall report to the council that public convenience and necessity require additional terminal vehicle service and shall recommend the number of such vehicle licenses which may be issued. "In determining whether public convenience and necessity require additional terminal vehicle service due consideration shall be given to the following: "1. The public demand for such service; "2. The effect of an increase in the number of such vehicles on the safety of existing vehicular and pedestrian traffic in the area of their operation; "3. The effect of an increase in the number of such vehicles upon the ability of the licensee to continue rendering the required service at reasonable fares and charges to provide revenue sufficient to pay for all costs of such service, including fair and equitable wages and compensation for licensee's employees and a fair return on the investment in property devoted to such service; "4. Any other facts which the commissioner may deem relevant. "If the commissioner shall report that public convenience and necessity require additional terminal vehicle service, the council, by [357 U.S. 77, 81] ordinance, may fix the maximum number of terminal vehicle licenses to be issued not to exceed the number recommended by the commissioner." Chicago Municipal Code, c. 28, 28-31.1.
[ Footnote 2 ] In accordance with its agreement with the railroads, Transfer's operation is limited exclusively to transporting through passengers from one railroad station to another. It carries no other passengers.
[ Footnote 3 ] 240 (b) of the Judiciary Act of 1925, 43 Stat. 939.
[ Footnote 4 ] Since No. 104 is properly here on appeal, the petition for certiorari in that case is denied.
[ Footnote 5 ] Section 12 generally authorizes and requires the Commission "to execute and enforce" all of the provisions of the Act.
[ Footnote 6 ] In pertinent part, 302 (c) reads: "Notwithstanding any provision of this section or of section 303 of this title, the provisions of [Chapter 8 of the Act regulating motor carriers] . . . shall not apply - "(1) to transportation by motor vehicle by a carrier by railroad . . . incidental to transportation or service subject to [regulation by the Interstate Commerce Commission under Chapter 1 of the [357 U.S. 77, 87] Act as railroad transportation or service] . . . in the performance within terminal areas of transfer, collection, or delivery services; but such transportation shall be considered to be and shall be regulated as transportation subject to chapter 1 of this title when performed by such carrier by railroad . . . . "(2) to transportation by motor vehicle by any person (whether as agent or under a contractual arrangement) for a common carrier by railroad subject to chapter 1 of this title . . . in the performance within terminal areas of transfer, collection, or delivery service; but such transportation shall be considered to be performed by such carrier . . . as part of, and shall be regulated in the same manner as, the transportation by railroad . . . to which such services are incidental." 49 U.S.C. 302 (c).
MR. JUSTICE HARLAN, whom MR. JUSTICE FRANKFURTER and MR. JUSTICE BURTON join, dissenting.
No provision of the Interstate Commerce Act purports to pre-empt Chicago's power to apply its ordinance to one in the position of Transfer. This is therefore not a case where particular provisions of federal and local legislation conflict in such a way that they cannot logically or practically stand together, cf. Cloverleaf Butter Co. v. Patterson, 315 U.S. 148 ; First Iowa Hydro-Electric Cooperative v. Federal Power Comm'n, 328 U.S. 152 , nor one where there is such overall similarity between federal and state regulation that a congressional purpose to displace state action in its entirety can fairly be deduced. Cf. Hines v. Davidowitz, 312 U.S. 52 ; Pennsylvania v. Nelson, 350 U.S. 497 . And because Transfer does not hold a certificate of necessity from the Interstate Commerce Commission, and seemingly cannot get one, see Status of Parmelee Transportation Co., 288 I. C. C. 95, no conflict appears between federal and local regulatory policies respecting those performing transfer services. Cf. Castle v. Hayes Freight Lines, Inc., 348 U.S. 61 . The sole question is thus whether the ordinance must be struck down, when applied to Transfer's operations, as "inconsistent" with the policy of the Interstate Commerce Act to foster efficient interstate transportation.
