Rule 19. Each party to the conflict must do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
The obligation to do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack may be expected to cause excessive incidental damage is set forth in Article 57(2)(b) of Additional Protocol I, to which no relevant reservations have been made. Upon ratification of Additional Protocol I, the United Kingdom stated that this obligation only applied to “those who have the authority and practical possibility to cancel or suspend the attack”.
This obligation is included in numerous military manuals. It is also supported by official statements and reported practice. This practice includes that of States not, or not at the time, party to Additional Protocol I. When the ICRC appealed to the parties to the conflict in the Middle East in October 1973, i.e., before the adoption of Additional Protocol I, to do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack may be expected to cause excessive incidental damage, the States concerned (Egypt, Iraq, Israel and Syrian Arab Republic) replied favourably.
While Additional Protocol II does not include an explicit reference to this rule, more recent treaty law applicable in non-international armed conflicts does so, namely the Second Protocol to the Hague Convention for the Protection of Cultural Property. In addition, this rule is contained in other instruments pertaining also to non-international armed conflicts.
Military manuals which are applicable in or have been applied in non-international armed conflicts specify the obligation to do everything feasible to cancel or suspend an attack if it becomes apparent that the target is not a military objective or that the attack may be expected to cause excessive incidental damage.
The jurisprudence of the International Criminal Tribunal for the Former Yugoslavia in the Kupreškić case provides further evidence of the customary nature of this rule in both international and non-international armed conflicts. In its judgment, the Tribunal considered that this rule was customary because it specified and fleshed out general pre-existing norms. It can be argued indeed that the principle of distinction (see Rules 1 and 7) and the principle of proportionality (see Rule 14), both of which are customary in international and non-international armed conflicts, inherently require respect for this rule. Disregard for this rule would lead to an attack in violation of the principles of distinction and of proportionality and would be illegal on that basis. The Tribunal also relied on the fact that this rule had not been contested by any State. This study found no official contrary practice either.
 Additional Protocol I, Article 57(2)(b) (adopted by 90 votes in favour, none against and 4 abstentions) (cited in Vol. II, Ch. 5, § 367).
 United Kingdom, Reservations and declarations made upon ratification of Additional Protocol I (ibid., § 158).
 See, e.g., the military manuals of Argentina (ibid., § 373), Australia (ibid., §§ 374–375), Belgium (ibid., § 376), Benin (ibid., § 377), Cameroon (ibid., § 378), Canada (ibid., § 379), Colombia (ibid., § 380), Croatia (ibid., § 381), France (ibid., § 382), Germany (ibid., § 383), Hungary (ibid., § 384), Italy (ibid., § 385), Kenya (ibid., § 386), Madagascar (ibid., § 387), Netherlands (ibid., § 388), New Zealand (ibid., § 389), Spain (ibid., § 390), Sweden (ibid., § 391), Switzerland (ibid., § 392), Togo (ibid., § 393), United Kingdom (ibid., § 394) and United States (ibid., § 395).
 See, e.g., the statements of Indonesia (ibid., § 400), Iraq (ibid., § 401), Jordan (ibid., § 403), Netherlands (ibid., § 405), United Kingdom (ibid., § 407) and United States (ibid., §§ 409–411) and the reported practice of Israel (ibid., § 402), Malaysia (ibid., § 404), Syrian Arab Republic (ibid., § 406), United States (ibid., § 408) and Zimbabwe (ibid., § 412).
 See, e.g., the military manuals of Kenya (ibid., § 386), United Kingdom (ibid., § 394) and United States (ibid., § 395); the statements of Indonesia (ibid., § 400), Iraq (ibid., § 401), United Kingdom (ibid., § 407) and United States (ibid., §§ 409–411) and the reported practice of Israel (ibid., § 402), Malaysia (ibid., § 404) and United States (ibid., § 408).
 See ICRC, The International Committee’s Action in the Middle East (ibid., § 417).
 Second Protocol to the Hague Convention for the Protection of Cultural Property, Article 7 (ibid., § 368).
 See, e.g., Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal Republic of Yugoslavia, § 6 (ibid., § 370); Agreement on the Application of IHL between the Parties to the Conflict in Bosnia and Herzegovina, § 2.5 (ibid., § 371); San Remo Manual, § 46(d) (ibid., § 372).
 See, e.g., the military manuals of Australia (ibid., § 374), Benin (ibid., § 377), Colombia (ibid., § 380), Croatia (ibid., § 381), Germany (ibid., § 383), Italy (ibid., § 385), Kenya (ibid., § 386), Madagascar (ibid., § 387) and Togo (ibid., § 393).
 ICTY, Kupreškić case, Judgment (ibid., § 416).


The claimant was represented by Robert Guendeisberger, Esq., Guendeisberger Taylor, 28 Park Lane, New Milford, CT 06776.
The respondents were represented by David W. Schooleraft, Esq., 131 New London Turnpike, Suite 317, Glastonbury, CT 06033.
This Petition for Review from the January 9, 2002 Finding and Award of the Commissioner acting for the Seventh District was heard July 19, 2002 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners Donald H. Doyle, Jr. and Amado J. Vargas.
The respondents have petitioned for review from the January 9, 2002 Finding and Award of the Commissioner acting for the Seventh District. They contend on appeal that the trier erred by holding that a shoving incident with a co-worker arose out of and in the course of the claimant’s employment. We find no error of law on appeal, and affirm the trial commissioner’s decision.
The trier found the following facts. The claimant, a longtime employee of the respondent Davis Geck, was working as a maintenance man on October 14, 1992. That morning, the boilers in the employer’s building were not working properly. Though the claimant regularly added water and chemicals to those devices, their general maintenance was the responsibility of a peer named Theodore Kilose and the company’s electricians. When the boilers failed to operate correctly that day, Mr. Klose attempted to restart them by pushing the reset button, which failed to solve the problem. He then summoned the company electrician to replace the reset switch.
At about 8:20 a.m., while the maintenance men were preparing to visit the company cafeteria for their morning break, the claimant was in a washroom when he overheard a conversation between Klose and two co-workers in which Klose was being teased about his inability to restart the boilers on his own. Upon leaving the washroom, someone asked the claimant if he could explain the problem with the boilers. He replied, “I don’t know. I couldn’t restart it this morning. I couldn’t say. It wouldn’t come on. Teddy tried pushing the button, but it would not come on.” Findings, ¶ 8. In reaction to these remarks, Kiose put his hands on the claimant’s chest and shoved him away. The claimant was forced backwards, and in the act of trying to prevent himself from falling, he felt something snap in his back. He continued to work for a little while, but left following an 11:30 a.m. meeting with the manager of Engineering and Safety, who was investigating the pushing incident and considering possible disciplinary action against one or both employees. The claimant, whose history included back surgery, then sought medical treatment, and was kept of out work because of the injury. All three of his doctors opined that his resulting low back problems and disc herniations were caused by the October 14, 1992 shoving incident.
The trier found that the claimant and Klose had been friends for about 20 years prior to that incident, having visited each others’ homes on occasion, and that there was no known ammosity or ill will between the two men. He also noted that the comment regarding Klose’s inability to restart the boilers was a comment that concerned work, and that said comment precipitated the assault. Though there was no evidence that the assault directly resulted from job duties, it nonetheless originated with a response to a workrelated remark. The trier concluded that the assault arose out of and in the course of the claimant’s employment, and found the injury compensable. The respondents have appealed that decision, along with the partial denial of their Motion to Correct.
(1999), cert. denied, 251 Conn. 929 (1999); Phaiah v. Danielson Curtain(C.C. Industries), 4409 CRB-2-01-6 (June 7, 2002). The claimant has the burden of proving to the trier that a compensable injury has occurred, i.e., that an injury has arisen out of and in the course of his employment. McNamara v. Hamden, 176 Conn. 547, 550 (1979); Warren v.Federal Express Corp., 4163 CRB-2-99-12 (Feb. 27, 2001). In making his factual findings, a trial commissioner is not required to include anything other than the “ultimate relevant and material facts essential to the case in hand.” Admin. Reg. § 31-301-3. He is not required to include excerpts from evidence or merely evidential facts, which allows him to omit findings that would not affect the outcome of the case.Phaiah, supra.
On appeal, this board may not retry the facts of the case by weighing the evidence anew, and subjectively determining whether a particular medical report or a bit of testimony has merit. Mosman v. SikorskyAircraft Corp., 4180 CRB-4-00-1 (March 1, 2001); Pallotto v. BlakesleePrestress, Inc., 3651 CRB-3-97-7 (July 17, 1998). Instead, this board may alter the findings only if they contain facts found without any supporting evidence in the record, or if they fail to include material facts that are truly undisputed. Warren, supra; Webb v. Pfizer, Inc., 14 Conn. Workers’ Comp.Rev.Op. 69, 70-71, 1859 CRB-5-93-9 (May 12, 1995). As for the legal conclusions drawn from those facts, we may revise them only if they result from an incorrect application of the law or from an unreasonably or illegal inference drawn from those subordinate facts.Fair v. People’s Savings Bank, 207 Conn. 535, 539 (1988).
Because the purpose of the Workers’ Compensation Act is to compensate employees for injuries without fault by imposing a type of strict liability on their employers, a claimant must prove that an injury is causally connected to the employment in order to recover benefits.Spatafore v. Yale University, 239 Conn. 408, 417 (1996). This causal connection is established by demonstrating that an injury has arisen out of and in the course of one’s employment. Id.; McNamara, supra. Proof that the injury arose out of the employment relates to the time, place and circumstances of the accident. Id., 550. “Proof that the injury occurred in the course of the employment means that the injury must occur (a) within the period of the employment; (b) at a place the employee may reasonably be; and (c) while the employee is reasonably fulfilling the duties of the employment or doing something incidental to it.”Spatafore, supra, 418, citing Crochiere v. Board of Education, 227 Conn. 333, 349-50 (1993).
