Notes and Comments
1.Judge Learned Hand (Billings Learned Hand,1872～1961) was one of the most influential U.S.federal judges and judicial philosophers,often quoted by legal scholars and by the Supreme Court of the United States.Served on the U.S.District Court for the Southern District of New York and later the Second Circuit,Hand led his team to set standards in such areas as common law property,torts,contract,admiralty,bankruptcy,antitrust,patent and trademark laws.
Hand possessed a gift for the English language,and his writings are admired as legal literature.He rose to fame outside the legal profession in 1944 after giving a short address in Central Park that struck a popular chord in its appeal for tolerance.During a period when a hysterical fear of subversion divided the nation(McCarthyism),Hand was viewed as a liberal defender of civil liberties.
Hand is also remembered as a pioneer of modern approaches to statutory interpretation.His decisions in specialist fields,such as patents,torts,admiralty law,and antitrust law,set lasting standards for craftsmanship and clarity.On constitutional matters,he was both a political progressive and an advocate of judicial restraint.He believed in the protection of free speech and in bold legislation to address social and economic problems.He argued,however,that the United States Constitution does not empower courts to overrule the legislation of elected bodies,except in extreme circumstances.Instead,he advocated the “combination of toleration and imagination that to me is the epitome of all good government”.
2.Some background information on United States v.Carroll Towing Co. – there were more than five players in this accident at the height of the War in 1944:
The sunken barge,the Anna C,was owned by Conners Marine Co.,and was chartered by Pennsylvania Railroad,the carrier of cargo for United States,and was loaded 200 tons of flour owned by United States;it was supposed to unload the day before at Pier 58,but due to crowded docking space,it was sent to moor at Pier 52 waiting,along with several other barges.A “bargee” was hired by Conners to work and live on board the Anna C all the time,but he went ashore the day before,and never came back until after the accident.
The towing tub,the Carroll,owned by Carroll Towing Co.,and chartered by Grace Line (a shipping company) came on January 4,1944 to “drill out”one of the barges,not Anna C.Since the Anna C bargee was absent,a “harbormaster” and a “deckhand” went aboard it to untie the Anna C and falsely made her fast to the pier.She later went loose (probably due to change of tide) and bumped into a tanker whose propeller broke her bottom,causing her to capsize,dump her cargo and sink slowly.The crews of Carroll called help,to secure the loosened flotilla of barges,but did not realize the Anna C was sinking.Had the bargee been on duty,he could have called for help,which was nearby,and the loss of the cargo could have been avoided.
A Barge
3.Contributory negligence,in common law jurisdictions,is an affirmative defense to a claim based on negligence.It applies to cases where a plaintiff/vic-tim has,through his own negligence,contributed to the harm he suffered.For example,a pedestrian crosses a road negligently and is hit by a driver who was driving negligently.
Contributory negligence is often regarded as unfair because under the doctrine a victim who is at fault to any degree,including only 1% at fault,may be denied compensation entirely.
Contributory negligence can be compared to comparative negligence,where the negligence of the plaintiff is not a complete defense of the accused but can reduce the damages.
Burden of Proof.In some jurisdictions,the defendant has to prove the negligence of a plaintiff or claimant.In others,the burden is on a plaintiff to disprove his own negligence.The tortfeasor may still be held liable if he had the last clear chance to prevent the injury (the last clear chance doctrine).
Availability.Contributory negligence is not available if the tortfeasor’s conduct amounts to malicious or intentional wrongdoing,rather than to ordinary negligence.In England and Wales,it is not a defense to the tort of conversion or trespass to chattels.In the U.S.,it is not a defense to any intentional tort.