In determining whether Chicago's ordinance should now be annulled it must be borne in mind that local authorities are not foreclosed from regulating matters of local concern merely because there may be some incidental, but not burdensome, effect on interstate commerce. At least since Cooley v. Board of Wardens, 12 How. 299, it has been recognized that because regulation of local incidents of interstate transportation is, as a practical matter, beyond the effective reach of Congress, there would frequently be an undesirable absence of needed regulation unless States and municipalities were free to act. See California v. Thompson, 313 U.S. 109 ; see also H. P. Welch Co. v. New Hampshire, 306 U.S. 79 ; Eichholz v. [357 U.S. 77, 91] Public Service Comm'n of Missouri, 306 U.S. 268 . So much indeed is recognized by the Court today when it says that Chicago, as part of its "considerable authority" to regulate the operation of transfer vehicles, may exact fees for their use of the city streets and may require them to meet with safety regulations and to be registered with the City. And, of course, the Court's examples do not exhaust the scope of local regulatory power to insure safe transportation. Nor can I perceive why the City should not be permitted to exercise such power before permitting unlicensed vehicles to travel on its streets. On the other hand, I would agree that Chicago, under the guise of promoting safe and proper transportation, could not validly limit on "economic" grounds those with whom the railroads may contract to carry its interstate passengers through the City. Cf. Buck v. Kuykendall, 267 U.S. 307 .
We do not yet know how Chicago will apply the ordinance. If it should grant Transfer a license, that will end the present controversy. If a license is denied, it will then be time enough to determine whether the basis for denial runs afoul of federal transportation policy. It is true that the ordinance gives the City broad authority, but that does not justify the assumption that such authority will be exercised beyond permissible bounds, especially since Chicago has acknowledged that it could not properly withhold a license "solely or even primarily" because existing transfer facilities were adequate or because additional licenses would adversely affect the competitive situation. Only by refraining from passing on the ordinance until Chicago has had a chance to act under it, do we respect the long-standing tradition of this Court not to interfere prematurely with the administration of state and local enactments. See, e. g., Alabama Federation of Labor v. McAdory, 325 U.S. 450 ; Public Service Comm'n of Utah v. Wycoff Co., 344 U.S. 237 . [357 U.S. 77, 92] Cf. Spector Motor Service, Inc., v. McLaughlin, 323 U.S. 101 .
The fact that this course of action would involve some further delay and expense does not, in my judgment, justify by-passing the municipal authorities. Transfer accepted the risk of such a result when it failed to apply for a license in the first instance. And if it is said that this course will expose the transfer operations to hazards in the interval, the answer is that the Federal District Court in Chicago possesses ample authority to prevent any interference with Transfer's activities pending final adjudication of the matters in controversy.

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Here are pictures of Viviparus ater from northern Italy. We found the species in a quite nasty stinking, muddy roadside ditch close to the village Noale in the coastal plains. It is a very hardy species and maybe the best suited Viviparus for aquarium purpose. I keep a group of the stock in an aquarium with a winter temperature of about 8-12 degree, and the snails are active during most of the winter. Another group I placed into our warmwater home aquarium, where temperature is about 27-32 degrees over the whole year, and they grow well and produce offspring.
The latest pictures are of this 6 mm freshborn snail of Viviparus ater, it has no rows of hairs (sorry, bristles) on the shell.
The riverine V. viviparus is found only in flowing waters, especially in middle and large rivers with sand bottom, some stone stubstrates and underwater vegetation. The species is often mixed with V. contectus, which is more widespread and can be collected more easy. In comparison to V. contectus it has much less pronounced bowing of the winding and a non-pointed tip. Usually is stays smaller than V. contectus http://topcollegepapers.net/. I have not much experience with V. viviparus in aquarium, in the only two trials of mine they produced only very few offspring and the adults died after less than a year, so (even without knowing the reason) I consider it a more problematic species than V. contectus or V. ater.
By chance I recently got some specimens of V. acerosus, a species which is found in southeast Europe and the basin of the River Danube and which resembles much V. ater. The locality where plenty of these snails were visible was the shallow shore of a 10m wide channel with little water movement, sandy to muddy bottom and few underwater vegetation. I have no experiences with this species in aquarium, so I cannot say anything to its suitability as aquarium pet. It is reported in literature that males have a more slender and much less bowed shell than females.