The instant case implicates the “arising out of employment” half of the causal equation. The disputed issue is whether the claimant’s altercation with Klose constituted an intervening or separate causal event that cannot be considered a natural consequence of his employment. As we address the factual backdrop here, we note that none of the eight proposed (and rejected) corrections that the respondents discuss in their brief were erroneously denied by the trier. The first six listed in the brief would not meaningfully add undisputed material facts to the trier’s decision, as the existing findings already imply that such facts existed, albeit with less specificity than the respondents may have preferred. The proposed correction that would have described Klose as having acted “solely to gratify his personal feeling of anger” was not an undisputed fact, as other motivations — horseplay, for example — could explain why a man might push a co-worker after being teased. See Motion to Correct, ¶ 16. Finally, the last correction discussed in the brief concerned conclusions and applicable principles of law rather than fact, and our discussion of those matters is incorporated into the legal analysis below.
The controlling standard of law in this matter is the main subj ect of dispute between the parties. According to the respondents, the seminal case regarding altercations between co-workers remains Jacquemin v.Turner Seymour Mfg. Co., 92 Conn. 382 (1918), in which two iron-casting workers became embroiled in an fatal fight over a ladle, despite no pre-existing ammosity between the two. Ladles were intentionally kept in short supply by the employer, though a caster’s daily job duties could not be completed without one. In discussing whether this incident arose out of the decedent’s employment, our Supreme Court held, “If one employee assaults another employee solely to gratify his feeling of anger or hatred, the injury results from the voluntary act of the assailant and cannot be said to arise either directly out of the employment, or as an incident of it. But when the employee is assaulted while he is defending his employer, or his employer’s property, or his employer’s interests, or when the assault was incidental to some duty of his employment, the injury he suffers in consequence of the assault will, as a rule, arise out of the employment.” Id., 3 84-85. The Court then identified a third category of compensable cases, namely, injuries arising when “the character of the business or the conditions under which it is carried on make [such incidents] likely, and the result either was, or should have been, in the contemplation of the employer.” Id., 385.
In Jacquemin, the trial commissioner had found that the employer’s business was conducted in a way that would naturally create disputes between workers over ladles, which led to the claimant’s injury, and which justified a finding of compensability. The Court reversed that decision, noting that there was no evidence to indicate that similar trouble had occurred in the past, thereby putting the employer on notice of a potential problem. “It was the duty of the employees to do their work under the established conditions.” Id., 386. The Court held that the decedent’s co-worker had asserted a right over the decedent’s ladle that he did not have, and began the quarrel and fight; however, the decedent continued the fracas, even after an opportunity arose to desist. “The fight occurred in the course of the employment, but it did not originate in it or arise as a consequence or incident of it. These men turned temporarily from their work to engage in their own quarrel. Nothing their employer required of them would necessarily provoke them to a quarrel, nor could this have been reasonably anticipated.” Id., 386-87. The respondents maintain that Jacquemin and its progeny are still good law, which in their view would require dismissal of the instant claim on the ground that the claimant’s job did not cause the assault by Klose. See, e.g., Wihis v. Taylor Fenn Co., 137 Conn. 626 (1951) (fight over offensive language written on claimant’s locker not work-related).
The enduring viability of Jacquemin is called into question, however, by decisions such as Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355 (1938), and Nolan v. Brennan Concrete Corp., 11 Conn. Workers’ Comp.Rev.Op. 224, 1362 CRD-7-91-12 (Nov. 4, 1993). Stulginski is a case in which a claimant was working as a caster’s helper whose duty it was to sweep the floor of the plant. After he deposited a load of sweepings upon a pile of molten metal dross, smoke developed and blew toward a co-worker who mistakenly thought that the claimant was trying to annoy him on purpose. Though both had previously been on good terms, the co-worker threw a block of wood at the claimant, who retahated by tossing a handful of ashes at the co-worker. The co-worker then charged the claimant and pushed him backward, fracturing his arm.
After reiterating the facts and holding of Jacquemin, supra, the Supreme Court observed that the language of that case should be read narrowly to cover only purely personal disputes, and further stated that “[i]t is at least doubtful whether in view of the later decisions in our own and other courts we would today arrive at the same conclusion upon the facts stated in the opinion.” Stulginski, supra, 359-60. The Court went on to hold that, as long as the disagreement was a natural consequence of the employment, it was not necessary that the risk of its happening be foreseeable. See also, Fair v. People’s Savings Bank, 207 Conn. 535, 545-46 (1988). “The fight arose out of the method in which the employment was customarily carried on in the plant and which was approved by the employer. The question presented in this type of case, as in others involving the issue whether an injury arose out of the employment, is essentially one of fact, to be determined in view of all the relevant circumstances. . . .” Stulginski, 365.
(Aug. 12, 1998) (proximate cause of non-compensable assault was found to be claimant’s taunting of assailant, who retahated by pushing him from a ladder).
The case before us appears to fall close to, but not beyond, the boundary that circumscribes those situations that arise out of one’s employment. After listening to the testimony, the trier found that there was no ammosity between the claimant and Theodore Klose prior to the incident of October 14, 1992. Then again, he also found that the assault was neither a direct result of the performance ofjob duties, nor incidental to some such duty. The basis of the trier’s finding of compensability was that the claimant’s aggressive remarks to Klose originated from their employment with Davis Geck, presumably making Klose’s retahatory physical response to those comments an incident that arose out of the employment as far as the claimant was concerned.
If one accepts the claimant’s testimony as true, as the trial commissioner was entitled to do; Phaiah, supra; one might reasonably conclude that the claimant was asked a question about the boilers, responded in kind with perhaps a degree of sarcasm, and managed to incur the wrath of his co-worker. May 22, 2001 Transcript, pp. 19-20. Assuming this to be the case, it would follow that Stulginski would be on point. The claimant did not go so far as to intentionally instigate a fight, thereby taking him outside of the scope of his employment. The words he spoke that led to his being pushed were work-related, just as the floor-sweeping activities of the claimant in Stulginski were a duty of his employment, though they led to a misunderstanding that resulted in a broken arm. Accordingly, the commissioner was justified in finding this case compensable, and we may not reverse his factual determination of compensability on review.
Commissioners Donald H. Doyle, Jr. and Amado J. Vargas concur.


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Note: This page covers information specific to Georgia. For general information concerning Strategic Lawsuits Against Public Participation (SLAPPs), see the overview section of this guide.
You can use Georgia's anti-SLAPP law to counter a SLAPP filed against you, but only in limited situations. Ga. Code Ann., § 9-11-11.1 allows a defendant to move to dismiss a SLAPP, provided that the exercise of free speech that prompted the lawsuit is about "an issue under consideration or review by a governmental body." If the court grants your anti-SLAPP motion, you may recover expenses and attorneys' fees from the SLAPP filer.
any written or oral statement, writing, or petition made before or to a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, or any written or oral statement, writing, or petition made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.
Ga. Code Ann., § 9-11-11.1(c). This definition limits your protection under the anti-SLAPP statute to (1) statements made in an official government proceeding, (2) statements relating to an issue currently under consideration or review in an official government proceeding, and (3) statements calling for such official review or consideration.
Categories 2 and 3 are the most important for online publishers. It is important to note what is not included here: If someone sues you for making statements on your website or blog about a topic or issue of ordinary public interest that is not under government consideration or review, and you are not calling for such consideration or review, then you are not entitled to bring an anti-SLAPP motion to dismiss under section 9-11-11.1.
For example, in Berryhill v. Georgia Community Support & Solutions, 281 Ga. 439 (2006), Shirley Berryhill allegedly made statements in web postings and emails complaining about the poor treatment and care provided to her handicapped son by a healthcare facility. The Georgia Supreme Court held that, although Ms. Berryhill's statements pertained to a matter of public concern, she could not invoke the anti-SLAPP statute because her statements did not relate to an existing official proceeding or request the initiation of an official investigation or proceeding.
When a plaintiff files a lawsuit against someone for an act which reasonably could be viewed as "in furtherance of the right of free speech or the right to petition government for a redress of grievances under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern" (as defined above), the anti-SLAPP law requires the plaintiff and his or her attorney to file written verifications under oath certifying that the claim is well grounded in fact and is warranted by existing law or a good faith argument for the modification of existing law. Ga. Code Ann., § 9-11-11.1(c).
If you are sued, and you believe that your speech fits the criteria outlined in the section above, you should bring this verification requirement to the attention of the plaintiff or his or her attorney. If the plaintiff fails to make the required verifications within ten days of being notified, the court must dismiss the case.
If the plaintiff submits the required verifications, you can file a motion to dismiss the case for improper verification in violation of Ga. Code Ann., § 9-11-11.1(b). Once you have made the motion, the court must hear it within thirty days, barring court emergencies. Additionally, once you file your motion, the plaintiff generally cannot engage in "discovery" -- that is, the plaintiff generally may not ask you to produce documents, sit for a deposition, or answer formal written questions, at least not without first getting permission from the court.
In deciding the motion, the court will first consider whether your speech fits the criteria described in the section above. If it finds that you are eligible to make the motion, the court will then examine the verifications and documents submitted by the plaintiff. After this review, if the court finds that the plaintiff or attorney either did not believe that the legal claim was legitimate or brought the lawsuit against you for an improper purpose, then the court will grant your motion to dismiss. Alternatively, the court will grant your motion to dismiss if the judge finds that your statements were made in good faith. See Atlanta Humane Society v. Harkins 278 Ga. 451, 455-56 (Ga. 2004). If the plaintiff's case is strong, however, then the court will not grant your motion to dismiss, and the lawsuit will move ahead like any ordinary case.
When faced with a lawsuit that you believe is a SLAPP, it is critically important that you seek legal assistance immediately. Successfully getting a SLAPP dismissed can be complicated, and you and your lawyer need to move quickly to avoid missing important deadlines. Keep in mind that, although hiring legal help is expensive, you may recover your attorneys' fees if you win your motion. In addition, there may be public interest organizations that would be willing to take on your case for free or for a reduced rate. The First Amendment Center has an excellent list of organizations that can help.
If you prevail on a motion to dismiss under Georgia's anti-SLAPP law, the court will dismiss the lawsuit against you, and you can ask the court to impose sanctions on the other side. These sanctions may include your expenses in defending against the suit, including reasonable attorneys' fees.
