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INDICTMENT found and returned in the Superior Court March 14, 1973.
A pre-trial motion to suppress evidence was heard by Bennett, J., and the case was heard by him.
Thomas F. Sullivan, Jr. (Charles L. Johnson with him) for the defendant.
Kathleen M. Curry, Special Assistant District Attorney, for the Commonwealth.
HALE, C.J. The defendant was tried before a judge at a jury waived trial on a charge of possession of heroin with intent to distribute. G. L. c. 94C, Sections 31-32, as inserted by St. 1971, c. 1071. He was found guilty of simple possession of heroin and was sentenced. The case is before us on the defendant's bill of exceptions.
On February 11, 1973, at approximately 3:55 A.M., Boston police officer Roy Sergei was on duty in an unmarked cruiser with a brother officer. Both officers were in uniform and were on a routine traffic patrol. While driving on Boylston Street in the direction of Park Square, the officers saw a car go through a red traffic light at the intersection of Arlington and Boylston Streets. The car proceeded into Park Square and stopped on Carver Street at the rear of the Trailways bus station. Three people alighted from the car and went into the bus station. The driver remained in the car, and another man, later identified as the defendant, remained in the back seat. The officers stopped the cruiser behind the car, intending to give the driver a citation for the observed traffic violation. Both officers alighted from the cruiser. Officer Sergei started towards the passenger's side of the car, and the other officer started towards the driver's side. As Officer Sergei approached, he observed the man in the back seat "move his shoulders and jiggle around as though he were kicking something under the front seat." The officer "thought that he [the defendant] might be getting rid of contraband or a weapon." Officer Sergei then opened the right rear door of the car, placed his left hand on the defendant's chest and, with his right hand, extracted a bag from under the front seat. Officer Sergei opened the bag and saw "decks" of a substance which he recognized as heroin. He placed the defendant under arrest for its possession.
approved in Terry v. Ohio, 392 U.S. 1 (1968). In view of the Supreme Judicial Court's extensive discussions of the Terry standards in Commonwealth v. Matthews, 355 Mass. 378 (1969), Commonwealth v. Hawkes, 362 Mass. 786 (1973), and most recently in Commonwealth v. Silva, 366 Mass. 402 (1974), no useful purpose would be served by our reiterating those standards here.
The facts of this case bear a marked resemblance to those which the Supreme Judicial Court faced in Commonwealth v. Silva, supra. [Note 2] In each case the incident occurred late at night. In neither was there any unusual event observed by the police officers which would have given rise to a reasonable suspicion that the defendant, or another person in the car, was armed or dangerous or that a crime had been or was about to be committed. In the Silva case the police had some prior information concerning the defendant [Note 3] and in the present case none at all. In each case the defendant's movement was seen as an effort to conceal an object rather than to take it into hand. There is, however, a difference between the two cases in the position of the defendant with respect to the location of the object seized. In Silva the defendant was about to be driven by police in a police cruiser to obtain gasoline for his car when the search was made, and there was no showing that the packet was within the reach of anyone seated in the automobile. In the present case the object was within the reach of the defendant. As was the case in Silva, we need not decide whether the facts then known to the officer were sufficient to warrant a reasonably prudent person in believing that his safety was endangered (see Terry v. Ohio, 392 U.S. 1, 27 ).
We concentrate instead on the question whether the scope of the search was within constitutional limits. The Fourth Amendment forbids only unreasonable searches and seizures. Elkins v. United States, 364 U.S. 206, 222 (1960). To be reasonable, "[t]he scope of the search must be `strictly tied to and justified by' the circumstances which rendered its initiation permissible." Terry v. Ohio, supra, at 19, quoting from Warden v. Hayden, 387 U.S. 294, 310 (1967) (Fortas, J., concurring). "[T]he facts available to the officer at the moment of the seizure or the search [must be such as to] `warrant a man of reasonable caution in the belief' that the action taken was appropriate." Terry v. Ohio, supra, at 21-22, citing Carroll v. United States, 267 U.S. 132, 162 (1925), and Beck v. Ohio, 379 U.S. 89, 96-97 (1964).
In Silva the court had before it the "little black packet" and was thus able to find that the packet "could not conceivably have contained a gun, nor could an officer reasonably have considered that it contained a dangerous weapon of any kind." 366 Mass. at 410. We have neither the bag before us nor a description of it and thus have no means of determining its size, weight or shape. The finding of the trial judge that "[t]here was nothing to indicate to Officer Sergei whether or not the package contained a weapon," gives us no assistance. It adds nothing to the facts already before us in the bill of exceptions. We thus have no means of determining the reasonableness of the officer's action in opening the bag. The burden was on the Commonwealth to establish the reasonableness of the scope of the search (see Commonwealth v. Antobenedetto, 366 Mass. 51 , 57 ). There being no probable cause, and the Commonwealth not having met its burden of showing the search to have been justified by Terry principles, the motion to suppress should have been allowed.
[Note 1] The bill of exceptions contains the usual averment that it "contains all the facts and evidence material to the exceptions alleged."
[Note 2] We recognize that the Supreme Judicial Court in the Silva case, in stating that the search "if permissible at all, clearly approached the outer limits of police privileges to search" (366 Mass. at 407), did not rest its decision on whether the initiation of the search was constitutionally permissible (366 Mass. at 404).
[Note 3] "The police had knowledge that the defendant had been charged previously with operating a motor vehicle without authority . . .. One of the policemen also believed that the defendant had at that time been in the company of another person who was illegally carrying a gun." 366 Mass. at 406.

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Albert R. Connelly, New York City, Arthur W. Milam, Jacksonville, Fla., Claude Pepper, Miami, Fla. (John D. Calhoun, Donald Cronson, John F. Hunt, Jr., Cravath, Swaine & Moore, New York City, Milam, LeMaistre, Ramsay & Martin, Jacksonville, Fla., of counsel), for appellant.
William Alonzo Carter, John W. Ball, Jacksonville, Fla. (Adair, Ulmer, Murchison, Kent & Ashby, Jacksonville, Fla., of counsel), for Owens-Illinois Glass Co.
Harold B. Wahl, Jacksonville, Fla., J. Franklin Fort, Washington, D. C., Marshall S. Scott, Stuart W. Patton, Miami, Fla. (Loftin & Wahl, Jacksonville, Fla., Kominers & Fort, Washington, D. C., of counsel), for West India Fruit & Steamship Co., Inc., and others.
Before HUTCHESON, Chief Judge, and TUTTLE and JONES, Circuit Judges.
Appealing from a summary judgment entered in a proceeding to foreclose a mortgage on a vessel, the Abaco Queen, plaintiff-appellant, challenging as erroneous the findings and conclusions1 of the district judge, that the restrictive covenant in the bill of sale to the Queen against its use in the specified trade was valid and of binding force against the mortgagee and any purchaser at the foreclosure sale, seeks a reversal and rendition or at least a reversal and remand of the judgment giving effect to these findings and conclusions.
The action which resulted in the judgment under attack was begun July 6, 1957, by plaintiff-appellant, Tri-Fi, the mortgagee, as an ordinary proceeding to foreclose its mortgage. Original parties to it were the mortgagor, Tropical Marine Enterprises, Inc. (T.M.E.), T.M.T. Trailer Ferry Co., Inc., parent of T.M.E., and insolvent guarantor of the mortgage indebtedness, and one Gibbs Corp. (Gibbs), a junior lienor.
On September 4, 1957, appellee Owens Illinois Glass Corp. (Owens) intervened, alleging: that on April 18, 1956, it had purchased the Queen from West India Fruit and Steamship Co. (West India), subject to a restrictive covenant;2 that on November 20, 1956, it had sold the vessel to T.M.E., subject to the covenant; and that Tri-Fi had taken the mortgage with knowledge of, and subject to the covenant. So alleging Owens prayed that the decree of foreclosure provide that the sale of the Queen be made subject to the restrictive covenant, and that it should be binding on the purchaser.
Tri-Fi, admitting that it had taken its mortgage with notice of the covenant not to compete and opposing the relief sought by West India and Owens, prayed that the decree of foreclosure permit the Abaco Queen to be sold free of all restrictions on its use. Tri-Fi asserted two issues in defense, viz., (1) that the covenant on the Abaco Queen is, as a matter of law, not enforceable against Tri-Fi as a non-assenting mortgagee, i.e., that such covenants do not run with chattels and (2) that the terms of the covenant not to compete on the Abaco Queen constituted illegal restraints of trade under Sections 1 and 2 of the Sherman Act (15 U.S.C.A. §§ 1 and 2).
The district judge rejecting plaintiff's contentions and embodying in the judgment of foreclosure provisions directly contrary thereto, appellant is here arguing with earnestness and conviction that in so holding and adjudging, the district judge went counter to established law.
With equal earnestness, insisting that it did not ask for a summary judgment on the anti-trust issue, it urges upon us that in holding and adjudging that the covenant was not in violation of the Sherman Act and illegal, the district judge erred (1) procedurally (a) in dealing with that issue, though plaintiff did not present it for summary determination, and (b) in concluding that in respect to it, there was no issue as to any material fact, and (2) as a matter of substantive law, in holding (a) that the covenant is reasonable in time, territory and extent, (b) that it does not violate the anti-trust laws; and (c) that it is binding on the mortgagee and will be on the purchaser at foreclosure sale.
Taking no position with respect to the validity of the restriction under the Sherman Act, except to assert that appellant, for the purpose of the determination of its motion for summary judgment, conceded its validity in that respect, but taking strong issue with appellant's position that the finding and judgment, that the mortgagee took subject to the restrictive covenant and the purchaser at the foreclosure sale would likewise take subject thereto, were erroneous, appellee Owens is here insisting that the judgment must be affirmed.
