Petition of Kinsman Transit Co.
United States Court of Appeals,Second Circuit,1964
338 F.2d 708,cert.denied 380 U.S.944 (1965)
[The Buffalo River “with many turns and bends” was full of floating ice in winter.A thaw had begun and two ice jams were moving downstream under strong current.Because its crew responded inadequately to the impending danger,the Shiras,owned by Kinsman,was torn loose from its moorings at the Concrete Elevator dock operated by Continental and began floating downstream.(Continental was also negligent because of failure to inspect a “deadman” device at the dock.)The Shiras crashed into a properly moored ship,the Tewksbury,tearing it loose,and both careened down river toward a lift bridge operated by the city,situated three miles from the Continental dock.Because of the city’s negligence,the Michigan Avenue Bridge was not raised,and the two ships crashed into it,destroying it and some surrounding property.The wreckage of the ships and the bridge formed a dam that caused the ice and the water to back up causing property damage as far back upstream as the Continental dock to sustain flooding.This case involves claims for property damage.In a complex group of rulings,the trial judge found liability against Continental,Kinsman,and the City of Buffalo.]
Before WATERMAN,MOORE and FRIENDLY,CIRCUIT JUDGES.
FRIENDLY,CIRCUIT JUDGE.
We see little similarity between the Palsgraf case and the situation before us.The point of Palsgraf was that the appearance of the newspaper-wrapped package gave no notice that its dislodgement could do any harm save to itself and those nearby,and this by impact,perhaps with consequent breakage,and not by explosion.In contrast,a ship insecurely moored in a fast flowing river is a known danger not only to herself but to the owners of all other ships and structures downriver,and to persons upon them.No one would dream of saying that a shipowner who “knowingly and willfully” failed to secure his ship at a pier on such a river“would not have threatened” persons and owners of property downstream in some manner.[2] The shipowner and the wharfinger in this case having thus owned a duty of care to all within the reach of the ship’s known destructive power,the impossibility of advance identification of the particular person who would be hurt is without legal consequence.Similarly the foreseeable consequences of the City’s failure to raise the bridge were not limited to the Shiras and the Tewksbury.Collision plainly created a danger that the bridge towers might fall onto adjoining property,and the crash of two uncontrolled lake vessels,one 425 feet and the other 525 feet long,into a bridge over a swift ice-ridden stream,with a channel only 177 feet wide,could well result in a partial damming that would flood property upstream….
Since all the claimants here met the Palsgraf requirement of being persons to whom the actors owed a “duty of care,” we are not obliged to reconsider whether that case furnishes as useful a standard for determining the boundaries of liability in admiralty for negligent conduct as was thought in Sinram [61 F.2d 767 (2d Cir.1932)] when Palsgraf was still in its infancy.But this does not dispose of the alternative argument that the manner in which several of the claimants were harmed,particularly by flood damage,was unforeseeable and that recovery for this may not be had – whether the argument is put in the forthright form that unforeseeable damages are not recoverable or is concealed under a formula of lack of “proximate cause.”
So far as concerns the City,the argument lacks factual support.Although the obvious risks from not raising the bridge were damage to itself and to the vessels,the danger of a fall of the bridge and of flooding would not have been unforeseeable under the circumstances to anyone who gave them thought.And the same can be said as to the failure of Kinsman’s shipkeeper to ready the anchors after the danger had become apparent.The exhibits indicate that the width of the channel between the Concrete Elevator and the bridge is at most points less than two hundred fifty feet.If the Shiras caught up on a dock or vessel moored along the shore,the current might well swing her bow across the channel so as to block the ice floes,as indeed could easily have occurred at the Standard Elevator dock where the stern of the Shiras struck the Tewksbury’s bow.At this point the channel scarcely exceeds two hundred feet,and this was further narrowed by the presence of the Druckenmiller moored on the opposite bank.Had the Tewksbury’s mooring held,it is thus by no means unlikely that these three ships would have dammed the river.Nor was it unforeseeable that th e drawbridge would not be raised since,apart from any other reason,there was no assurance of timely warning.What may have been less foreseeable was that the Shiras would get that far down the twisting river,but this is somewhat negated both by the known speed of the current when freshets developed and by the evidence that,on learning of the Shiras’ departure,Continental’s employees and those they informed foresaw precisely that.