In addition, if you succeed in fending off a SLAPP in Georgia, you may be able to bring a claim for malicious prosecution or abuse of process against the SLAPP filer. While Georgia does not explicitly recognize a "SLAPPback" claim, the elements of these claims are similar. You should consult an attorney to see whether such a claim may be viable in your case.

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Juicy Couture, Inc. v. Administrador Ejecutivo / Privacidad de Dominio, S.A.
Respondent is Administrador Ejecutivo / Privacidad de Dominio, S.A. of Quito, Pichincha, Ecuador.
The disputed domain name <juicycouture.biz> is registered with GoDaddy.com, LLC. (the “Registrar”).
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on September 20, 2012. On September 21, 2012, the Center transmitted by email to the Registrar a request for registrar verification in connection with the disputed domain name. On September 25, 2012, the Registrar transmitted by email to the Center its verification response confirming that Respondent is listed as the registrant and providing the contact details.
The Center appointed Francisco Castillo-Chacón as the sole panelist in this matter on November 6, 2012. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
Complainant is the owner of several trademarks including but not limited to JUICY and JUICY COUTURE. Complainant uses both these trademarks around the world for clothing, namely shirts, dresses, pants, skirts and jackets.
Complainant firs registered the trademark JUICY in 1999, and in 2000 obtained a registration for the trademark JUICY COUTURE. Complainant is in the fashion industry; it designs, manufactures and distributes fashion items through stores and its website “www.juicycouture.com” which promotes its goods throughout the world.
Complainant’s trademarks have become famous in the United States, and have obtained the status of notorious marks under the Paris Convention. Complainant has used the trademarks for 12 years in connection with its products. Complainant has spent millions of dollars advertising and promoting its trademarks. The trademarks generate millions of dollars in sales each year. Due to its success in the United States and around the world, the trademarks have generated a valuable goodwill and reputation, and have become inherently associated with Complainant’s products.
Respondent is apparently domiciled in Ecuador and registered the disputed domain name toward the end of the year 2011, about twelve years after Complainant registered its trademark.
Complainant has rights in JUICY and JUICY COUTURE by reason inter alia of its multiple registered trademarks for the JUICY marks dating well before registration of the disputed domain name. The disputed domain name is confusingly similar to this trademark. The addition of the generic top level domain “.biz” does nothing to diminish that confusion.
Complainant has been using the trademark around the world for a number of years, having used the trademark since 1999. The disputed domain name is confusingly similar to Complainant’s trademark JUICY and JUICY COUTURE.
Respondents registered the disputed domain name long after Complainant had well established rights in the JUICY and JUICY COUTURRE trademarks, it operates the website “www.juicycouture.com”. Respondent registered the disputed domain name on December 11, 2011 without Complainant’s authorization. The domain name currently directs users to pay per click pages, with multiple sponsored links, redirecting users to sites offering competing products.
Given the prominence of the JUICY and JUICY COUTURE marks worldwide and on the Internet, Respondents’ registration of the disputed domain name was done in bad faith, further evidenced by the fact that the disputed website offered links to companies offering competing products.
Respondent is using the disputed domain name to attract customers for commercial gain. Respondent provides commercial links to products that are directly related to and competitive with Complainant’s own products.
There is a consensus that a respondent's default does not automatically result in a decision in favor of the complainant and that the complainant must still establish each of the three elements required by paragraph 4(a) of the Policy (WIPO Overview of WIPO Panel Views on Selected UDRP Questions, para. 2.2). Notwithstanding this, paragraph 14(b) of the Rules provides that, in the absence of exceptional circumstances, a panel shall draw such inferences as it considers appropriate from a failure of a party to comply with a provision or requirement of the Rules.
This Panel has not found any exceptional circumstances to justify Respondents’ failure to submit a Response. In short Respondent does not expressly deny any of the facts stated by Complainant and the Panel therefore infers that Respondent does not deny the facts asserted and contentions made by Complainant from these facts (see Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; LCIA (London Court of International Arbitration) v. Wellsbuck Corporation, WIPO Case No. D2005-0084; and Ross-Simons, Inc. v. Domain.Contact, WIPO Case No. D2003-0994).
With that being said, asserted facts that are not unreasonable will be taken as true and Respondent will be subject to the inferences that derive from the information provided by Complainant (see Reuters Limited v. Global Net 2000, Inc., WIPO Case No. D2000-0441; and RX America, LLC. v. Matthew Smith, WIPO Case No. D2005-0540).
Complainant’s trademark rights are measured as at the date when the Complaint was filed (see WIPO Overview of WIPO Panel Views on Selected UDRP Questions, paragraph 1.4.).
Respondent registered the disputed domain name well after Complainant established rights in its JUICY and JUICY COUTURE trademarks (see, Dow Jones & Company, Inc. v. Idea Studios LLC dba Envent, WIPO Case No. D2009-1033). Complainant has clearly demonstrated that it had registered rights in the United States for JUICY and JUICY COUTURE well before 2011, when the disputed domain name was registered. Complainant further evidenced its rights over the domain name <juicycouture.com>.
Previous UDRP panels have held that when a domain name wholly incorporates a complainant's registered trademark, this is generally sufficient to establish confusing similarity for purposes of the Policy (see Telstra Corporation Limited v. Barry Cheng Kwok Chu, WIPO Case No. D2000-0423; Pfizer Inc. v. United Pharmacy Ltd., WIPO Case No. D2001-0446; E.I. du Pont de Nemours and Company v. Richi Industry S.r.l., WIPO Case No. D2001-1206; Utensilerie Associate S.p.A. v. C & M, WIPO Case No. D2003-0159; and Shaw Industries Group Inc., Columbia Insurance Company v. Wan-Fu China, Ltd., WIPO Case No. D2007-0282). In the Panel’s view, if this is true as a general principle, it is even more so, when the disputed domain name wholly incorporates a famous and well-known trademark such as JUICY COUTURE. The Panel has found no facts or arguments that could justify a dissent from the consensus view, therefore in consent with previous panels, this Panel finds that the mere addition of a generic top level domain like “.biz”, does not eliminate the confusing similarity between the two.
Therefore the Panel finds that the disputed domain name is confusingly similar to Complainant’s JUICY and JUICY COUTURE trademarks.
Complainant has made its prima facie case that Respondents lack any rights or legitimate interests in the disputed domain name. Respondents failed to respond or to offer any evidence to demonstrate that Complainant has ever authorized it to use the JUICY or JUICY COUTURE trademarks.
The Panel concurs with the prior UDRP decisions holding that, in circumstances similar to these, there can generally be no bona fide offering of goods or services where the disputed domain name resolves to a website with sponsored links (see Asian World of Martial Arts Inc. v. Texas International Property Associates, WIPO Case No. D2007-1415; F. Hoffmann-La Roche AG v. Titan Net, WIPO Case No. D2006-0424; and Roust Trading Limited v. AMG LLC, WIPO Case No. D2007-1857).
Complainant contents that Respondent is aware of the existence of the trademarks JUICY and JUICY COUTURE, as Respondent is offering links to products which directly compete against Complainant’s products. Complainant also contends that Respondent registered and is using the disputed domain names in bad faith by incorporating Complainant’s registered JUICY and JUICY COUTURE trademarks intentionally to attract for commercial gain Internet users to Respondent’s website by creating a likelihood of confusion as to Complainant acting as the source, sponsor, affiliate or endorser of Respondent’s website in violation of the Policy.
It is clear to this Panel that Respondent is using the disputed domain names to attract, for commercial gain, Internet users by creating a likelihood of confusion with Complainant’s marks as to the source of a product.
Absent some exceptional justification from Respondent, it is reasonable to infer that Respondent registered the domain names with the primary intention of either confusing visitors as to the source of the domain name or simply benefiting from Complainant’s well established trademark. This Panel believes this constitutes bad faith within the meaning of paragraph 4(b)(ii) of the Policy.
The Panel therefore concurs with previous UDRP decisions holding that registration of a well-known trademark as a domain name by a third party may in certain circumstances be considered as further evidence of bad faith pursuant to the Policy (see PepsiCo, Inc. v. "null", aka Alexander Zhavoronkov, WIPO Case No. D2002-0562; Veuve Clicquot Ponsardin, Maison Fondée en 1772 v. The Polygenix Group Co. WIPO Case No. D2000-0163; and Pepsico, Inc. v. Domain Admin, WIPO Case No. D2006-0435).
As previous panels have concluded the four criteria set forth in the Policy, paragraph 4(b) are nonexclusive (see Telstra Corporation Limited v. Nuclear Marshmallows), WIPO Case No. D2000-0003. In addition to these criteria, other factors alone or in combination can support a finding of bad faith.
In this case Respondent is using the entire trademarks owned by Complainant without a plausible good faith explanation. This Panel can also infer a bad faith registration out of the evidence submitted by Complainant which leaves no doubt to this Panel that Respondent knew or must have known about Complainant’s trademarks and it was out of the knowledge and the fame of Complainant’s trademarks that it decided to register the domain name.
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <juicycouture.biz> be transferred to the Complainant.

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I bought this as V. ammodytes but after looking after localization (Marbella) it seems to be V. latasti. I'm no good with vipers, I have been trying to look for differences but because I don't have a certain V. latasti with which I could compare this one so I decided that I just don't know.
Could anyone help me how I make sure which species this is? He's born 06/06 and he's in the cellar at the moment (for the next 4 months). Pictures are no good, I can try to take better ones but I don't want to disturb him very much.
So it's male, 1,5 years old and withering as devil.
It looks V. latastei to me too.
I am sure that it is a V. latastei! The shape and size of the horn tells me that. Nice specimen..
I also thing that it is a male V. l. gaditana, but I´m nor sure of the subspecies..
Assumption is the Mother of all f***ups.
Hey! Do not keep it the basement for that long! 8 - 10 week is absolutley enough.
Ok, only for few months then in the cellar.