Posing the ultimate issue for decision below and here as whether the covenant between vendor and vendee of the Queen restricting her use in respect to a specific trade is binding upon the mortgagee who with full knowledge of the covenant loaned the vendee the money necessary to purchase the vessel and consequently is binding upon the purchaser at the sale, appellee West India insists that this issue and all the facets of it, including the validity of the covenant against the claim that it violated the anti-trust laws, was properly before the court for decision, the parties, in support of their respective views, its cross action and the intervention of Owens, and was properly decided by the district judge on the undisputed facts.
Upon the interesting questions thus presented for decision, the parties, in support of their respective views, have in briefs and arguments, exhibiting a high order of advocacy, marshalled the facts and canvassed the applicable law, and, greatly aided thereby, we have reached the firm conclusion that the district judge was right in permitting the introduction of parties into the foreclosure suit and the tender for declaratory judgment thereon of issues other than those necessary to the mere foreclosure of the mortgage lien.
This is not to say that, since under the general doctrine, "In a proceeding to foreclose a mortgage lien, while it is proper to make anyone claiming under the mortgagor a party to such foreclosure proceedings, it is not allowed to put in issue the mortgagor's title",4 i.e., the foreclosure passes the mortgaged interest, it neither adds to nor detracts therefrom, we have not had some difficulty in concluding that the district judge was right in determining that there was an actual controversy as to the matters introduced into the foreclosure suit by the pleadings of the parties. It is to say, though, that, considering the wideness of the discretion vested in the district judge by the declaratory judgment statute, Sec. 2201, Title 28 U.S.C. and Rule 57, Federal Rules of Civil Procedure, Title 28 U.S.C.,5 we conclude that the district judge did not abuse his discretion in proceeding as he did to a judgment which, not at all undertaking to add to or subtract from the mortgagor's interest foreclosed, merely declared the existing nature and condition of that interest.
For the reasons hereafter stated, we think that he was right (1) in regarding all of the issues decided by him as properly before him for decision, (2) in the conclusions that he reached as to these issues, and (3) in the judgment entered in accordance therewith. We recognize that appellants present and argue, not queryingly and tentatively but positively and with confidence, that the anti-trust question was not in issue in the summary judgment proceeding, and we have no disposition to treat this contention lightly. We think, however, that, in the light of the proceedings below taken as a whole, including the pleadings of the parties and particularly plaintiff's motion seeking specifically summary judgment for debt and foreclosure and "summary judgment in plaintiff's favor on the issues raised by the petition of Owens Illinois Glass Co., the answer to that petition and counter claim of plaintiff, and the petition of West India Fruit and Steamship Co., Inc." appellant's reliance on Prepo Corp. v. Pressure Can Corp., 7 Cir., 234 F.2d 700 will not do, and that its position may not be maintained.
It is true that the ground put forward by plaintiff to support the claim "for summary judgment on all the issues raised" by the litigants is "that the restrictive agreement relied on by Owens Illinois and West India does not `run with the boat' so as to bind plaintiff or the purchaser at a foreclosure sale", and that the ground that the covenant was illegal under the Sherman Act was not specifically put forward in the motion. This, however, makes against, not for, appellant's present position that, though in its motion it asked for a judgment "in plaintiff's favor on the issues raised" by the pleadings of its adversaries it was at the same time withholding submission of some of those issues. In short, when it is recognized, as it must be, that a final judgment in the suit for debt and foreclosure could not have been entered with the reservations now asserted and there is added to this the specific prayer of the motion that judgment be entered in its favor on all the issues, it appears, we think, in the plainest kind of way beyond the power of argument to change it, that appellant's position, that the request for summary judgment and the granting of the summary judgment were with legally effective reservations, is in fact and in law wholly untenable. Lloyd v. Franklin Life Ins. Co., 9 Cir., 245 F.2d 896.
When, these procedural questions determined against appellant, we reach those going to the merits, we think it equally clear that its position on both aspects of the case, the validity and the binding force upon it of the covenant, rest upon an approach to the decision of the case which finds no support in the record and none in the applicable law.
As we understand them, these are its positions as to the anti-trust issue; (1) that the court erred in holding that there was no issue as to any material fact; (2) that the covenant is reasonable in time, territory and extent; and (3) that enforcement of it does not, and will not, violate the anti-trust laws.
Of these, it is sufficient to say: that every fact, which is material here in the determination of these questions, clearly appears from the pleadings, the undisputed facts, and the terms of the instrument itself; that, measured by rules governing such ancillary agreements,6 the covenant, limited as it is in time and in scope, is, in every respect important here, reasonable in time, territory and extent, and of no further extent than is necessary to protect West India; and that the authorities are almost uniform that such a restriction does not violate the anti-trust laws. It will serve no useful purpose, therefore, to discuss these cases. Some of them are cited in the conclusions of the district judge, note 1, supra. Others cited in the briefs are Chicago Sugar Co. v. American Sugar Refining Co., 7 Cir., 176 F.2d 1, certiorari denied 338 U.S. 948, 70 S. Ct. 486, 94 L. Ed. 584; Cincinnati P.B.S. & P. Packet Co. v. Bay, 200 U.S. 179, 26 S. Ct. 208, 50 L. Ed. 428; Hedrick v. Perry, 10 Cir., 102 F.2d 802; Janet Realty Corp. v. Hoffman's Inc., 154 Fla. 144, 17 So. 2d 114; Kentucky Nat. Gas Corp. v. Indiana Gas & C. Corp., 7 Cir., 118 F.2d 831; Schwartz v. Van Der Plate & Co., 132 N.J.Eq. 132, 27 A.2d 209; United States v. Addyston Pipe & Steel Co., 6 Cir., 85 F. 271, affirmed 175 U.S. 211, 20 S. Ct. 96, 44 L. Ed. 136, Restatement, Contracts, Sec. 516; 6 Corbin, Contracts Sec. 1389.
"Contracts entered into between parties, having as their objectives the removal of a rival competitor in a business, are not to be regarded as contracts in restraint of trade, because they do not close the field of competition but affect only the parties to the agreement." Janet Realty Corp. v. Hoffman's Inc., 17 So. 2d 116.
"`Where one is so lost to a sense of moral obligation as to accept a full consideration for his stock in trade and good-will, upon express condition that he refrain from again entering that business for a limited time, within a certain territory, and then immediately, having pocketed the fruits of the agreement, deliberately and wilfully ignores the controlling condition thereof, courts should certainly not hunt for legal excuse to uphold him in such moral delinquence.' Barrows v. McMurtry Mfg. Co., 54 Colo. 432, 449, 131 P. 430, 436."
Ancillary restrictions of this kind have, therefore, under facts such as appear here, been uniformly sustained as valid.
We come then to the issue which appellant admits was directly joined and decided against it below, to say that we think appellant makes too much of early and over-technical common law considerations distinguishing between covenants with respect to chattels and those with respect to land, too little of equitable considerations in dealing with both. As Owens in its brief points out, appellant has stated the question so as to make its and West India's right to the protection of a court of equity against breach of the covenant depend upon whether the restrictive covenant involved "runs with the boat" in the sense that certain covenants related to real estate have been considered by the courts to "run with the land."
"Where restrictive covenant with respect to the use of property, real or personal, is valid, it may be enforced by injunction but only as against one under obligation not to violate the covenant. Since a purchaser with notice gets title subject to the restriction he may be enjoined from using the property in violation of the restriction."7 See also 43 C.J.S. Injunctions § 87.
Finally, they insist, citing cases in support, that if, as appellant seems to argue, the question of the validity of the covenant as against the mortgagee and the purchaser at a sale under it should be determined upon whether the covenant should be regarded not as a merely personal one but as one appurtenant to and running with the vessel, there is ample authority to support a reasoned view that even then appellant would be wrong.
The case, however, is not to be determined on that ground. It is rather to be determined by whether, under circumstances of the kind disclosed here, where the mortgagee, having itself furnished the money to make the trade with full knowledge of the covenant, is now undertaking to deprive the beneficiary of its benefits and at the same time to impose upon Owens, with whom it arranged to make the mortgage, the burden of the heavy loss which will follow its breach, equity will prevent appellant from taking this plainly inequitable, if not unconscionable course by holding it estopped8 or otherwise bound by it in equity.
Under the circumstances obtaining here, a great deal more should be put forward by plaintiff, in support of its claim, to rid the vessel and the parties dealing with it of the covenant, than the dry as dust and technical common law distinction between chattels and realty. The distinction, which has its proper force in some situations, has no place or force here since the judgment did not attempt to add anything to or take anything from the binding force of the covenant but merely declared and applied to the facts of the case the controlling equitable principles.
With deference I dissent from that part of the opinion that holds that the appellant's mortgage is subject to the restrictive covenant to which it was not a party. The Court places its decision squarely upon the ground that it would be "inequitable, if not unconscionable" for the mortgagee of the vessel to be permitted to sell it at foreclosure sale freed of all restrictive covenants.
Believing, as I do, that there is a rational basis of continuing validity for the traditional difference between the principle of law which permits the burdening of real estate with restrictive covenants and that which favors the sale of tangible personal property unencumbered by even known restrictive covenants, I think it no more accords with equity and good conscience to permit the owner, Owens, to sit at the closing table and accept the purchase price from Tri-Continental on a mortgage executed by the purchaser without requiring inclusion of the restriction in the mortgage and thereafter to insist that it is binding on Tri-Continental than for Tri-Continental to be permitted to advance the money which is paid to Owens on a mortgage which is silent as to the restriction, but which is known to it, and later foreclose and sell the mortgaged property free of restriction.
In short, I think no such equity is here established to warrant the fashioning of a rule of law not heretofore shown to be applicable in the sale of chattels.
I would reverse and remand for a dismissal of the intervention.