V. contectus is a widespread species and found in calm waters, usually standing water with submerged vegetation and a slightly muddy bottom. It does comparably well in aquarium, although the keeper should always have a special eye on the animals and make sure they find enough to eat. You can feed them with fish food for ornamental fishes, best are tablets or flakes. A problem in my aquaria is the high temperature during the summer (24-32º C). At this temperature, the young snails have a high mortality rate and sometimes I am left with no offspring. Also the adults have a higher mortality rate at high temperatures, so best is to keep them at 22-24º C (or to choose a different species like V. ater).
As a boy I collected Viviparus contectus in a small village ditch close to my hometown and kept them in aquarium. From this population I from time to time took specimens for aquarium during the next 10 years and collected first experiences with keeping, feeding and finally breeding them. Several years later, I saw a photo of V. contectus in a book and was quite surprised to see that the pictured specimen had a dark grey body. My onces all had a shining orange body. Nowadays Essays Captain I know that V. contectus usually is dark and only some populations are orange. Some months ago (December 2003), I visited one of the localities of the golden form again and took some specimens into aquarium. They gave birth to babies last week (February 2004), and the first two pictures above show one of these babies just a few days after birth. On the pictures you can see the rows of dense hairs, which are typical for young V. contectus. I assume they serve in camouflage, since dirt attaches easily to them and gives the small snail an organic coat. The adults still are mainly closed in their shells all the time (see photo 3), but today (4.3.2004) I can present a pictures of an open specimen, so that you can see their orange body. The shell of this orange form is normally pigmented, that means light brown with red-brown stripes (even if it is a little bit difficult to see on the photo because the shells are strongly overgrown). Besides two localities at the lower Weser River (northwest Germany), I learned about a golden population in the coastal plains of Schleswig (northern Germany) from a friend.

matches: V. V. V. V. V. V. V. V. V. V. V. V. V. V.


§ 95-9 Permit required and emergency openings.
§ 95-10 Pavement and/or improvement notice; opening and excavation of new paving.
§ 95-11 Prerequisites to obtaining permit.
§ 95-12 Bond or other financial guarantee.
§ 95-13 Revocation of permit.
§ 95-14 Time and extension and fee.
§ 95-15 Backfilling and paving.
§ 95-16 Backfilling and replacing surface by Borough.
§ 95-17 Responsibility; extra inspectors and other rules.
§ 95-19 Gutters, lights and identification.
§ 95-21 Guarantee of work.
The opening of the surface of any Borough street is prohibited unless a permit is obtained for that purpose in the manner hereinafter described. Such permit shall be granted through the Code Enforcement Officer when the person applying for such permit files an application in compliance with the provisions of this article and pays to the Borough the amount hereinafter stated.
Any person working in the vicinity of a Borough street who, in any manner, disturbs such street shall be required by this article to obtain a permit and correct this damage in accordance with the standards of this chapter. Street opening permits are not required for persons excavating adjacent to the curb for the express purpose of installing or replacing sidewalks and/or curbs, provided a curb and sidewalk permit has been obtained prior to such work.
The obtaining of street opening permits by the Borough shall be waived when work to be performed is completed by its own personnel.
All contractors performing work under contract for the Borough or Borough corporate authorities shall obtain the street opening permit for street opening work.
If street openings are necessitated by emergencies, street opening permits shall be obtained on the first regular business day on which the office of the Borough is open for business, and such permit shall be retroactive to the date when the work was begun.
A person performing street openings for an emergency shall verify the emergency nature of the circumstance in writing to the Code Enforcement Officer within five days after the street opening.
Special conditions. In granting any permit, the Borough may attach such special conditions thereto as may be reasonably necessary to protect the public and private property, including, but not limited to barricades, flashing signals, etc.
The Borough shall give timely notice to all persons owning property abutting on any street within the Borough about to be paved or improved and to all public utility companies operating in the Borough, and all such persons and utility companies shall make all water, gas or sewer connections, as well as any repairs thereto which would necessitate excavation of said street, within 30 days from the giving of such notice, unless such time is extended in writing for cause shown by the Code Enforcement Officer. New paving shall not be opened or excavated for a period of five years after the completion thereof, except in the case of emergency and/or the right to prohibit opening or excavation is superseded by state law. In the event opening or excavation is required, the Pennsburg Borough engineering standards and the requirements of § 95-11 below shall apply.