Of course when I thought that it's from somewhere more northern than Marbella... Have to took it warm again in mid January.
Very attractive snake, best of luck with it.
I also thing that it is a male V. l. gaditana..
looks identical to a male latastei I used to keep.

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Transfer Pricing Report's Dolores Gregory rounds up the latest U.S. Tax Court developments in this story, published in today's issue of Transfer Pricing Report.
In transfer pricing cases involving Amazon.com, Medtronic Inc. and Guidant LLC, taxpayers are seeking protective orders to prevent public disclosure of sensitive business information.
The Internal Revenue Service is opposing each of the protective order motions.
The agency also defeated a bid by the taxpayer in Eaton Corp. v. Comr. to seek a protective order in that case.
Eaton asked the court to bar the IRS from conducting discovery in an audit of the company's 2007-10 tax years, but the court ruled Aug. 21 that there was no compelling reason to do so.
In Amazon, the IRS Aug. 30 filed an objection arguing that the taxpayer failed to show good cause for such an order, which it said would be overly broad and restrictive if adopted as proposed.
Rather, the agency said, Amazon relied solely upon general allegations of its trial counsel.
“It is well settled that contentions and conclusions of counsel cannot establish good cause under T.C. Rule 103(a),” the IRS said.
Amazon.com is challenging a $2 billion adjustment in connection with a qualified cost sharing arrangement between it and a European subsidiary, claiming that the IRS erred in relying on a discounted cash flow method previously rejected by the U.S. Tax Court in Veritas Software Corp. v. Comr.
The taxpayer also must show that the protections afforded it under Section 6103, which ensure confidentiality of returns and return information, are inadequate.
The IRS said that Amazon's proposed protective order is overly broad, preventing the agency from sharing information with its own employees. If the IRS's objection is overruled and the protective order is granted, the agency said, it should be modified to, among other changes, apply only to discovery and should not address whether the record should be sealed with respect to protected information.
In Medtronic Inc. v. Comr., a trial date is set for Dec. 1, 2014, in Chicago. Taxpayer motions also are pending for partial summary judgment and for a protective order barring public disclosure of trade secrets.
A medical device maker, Medtronic filed suit in March 2011, challenging $2.7 billion in upward income adjustments for 2005-06. The adjustments included $1.2 billion for transactions related to the manufacture and sale of cardiac and neurological devices in Puerto Rico, which are the subject of the partial summary judgment motion filed June 28.
In a motion filed Aug. 14, the Minneapolis-based medical technology company said it seeks to protect its proprietary and confidential documents and other commercial information, including trade secrets, from public disclosure.
Without a protective order, the company said, it could suffer competitive harm. It noted that the protective order it seeks is similar to protective orders issued by the court in Veritas Software Corp. v. Comr., 133 T.C. 297, (2009); Microsoft Corp. v. Comr., 115 T.C. 228 (2000); Seagate Technology Inc. v. Comr., 102 T.C. 149 (1994), and other cases.
The IRS was scheduled to file a response to the partial summary judgment motion by Sept. 13. On Sept. 5, the court ordered the IRS to file its response under temporary seal.
On Sept. 6, the court also ordered the parties to file an “issues memorandum” no later than April 30, 2014, which will set out the issues of fact and law that must be resolved at trial. The memorandum must include an exposition of each party's position and theory with respect to those issues, the court said.
The issues of fact and law are to be set forth in “sufficient detail to enable the Court to decide the case in its entirety by addressing each of the issues listed,” according to the order.
The exposition of the parties' positions and underlying theories are to include a narrative statement explaining what each party expects to prove, the court said. The memorandum also must indicate whether expert testimony is expected and what that testimony is likely to entail.
The issues memorandum will control the admissibility of evidence at trial, the court said, and neither party will be permitted to advance a theory or underlying position that differs from the positions and theories set forth in the memorandum.
Guidant LLC also filed a motion for a broad protective order Sept. 3, seeking to protect trade secrets from public disclosure in a consolidated case involving more than $2.3 billion in transfer pricing adjustments.
Guidant in March 2011 filed a protest of $1 billion in transfer pricing adjustments for 2001-02 related to technology licenses and manufacturing arrangements between it and its Puerto Rican and Irish subsidiaries. The case was consolidated with complaints filed by related parties Boston Scientific Corp. and Cardiac Pacemakers Inc.
During the period covered by the original deficiency notice to Guidant, Cardiac Pacemakers had been its subsidiary. Guidant was acquired by Boston Scientific Corp. in 2006.
The deals covered by the Guidant litigation are also the subject of a petition filed by Abbott Laboratories to protest $1.2 billion in transfer pricing adjustments for 2006-08, which relate to Abbott's financing of the purchase of Guidant by Boston Scientific and the subsequent migration of Guidant's intangibles to Ireland. Abbott's petition is not consolidated with the other cases.
In its motion for a protective order, Guidant said that the IRS has sought technology trade secrets and other confidential business information as part of its first informal discovery request. The documents it seeks relate to sales, manufacturing improvements, R&D processes and projects, third-party contracts and agreements, clinical trials, product recalls, and product liability litigation.
The company said that public disclosure could subject it to competitive disadvantages. Further, release of third-party information could violate confidentiality agreements with those parties, and certain documents related to product recalls, product liability and clinical trials might implicate confidential patient information, in violation of federal or state privacy laws.
A broad protective order would be more efficient than document-by-document requests, the taxpayer said, citing similar orders issued in Veritas and GlaxoSmithKline Holdings (Americas) Inc.
In other developments, the IRS asked the U.S. Tax Court to bifurcate the issues in Eaton Corp., dealing first with the cancellation of the taxpayer's two advance pricing agreements and second with the transfer pricing adjustment.
In its motion to bifurcate the case, the IRS cited U.S. Tax Court Rule 141(b) in arguing that separate trials are appropriate where a threshold question—in this case, whether the agency acted properly in canceling the company's APAs—can prove dispositive or lead to a negotiated settlement. The question of whether the resulting $368 million adjustment to Eaton's income was appropriate could be determined after the threshold issue of the APA cancellations, the IRS said.
“A separate trial of the cancellation issue, regardless of outcome, would enhance the likelihood that the parties could reach a settlement of many, if not all issues, remaining in the case,” the agency said, noting that a negotiated settlement would be unlikely if the issues were tried together.
The court also ruled Aug. 21 that Eaton may take a nonconsensual deposition of IRS expert John Hatch.
The tax court Sept. 10 also granted the IRS an extension to file its answers to 14 petitions by seven former subsidiaries of Tyco International.
The subsidiaries are challenging nearly $3 billion in income adjustments related to intercompany financing of acquisitions and restructurings in the late 1990s—deals that the companies structured as loans and the IRS says are not “bona fide debt” for federal income tax purposes.
The petitions were filed July 22. The court granted the IRS's motion for an extension to Oct. 30.

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Decided May 24, 1962, Petition for Rehearing Denied July 27, 1962.
Mr. B. Howell Hill, Washington, D.C., with whom Mr. Walter D. Hansen, Washington, D.C., was on the brief, for petitioner.
Mr. O. D. Ozment, Associate Gen. Counsel, Litigation and Research, Civil Aeronautics Board, with whom Messrs. John H. Wanner, Gen. Counsel, Joseph B. Goldman, Deputy Gen. Counsel, and Robert L. Toomey, Atty., Civil Aeronautics Board, and Richard A. Solomon, Atty., Dept. of Justice, were on the brief, for respondent.
Mr. Robert Reed Gray, Washington, D.C., with whom Mr. Joseph J. O'Connell, Jr., Washington, D.C., was on the brief for intervenor Delta Air Lines, Inc., argued for intervenors Delta Air Lines, Inc., Continental Air Lines, Inc., and National Airlines, Inc.
Messrs. C. Edward Leasure and Joseph F. Healy, Jr., Washington, D.C., were on the brief for intervenor Continental Air Lines, Inc.
Messrs. John W. Cross and Andrew T. A. Macdonald, Washington, D.C., were on the brief for intervenor National Airlines, lines, Inc.
Mr. Robert N. Duggan, Washington, D.C., also entered an appearance for intervenor Continental Air Lines, Inc.
Mr. R. S. Maurer, Atlanta, Ga., also entered an appearance for Delta Air Lines, Inc.
Mr. James H. Bratton, Jr., of the bar of the Supreme Court of Georgia, Atlanta, Fa., pro hac vice, by special leave of court, for intervenor Eastern Air Lines, Inc.
Messrs. E. Smythe Gambrell and Harold L. Russell, Atlanta, Ga., were on the brief for intervenor, Eastern Air Lines, Inc.
Messrs. Cecil A. Beasley, Jr., and R. J. Shortlidge, Jr., Washington, D.C., were on the brief for intervenors, City of Houston, Texas and Houston Chamber of Commerce.
Braniff was granted none of the route authorities for which it applied. Subject to the qualification hereinafter stated we find no basis upon which to set aside the decisions of the Board except its award to Eastern of the Texas-Florida route. As we have said, the Examiner favored Braniff for this route, though not in the exact form granted by the Board to Eastern; that is, he had awarded to Braniff 'a new segment between Fort Worth and the coterminal points Miami and Fort Lauderdale via Dallas, Houston, New Orleans, Tampa, and St. Petersburg-Clearwater,' whereas the Board, while it concurred in the authorization of a new Dallas/Fort Worth-New Orleans-Florida regional route, did not include Houston.
traffic opportunities have been appreciably curtailed during the last five years by the grant of competitive authority in most of Eastern's paying markets, as well as the disappointing lack of growth in the Florida market, one of Eastern's richest markets.
'It is the cumulative effect of these many factors and the steadily decreasing opportunities for growth available to one of our larger carriers, whose services are vitally important to a substantial segment of the traveling public, which are of concern to the Board. We are convinced that the competition between carriers required by the Act cannot be preserved if the economic position of any of the trunks, whether classified as a Big Four or a nonmember Big Four, is permitted to deteriorate in relation to the other trunkline carriers with which it is required to compete. Maintaining the strength of Eastern is of substantial importance in our ultimate goal of preventing imbalance in the size of carriers that are expected to compete with each other. Eastern competes in many markets with American, TWA, and United and yet its relative economic position in relation to those carriers is declining. Eastern's profit position has also shown a sharp decline since 1955, a situation which gains added importance in view of the fact that American, one of Eastern's chief competitors in many of its eastern markets, continues to enjoy healthy growth. For these reasons, we find that the selection of Eastern to operate the Dallas/Fort Worth-Florida route would best serve the public interest.