"Impleaded defendant West India Fruit & Steamship Co., Inc., chiefly engaged in car ferry operations between the United States and Cuba, sold the vessel now known as `Abaco Queen' to National Container Corporation (now intervener Owens-Illinois Glass Co.) in January, 1956. The bill of sale contained a restrictive covenant that the vessel, for 10 years, would not be operated between ports or places in the States of Georgia, Florida, Mississippi, Alabama, and Louisiana, or any one or more of them, and ports or places on the Island of Cuba, as a car ferry, train ferry, truck ferry, auto ferry, or passenger ferry, or any combination thereof, or in any service or trade between said ports or places for the transportation of passengers, or of cargo in trailers, containers, rail cars, automobile or trucks. The covenant also provided that should it be violated National Container (now Owens-Illinois Glass Co.) would be liable to West India in the sum of $1,250,000.00.
"National Container later resold the vessel to defendant Tropical Marine Enterprises, Inc., with the same restrictive convenant. Plaintiff Tri-Continental Financial Corporation financed the transaction with knowledge of the covenant in the bill of sale and took a mortgage on the vessel (which mortgage is here sought to be foreclosed) although the mortgage made no reference to the restriction.
"Plaintiff now brings this suit to foreclose the mortgage, the defendant Tropical Marine Enterprises, Inc. interposes no defense thereto and plaintiff is entitled to a decree of foreclosure subject only to the question of (a) whether the vessel should be sold subject to the restrictive covenant and (b) * * *."
"* * * West India, by affidavit, makes it clear it would never have sold the vessel could the vessel have been used in competition with West India. The Court is convinced that the restrictive covenant is reasonable in time, territory and extent, and is binding on any purchaser of the vessel who has notice thereof. A decision of the United States Supreme Court upholding an almost identical restriction is Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 22 L. Ed. 315. To much the same effect is Cincinnati P.B.S. & P. Packet Co. v. Bay, 200 U.S. 179, 26 S. Ct. 208, 50 L. Ed. 428. Under these cases there is no violation of the anti-trust laws. See also West Shore Restaurant Corp. v. Turk, Fla.1958, 101 So. 2d 123, and Diamond Match Co. v. Roeber, 1887, 106 N.Y. 473, 13 N.E. 419.
"The Court specifically holds that not only was this a valid covenant as between the original parties, but that it is an equitable servitude, valid and binding on subsequent purchasers with notice. See Tulk v. Moxhay, 2 Phil.Ch. 774, 41 Eng.Rep. 1143 (1848); Capitol Records v. Mercury Records Corp., 2 Cir., 221 F.2d 657; Lord Strathcona Steamship Co. v. Dominion Coal Co. (1926) A.C. 108 (P.C.) where the English Privy Council pointed out that the vessel was not bought as a free ship and that the buyer could not extinguish the right in the vessel of which he had notice; Great Lakes & St. Lawrence Transportation Co. v. Scranton Coal Co., 7 Cir., 239 F. 603; and Palmer v. Chamberlin 5 Cir., 191 F.2d 532 [27 A.L.R.2d 416].
"* * * as a part of the consideration inducing the seller to enter into the agreement for the sale and transfer of the vessel [Abaco Queen] pursuant to this contract, the buyer, for a period of ten years from the date of delivery of the vessel, will not operate said vessel, or cause or permit said vessel to be operated, or sell or charter said vessel to be operated, between ports or places in the State of Georgia, Florida, Mississippi, Alabama, and Louisiana, or any one or more of them, and parts or places on the Island of Cuba, as a car ferry, train ferry, truck ferry, auto ferry, or passenger ferry, or any combination thereof, or in any sevice or trade between said ports or places for the transportation of passengers, or of cargo in trailers, containers, rail cars, automobiles or trucks.
"The Buyer agrees that any subsequent sale of the vessel by it or by successor transferees shall be made subject to all the terms, conditions, and restrictions contained herein, and that at or before the vessel shall be transferred to any subsequent purchaser, it shall obtain and deliver to Seller, or cause to be obtained and delivered to Seller, agreement in writing from any such purchaser that said vessel shall not be operated between the ports or places as hereinabove set forth.
"In the event that the buyer and/or any subsequent purchaser of the vessel, whether or not such purchasers have agreed to the conditions contained herein, shall operate, or cause said vessel to be operated in the trade prohibited by this agreement, then and in that event the buyer shall pay the seller as liquidated damages and not as a penalty, the sum of $1,250,000.00. In addition to said payment, the seller may have relief by injunction to prevent operation of the vessel in the trades hereinabove described, together with any other relief provided by law for enforcement of this agreement."
In 1956 West India sold one of its vessels, the S.S. Abaco Queen (ex-Antonio Maceo) for $750,000.00 to National Container Corp. for use in transporting wood pulp between Jacksonville and the Bahamas. The parties understood that West India would not sell the vessel if she were to be operated in the ferry trade between Florida, Georgia, Mississippi, Alabama, or Louisiana and Cuba, and National Container did not intend such use. The contract of sale provided as set out in note 2 supra, and further provided that in the event the vessel should ever be operated in the restricted trade, then National Container would pay West India $1,250,000 as liquidated damages.
Running for ten years only the restriction does not limit use of the vessel either for the carriage of cargo to Cuba otherwise than in railroad cars, vehicles, or containers, or for any use whatever in any other trade in the United States, or anywhere in the world. And the covenantor and its successors are free to use any other vessel with no restriction.
Late in 1956 National Container sold the vessel to appellee Tropical Marine Enterprises (TME) for $875,000.00. In the contract of sale, TME bound itself by a restriction substantially the same as that upon National Container and agreed to pay National Container $1,250,000 as liquidated damages if the restriction were breached by TME or by any subsequent purchaser. At about this time National Container was merged into appellee Owens-Illinois Glass Co.
To finance the purchase, TME borrowed $775,000.00 from appellant (Tri-Fi) upon a note secured by a chattel mortgage on the ship. As part of the consideration for the loan, Tri-Fi received a warrant or option to purchase 193,750 shares of the stock of TMT Trailer Ferry, Inc. (TMT) an affiliate of TME. Tri-Fi entered into the loan agreement, made the loan, and accepted the chattel mortgage and warrant with full knowledge of the existence and terms of the covanant. This is admitted.


Michael V. COSTELLO et al.
Louie L. WAINWRIGHT, Secretary, Florida Department of Offender Rehabilitation, et al.
The motion to strike the brief of the United States as amicus curiae is denied.
Petitioners in this case attacked the over-crowding in Florida's prisons as violative of the Cruel and Unusual Punishments Clause of the Eight Amendment, made applicable to the States by the Fourteenth. A single District Judge found substantial constitutional violations and issued a preliminary injunction ordering the Division of Corrections either to reduce the inmate population or to increase prison capacity. In an en banc decision, the United States Court of Appeals for the Fifth Circuit vacated the District Court's decision on the ground that only a three-judge court convened in accordance with 28 U.S.C. § 2281 could order such relief. 539 F.2d 547 (1976).
On its face, the complaint that initiated this case involved no challenge to state statutes or regulations. There was thus no reason at the beginning of this litigation to suspect that a three-judge court should hear the case. See Moody v. Flowers, 387 U.S. 97, 104, 87 S.Ct. 1544, 1549, 18 L.Ed.2d 643 (1967); Baxter v. Palmigiano, 425 U.S. 308, 98 S.Ct. 1551, 47 L.Ed.2d 810 (1976); Morales v. Turman, 430 U.S. 322, 97 S.Ct. 1189, 51 L.Ed.2d 368. In granting equitable relief, however, the District Court contemplated as one means of relieving the prison system's unconstitutional overcrowding the possibility that state prison officials would have to violate their statutory duty to continue to accept custody of prisoners properly committed to them. The Court of Appeals concluded that such equitable relief could be granted only by a three-judge court, apparently because it viewed the possible temporary suspension of an otherwise valid state statute to effectuate federally mandated relief as equivalent to finding that statute unconstitutional.
We cannot agree. The applicability of § 2281 as written turns on whether a state statute is alleged to be unconstitutional, not on whether an equitable remedy for unconstitutional state administrative behavior ultimately impinges on duties imposed under concededly constitutional state statutes. To hold otherwise would require postponing the threshold question of jurisdiction until the merits of the controversy had been fully resolved and the broad outlines of equitable relief discerned. Section 2281 embodies no such wasteful and uncertain mandate.
Since we conclude that the single District Judge properly exercised full jurisdiction in this case, and that his judgment is, therefore, reviewable on the merits in the Court of Appeals (28 U.S.C. § 1291), the petition for a writ of certiorari and for leave to proceed in forma pauperis is granted, the judgment is reversed, and the case is remanded for further proceedings consistent with this opinion.


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The temporary storage of the IP address by the system is necessary to enable the proper and secure delivery of the website to the user’s computer. For this the IP address of the user must remain stored for the duration of the session. The data is stored in log files to ensure the functionality of the website. In addition, the data enables us to optimize the website and to ensure the security of our information systems.
The data will be deleted as soon as they are no longer necessary to achieve the purpose for which they were collected. In the case of the collection of data for the provision of the website, this is the case when the respective session has ended. If the data is stored in log files, this is the case after seven days at the latest. A further storage is possible. In this case, the IP addresses of the users are deleted or alienated, so that an assignment of the requesting client is no longer possible.
On our werbsites, users are given the opportunity to subscribe to a newsletter. The input mask used for this purpose determines what personal data are transmitted, as well as when the newsletter is ordered from the controller.
We inform our customers and business partners regularly by means of a newsletter about enterprise offers. Our newsletter may only be received by the data subject if (1) the data subject has a valid e-mail address and (2) the data subject registers for the newsletter shipping. A confirmation e-mail will be sent to the e-mail address registered by a data subject for the first time for newsletter shipping, for legal reasons, in the double opt-in procedure. This confirmation e-mail is used to prove whether the owner of the e-mail address as the data subject is authorized to receive the newsletter.