A written application shall be filed with the Code Enforcement Officer for making all street openings or excavations and signed by the person desiring such permit. Such application shall set forth the purpose for which such excavation is to be permitted; the date such excavations are to be refilled and resurfaced in the manner hereinafter provided; and shall provide that the applicant will faithfully comply with each and every provision contained in this article. An applicant shall furnish a drawing of the proposed opening site upon request of the Code Enforcement Officer. Items required on the drawing shall be specified at the time of request.
Prior to the issuing of such permit, every such applicant shall pay to the Borough the amount hereinafter required for the purposes specified, and shall exhibit to the Code Enforcement Officer a receipt for the amount paid.
Where the street opening permit is required for water supply purposes, the application shall be countersigned by an authorized representative of the Upper Hanover Water Authority before the permit is granted. Where the street opening permit is required for sewer services purposes, the application shall be countersigned by an authorized representative of the Upper Montgomery Joint Authority before the permit will be granted.
No permit shall be granted to any applicant unless the applicant has paid to the Borough any and all moneys then due to the Borough for prior excavations made or for any loss, damages or expense in any manner occasioned by or arising from the work done by the applicant under the provisions of this article.
The applicant shall agree to save the Borough, its officers, employees and agents from any and all costs, damages and liabilities which may accrue or be claimed to accrue by reason of such work to be done by the applicant under the provisions of this article. The acceptance of any permit under this article shall constitute such an agreement by the applicant whether the same is expressed or not.
An applicant shall secure a certificate of insurance and have the certificate properly executed by the applicant's insurance agency. Properly executed certificates of insurance shall be filed with the Code Enforcement Officer and verify that the applicant is insured against claims for personal injury, as well as against claims for property damage, which may arise from or out of the performance of the excavation work, whether such performance be by the applicant or anyone directly employed by him. Such insurance shall include protection against liability arising from completed operations, underground utility damage and collapse of any property. Liability insurance for bodily injury shall be in an amount no less than $1,000,000 for each person and $1,000,000 for each accident, and for property damage in an amount not less than $5,000. Failure of an applicant to file a certificate of insurance shall be a sufficient reason for denying a permit. The applicant to whom or for whom a permit may be issued shall assume all responsibility for the excavations made, shall indemnify and save harmless the Borough from all loss, costs and damages done or ascribed to any act of commission or omission by such applicant in the performance of the work, and shall pay the Borough costs of every kind incurred in contesting suits on said account and, upon notice from the Borough, will assume the defense of any such suits. Further, the applicant shall save and hold harmless the Borough from any and all damages and liability by reason of personal injury or property damage. Liability insurance requirements for blasting may be obtained and blasting permits shall be obtained from the Borough Fire Marshal.
All persons other than public utility companies desiring to open a street shall furnish a properly executed corporate surety bond or other financial guarantee acceptable to the Borough.
All other persons, including contractors performing work for Borough corporate authorities, desiring to open a street shall furnish a properly executed security bond or other financial guarantee acceptable to the Borough. In the event a bond is utilized, it shall be executed by a reputable surety company licensed to do business in the Commonwealth of Pennsylvania. All bonds obtained by contractors performing work under contract with Borough corporate authorities shall be countersigned by the Director or Chairman of the authority.
Bond or other financial security.
The bond or other financial security shall cover street opening work performed during one calendar year. The bond or other financial security shall be in effect for a twenty-four-month period in accordance with § 95-11F. The amount of the surety bond or other financial guarantee shall be $5,000, unless any street excavation or restoration work for a single project exceeds such amount. In this case, a person shall secure a bond or other financial guarantee in an amount equal to the difference between the $5,000 and the dollar amount as reasonably computed by the Code Enforcement Officer.
In lieu of bond or financial guarantee subject to the requirement outlined in Subsection C(1) above, a contractor may post an appropriate financial guarantee with the Borough on a per-project basis. The amount of the financial guarantee shall be $500 or 100% of the actual cost of road restoration, as determined by the Code Enforcement Officer, whichever amount is greater. The financial guarantee shall be retained by the Borough for a twelve-month period from the date the project is completed for the purposes of guaranteeing the integrity of the road restoration.