'The agency's findings must * * * be sufficiently definite to enable the courts to perform the task of judicial review. Spiegel v. Public Utilities Commission, 96 U.S.App.D.C. 307, 226 F.2d 29, certiorari denied sub nom. Capital Transit Co. v. Spiegel, 1955, 350 U.S. 904, 76 S.Ct. 182 (100 L.Ed. 794); Beaumont, S.L. & W. Ry. v. United States, 1930, 282 U.S. 74, 86, 51 S.Ct. 1, 75 L.Ed. 221. * * *' Greensboro-High Point Airport Authority v. Civil Aeronautics Bd., 97 U.S.App.D.C. 358, 362, 231 F.2d 517, 521. And see Lake Central Airlines v. Civil Aeronautics Bd., 99 U.S.App.D.C. 226, 229, 239 F.2d 46, 49; Capital Transit Co. v. Public Utilities Comm'n, 93 U.S.App.D.C. 194, 213 F.2d 176, cert. denied, 348 U.S. 816, 75 S.Ct. 25, 99 L.Ed. 643; Saginaw Broadcasting Co. v. Federal Communications Comm'n, 68 App.D.C. 282, 96 F.2d 554, cert. denied, 305 U.S. 613, 59 S.Ct. 72, 83 L.Ed. 391.
Where an applicant for a route does not possess the necessary qualifications to provide service little harm ensues from the denial of its application. 'But a choice between two well-qualified applicants necessarily means a substantial economic denial as well as an economic award.' Easton Pub. Co. v. Federal Communications Comm'n, 85 U.S.App.D.C. 33, 36, 175 F.2d 344, 347. The Board not only recognized Braniff's need for route strengthening but found that in terms of quality of service neither Braniff not Eastern has any significant advantage in providing the proposed new service. In this situation the court requires in the interest of fairness that the Board's decision adverse to Braniff be supported in a manner which enables the court to review the correctness of the conclusion reached on the basis of findings, as well as on the adequacy of the record to support the findings. Braniff is denied a route it probably would have obtained except for its competitor's relative position with respect to other carriers, some of which were not applicants. While, of course, the Board's judgment that the public interest requires this may be correct, neither the basis therefor nor for the decision implicitly made that an award of the route to Braniff would not equally well serve the public interest is supported by adequate findings. Cf. Automatic Canteen Co. v. Federal Trade Comm'n, 346 U.S. 61, 81, 73 S.Ct. 1017, 97 L.Ed. 1454; Colorado-Wyoming Gas Co. v. Federal Power Comm'n, 324 U.S. 626, 634-635, 65 S.Ct. 850, 89 L.Ed. 1235.
We accordingly set aside the orders of the Board insofar as the Texas-Florida route authority was granted to Eastern, and remand to the Board for further proceedings not inconsistent with this opinion. These further proceedings may include such reopening of other portions of the orders as the Board may deem necessary or desirable in light of our decision with respect to the Texas- Florida route. To avoid disruption of service, the Board may permit existing service and route arrangements to remain in effect pending further proceedings. Greensboro-High Point Airport Authority v. Civil Aeronautics Bd., supra, 97 U.S.App.D.C. at 363, 231 F.2d at 522.

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All Lawsuits Against HAL Must Be Filed in Seattle, Washington.
Claims for Injury, Illness or Death: All claims or disputes involving Emotional Harm, bodily injury, illness to or death of any Guest whatsoever including without limitation those arising out of or relating to this Cruise Contract or Your Cruise, Land + Sea Journey, Land Trip(s), or Air Package shall be litigated in and before the United States District Court for the Western District of Washington at Seattle, or as to those lawsuits as to which the federal courts of the United States lack subject matter jurisdiction, in the courts of King County, State of Washington, U.S.A., to the exclusion of the courts of any other country, state, city, municipality, county or locale. You consent to jurisdiction and waive any objection that may be available to any such action being brought in such courts.
Emphasis added. For a current version of the cruise contract consult your cruise documents or the HAL Cruise Tour Contract.
These “forum selection clauses” have been upheld as valid in cruise line tickets by the United States Supreme Court in Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585 (1991). As a result, you will need to retain a Seattle maritime injury law firm to file your case in federal court in Seattle, Washington.
Claims for Injury, Illness or Death: In cases involving claims for Emotional Harm, bodily injury, illness to or death of any Guest, no lawsuit may be brought against Carrier unless (1) written notice giving full particulars of the claim is delivered to Carrier within 6 months from the date of the Emotional Harm, bodily injury, illness or death, (2) a lawsuit on such a claim is filed within 1 year from the date of the injury, illness or death, and (3) valid service of the lawsuit is made within 90 days of filing the complaint.
Emphasis added. The one-year limit for bringing lawsuits against HAL is frequently upheld by courts. See, e.g., Silware v. Holland America Line Westours, Inc., 1998 AMC 2262 (W.D. WA 1998); Davis v. Wind Song Limited, 809 F. Supp. 76 (W.D. Wa. 1992). For a current version of the contact, consult your cruise documents or the HAL Cruise Tour Contract.
Holland America’s Duty to Exercise Reasonable Care.
Under federal maritime law, Holland America Line owes a duty to its passengers to exercise reasonable care under the circumstances to prevent injury. See, e.g., Catalina Cruises, Inc. v. Luna, 137 F.3d 1422, 1425 (9th Cir. 1998). However, courts have held that special circumstances surrounding maritime travel may influence the standard of care: “The extent to which circumstances surrounding maritime travel are different from those encountered in daily life and involve more danger to the passengers, will determine how high a degree of care is reasonable in each case.” Rainey v. Paquet Cruises, Inc., 709 F.2d 169, 172 (2nd Cir. 1983). Moreover, in cases of sexual assault or other assaults by Holland America crew members against passengers, the courts have held that HAL is strictly liable for passenger assaults and a showing of negligence is not required. Morton v. De Olivera, 984 F.2d 289 (9th Cir. 1993); Doe v. Celebrity Cruises, Inc., 394 F.3d 891 (11th Cir. 2004).
In our practice, we regularly encounter passenger injuries while boarding tender vessels to and from shore, injuries from slips or falls on substances spilled on the deck of the cruise ship, injuries on stairs, injuries caused by crew member negligence, injuries from defective equipment, crew member assaults, injuries caused by poor lighting, and many other instances of negligence.
Holland America’s Attempts to Limit Liability for Foreign Travel.
When a cruise trip begins and ends outside of the United States of America, Holland America Line has attempted to use an obscure treaty, the Athens Convention, to limit the amount of damages that a passenger may claim, regardless of the degree of harm caused by the cruise line's negligence or the amount of the passenger's medical expenses, economic loss, or suffering. Although the United States is not even a signatory to the Athens Convention, HAL has inserted reference to the Athens Convention into its cruise tour contract to limit passenger claims. In deciding whether such limitations of liability are enforceable, the Ninth Circuit Court of Appeals requires that fine-print limitations contained in passenger tickets be reasonably communicated to passengers, and uses a two-part test to determine whether this standard has been met. The first part of the analysis examines the physical characteristics of the ticket and the second part looks to the circumstances surrounding its purchase and retention. See Dinklage v. Holland Am. Line-Westours, 2007 U.S. Dist. LEXIS 21919, 5-6 (D. Wash. 2007). Accordingly, the particular circumstances of your purchase of the ticket will be relevant to whether the provisions are enforceable.
Cruises To/From or Within the EU: This contract is issued at Seattle, Washington. On international cruises which neither embark, disembark nor call at any U.S. port and where You commence the cruise by embarking or disembarking in a port of a European Member State, Carrier shall be entitled to any and all liability limitations and immunities for loss of or damage to luggage, death and/or personal injury as provided under EU Regulation 392/2009 on the liability of carriers to passengers in the event of accidents. Unless the loss or damage was caused by a shipping incident, which is defined as a shipwreck, capsizing, collision or stranding of the ship, explosion or fire in the ship, or defect in the ship (as defined by the Regulation), Carrier’s liability is limited to no more than 400,000 Special Drawing Rights (“SDR”) per passenger, (approximately U.S. $564,000, which fluctuates depending on the daily exchange rate as published in the Wall Street Journal) if the passenger proves that the incident was a result of Carrier’s fault or neglect. If the loss or damage was caused by a shipping incident, Carrier’s liability is limited to no more than 250,000 SDRs per passenger (approximately U.S. $352,000, which fluctuates depending on the daily exchange rate as published in the Wall Street Journal). Compensation for loss caused by a shipping incident can increase to a maximum of 400,000 SDRs per passenger unless Carrier proves that the shipping incident occurred without Carrier’s fault or neglect. Shipping incidents do not include acts of war, hostilities, civil war, insurrection, natural disasters, or intentional acts or omissions of third parties. In cases where the loss or damage was caused in connection with war or terrorism, Carrier’s liability for any personal injury or death (whether occurring during a shipping incident or a non-shipping incident) is limited to the lower of 250,000 SDRs per passenger or 340 million SDRs per ship per incident. Punitive damages are not recoverable for cruises covered by EU Regulation 392/2009. For a copy of EU Regulation 392/2009, visit eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=OJ:L:2009:131:0024:0046:EN:PDF. In addition, Guests embarking a cruise in a European Member State port are afforded rights under EU Regulation 1177/2010. For a copy of EU Regulation 1177/2010, visit eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:32010R1177&qid=1440630405095&from=EN.
Emphasis added. For a current version of the contact, consult your cruise documents or the HAL Cruise Tour Contract.
If reasonably communicated to the passenger, such provisions have been held enforceable. See, e.g., Paul v. Holland America Line Inc., 463 F. Supp. 2d 1203 (W.D. Wash. 2006).