Our websites contain information that enables direct communication with us, which also includes a general address of the so-called electronic mail (e-mail address). If a data subject contacts the controller by e-mail, the personal data transmitted by the data subject are automatically stored. Such personal data transmitted on a voluntary basis by a data subject to the data controller are stored for the purpose of processing or contacting the data subject. There is no transfer of this personal data to third parties.
The data subject has the possibility to register on out websites with the indication of personal data. Which personal data are transmitted to us is determined by the respective input mask used for the registration. The personal data entered by the data subject are collected and stored exclusively for internal use by us, and for our own purposes. We may request transfer to one or more processors (e.g. a parcel service) that also uses personal data for an internal purpose which is attributable to us.
By registering on our websites, the IP address—assigned by the Internet service provider (ISP) and used by the data subject—date, and time of the registration are also stored. The storage of this data takes place against the background that this is the only way to prevent the misuse of our services, and, if necessary, to make it possible to investigate committed offenses. Insofar, the storage of this data is necessary to secure our technical systems. This data is not passed on to third parties unless there is a statutory obligation to pass on the data, or if the transfer serves the aim of criminal prosecution.
The registration of the data subject, with the voluntary indication of personal data, is intended to enable us to offer the data subject contents or services that may only be offered to registered users due to the nature of the matter in question. Registered persons are free to change the personal data specified during the registration at any time, or to have them completely deleted from our data stock.
We shall, at any time, provide information upon request to each data subject as to what personal data are stored about the data subject. In addition, we correct or erase personal data at the request or indication of the data subject, insofar as there are no statutory storage obligations. A Data Protection Officer particularly designated in this data protection declaration, as well as the entirety of the controller’s employees are available to the data subject in this respect as contact persons.
On our websites, we use blogs. A blog is a web-based, publicly-accessible portal, through which one or more people called bloggers or web-bloggers may post articles or write down thoughts in so-called blogposts. Blogposts may usually be commented by third parties. On our websites’ blogs we offer users the possibility to leave individual comments on individual blogposts.
If a data subject leaves a comment on the blog published on one of our websites, the comments made by the data subject are also stored and published, as well as information on the date of the commentary and on the user’s (pseudonym) chosen by the data subject. In addition, the IP address assigned by the Internet service provider (ISP) to the data subject is also logged. This storage of the IP address takes place for security reasons, and in case the data subject violates the rights of third parties, or posts illegal content through a given comment. The storage of these personal data is, therefore, in our own interest, so that we can exculpate in the event of an infringement. This collected personal data will not be passed to third parties, unless such a transfer is required by law or serves the aim of the defense of ourselves.
The comments made in a blog of one of our websites may be subscribed by third parties. In particular, there is the possibility that a commenter subscribes to the comments following his comments on a particular blog post.
If a data subject decides to subscribe to the option, we shall send an automatic confirmation e-mail to check the double opt-in procedure as to whether the owner of the specified e-mail address decided in favor of this option. The option to subscribe to comments may be terminated at any time.
We use content or service offers from third parties within our websites on the basis of our legitimate interests (according to point (f) Art. 6(1) of the GDPR), in order to integrate their content and services, such as videos or fonts (hereinafter uniformly referred to as “content”). This always presupposes that the third party providers of this content use the IP address of the users, as they would not be able to send the content to their browser without the IP address. The IP address is therefore required for the display of this content. We try to use only those contents whose respective providers use the IP address only for the delivery of the contents. Third-party providers may also use so-called pixel tags (invisible graphics, also known as “web beacons”) for statistical or marketing purposes. Pixel tags can be used to evaluate information such as visitor traffic on the pages of our websites. The pseudonymous information may also be stored in cookies on the user’s device and may contain technical information about the browser and operating system, referring websites, visiting time and other information about the use of our online offers, as well as be linked to such information from other sources.
We now list the third party providers whose content is include in some of our websites.
In order to present our contents correctly and graphically appealing across all browsers, we use script libraries and font libraries such as Google Web Fonts (https://www.google.com/webfonts/) on our websites. Google Web Fonts components are transferred to your browser’s cache to avoid multiple loading. If your browser does not support Google Web Fonts or does not allow access, the website content will be displayed in a default font. Google Web Fonts are provided by Google Inc., 1600 Amphitheatre Parkway, Mountain View, CA 94043 USA.
On our websites, we have integrated components of the enterprise Facebook. Facebook is a social network.
With each call-up to one of the individual pages of our websites, which has integrated a Facebook component (Facebook plug-ins), the web browser on the information technology system of the data subject is automatically prompted to download a display of the corresponding component from Facebook. An overview of all the Facebook Plug-ins may be accessed under https://developers.facebook.com/docs/plugins/. During the course of this technical procedure, Facebook is made aware of what specific sub-site of our website was visited by the data subject.
On our websites, we have integrated components of Twitter. Twitter is a multilingual, publicly-accessible microblogging service on which users may publish and spread so-called ‘tweets,’ e.g. short messages. These short messages are available for everyone, including those who are not logged on to Twitter. The tweets are also displayed to so-called followers of the respective user. Followers are other Twitter users who follow a user’s tweets. Furthermore, Twitter allows you to address a wide audience via hashtags, links or retweets.
The operating company of Twitter is Twitter, Inc., 1355 Market Street, Suite 900, San Francisco, CA 94103, US.
With each call-up to one of the individual pages of our websites, on which a Twitter component (Twitter button) was integrated, the Internet browser on the information technology system of the data subject is automatically prompted to download a display of the corresponding Twitter component of Twitter. Further information about the Twitter buttons is available under https://about.twitter.com/de/resources/buttons. During the course of this technical procedure, Twitter gains knowledge of what specific sub-page of our website was visited by the data subject. The purpose of the integration of the Twitter component is a retransmission of the contents of this website to allow our users to introduce this web page to the digital world and increase our visitor numbers.
On our websites, we have integrated components of Tumblr. Tumblr is a platform that allows users to create and run a blog. A blog is a web-based, generally publicly-accessible portal on which one or more people called bloggers or web bloggers may post articles or write down thoughts in so-called blogposts. For example, in a Tumblr blog the user can publish text, images, links, and videos, and spread them in the digital space. Furthermore, Tumblr users may import content from other websites into their own blog.
The operating company of Tumblr is Tumblr, Inc., 35 East 21st St, Ground Floor, New York, NY 10010, US.
Through each call to one of the individual pages of our websites, on which a Tumblr component (Tumblr button) has been integrated, the Internet browser on the information technology system of the data subject causes automatically the download of a display of the corresponding Tumblr component of Tumblr. Learn more about the Tumblr-buttons that are available under https://www.tumblr.com/buttons. During the course of this technical procedure, Tumblr becomes aware of what concrete sub-page of our website was visited by the data subject. The purpose of the integration of the Tumblr component is a retransmission of the contents of this website to allow our users to introduce this web page to the digital world and to increase our visitor numbers.
If the data subject is logged in at Tumblr, Tumblr detects with every call-up to our website by the data subject — and for the entire duration of their stay on our Internet site — which specific sub-page of our Internet page was visited by the data subject. This information is collected through the Tumblr component and associated with the respective Tumblr account of the data subject. If the data subject clicks on one of the Tumblr buttons, integrated on our website, then Tumblr assigns this information to the personal Tumblr user account of the data subject and stores the personal data.
On our websites, we have integrated components of Pinterest Inc. Pinterest is a so-called social network. A social network is an Internet social meeting place, an online community that allows users to communicate and interact with each other in a virtual space. A social network may serve as a platform for the exchange of opinions and experiences, or allow the Internet community to provide personal or company-related information. Pinterest enables the users of the social network to publish, inter alia, picture collections and individual pictures as well as descriptions on virtual pinboards (so-called pins), which can then be shared by other user’s (so-called re-pins) or commented on.
The operating company of Pinterest is Pinterest Inc., 808 Brannan Street, San Francisco, CA 94103, US.
With each call-up to one of the individual pages of our websites, on which a Pinterest component (Pinterest plug-in) was integrated, the Internet browser on the information technology system of the data subject automatically downloads a display of the corresponding Pinterest component. Further information on Pinterest is available under https://pinterest.com/. During the course of this technical procedure, Pinterest gains knowledge of what specific sub-page of our website is visited by the data subject.
If the data subject is logged in at the same time on Pinterest, Pinterest detects with every call-up to our website by the data subject — and for the entire duration of their stay on our Internet site — which specific sub-page of our Internet page was visited by the data subject. This information is collected through the Pinterest component and associated with the respective Pinterest account of the data subject. If the data subject clicks on one of the Pinterest buttons, integrated on our website, then Pinterest assigns this information to the personal Pinterest user account of the data subject and stores the personal data.
On our websites, we have integrated the Google+ button as a component. Google+ is a so-called social network. A social network is a social meeting place on the Internet, an online community, which usually allows users to communicate with each other and interact in a virtual space. A social network may serve as a platform for the exchange of opinions and experiences, or enable the Internet community to provide personal or business-related information. Google+ allows users of the social network to include the creation of private profiles, upload photos and network through friend requests.
The operating company of Google+ is Google Inc., 1600 Amphitheatre Pkwy, Mountain View, CA 94043-1351, US.
With each call-up to one of the individual pages of our websites, on which a Google+ button has been integrated, the Internet browser on the information technology system of the data subject automatically downloads a display of the corresponding Google+ button of Google through the respective Google+ button component. During the course of this technical procedure, Google is made aware of what specific sub-page of our website was visited by the data subject. More detailed information about Google+ is available under https://developers.google.com/+/.
If the data subject clicks on the Google+ button integrated on our website and thus gives a Google+ recommendation, then Google assigns this information to the personal Google+ user account of the data subject and stores the personal data. Google stores the Google+ recommendation of the data subject, making it publicly available in accordance with the terms and conditions accepted by the data subject in this regard. Subsequently, a Google+ recommendation given by the data subject on this website together with other personal data, such as the Google+ account name used by the data subject and the stored photo, is stored and processed on other Google services, such as search-engine results of the Google search engine, the Google account of the data subject or in other places, e.g. on Internet pages, or in relation to advertisements. Google is also able to link the visit to this website with other personal data stored on Google. Google further records this personal information with the purpose of improving or optimizing the various Google services.