Violation of any provision of this article, or any other applicable ordinance or law relating to the work.
Written notice of such violation shall be served upon the permittee or his agent or employee engaged in the work. Such notice shall also contain a brief statement of the reasons for revoking such permit. Notice may be given either by personal delivery thereof to the person to be notified or by United States mail, addressed to such person to be notified.
Upon revocation of the permit, the degradation and inspection fees will be refunded to the permittee for that portion of the project not completed.
If any permittee is unable to complete the street opening work on or before the date specified in the permit, the permittee shall file a written application for an extension of time with the Code Enforcement Officer. The written application shall be in letter form, and shall thoroughly explain the reasons for the extension of time plus the additional length of time required. A fee shall accompany the application, which fee shall be established, from time to time, by resolution of Pennsburg Borough Council.
The permittee shall be responsible for backfilling and paving the opening and restoring the street surface to its original condition prior to the street cut subject to the special conditions in Subsection B below.
Excavation parallel to road in excess of 50 linear feet shall require milling and paving from curb or edge of paving to the center of the street.
Should excavation referenced above cross the center line, milling and paving shall be required curb to curb or from edge of paving to edge of paving.
In the event two or more perpendicular cuts or holes are made within 50 linear feet of road, milling and paving shall be required curb to curb or from edge of paving to edge of paving.
In case the work has not been completed before the date of expiration as shown on the permit, which time shall be fixed when the permit and/or time extension is granted, the Code Enforcement Officer may take steps to backfill the trench and replace the street surface over the opening for which the permit has been issued upon proper notification from the Code Enforcement Officer to the applicant. The Borough shall invoice the permittee for all costs incurred by the Borough in the performance of this work. Payment not made within 30 days will be chargeable against the posted bond, including all fees and costs involved in the collection of this payment.
The permittee shall assume all responsibility for the excavation made by such party for refilling the same and for all damages caused by the action of the permittee that may arise by reason of the digging of such trenches or excavations. Whenever it is determined by the Code Enforcement Officer that, in the best interest of the Borough, it is necessary to assign additional street opening inspectors to supervise excavation, backfill or pavement restoration operations, such inspectors shall be paid by the permittee at a rate per day to be fixed by the Code Enforcement Officer.
The Code Enforcement Officer is authorized to make such other rules and regulations for the excavation of streets which it may deem necessary for the proper maintenance of the street surface due to excavations, which rules and regulations shall be printed upon the permit granted or forwarded from the Code Enforcement Officer in writing from time to time.
A street opening permit shall be obtained for any test hole work. No test holes shall be made in or upon a greater surface of the highway than as specified in such permit, and no excavation or test holes shall interfere with any of the water pipes, sewers or drains of the Borough, or any other underground utility service. These holes shall be backfilled in accordance with the provisions set by the Code Enforcement Officer.
All gutters shall be left open so as not to obstruct the free passage of water, and the sidewalks and footways must be kept in a safe and passable condition. All excavations or material from them shall have placed upon them sufficient lights and barricades to identify them from all directions during the day and after dark. All adjacent stormwater conveyance systems shall be protected from any construction sediment and debris in accordance with PADEP Chapter 102, Standards.
If, for safety reasons, the Code Enforcement Officer deems it necessary to install additional warning devices such as lights, barricades or signs, the permittee shall be notified of the decision and shall receive instruction on the installation. In case of emergencies, the Borough may install all additional warning devices deemed necessary by the Code Enforcement Officer. The Borough shall invoice the permittee for rental and installation costs incurred from the date of installation until the permittee installs warning devices.
If the permittee fails to install such devices, the Borough shall invoice the permittee for rental and installation costs incurred from the date of installation until the date of removal. Payment not made by the permittee within 30 days of the invoice date will be chargeable against the posted bond, including all fees and costs involved in the collection of this payment.
In no case shall a permittee open or remove a greater area of street surface than specified in the original application. No opening or excavation of any street shall extend from the curbline into the highway a greater distance than two feet beyond the curbline of the street before being refilled and the surface of the highway restored to a condition safe and convenient for travel. The permittee shall not open any street area at any location not specified in the original street opening permit. If the permittee determines during construction that an additional area of the street will have to be opened, he shall notify and secure permission from the Code Enforcement Officer for the additional opening. Upon receipt of permission, the permittee shall file a supplementary application for the work no later than the next workday. Fee amounts specified in this article shall be followed for any subsequent fees associated with supplementary applications.