In contrast, other courts have rejected the limitation where it is not reasonably communicated. For instance, in Dinklage v. Holland America Line, 2007 U.S. Dist. LEXIS 21919, our law firm represented a man who was severely burned in a sauna on a HAL cruise ship. The company asked the court to enforce fine print in the cruise tour contract that provided for application of the Athens Convention's limit on damages. Application of the fine print in the cruise tour contract would have limited our client's claim for his severe injuries and medical expenses to approximately $70,000 U.S. dollars (46,666 Special Drawing Rights). Rejecting Holland America Line's attempts to enforce the contract and holding in favor of our client, United States District Court Judge John C. Coughenour held that the limitation of liability was not reasonably communicated to our client. After the Dinklage case in 2007, however, Holland America Line has now changed its contractual language in an ongoing effort to limit its liability for severe injuries and the new language has not yet been tested in court.
Our lawyers have been prosecuting claims against Holland America for decades and have a keen understanding of the complexities of the maritime law and how it may apply to the facts of your specific case. If you would like to discuss your case with one of our lawyers without obligation, contact us at 1.800.848.8008.

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As reported in our earlier client memorandum, in February 2018, the U.S. Supreme Court heard argument in United States v. Microsoft Corp., a case concerning the government’s ability to compel U.S. service providers to disclose email communications electronically stored outside the U.S. On April 17, 2018, the Court dismissed the appeal as moot based on the recent enactment of the CLOUD Act.
This memorandum describes the Court’s holding and discusses the statutory framework of the CLOUD Act, which now governs disputes such as that in the Microsoft case.
The Microsoft case arose when the U.S. government obtained a warrant under Section 2703 of the Stored Communications Act (SCA) for email content and information from a Microsoft Network (msn.com) email account, and Microsoft moved to quash the warrant on the basis that the information requested was stored on servers outside the U.S., specifically in Ireland. The legal question presented was whether a probable-cause-based warrant issued by a Magistrate Judge under the SCA reaches digitally-stored materials within a provider’s control but stored abroad. The Court of Appeals for the Second Circuit, reversing the District Court, held that the SCA did not require service providers to produce email content stored outside the U.S. The Supreme Court granted certiorari and heard argument on February 27, 2018.
Several weeks later, on March 23, 2018, Congress passed the Clarifying Lawful Overseas Use of Data (CLOUD) Act, which directly addressed the question implicated in the Microsoft case concerning the extraterritorial reach of the SCA. In particular, the CLOUD Act amends the SCA, expressly requiring email service providers to preserve, back up, and disclose to law enforcement electronic data within their “possession, custody, or control,” even when that data is located outside the U.S. The Department of Justice subsequently obtained a new warrant for the email account at issue in the Microsoft case under Section 2703 of the now-amended SCA. In light of these events, the Court found that there was no longer a “live dispute” between the U.S. and Microsoft. The Court therefore vacated the judgment below, remanding the case to the Second Circuit with instructions to direct the District Court to dismiss the case as moot.
The CLOUD Act reflects Congress’s effort to clarify the ability of law enforcement to obtain email communications stored abroad. Although the CLOUD Act provides that an email service provider can be compelled under the SCA to produce electronic data stored outside the U.S., it also imposes certain limitations and permits service providers to challenge warrants or other legal process issued under the SCA in certain circumstances. For example, under the CLOUD Act, a service provider may seek to modify or quash a warrant or other legal process issued under the SCA on the basis of a conflict of laws with a “qualifying foreign government,” which is defined as a government with which the U.S. has entered into an executive agreement under the CLOUD Act. To successfully challenge a warrant, a service provider must demonstrate that: (1) the customer or subscriber is not a U.S. person and does not reside in the U.S.; and (2) the required disclosure would create a material risk that the provider would violate the laws of the qualifying foreign government. While such a motion is pending, service providers must preserve, but are not obligated to produce, the information sought. A court may grant such a motion only if it finds that both of the above-referenced requirements are met and that, based on the totality of the circumstances, the “interests of justice” require that the legal process should be modified or quashed.
If the above circumstances do not exist, the CLOUD Act’s savings clause provides another mechanism for a service provider potentially to seek to quash or modify a warrant or other legal process issued under the SCA. That clause provides that law enforcement actions under Section 2703 of the SCA are to be evaluated by “the common law standards governing the availability or application of comity analysis.” These standards are not specifically defined, and the CLOUD Act does not provide any specific guidance on how and when this comity analysis limits the reach of the SCA to information stored outside the U.S.
In addition to expressly authorizing the U.S. government to compel the production of electronic information stored abroad, the CLOUD Act also modifies the process for foreign governments seeking access to data stored in the U.S.
Previously, foreign governments could only access data stored in the U.S. by making diplomatic requests for the data to the U.S. The process was governed by mutual legal assistance treaties, or MLATs, which must be ratified by a supermajority vote in the Senate. The CLOUD Act, however, allows the President to make executive agreements that will govern foreign access. The Act states that the Attorney General must submit a written certification to Congress that the agreement complies with the requirements of the Act, a determination that is not subject to judicial or administrative review. Such executive agreements will be effective 180 days after notice is provided to Congress, unless Congress enacts a joint resolution of disapproval.
The Attorney General must certify that a number of requirements have been met, including: that the foreign country’s domestic law affords “robust” protections for privacy and civil liberties; that it has adequate laws regarding cybercrime and electronic evidence; that it demonstrates respect for the rules of law; that it adheres to applicable human rights obligations; and that it has clear legal mandates and procedures governing the collection, use, and oversight of data.
A foreign government’s request for information must relate to the prevention, detection, investigation, or prosecution of a serious crime. The Act provides that the foreign government’s procedures must follow the domestic law of that country and does not provide for the application of U.S. due process protections.
The Act does provide for periodic review of compliance by the U.S. and states that the U.S. government may render the agreement inapplicable in specific cases if it concludes that it does not apply to a particular request.
The Act also limits the ability of foreign governments to obtain information concerning individuals residing in the U.S. The Attorney General must certify that the foreign government has “adopted appropriate procedures to minimize the acquisition, retention, and dissemination of information concerning U.S. persons.” Additionally, a foreign government may not intentionally target a U.S. person or a person located in the U.S.; it also may not target a non-U.S. person located outside the U.S. if the purpose is to obtain information concerning a U.S. person or a person located in the U.S.
The passage of the CLOUD Act represents a significant change in the ways in which cross-border data access is governed. It remains unclear how the procedures and limitations established in the Act will work in practice.
 See CLOUD Act, Section 103(b), to be codified at 18 U.S.C. § 2703(h)(2).
 See CLOUD Act, Section 103(b), to be codified at 18 U.S.C. § 2703(h)(4).
 See CLOUD Act, Section 103(b), to be codified at 18 U.S.C. § 2703(h)(2)-(3).
 See CLOUD Act Section 105, to be codified at 18 U.S.C. § 2523(a)-(d).
 See CLOUD Act Section 105, to be codified at 18 U.S.C. § 2523(b)(1)(A)-(B).
 See CLOUD Act Section 105, to be codified at 28 U.S.C. § 2523(b)(2)-(4).


1. The right to sue the Collector for recovery of taxes exacted under an unconstitutional statute may, consistently with the Fifth Amendment, be abolished if a fair and adequate remedy directly against the Government be substituted. P. 301 U. S. 341.
2. With respect to the refunding of "floor stock taxes" collected under the Agricultural Adjustment Act of 1933, the Revenue Act of 1936, Title VII, § 905, preserves to the taxpayer the remedy by suit against the United States in the District Courts or the Court of Claims. P. 301 U. S. 343.
and provides for a judicial review of the Board's decisions in which may be determined every question of law which. the claimant is entitled to raise, whether general, statutory, or constitutional, including questions as to the validity of any part of Title VII itself, and in which the reviewing court is empowered to direct the Board to enter any designated judgment, the Commissioner of Internal Revenue being required to refund any amount which may thus be found due the claimant. P. 301 U. S. 343.
4. With respect to the refunding of such processing taxes, the Revenue Act of 1936, supra, provides, Title VII, § 902(2), that no refund shall be allowed unless the claimant establishes to the satisfaction of the Board of Review that he bore the burden of the amount paid as tax and "has not been relieved thereof nor reimbursed therefor nor shifted such burden, directly or indirectly" through the inclusion of the amount paid in the price of the product, through reduction of the price paid for the raw material, or "in any manner whatsoever."
(1) If the taxpayer has thus shifted the burden of the tax, he is no longer in a position to claim an actual injury, and the refusal of a refund in such a case cannot be regarded as a denial of constitutional right. P 301 U. S. 348.
(2) The fact that the Act makes no provision for refunding to particular persons, to whom the burden of the invalid exaction may be found to have been shifted, is no concern of the taxpayer. P. 301 U. S. 350.
(3) The statute should not be construed as denying a refund where, from the nature of the case, proof that the tax burden was not shifted is inherently impossible; but the existence of such impossibility is a question of fact which the claimant may raise before the Board; the claimant is required to present to the Board the facts pertaining to the subject, and thereupon it becomes the duty of the Board, upon findings supported by evidence, to make its determination in accordance with the legal rights of the claimant, subject to modification or reversal by the reviewing court if not in accordance with law. P. 301 U. S. 351.
Constitutional questions are not to be decided hypothetically. When particular facts control the decision, they must be shown.
(4) Of two possible constructions of a statute, that one should be adopted which will save, and not destroy, it. An intent to defy the Fifth Amendment or even to come so near to doing so as to raise a serious question of constitutional law cannot be attributed to Congress. P. 301 U. S. 351.
(5) Section 902 is not too vague; it lays down the general principle governing the remedy afforded, leaving its applications to be determined by facts as they appear in particular instances. P. 301 U. S. 353.