On our websites, we have integrated components of YouTube. YouTube is an Internet video portal that enables video publishers to set video clips and other users free of charge, which also provides free viewing, review and commenting on them. YouTube allows you to publish all kinds of videos, so you can access both full movies and TV broadcasts, as well as music videos, trailers, and videos made by users via the Internet portal.
The operating company of YouTube is YouTube, LLC, 901 Cherry Ave., San Bruno, CA 94066, US. The YouTube, LLC is a subsidiary of Google Inc., 1600 Amphitheatre Pkwy, Mountain View, CA 94043-1351, US.
With each call-up to one of the individual pages of our website, on which a YouTube component (YouTube video) was integrated, the Internet browser on the information technology system of the data subject is automatically prompted to download a display of the corresponding YouTube component. Further information about YouTube may be obtained under https://www.youtube.com/yt/about/en/. During the course of this technical procedure, YouTube and Google gain knowledge of what specific sub-page of our website was visited by the data subject.
On our websites, we have integrated components of Vimeo. Vimeo is an Internet video portal that enables video publishers to set video clips and other users free of charge, which also provides free viewing, review and commenting on them. Vimeo allows you to publish all kinds of videos, so you can access both full movies and TV broadcasts, as well as music videos, trailers, and videos made by users via the Internet portal.
The operating company of Vimeo is Vimeo LCC, 555 West 18th Street, New York, New York 10011, US.
With each call-up to one of the individual pages of our website, on which a Vimeo component (Vimeo video) was integrated, the Internet browser on the information technology system of the data subject is automatically prompted to download a display of the corresponding Vimeo component. Further information about Vimeo may be obtained under https://vimeo.com/about. During the course of this technical procedure, Vimeo gains knowledge of what specific sub-page of our website was visited by the data subject.
On our websites, we have integrated SlideShare components. SlideShare as a file hosting service allows you to exchange and archive presentations and other documents, such as PDF files, videos, and webinars. The file hosting service allows users to upload media content in all popular formats, with the documents either publicly-accessible or private-labeled.
With each call-up to our website, which is equipped with a SlideShare component (embedded code), this component prompts the browser to automatically download the according embedded data from SlideShare. During the course of this technical procedure, LinkedIn gains knowledge of which specific sub-page of our website is visited by the data subject.
On our websites, we have integrated tracking pixels. A tracking pixel is a thumbnail image that is embedded in web pages to enable a log file recording and a log file analysis so that a statistical analysis may be performed. The integrated tracking pixels serve the Scalable Central Measurement System (SZMS) of the collecting society WORT (VG WORT).
On our websites, we have integrated Amazon components as a participant in the Amazon partner program. The Amazon components were created by Amazon with the aim to mediate customers through advertisements on various websites of the Amazon group, in particular Amazon.co.uk, Local.Amazon.co.uk, Amazon.de, BuyVIP.com, Amazon.fr, Amazon.it and Amazon.es in return for the payment of a commission. By using the Amazon components, the controller may generate advertising revenue.
Amazon sets a cookie the information technology system of the data subject. The definition of cookies is explained above. With each single call-up to one of the individual pages of this Internet website, which is operated by us and in which an Amazon component was integrated, the Internet browser on the information technology system of the data subject will automatically submit data for the purpose of online advertising and the settlement of commissions to Amazon through the respective Amazon component. During the course of this technical procedure, Amazon receives personal information that is used to trace the origin of orders from Amazon, and as a result, to allow the accounting of a commission. Among other things, Amazon may understand that the data subject has clicked on an affiliate link on our website.
The data subject may prevent the setting of cookies through our website at any time by means of a corresponding adjustment of the web browser used, and thus permanently deny the setting of cookies. Such an adjustment to the Internet browser used would also prevent Amazon from setting a cookie on the information technology system of the data subject. In addition, cookies already in use by Amazon may be deleted at anytime via a web browser or other software programs.
On our websites, we have integrated components of Wikidata. Wikidata is a free and open knowledge base that can be read and edited by both humans and machines. Wikidata acts as central storage for the structured data of its Wikimedia sister projects including Wikipedia, Wikivoyage, Wikisource, and others. We use the Wikimedia timline feature, which is a web app that lets you visualize a list of items (specified by a Wikidata Query) in the form of a timeline.
The Wikimedia timline app is provided by Toolforge, a hosting environment for developers working on services that provide value to the Wikimedia movement. These services allow developers to easily do ad hoc analytics, administer bots, run webservices, and generally create tools to help editors and other volunteers in their work. The environment also includes access to a variety of data services. Toolforge and Wikidata are projects of the Wikimedia Foundation Wikimedia foundation Inc., 1 Montgomery St., Suite 1300, San Francisco, CA 94104, USA.
Through each call to one of the individual pages of our websites, on which a Wikidata component (timeline) has been integrated, the Internet browser on the information technology system of the data subject causes automatically the download of a display of the corresponding Wikidata component of Wikidata. During the course of this technical procedure, Wikidata becomes aware of what concrete sub-page of our website was visited by the data subject. The purpose of the integration of the Wikidata component to make our content more appealing and useful.
The applicable data protection provisions of Wikimedia/Wikidata may be accessed under https://wikimediafoundation.org/wiki/Privacy_policy.
On our websites, we have integrated the component of Google Analytics (with the anonymizer function). Google Analytics is a web analytics service. Web analytics is the collection, gathering, and analysis of data about the behavior of visitors to websites. A web analysis service collects, inter alia, data about the website from which a person has come (the so-called referrer), which sub-pages were visited, or how often and for what duration a sub-page was viewed. Web analytics are mainly used for the optimization of a website and in order to carry out a cost-benefit analysis of Internet advertising.
the existence of automated decision-making, including profiling, referred to in Art. 22(1) and (4) of the GDPR and, at least in those cases, meaningful information about the logic involved, as well as the significance and envisaged consequences of such processing for the data subject.
The data subject withdraws consent to which the processing is based according to point (a) of Art. 6(1) of the GDPR, or point (a) of Art. 9(2) of the GDPR, and where there is no other legal ground for the processing.
The data subject objects to the processing pursuant to Art. 21(1) of the GDPR and there are no overriding legitimate grounds for the processing, or the data subject objects to the processing pursuant to Art. 21(2) of the GDPR.
The personal data have been collected in relation to the offer of information society services referred to in Art. 8(1) of the GDPR.
If one of the aforementioned reasons applies, and a data subject wishes to request the erasure of personal data stored by the controller, he or she may at any time contact our Data Protection Officer or another employee of the controller. The Data Protection Officer of the controller or another employee shall promptly ensure that the erasure request is complied with immediately.
Where the controller has made personal data public and is obliged pursuant to Art. 17(1) to erase the personal data, the controller, taking account of available technology and the cost of implementation, shall take reasonable steps, including technical measures, to inform other controllers processing the personal data that the data subject has requested erasure by such controllers of any links to, or copy or replication of, those personal data, as far as processing is not required. The Data Protection Officer of the controller or another employee will arrange the necessary measures in individual cases.
If one of the aforementioned conditions is met, and a data subject wishes to request the restriction of the processing of personal data stored by the controller, he or she may at any time contact our Data Protection Officer or another employee of the controller. The Data Protection Officer of the controller or another employee will arrange the restriction of the processing.
Each data subject shall have the right granted by the European legislator, to receive the personal data concerning him or her, which was provided to a controller, in a structured, commonly used and machine-readable format. He or she shall have the right to transmit those data to another controller without hindrance from the controller to which the personal data have been provided, as long as the processing is based on consent pursuant to point (a) of Art. 6(1) of the GDPR or point (a) of Art. 9(2) of the GDPR, or on a contract pursuant to point (b) of Art. 6(1) of the GDPR, and the processing is carried out by automated means, as long as the processing is not necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller.
Furthermore, in exercising his or her right to data portability pursuant to Art. 20(1) of the GDPR, the data subject shall have the right to have personal data transmitted directly from one controller to another, where technically feasible and when doing so does not adversely affect the rights and freedoms of others.
In order to assert the right to data portability, the data subject may at any time contact the Data Protection Officer designated by the controller or another employee.
Each data subject shall have the right granted by the European legislator to object, on grounds relating to his or her particular situation, at any time, to processing of personal data concerning him or her, which is based on point (e) or (f) of Art. 6(1) of the GDPR. This also applies to profiling based on these provisions.
If the controller processes personal data for direct marketing purposes, the data subject shall have the right to object at any time to processing of personal data concerning him or her for such marketing. This applies to profiling to the extent that it is related to such direct marketing. If the data subject objects to the controller to the processing for direct marketing purposes, the controller shall no longer process the personal data for these purposes.
In addition, the data subject has the right, on grounds relating to his or her particular situation, to object to processing of personal data concerning him or her by the controller for scientific or historical research purposes, or for statistical purposes pursuant to Art. 89(1) of the GDPR, unless the processing is necessary for the performance of a task carried out for reasons of public interest.
In order to exercise the right to object, the data subject may directly contact the Data Protection Officer of the controller or another employee. In addition, the data subject is free in the context of the use of information society services, and notwithstanding Directive 2002/58/EC, to use his or her right to object by automated means using technical specifications.
If the data subject wishes to exercise the rights concerning automated individual decision-making, he or she may at any time directly contact our Data Protection Officer of the controller or another employee.
If the data subject wishes to exercise the right to withdraw the consent, he or she may at any time directly contact our Data Protection Officer of the controller or another employee.

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Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 6
Art. 22
Art. 6
Art. 9
Art. 21
Art. 21
Art. 8
Art. 17
Art. 6
Art. 9
Art. 6
Art. 20
Art. 6
Art. 89


text:
PATERSON STEAMSHIPS, Limited. BRITISH EMPIRE GRAIN CO., Limited, v. SAME. STARNES v. SAME.