The permittee shall guarantee and maintain his work for 24 months from the completion and approval by the Code Enforcement Officer of the restoration and replacement work. Within this twenty-four-month period, upon notification from the Borough of necessary correction work required, the permittee shall correct, or cause to be corrected, all restoration work required within five working days of receipt of the notification. The Code Enforcement Office of the Borough shall determine the extent of restoration required and the methods of correction. Any and all work not completed within this five-day period may be completed by the Borough at the discretion of the Code Enforcement Officer. The Borough shall invoice the permittee for all costs incurred by the Borough in performance of this work. Payment not made within 30 days of the invoice date will be chargeable against the posted bond, including all fees and costs involved in the collection of this payment.


Art.1.1x.b (b) "long-range transboundary air pollution" means air pollution whose physical origin is situated wholly or in part within the area under the national jurisdiction of one State and which has adverse effects in the area under the jurisdiction of another State at such a distance that it is not generally possible to distinguish the contribution of individual emission sources or groups of sources.
Art.2.1x The Contracting Parties, taking due account of the facts and problems involved, are determined to protect man and his environment against air pollution and shall endeavour to limit and, as far as possible, gradually reduce and prevent air pollution including long-range transboundary air pollution.
Art.5.1x Consultations shall be held, upon request, at an early stage between, on the one hand, Contracting Parties which are actually affected by or exposed to a significant risk of long-range transboundary air pollution and, on the other hand, Contracting Parties within which and subject to whose jurisdiction a significant contribution to long-range transboundary air pollution originates, or could originate, in connexion with activities carried on or contemplated therein.
Art.8.1x.g (g) national, subregional and regional policies and strategies for the control of sulphur compounds and other major air pollutants.
Art.10.2.c (c) fulfil such other functions as may be appropriate under the provisions of the present Convention.
Art.10.4 4. The Executive Body, in discharging its functions, shall, when it deems appropriate, also make use of information from other relevant international organizations.
Art.11.1x.c (c) to discharge the functions assigned by the Executive Body.
Art.12.1 1. Any Contracting Party may propose amendments to the present Convention.
Art.12.3 3. An amendment to the present Convention shall be adopted by consensus of the representatives of the Contracting Parties, and shall enter into force for the Contracting Parties which have accepted it on the ninetieth day after the date on which two-thirds of the Contracting Parties have deposited their instruments of acceptance with the depositary. Thereafter, the amendment shall enter into force for any other Contracting Party on the ninetieth day after the date on which that Contracting Party deposits its instrument of acceptance of the amendment.
Art.13.1x If a dispute arises between two or more Contracting Parties to the present Convention as to the interpretation or application of the Convention, they shall seek a solution by negotiation or by any other method of dispute settlement acceptable to the parties to the dispute.
Art.14.2 2. In matters within their competence, such regional economic integration organizations shall, on their own behalf, exercise the rights and fulfil the responsibilities which the present Convention attributes to their member States. In such cases, the member States of these organizations shall not be entitled to exercise such rights individually.
Art.15.1 1. The present Convention shall be subject to ratification, acceptance or approval.
Art.15.2 2. The present Convention shall be open for accession as from 17 November 1979 by the States and organizations referred to in article 14, paragraph 1.
Art.16.1 1. The present Convention shall enter into force on the ninetieth day after the date of deposit of the twenty- fourth instrument of ratification, acceptance, approval or accession.
Art.16.2 2. For each Contracting Party which ratifies, accepts or approves the present Convention or accedes thereto after the deposit of the twenty-fourth instrument of ratification, acceptance, approval or accession, the Convention shall enter into force on the ninetieth day after the date of deposit by such Contracting Party of its instrument of ratification, acceptance, approval or accession.
Art.17.1x At any time after five years from the date on which the present Convention has come into force with respect to a Contracting Party, that Contracting Party may withdraw from the Convention by giving written notification to the depositary. Any such withdrawal shall take effect on the ninetieth day after the date of its receipt by the depositary.