5. Section 907(a) of Title VII of the Revenue Act of 1936 provides that, in the administrative proceedings above mentioned, the fact that the average margin per unit of commodity processed was lower during the tax period than the average margin during the period before and after it shall be prima facie evidence that the burden of the processing tax was borne by the claimant taxpayer, and that, if the average margin during the tax period was not lower, it shall be prima facie evidence that none of the burden of such amount was borne by the claimant, but that it was shifted to others. "Tax period" and "period before and after the tax" are defined. Section 907(e) provides that either the claimant or the Commissioner may rebut the presumptions "by proof of the actual extent to which the claimant shifted to others the burdens of the processing tax." Held that the words "actual extent" are used in contradistinction to the presumed extent, according to the prima facie presumption to which the proof in rebuttal is addressed, and that complete opportunity is afforded the claimant to present any evidence which may be pertinent to the questions to be determined by the Board of Review and which may be appropriate to overcome any presumption which might be indulged either under § 907(a) or otherwise. P. 301 U. S. 354.
6. Section 906(b) of the Act of 1936, Title VII, supra, provides that the hearing before the Board is to be conducted by a presiding officer who is either a member of the Board or an officer or employee of the Treasury Department designated by the Secretary of the Treasury, and § 906(e) that the presiding officer is to recommend to the Board, or a division, findings of fact and a decision; but the Board, or a division of it, is required to consider the evidence and make the findings and administrative decision, and the whole scheme of the administrative proceeding presupposes hearing and determination in accordance with the demands of due process. P. 301 U. S. 356.
to recover amounts paid as cotton "processing" taxes and as cotton "floor stock" taxes under the Agricultural Adjustment Act of 1933, which was held unconstitutional by this Court in United States v. Butler, 297 U. S. 1.
unconstitutionality of these provisions. Demurrer was sustained by the District Court (Lincoln Mills v. Davis, 15 F.Supp. 257), and its judgment of dismissal was affirmed by the Circuit Court of Appeals upon the ground that the court below was without jurisdiction to entertain the action. Anniston Mfg. Co. v. Davis, 87 F.2d 773. In view of the importance of the questions raised, we granted certiorari.
Title VII, §§ 901-917, of the Revenue Act of 1936 provided a new administrative procedure for the recovery of amounts collected under the Agricultural Adjustment Act. Section 901 repealed §§ 21(d), 21(e), and 21(g), of the amendments of 1935 (49 Stat. 771-773). Section 902 prescribed the conditions on which refunds should be made. Section 903 related to the filing of claims. Sections 904 and 905 prescribed periods of limitation and provided for the jurisdiction of the District Courts, concurrent with the Court of Claims, for the recovery of amounts collected as floor stock and compensating taxes. Section 906 prescribed the procedure on claims for refunds of processing taxes. Section 907 established certain rules of evidence or presumptions to be observed in the administrative proceeding. Section 908 related to allowance of interest. Section 909 denied review of the administrative ruling by any other administrative or accounting officer. Section 910 undertook to free collectors from liability for moneys collected by him and paid into the Treasury in performance of his official duties. Section 913 defined various terms employed. Other sections laid down administrative rules not requiring attention in the present discussion.
the amounts collected, and that § 910, which attempted to destroy that liability, is unconstitutional.
remedy offered is adequate and backed by the responsibility of the State."
The same reasoning is applicable here. The government has not denied its obligation to refund the amounts found in the authorized proceeding to be recoverable, but has recognized that obligation. In such a case, the substitution of an exclusive remedy directly against the government is not an invasion of constitutional right. Nor does the requirement of recourse to administrative procedure establish invalidity if legal rights are still suitably protected. The immediate question is whether the authorized proceeding affords a fair and adequate remedy. We accordingly inquire whether the prescribed procedure gives an opportunity for a full and fair hearing and determination of all questions of fact and adequately provides for the protection of the legal rights of the claimant, embracing whatever right of refund the claimant is entitled to assert under the Federal Constitution.
Second. With respect to floor stock taxes, no serious question is presented as to the adequacy of the remedy. The remedy by suit is expressly preserved. If the Commissioner refuses refund, suit may be brought against the United States in the Court of Claims or in the District Court for the recovery of the amount claimed to have been illegally exacted. Section 905.
amount of refund due any claimant with respect to such claim." The Commissioner is required to "make refund of any such amount determined by a decision of the Board which has become final." Section 906(b). The hearing, upon notice, before the Board is to be open to the public and is to be conducted by a presiding officer who is either a member of the Board or an officer or employee of the Treasury Department designated by the Secretary of the Treasury. The proceedings are to be in accordance with the rules of practice and procedure prescribed by the Board with the approval of the Secretary of the Treasury, save with respect to rules of evidence, which are to be in accordance with those applicable in courts of equity of the District of Columbia. The claimant and the Commissioner are entitled "to be represented by counsel, to have witnesses subpoenaed, and to examine and cross-examine witnesses." Provision is made to compel the attendance and testimony of witnesses and the production of books and papers from any place in the United States and to require the taking of depositions. Section 906(c)(d). The presiding officers are to recommend findings of fact and a decision to the Board or the proper division thereof within six months after the conclusion of the hearing. Briefs with respect to such recommendations may be submitted within a specified time. The Board or a division is to make its findings of fact and decision in writing as quickly as practicable. The findings and decision of a division are to become those of the Board within thirty days unless the chairman has directed that they be reviewed by the Board. Copies of the findings and decision are to be mailed to the claimant and the Commissioner. Section 906(e). There is a further provision as to costs and fees. Section 906(f). The decision of the Board is to become final in the same manner as decisions of the Board of Tax Appeals under § 1005 of the Revenue Act of 1926 as amended. Section 906(g); 26 U.S.C. 640.
"exclusive jurisdiction to affirm the decision of the Board, or to modify or reverse such decision, if it is not in accordance with law, with or without remanding the cause for a rehearing, as justice may require."
Section 906(g). If the claimant or the Commissioner applies to the Court of Appeals for leave to adduce additional evidence, the court may order it to be taken before the presiding officer if the court is satisfied that the additional evidence is material and that there were reasonable grounds for failure to adduce it at the hearing. The Board may modify its findings and decision by reason of such additional evidence, filing its modified or new determination with the court. The judgment of the Court of Appeals is to be final, subject to review by this Court upon certification or certiorari as provided in §§ 239 and 240 of the Judicial Code.
Fourth. The question then is whether, despite this broad right of judicial review of the action of the Board, the administrative scheme has such inherent constitutional defects that the petitioner should not be remitted to that procedure. The inquiry has particular relation to the provisions (1) as to burden of proof, § 902; (2) as to presumptions, § 907, and (3) as to certain matters of administrative detail.
shall be allowed unless the claimant establishes to the satisfaction of the Commissioner, or of the trial court, or of the Board of Review in cases under § 906, that the claimant bore the burden of the amount paid as tax and "has not been relieved thereof nor reimbursed therefor nor shifted such burden, directly or indirectly" (1) through the inclusion of the amount paid in the price of the product; (2) through reduction of the price paid for the raw material; "or (3) in any manner whatsoever."
According to the allegations of the complaint, the petitioner initially did bear the burden of the unconstitutional tax, as petitioner paid it. The question for administrative determination is whether the burden of that payment has been shifted. So far as petitioner's contention may be taken to be that it is entitled to recover by reason of the invalidity of the tax, although in fact its burden has been "passed on" to another, the contention cannot be sustained. While the taxpayer was undoubtedly hurt when he paid the tax, if he has obtained relief through the shifting of its burden, he is no longer in a position to claim an actual injury, and the refusal of a refund in such a case cannot be regarded as a denial of constitutional right.
"as substantively limiting the right to a refund of taxes of the designated class to instances where the taxpayer either has not directly or indirectly collected the tax from the purchaser or after so collecting it has returned it to him."
"there accrued to the taxpayer when he paid the tax a right to have it refunded without any showing as to whether he bore the burden of the tax or shifted it to the purchasers."
"that the taxpayer (a) must show that he alone has borne the burden of the tax, or (b), if he has shifted the burden to the purchasers, must give a bond promptly to use the refunded sum in reimbursing them."
"than to require that it be shown or made certain that the money, when refunded, will go to the one who has borne the burden of the illegal tax, and therefore is entitled, in justice and good conscience, to such relief."
"If the taxpayer has borne the burden of the tax, he readily can show it, and certainly there is nothing arbitrary in requiring that he make such a showing. If he has shifted the burden to the purchasers, they and not he have been the actual sufferers, and are the real parties in interest, and, in such a situation, there is nothing arbitrary in requiring, as a condition to refunding the tax to him, that he give a bond to use the refunded money in reimbursing them."
"aims at the abstract justice of the case, and looks solely to the inquiry whether the defendant holds money which, ex acquo et bono, belongs to the plaintiff."
Id., p. 291 U. S. 403.
The circumstance that, under title VII, here involved, there is no provision for making a refund to particular persons to whom the burden of the invalid exaction may be found to have been shifted presents no sound distinction so far as the claimant is concerned. The controlling principle is that there is no denial of constitutional right in requiring the claimant to show, where it can be shown, that he alone has borne the burden of the invalid tax, and has not shifted it to others.
latter class. In its amended complaint, petitioner sets forth at length the features of the operation of a cotton mill such as its own. By reason of the nature of these operations, petitioner asserts that there is "an inherent impossibility" of proving whether or to what extent the burden of the taxes paid has been shifted to others.
This allegation is, at best, but a statement of a legal conclusion which must depend upon the facts as they appear when proof is taken. The question is whether the petitioner is entitled to insist as a matter of constitutional right upon trying out the question of impossibility in this suit, rather than in an administrative proceeding where all the pertinent facts as to the course of business may be presented and the conclusions they require both of fact and law may be reached. This assertion of such a constitutional right rests upon a construction of § 902 to the effect that, if the facts, fully disclosed, afforded no basis for any determination as to the shifting of the burden of the tax, and hence gave no warrant for a finding that the burden had been shifted from the claimant to others, still the statute would require a denial of the right to a refund. The claimant would then stand, by virtue of the injury caused by the payment of the tax, not as one seeking relief when he had not been hurt, but as one who had been hurt by a payment unconstitutionally required and whose proved injury could not be said to have been redressed. It is in that aspect that the statute is assailed as leaving the claimant without remedy for a deprivation of his property without due process of law.