Messrs. D. Roger Englar and Henry J. Bigham, both of New York City, for petitioners.
Mr. Ray M. Stanley, of Buffalo, N. Y., for respondent.
These three libels in admiralty in personam were brought in the federal court for western New York, by owners of cargo laden on the steamer Yorkton to recover for loss resulting from the sinking of that vessel in a collision with respondent's steamer Mantadoc, in Lake Superior, on the American side of the international boundary line. The respondent moved, in each case, that the District Court exercise its discretion to decline jurisdiction and dismiss the libels on the ground that all the parties were citizens of Canada, and that the controversy concerned 'matters * * * properly the subjects of hearing and determination' by the Canadian courts. The motions were granted (49 F.(2d) 802, 804), and the decrees of the District Court were affirmed by the Circuit Court of Appeals for the Second Circuit (51 F.(2d) 1007). This court granted certiorari, 284 U. S. 612, 52 S. Ct. 131, 76 L. Ed. —.
Shortly after the collision, the Wreck Commissioner of Canada held a formal investigation, as required by law, respecting the circumstances of the collision, and determined that the masters of both vessels were at fault. The respondent then instituted in the admiralty court of Canada a proceeding for the judicial determination of the liability as between the colliding vessels and their owners. The libelants' motive for invoking the jurisdiction of a court of the United States, instead of that of the Canadian court in which that proceeding was pending, appears in affidavits filed with the exceptions to the libel. Under the Canadian law, it is stated, if both colliding vessels were at fault each vessel would be liable for not more than half of the loss; and the salvaged value of the Yorkton might not suffice to pay its share. See The Milan, Lush. Adm. 401. Under our law the innocent cargo owner can recover full damages from the noncarrying vessel. The New York, 175 U. S. 187, 209, 210, 20 S. Ct. 67, 44 L. Ed. 126.
The libelants concede, as they must, that in a suit in admiralty between foreigners it is ordinarily within the discretion of the District Court to refuse to retain jurisdiction, and that the exercise of its discretion will not be disturbed unless abused. Charter Shipping Co. v. Bowring, Jones & Tidy, Ltd., 281 U. S. 515, 517, 50 S. Ct. 400, 74 L. Ed. 1008. Compare Watts, Watts & Co. v. Unione Austriaca di Navigazione, 248 U. S. 9, 39 S. Ct. 1, 63 L. Ed. 100, 3 A. L. R. 323; Langnes v. Green, 282 U. S. 531, 544, 51 S. Ct. 243, 75 L. Ed. 520. They claim, however, that the rule is not applicable here, since the cause of action arose within the territorial limits of the United States; and, moreover, that if the District Court had discretion, the decrees should be reversed because, on the undisputed facts, it was an abuse of discretion to decline jurisdiction. We are of opinion that neither claim is well founded.
The respondent insists that the doctrine of lex loci delicti has no application to cases of collision on the Great Lakes; that the Great Lakes and their connecting channels constitute public navigable waters, irrespective of the location of the international boundary, and possess all the characteristics of the high seas, The Eagle, 8 Wall. 15, 22, 19 L. Ed. 365; United States v. Rodgers, 150 U. S. 249, 256, 14 S. Ct. 109, 37 L. Ed. 1071; Panama R. Co. v. Napier Shipping Co., 166 U. S. 280, 285, 17 S. Ct. 572, 41 L. Ed. 1004; The New York, 175 U. S. 187, 20 S. Ct. 67, 44 L. Ed. 126; The Robert W. Parsons, 191 U. S. 17, 27, 24 S. Ct. 8, 48 L. Ed. 73; that in a case of collision on the high seas between two vessels of the same nationality, liability is governed by the law of the flag, The Scotland, 105 U. S. 24, 29, 30, 26 L. Ed. 1001; The Eagle Point (C. C. A.) 142 F. 453, 454; that the Canadian law would apply in the cases at bar; and that hence, the asserted ground for the District Court's retaining jurisdiction fails.
Obviously, the proposition that a court having jurisdiction must exercise it, is not universally true; else the admiralty court could never decline jurisdiction on the ground that the litigation is between foreigners. Nor is it true of courts administering other systems of our law. Courts of equity and of law also occasionally decline, in the interest of justice, to exercise jurisdiction, where the suit is between aliens or nonresidents, or where for kindred reasons the litigation can more appropriately be conducted in a foreign tribunal.6 The decisions relied upon by libelants are inapposite for several reasons. They were not in admiralty causes; nor did they involve alien or nonresident parties. Compare Second Employers' Liability Case, 223 U. S. 1, 58, 59, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N. S.) 44, with Douglas v. New York, New Haven & Hartford R. Co., 279 U. S. 377, 49 S. Ct. 355, 73 L. Ed. 747. The cases of Cohens v. Virginia, 6 Wheat. 264, 404, 5 L. Ed. 257, and McClellan v. Carland, 217 U. S. 268, 281, 30 S. Ct. 501, 54 L. Ed. 762, denied the right to abdicate to state courts jurisdiction which the Constitution in positive terms intrusts to the federal judiciary.
Second. There is no basis for the contention that the District Court abused its discretion. All the parties were not only foreigners, but were citizens of Canada. Both the colliding vessels were registered under the laws of Canada, and each was owned by a Canadian corporation. The officers and the crew of each vessel-the material witnesses-were citizens and residents of that country, and so would not be available for compulsory attendance in the District Court. The cargo, in each case, was shipped under a Canadian bill of lading from one Canadian port to another. The collision occurred at a point where the inland waters narrowed to a neck, and the District Court concluded that the colliding vessels proceeded in United States waters unintentionally. If the libelants are entitled to have applied the law of the United States in respect to the liability, the Canadian courts will, it must be assumed, give effect to it. The District Court embodied in the decrees an order that the respondent should appear and file security in any action which might be instituted by the petitioners in the admiralty courts of Canada, so that petitioners would not by dismissal of the libels lose the security gained by the foreign attachment. It is difficult to conceive of a state of facts more clearly justifying the refusal of a District Court to retain jurisdiction in a cause between foreigners.
Compare Mason v. The Ship Blaireau, 2 Cranch. 240, 264, 2 L. Ed. 266; Ex parte Newman, 14 Wall. 152, 168, 169, 20 L. Ed. 877; Panama R. Co. v. Napier Shipping Co., 166 U. S. 280, 285, 17 S. Ct. 572, 41 L. Ed. 1004.
See note 5, infra. See, also, One Hundred and Ninety-four Shawls, 1 Abb. Adm. 317, 321, Fed. Cas. No. 10,521; The Sailor's Bride, 1 Brown's Adm., 68, 70, Fed. Cas. No. 12,220; The Bee, 1 Ware 336, 339, Fed. Cas. No. 1,219; Muir v. The Brig Brisk, 4 Ben. 252, 254, Fed. Cas. No. 9,901; Thomassen v. Whitwell, 9 Ben. 113, Fed. Cas. No. 13,928; Boult v. Ship Naval Reserve (D. C.) 5 F. 209; The City of Carlisle (D. C.) 39 F. 807, 815, 5 L. R. A. 52; Goldman v. Furness, Withy & Co. (D. C.) 101 F. 467, 469; The Kaiser Wilhelm der Grosse (D. C.) 175 F. 215, 216, 217; The Iquitos (D. C.) 286 F. 383, 384; Danielsen v. Entre Rios Rys. Co. (D. C.) 22 F.(2d) 326, 327; The Canadian Commander (D. C.) 43 F.(2d) 857, 858.
Jurisdiction was declined in Willendson v. The Fo rso ket, 1 Pet. Adm. 197, Fed. Cas. No. 17,682; The Infanta, 1 Abb. Adm. 263, 268, 269, Fed. Cas. No. 7,030; The Ada, 2 Ware (Dav. 407) 408, Fed. Cas. No. 38; The Becherdass Ambaidass, 1 Lowell 569, Fed. Cas. No. 1,203; The Montapedia (D. C.) 14 F. 427; The Ucayali (D. C.) 164 F. 897, 900; The Albani (D. C.) 169 F. 220, 222.
In the following cases jurisdiction was taken, but the existence of discretion recognized: Thompson v. The Ship Catharina, 1 Pet. Adm. 104, Fed. Cas. No. 13,949; Weiberg v. The Brig St. Oloff, 2 Pet. Adm. 428, Fed. Cas. No. 17,357; Davis v. Leslie, 1 Abb. Adm. 123, 131, Fed. Cas. No. 3,639; Bucker v. Klorkgeter, 1 Abb. Adm. 402, 405, 406, Fed. Cas. No. 2,083; The Pawashick, 2 Lowell 142, 151, Fed. Cas. No. 10,851; The Brig Napoleon, Olc. 208, 215, Fed. Cas. No. 10,015; The Bark Lilian M. Vigus, 10 Ben. 385, Fed. Cas. No. 8,346; The Amalia (D. C.) 3 F. 652, 653; The Salomoni (D. C.) 29 F. 534, 537; The Topsy (D. C.) 44 F. 631, 633, 635; The Sirius (D. C.) 47 F. 825, 827; The Karoo (D. C.) 49 F. 651; The Lady Furness (D. C.) 84 F. 679, 680; The Alnwick (D. C.) 132 F. 117, 120; The August Belmont (D. C.) 153 F. 639; The Sonderborg (C. C. A.) 47 F.(2d) 723, 725.
Jurisdiction was declined in The Carolina (D. C.) 14 F. 424; Camille v. Couch (D. C.) 40 F. 176; The Walter D. Wallet (D. C.) 66 F. 1011, 1013; The Lamington (D. C.) 87 F. 752, 757; The Knappingsborg (D. C.) 26 F.(2d) 935, 937. See, also, Bolden v. Jensen (D. C.) 70 F. 505, 509. Compare Bernhard v. Creene, 3 Sawy. 230, 234, Fed. Cas. No. 1,349; The Noddleburn (C. C.) 30 F. 142, 143; The Troop (D. C.) 118 F. 769, 772.
The only case supporting the position of the petitioners which has been called to our attention is The Apurimac (D. C.) 7 F.(2d) 741, 742, involving an action by a foreign seaman for injuries sustained on a foreign vessel lying in American waters. The expressions of the District Court in this case, however, were disapproved by the Circuit Court of Appeals for the Fourth Circuit, which affirmed the judgment on the ground that jurisdiction, although discretionary, had been properly taken. Heredia v. Davies (C. C. A.) 12 F.(2d) 500, 501.
In the Steamship Russia, 3 Ben. 471, 476-479, Fed. Cas. No. 12,168, the District Court for the Southern District of New York, took jurisdiction of a libel arising out of the collision of foreign vessels of different nationalities in New York Harbor, but expressly treated the question as one within its discretion. In The Bifrost (D. C.) 8 F.(2d) 361, 362, jurisdiction was declined in an action by foreign seamen for breach of contract in shipping articles, although it was urged that the articles were signed in this country and governed by its law. See, also, Fairgrieve v. Marine Ins. Co. (C. C. A.) 94 F. 686, 687; The Ester (D. C.) 190 F. 216, 221; Cunard S. S. Co. v. Smith (C. C. A.) 255 F. 846, 848, 849; The Eemdyjk (D. C.) 286 F. 385; The Seirstad (D. C.) 12 F.(2d) 133, 134; The Fredensbro (D. C.) 18 F.(2d) 983, 984; The Sneland I (D. C.) 19 F.(2d) 528, 529; The Falco (C. C. A.) 20 F.(2d) 362, 364. Compare Neptune Steam Nav. Co. v. Sullivan Timber Co. (D. C.) 37 F. 159.
Compare Davis v. Farmers' Co-operative Equity Co., 262 U. S. 312, 43 S. Ct. 556, 67 L. Ed. 996; Logan v. Bank of Scotland (1906) 1 K. B. 141; Socie te du Gaz de Paris v. Armateurs Francais (1926) Sess. Cas. (H. L.) 13. See, for collections of authorities, Paxton Blair, 'The Doctrine of Forum Non conveniens in Anglo-American Law,' 29 Col. L. Rev. 1; Roger S. Foster, 'Place of Trial in Civil Actions,' 43 Harv. L. Rev. 1217, 'Place of Trial-Interstate Application of Intrastate Methods of Adjustment,' 44 Id. 41; Note, 32 A. L. R. 6.

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Dr Vedran Lesic provided teaching support to two postgraduate modules: Effective Decision Making (LUBS5221M) and Evidence-Based Consultancy (LUBS5318M) and two undergraduate modules: How Managers Makes Decisions (LUBS2785) and Evidence-Based Consultancy (LUBS2931). During his PhD studies we was involved in teaching two more undergraduate modules: Organizational Behavior in Practice (LUBS2895) and Management Research and Analysis (LUBS2910) and one postgraduate module Organizational Change and Development (LUBS5386M).
Lesic, V., Bruine de Bruin, W., Davis, M.C., Krishnamurti, T., & Azevedo, I.M.L. (in press). Consumers’ perceptions of energy use and energy savings. Environmental Research Letters.
Lesic, V. (2017) Understanding and Informing Consumers' Perceptions of Their Electricity Use. PhD thesis, University of Leeds.
Lesic, V. (2013). Behavioural Change in Energy Policy: The EU and Beyond. Master dissertation, Dubrovnik International University, Croatia.
Lesic, V. (2012). Some personal correlates of efficacy in recognition of emotional facial expressions in the Face in the Crowd task. Master dissertation, Department of Psychology, University of Zadar, Croatia).
Lesic, V. (2009). Recognition of facial expression of positive and negative emotions in the Face in the Crowd task. Bachelor dissertation, Department of Pyschology, University of Zadar, Croatia.
Lesic, V., Bruine de Bruin, W., Davis, M., Azevedo, I. L. and Krishnamurti, T. (2017). Assessing consumers' perceptions of electricity use: Does providing reference points help? In Proceedings of the 2017 Behavior, Energy and Climate Change (BECC) Conference, Sacramento, CA, USA.
Lesic, V., Bruine de Bruin, W., Davis, M., Azevedo, I. L. and Krishnamurti, T. (2017). Assessing consumers' perceptions of electricity use: Does providing reference points help? In Proceedings of the 2017 Subjective Probability, Utility, and Decision Making (SPUDM) Conference, Haifa, Isreal.
Lesic, V., Azevedo,, I. L., Krishnamurti, T., Bruine de Bruin, W., & Davis, M. (2017). Do consumers know how much electricity is used by their appliances? Paper presented at the 2017 Summer Institute on Bounded Rationality, Max Plank Institute on Human Development, Berlin, Germany.
Lesic, V., Bruine de Bruin, W., Davis, M., Azevedo, I. L. and Krishnamurti, T. (2017). Assessing consumers' perceptions of electricity use: Does providing reference points help? Paper presented at the 1st Student Conference on Sustainable Futures, University of Leeds, Leeds, United Kingdom.
Lesic, V. (2016). Do consumers know how much electricity is used by their appliances? Paper presented at the 7th annual University of Leeds Postgraduate Research Conference, University of Leeds, Leeds, United Kingdom.
Lesic, V., Azevedo,, I. L., Krishnamurti, T., Bruine de Bruin, W., & Davis, M. (2016). Do consumers know how much electricity is used by their appliances? Paper presented at the 2016 EDAMBA (European Doctoral programs Association in Management & Business Administration) Summer Research Academy, Athens, Greece.
Lesic, V., Azevedo,, I. L., Krishnamurti, T., Bruine de Bruin, W., & Davis, M. (2016). Do Can consumer know their electricity use? Answers from big data. Paper presented at the White Rose DTC Business and Management, Accounting and Finance, and Work Psychology Pathway Conference, Leeds, United Kingdom.
Lesic, V., Azevedo,, I. L., Krishnamurti, T., Bruine de Bruin, W., & Davis, M. (2016). Do Can consumer know their electricity use? Paper presented at the 5th White Rose SSDTC Annual Conference – ‘Data and Methods: Innovations and Connections’, Leeds, United Kingdom.
Lesic, V., Azevedo,, I. L., Krishnamurti, T., Bruine de Bruin, W., & Davis, M. (2015). Do Consumers know how much Electricity is used by their Appliances?. In Proceedings of The Dynamic Energy Landscape, 33rd USAEE/IAEE North American Conference, Oct 25-28, 2015. International Association for Energy Economics.
Lesic, V., Azevedo,, I. L., Krishnamurti, T., Bruine de Bruin, W., & Davis, M. (2015). Do consumers know how much electricity is used by their appliances? In Proceedings of the 2015 Subjective Probability, Utility, and Decision Making (SPUDM) Conference, Budapest, Hungary.
Lesic, V. (2016). Do consumers know how much electricity is used by their appliances? Paper presented at the White Rose SSDTC Business and Management Pathway Conference, Sheffield, United Kingdom.
Lesic, V., Azevedo, I. L. & Krishnamurti, T. (2014). Understanding customers’ (mis)perceptions of home energy use. In Proceedings of the International WikiEnergy Data Conference, Austin, Texas, USA.
Lesic, V. (2014). Why consumers' (mis)perceptions matter? Paper presented at the Global Environments Summer Academy, Bern, Switzerland.
Međugorac, V., Schuitema, G., & Lešić, V. (2014). Croatia’s referendum on a golf project: voters’ motivations. In Proceedings of 28th International Conference of Applied Psychology" From crisis to sustainable well-being".
Lesic, V. (2013). Changing energy behaviour through public policy? Paper presented at the Climate Change and Sustainability Conference , New Orleans, USA.
Lesic, V. (2013). Changing energy behaviour through public policy? Paper presented at the 27th European Federation of Psychology Students associations (EFPSA) Congress, Izmir, Turkey.
Lesic, V., & Adorić, V. Ć. (2012). The effect of the matrix shape on the efficacy in the" Face in the Crowd" Task. In Proceedings of 18th Psychology Days in Zadar, University of Zadar, Croatia.
Lesic, V., & Adorić, V. Ć. (2011). Efficacy in recognition of emotional facial expressions in the Face in the Crowd task with regard to cerebral hemispheres dominance. In Proceedings of Experimental Psychology Days in Rijeka, University of Rijeka, Croatia.
Lesic, V., & Adorić, V. Ć. (2010). Some personal correlates of efficacy in recognition of emotional facial expressions in the Face in the Crowd task. In Proceedings of 17th Psychology Days in Zadar, University of Zadar, Croatia.
Adorić, V. Ć., Jurkin, M., & Lesic, V. (2010). Exploring the latent structure of the Justice Sensitivity Scale in student samples from Croatia and Bosnia and Herzegovina. In Proceedings of 9th Alps Adria Psychology Conference, University of Klagenfurt, Austria.
Lesic, V., & Adorić, V. Ć. (2009). Processing of simple schematic facial expression of emotion in the Face in the Crowd task. In In Proceedings of Trieste Symposium on Perception and Cognition and the 17th Kanizsa Lecture, University of Trieste, Italy.
Lesic, V., & Adorić, V. Ć. (2009). Subjective importance of justice: An overview of the Justice Centrality Scale and its correlates. In Proceedings of 1st Psychology Days in Sarajevo, University of Sarajevo, Bosnia and Herzegovina.
Lesic, V., Bužančić, D., Santini, M & Mesić, M. (2009). Examination of quantitative and qualitative aspects of reporting on physical appearance and eating disorders. In Proceedings of 17th annual conference of Croatian Psychological Association - Responsibility: personal, professional, social, Split, Croatia.