"even to come so near to doing so as to raise a serious question of constitutional law." Federal Trade Comm'n v. American Tobacco C, 264 U. S. 298, 264 U. S. 307; Panama R. Co. v. Johnson, 264 U. S. 375, 264 U. S. 390; Blodgett v. Holden, 275 U. S. 142, 275 U. S. 148. When the Congress requires the claimant, who has paid the invalid tax, to show that he has not been reimbursed or has not shifted its burden, the provision should not be construed as demanding the performance of a task, if ultimately found to be inherently impossible, as a condition of relief to which the claimant would otherwise be entitled. There is ample room for the play of the statute within the range of possible determinations. Impossibility of proof may not be assumed. It cannot be doubted that the requirement has appropriate and valid effect in placing upon the claimant the duty to present fully all the facts pertaining to the question of the shifting of the burden of the tax and in denying relief where the facts justify a conclusion that the burden has been shifted from the claimant to others. When the facts have been shown, it becomes the duty of the Board of Review to make its determination according to the legal rights of the claimant. That is the necessary import of the provision for judicial review, giving authority to the reviewing court to modify or reverse the decision of the Board "if it is not in accordance with law." Findings that can properly be made upon the evidence must thus support a decision according to legal right. And, as we have seen, the reviewing court, and finally this Court, may direct the Board "to enter any designated judgment" [Footnote 3] to which the claimant is constitutionally entitled and the Commissioner must refund the amount thus determined to be due.
whether, in its case, the shifting of the burden of the tax is or is not "susceptible of proof." Constitutional questions are not to be decided hypothetically. When particular facts control the decision, they must be shown. Borden's Farm Products Co. v. Baldwin, 293 U. S. 194, 293 U. S. 208-210. Petitioner's contention as to impossibility of proof is premature. Manifestly there is no impossibility so far as the production of proof of petitioner's operations or course of business is concerned. What is meant by impossibility of proof is impossibility of determination after these facts are in. Whether or not any such impossibility of determination will exist is a question which properly should await the ascertainment of the facts. For the present purpose, it is sufficient to hold, and we do hold, that the petitioner may constitutionally be required to present all the pertinent facts in the prescribed administrative proceeding, and may there raise, and ultimately may present for judicial review, any legal question which may arise as the facts are developed.
These considerations also dispose of the contention that § 902 "is so vague and uncertain that it is meaningless, and therefore affords no remedy." It was not necessary for the Congress, in insisting that a claimant should not recover where it appeared that he had not borne the burden of the tax, to attempt to formulate the conclusions which would be appropriate upon varying states of fact. Petitioner's argument, drawn from the writings of economists, is itself sufficient to show the futility of such an effort. The Congress could, and did, lay down a general principle and leave its application to the facts as they would appear in particular instances in a proceeding adapted to their full disclosure. The general principle thus laid down is no more vague and indefinite than the equitable doctrine which governs the right of recovery in actions for money had and received.
"shall be prima facie evidence that the burden of such amount was borne by the claimant to the extent (not to exceed the amount of the tax) that the average margin per unit of the commodity processed was lower during the tax period than the average margin was during the period before and after the tax;"
"If the average margin during the tax period was not lower, it shall be prima facie evidence that none of the burden of such amount was borne by the claimant. but that it was shifted to others."
"the twenty-four months (except that, in the case of tobacco, it shall be the twelve months) immediately preceding the effective date of the processing tax, and the six months, February to July, 1936, inclusive."
Provision is made for the computation of what is called the "average margin" for the respective periods, the "margin" being determined by deducting from the gross sales value of articles processed the cost of the commodity processed and the processing tax.
Petitioner contends that the presumptions are entirely arbitrary, and therefore unconstitutional. There is a general allegation to that effect in petitioner's amended complaint. But it cannot be said that the comparisons set up between the results of operations during the "tax period" and the "period before and after the tax" are wholly irrelevant. Nor can it now be determined what will be the effect of the presumptions. While petitioner assails them, its complaint contains no allegation as to their actual effect in relation to petitioner's operations.
Non constant but that they may work to petitioner's advantage. For all that we know, the presumption may establish prima facie that petitioner has borne the burden of the tax. Petitioner invites us to enter into a purely speculative inquiry for the purpose of condemning statutory provisions which have not been tried out and the effect of which cannot now be definitely perceived. We must decline that invitation and adhere to the fundamental principle which governs our determination of constitutional questions. Liverpool, New York & Philadelphia Steamship Co. v. Commissioners, 113 U. S. 33, 113 U. S. 39; Cincinnati v. Vester, 281 U. S. 439, 281 U. S. 448-449; Ashwander v. Tennessee Valley Authority, 297 U. S. 288, 297 U. S. 324.
we are of the opinion that the provision was intended to afford, and does afford, full opportunity to the claimant to present any evidence which may be pertinent to the questions to be determined by the Board of Review and which may be appropriate to overcome any presumption which might be indulged either under § 907(a) or otherwise.
Procedural due process in the conduct of the administrative hearing. Petitioner also complains that, under § 906(d), the hearing is to be conducted not by the Board of Review or a division thereof, but by a "presiding officer" designated by the Secretary of the Treasury, and that, under § 906(e), the presiding officer is to recommend to the Board or a division findings of fact and a decision. Petitioner urges that the Board or its division is not required by the statute to consider the evidence, and hence that the procedure contemplated by § 906 does not meet the requirements of due process. We find no merit in these contentions. There is no provision of the statute which is necessarily inconsistent with the observance of the due process required in hearings by administrative bodies. Interstate Commerce Comm'n v. Louisville & Nashville R. Co., 227 U. S. 88, 227 U. S. 91; United States v. Abilene & Southern Ry. Co., 265 U. S. 274, 265 U. S. 288; Morgan v. United States, 298 U. S. 468, 298 U. S. 480-481; Ohio Bell Telephone Co. v. Public Utilities Comm'n, 301 U. S. 292. "The provision for a hearing implies both the privilege of introducing evidence and the duty of deciding in accordance with it." Chicago Junction Case, 264 U. S. 258, 264 U. S. 265. Whatever the privilege or duty of the presiding officer, and whatever may be his recommendation, the statute requires that "the Board or a division shall make its findings of fact and decision in writing" and shall certify and file with the court on judicial review a transcript of the record upon which its findings and decision are based.
The court has jurisdiction "to affirm the decision of the Board, or to modify or reverse such decision." If additional evidence is taken, "the Board may modify its findings of fact and decision" by reason of such evidence. The whole scheme of the administrative proceeding presupposes hearing and determination in accordance with the demands of due process. The Board which makes its findings and renders its decision must consider the evidence and base its findings and decision upon it, and until the contrary appears, we must assume that the Board will do so. Morgan v. United States, supra.
We conclude that the authorized procedure provides for a full and fair hearing and determination of all matters of fact, and that, through judicial review, it provides for the protection of all the legal rights of the petitioner, including any constitutional right which it may be entitled to invoke with respect to the refund which it seeks. The petitioner may thus obtain through this proceeding whatever judgment its case warrants, a judgment which the government, by virtue of the requirement that the Commissioner shall make refund accordingly, binds itself to pay.
The judgment of dismissal is affirmed, but upon the grounds stated in this opinion.
MR. JUSTICE STONE and MR. JUSTICE CARDOZO concur in the opinion save that they reserve their vote as to the constitutional or statutory rights of the taxpayer in the event that it shall be impossible to ascertain whether there has been a shifting of the tax, an examination of those rights, in their judgment, being unnecessary now, since "impossibility of proof," in the language of the opinion, "may not be assumed."
"The established rule as to be proper scope of constitutional litigation can be applied in this case with no danger of injury to petitioner. If, upon an appropriate record and in the light of an actual attempt by the taxpayer to show the incidence of the processing tax, this Court should hold any part of Title VII invalid, the taxpayer may recover all of the taxes to which he is entitled under such a decision, with interest at 6 percent per annum (Sec. 908(a)); § 614(a) of the Revenue Act of 1928, c. 852, 45 Stat. 791. For, whether or not § 902 and § 907 be held invalid, the Board of Review would still remain as a mechanical means by which to enforce the decision of a circuit court of appeals or of this Court. Even if § 902 were held invalid, and recovery allowed on more proof of payment of Agricultural Adjustment Act taxes, the Board of Review would still have jurisdiction to review the allowance or disallowance of any claim, and the circuit courts of appeals and this Court would still have power to direct the Board to enter any designated judgment. And § 906(b) provides that 'the Commissioner shall make refund of any such amount determined by a decision of the Board which has become final.'"
"Sec. 902. Conditions on allowance of refunds."
"No refund shall be made or allowed, in pursuance of court decisions or otherwise, of any amount paid by or collected from any claimant as tax under the Agricultural Adjustment Act unless the claimant establishes to the satisfaction of the Commissioner in accordance with regulations prescribed by him, with the approval of the Secretary, or to the satisfaction of the trial court, or the Board of Review in cases provided for under Section 906, as the case may be --"
"(a) That he bore the burden of such amount and has not been relieved thereof nor reimbursed therefor nor shifted such burden, directly or indirectly, (1) through inclusion of such amount by the claimant, or by any person directly or indirectly under his control, or having control over him, or subject to the same common control, in the price of any article with respect to which a tax was imposed under the provisions of such Act, or in the price of any article processed from any commodity with respect to which a tax was imposed under such Act, or in any charge or fee for services or processing; (2) through reduction of the price paid for any such commodity; or (3) in any manner whatsoever, and that no understanding or agreement, written or oral, exists whereby he may be relieved of the burden of such amount, be reimbursed therefor, or may shift the burden thereof; or"
"(b) That he was repaid unconditionally such amount to his vendee (1) who bore the burden thereof, (2) who has not been relieved thereof nor reimbursed therefor, nor shifted such burden, directly or indirectly, and (3) who is not entitled to receive any reimbursement therefor from any other source, or to be relieved of such burden in any manner whatsoever."