Lesic, V., Pavela, I., Dujić, I., Plavčić, J. & Prenđa, S. (2008). Media approach to family child abuse. In Proceedings of Scientific Symposium on Violence „Violence against children and among children”, University of Osijek, Croatia.

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COMMONWEALTH vs. DARRYL E. REDDING.
INDICTMENTS found and returned in the Superior Court Department on October 4, 1978.
The cases were tried before Ronan, J.
Leonard J. Henson, Assistant District Attorney, for the Commonwealth.
ABRAMS, J. The defendant, a codefendant with Jamie Cundriff, ante 137 (1980), was found guilty by a jury on seven indictments charging armed robbery while masked (G. L. c. 265, Section 17), and one indictment of armed assault with intent to rob (G. L. c. 265, Section 18). He was sentenced to serve concurrent terms of from fifteen to twenty-five years at the Massachusetts Correctional Institution at Walpole. We transferred the case to this court on our own motion.
under impermissibly suggestive circumstances, which then tainted the witness's in-court identification of him. We affirm the convictions.
The main facts of this case are set out in Commonwealth v. Cundriff, supra, the appeal of one of Redding's codefendants. The additional facts relevant to Redding's appeal are as follows. At approximately 2:30 P.M. on the day of the robbery, two Boston police officers saw four males running in the vicinity of the Casa de Hombre hairdressing salon. One officer identified Redding, whom he knew previously, as one of the four. This officer testified that because he knew Redding and his companion, the police decided to follow the other two men (the Cundriff brothers), whose identities the officers did not know at the time. Redding was identified as one of the persons involved in the robbery by one of the patrons in the Casa de Hombre.
At the outset we note that neither issue raised by Redding on appeal was based on an objection or exception properly taken at trial. [Note 1] Since the defendant has no right of appellate review in the absence of an objection, Commonwealth v. Williams, 379 Mass. 600 , 604 (1980); Commonwealth v. Underwood, 358 Mass. 506 , 509 (1970), we review his claims only to determine whether there has been a miscarriage of justice. Commonwealth v. Freeman, 352 Mass. 556 , 563-564 (1967).
generally United States v. Agurs, 427 U.S. 97 (1976); Brady v. Maryland, 373 U.S. 83, 87 (1963); Commonwealth v. Wilson, 381 Mass. 90 , 107 (1980); Commonwealth v. St. Germain, 381 Mass. 256 , 261-265 (1980); Commonwealth v. Ellison, 376 Mass. 1 , 21 (1978). The question raised is "whether, given a timely disclosure, the defense would have been able to prepare and present its case in such a manner as to create a reasonable doubt that would not otherwise have existed." Commonwealth v. Wilson, supra at 114. [Note 3] The statement creates no such reasonable doubt. The evidence indicates that one of the officers saw Gregory Wilson (a codefendant) and Redding running with the Cundriff brothers in the vicinity of the Casa de Hombre not long after the robbery. One of the patrons at the Casa de Hombre identified Redding as one of the perpetrators of the various crimes. Thus there is no basis to conclude that the late disclosure of this statement either prejudiced Redding or created a substantial risk of a miscarriage of justice.
The defendant also argues that the delayed disclosure of the statement prevented him from considering other trial strategies. The short answer to this argument is that beyond advancing it, he offers nothing but conjecture on the effect of the delayed disclosure. [Note 4] Redding did not seek any continuance from the judge to reconsider his trial tactics. In sum, there is no basis in this record which permits a conclusion "that the delayed receipt of the evidence `affected the outcome of the trial,' " Commonwealth v. Wilson, supra at 115, quoting from United States v. Agurs, 427 U.S. 97, 104 (1976), or created a substantial risk of a miscarriage of justice.
We again stress that the prosecutor should make every effort to disclose to the defendant exculpatory evidence which is available to the prosecution. "The police are also part of the prosecution, and the taint on the trial is no less if they, rather than the State's Attorney, were guilty of the nondisclosure." Commonwealth v. St. Germain, 381 Mass. 256 , 261 n.8 (1980), quoting from Barbee v. Warden, Md. Penitentiary, 331 F.2d 842, 846 (4th Cir. 1964).
The photographic identification. Approximately three hours after the crime, one of the customers who had been inside the Casa de Hombre identified a picture of Darryl Redding as that of one of the robbers. He chose it from a group of twelve to fifteen photographs presented to him at the police station. Redding's name was written on the back of the picture; however, a policeman present at the identification testified that the name was written in a place where a person viewing the photograph from the front would not see it.
The witness subsequently identified Redding at the trial. He testified that while the robbery was in progress and he was lying on the floor, he "kept turning" his head in order to observe the goings-on. The witness stated that at one point he saw the robber he identified as Redding lift his mask partially off his face, allowing him to see Redding's nose, and to "just barely" see his eyes.
The defendant argues that the photographic identification was improperly suggestive, and therefore neither it nor the subsequent in-court identification of the defendant by the witness should have been admitted in evidence.
that he felt a desire for "revenge" after the robbery. [Note 5] Redding argues that the exclusion of this identification leaves insufficient evidence to support a verdict of guilty beyond a reasonable doubt, and therefore directed verdicts of not guilty should have been granted.
The witness testified that during the robbery he was close to one of the four men, was looking directly at him, and was consciously trying to observe what was happening. He said that when Redding raised the mask he particularly noticed the size and shape of Redding's lips, and the presence of acne on the part of Redding's face that he could see. Those circumstances were sufficient to fix the robber's face in the mind of the witness. Commonwealth v. Frank, 357 Mass. 250 , 254 (1970). We conclude there is no substantial likelihood of a miscarriage of justice.
[Note 1] On further redirect examination, Redding excepted to a question put to a witness as to whether there was any doubt in his (the witness') mind that Redding was the man who raised the mask above his nose. At that point, the witness had identified Redding as one of the robbers, without objection, on at least three prior occasions.
[Note 2] A full discussion of these facts is set out in Commonwealth v. Cundriff, supra.
[Note 3] The record does not disclose that Redding made a specific request for statements.
[Note 4] Redding asserts that he might have appealed the judge's pretrial ruling not to exclude evidence of his criminal convictions. However, he does not argue that issue in this appeal, and we deem it waived. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 919 (1975). See Commonwealth v. Cundriff, supra at 150 n.22.
[Note 5] There is no record support for Redding's claims that the witness overheard the police use Redding's name at the station house, or that the witness was able to see the name written on the back of the photograph of Redding. Further, regardless of whether a desire for revenge was one of the emotions the witness experienced immediately after being a victim of a robbery, the record is barren of evidence that he was unable to make an accurate identification.

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Judge Corodemus is referring to a spate of rulings this year that are significant to mass tort attorneys everywhere.
In its BNSF Railway Co. v. Tyrrell decision, the Supreme Court held that its general jurisdiction holding in Daimler AG v. Bauman wasn’t limited to only certain types claims. Shortly after that the high court handed down its much-anticipated jurisdiction ruling in Bristol-Myers Squibb v. Superior Court, a win for defendants who had argued against litigation in states in which they are neither incorporated nor do business.
The New Jersey Supreme Court’s statute of limitations decision in McCarrell v. Hoffmann-La Roche.
The New Jersey Appellate Division’s two decisions in the In re Accutane Litigation found lower court errors in evidentiary rulings on science, causation and warnings. July 25, 2017 decision. July 28, 2017 decision.
The Third Circuit U.S. Court of Appeals revived thousands of cases in In re: Fosamax Products Liability Litigation, finding that the trial court had improperly granted summary judgement on preemption grounds by misapplying the Supreme Court’s “clear evidence” standard in Wyeth v. Levine.
Because of these developments the judge has impaneled a group of experts to share their insights during a 90-minute educational webinar.
Review the case history of these seminal decisions.
Analyze the meaning and impact of the courts’ holdings.
Discuss critical issues now before many courts on specific personal jurisdiction and general jurisdiction.
Debate the future of these cases and whether they represent a change for the better.
Comment on whether class actions are changed forever.
Predict – as best they can – the real impact of these cases.
Ellen Relkin, Weitz & Luxenberg, P.C.
State Court Jurisdiction in the 21st Century by Prof. Adam N. Steinman for the Pound Civil Justice Institute. Download it now.
An Assessment of the Real World Implications of the New Jersey Supreme Court’s McCarrell Decision by William J. Beausoleil of Hughes Hubbard & Reed LLP. Read it now.
Accutane Plaintiffs Overcome the “Super-Presumption” That FDA-Approved Warnings About Drugs are Adequate by Bruce D. Greenberg, Lite DePalma Greenberg, LLC. Read it now.
Another Accutane Decision and a Big Win for Plaintiffs by Greenberg. Read it now.
Merck’s petition to the U.S. Supreme Court in Merck Sharp & Dohme v. Albrecht on the issue of whether FDA approval insulates it from state law failure-to-warn claims. Read it now.
The Supreme Court’s 2009 ruling against preemption of state law failure-to-warn claims in Wyeth v. Levine. Read it now.
The Third Circuit U.S. Court of Appeals’ March 2017 ruling in In Re: Fosamax Product Liability Litigation which allowed the plaintiffs to proceed with state law failure-to-warn claims. Read it now.
Northfolk Southern v. Dolan, an en banc decision from the Missouri Supreme Court denying jurisdiction over the case basically saying that running railroad tracks through the state is not enough of a connection. Read it now.
The Missouri Supreme Court’s one-page writ order in Imerys Talc America, denying jurisdiction without prejudice to nonresident plaintiffs. Read it now.
Covington v. Janssen, a memorandum and order from the U.S. District Court in Missouri’s Eastern District denying jurisdiction and citing the BMS decision. Read it now.
A special thanks to JAMS Resolution Center in New York for hosting this panel as they gather to share their insights via this webinar.
This webinar is part of a series of programs leading up to the judge’s 2018 event.

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