Continental’s position on the facts is stronger.It was indeed foreseeable that the improper construction and lack of inspection of the “deadman” might cause a ship to break loose and damage persons and property on or near the river – that was what made Continental’s conduct negligent.With the aid of hindsight one can also say that a prudent man,carefully pondering the problem,would have realized that the danger of this would be greatest under such water conditions as developed during the night of January 21,1959,and that if a vessel should break loose under those circumstances,events might transpire as they did.But such post hoc step by step analysis would render “foreseeable” almost anything that has in fact occurred;if the argument relied upon has legal validity,it ought to be circumvented by characterizing as foreseeable what almost no one would in have foreseen at the time.(https://www.daowen.com)
The effect of unforeseeability of damage upon liability for negligence has recently been considered [in Wagon Mound.] The Committee there disapproved the proposition,thought to be supported by Polemis,“that unforeseeability is irrelevant if damage is ‘direct.’” We have no difficulty with the resu lt of the Wagon Mound,in view of the finding,that the appellant had no reason to believe that the floating furnace oil would burn.On that view the decision simply applies the principle which excludes liability where the injury sprang from a hazard different from that which was improperly risked.Although some language in the judgment goes beyond this,we would find it difficult to understand why one who had failed to use the care required to protect others in the light of expectable forces should be exonerated when the very risks that rendered his conduct negligent produced other and more serious consequences to such persons that were fairly foreseeable when he fell short of what the law demanded.Foreseeability of danger is necessary to render conduct negligent;where as here the damage was caused by just those forces whose existence required the exercise of greater care than was taken – the current,the ice,and the physical mass of the Shiras – the incurring of consequences other and greater than foreseen does not make the conduct less culpable or provide a reasoned basis for insulation.[3] The oft encountered argument that failure to limit liability to foreseeable consequences may subject the defendant to a loss wholly out of proportion to his fault seems scarcely consistent with the universally accepted rule that the defendant takes the plaintiff as he finds him and will be responsible for the full extent of the injury even though a latent susceptibility of the plaintiff renders this far more serious than could reasonably haven been anticipated.The weight of authority in this country rejects the limitation of damages to consequences foreseeable at the time of the negligent conduct when the consequences are “direct,” and the damage,although other and greater than expectable,is of the same general sort that was risked….Other American courts,purporting to apply a test of foreseeability to damages,extend to such unforeseen lengths as to raise serious doub t whether the concept is meaningful;[4] indeed,we wonder whether the British courts are not finding it necessary to limit the language of the Wagon Mound as we have indicated.[5]
We see no reason why an actor engaging in conduct which entails a large risk of small damage and a small risk of other and greater damage,of the same general sort,from the same forces,and to the same class of persons,should be relieved of responsibility for the latter simply because the chance of its occurrence,if viewed alone,may not have been large enough to require the exercise of care.By hypothesis,the risk of the lesser harm was sufficient to render his disregard of it actionable;the existence of a less likely additional risk that the very forces against whose action he was required to guard would produce other and greater damage than could have been reasonably anticipated should inculpate him further rather than limit his liability.This does not mean that the careless actor will always be held for all damages for which the forces that he risked were a cause in fact.Somewhere a point will be reached when courts will agree that the link has become too tenuous – that what is claimed to be consequence is only fortuity.Thus,if the destruction of the Michigan Avenue Bridge had delayed the arrival of a doctor,with consequent loss of the a patient’s life,few judges would impose liability on any of the parties here,although the agreement in result might not be paralleled by similar unanimity in reasoning;perhaps in the long run one returns to Judge Andrews’ statement in Palsgraf (dissenting opinion).“It is all a question of expediency,… of fair judgment,always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.” It would be pleasant if greater certainty were possible,but the many efforts that have been made at defining the locus of the “uncertain and wavering line,” … are not very promising;what courts do in such cases makes better sense than what they,or others,say.Where the line will be drawn will vary from age to age;as society has come to rely increasingly on insurance and other methods of loss-sharing,the point may lie further off than a century ago.Here it is surely more equitable that the losses from the operators’negligent failure to raise the Michigan Avenue Bridge should be ratably borne by Buffalo’s taxpayers than left with the innocent victims of the flooding;yet the mind is also repelled by a solution that would impose liability solely on the City and exonerate the persons whose negligent acts of commission and omission were the precipitating force of the collision with the bridge and its sequelae.We go only so far as to hold that where,as here,the damages resulted from the same physical forces whose existence required the exercise of greater care than was displayed and were of the same general sort that was expectable,unforeseeability of the exact developments and of the extent of the loss will not limit liability.Other fact situations can be dealt with when they arise.
MOORE,CIRCUIT JUDGE (concurring and dissenting):
I do not hesitate to concur with Judge Friendly’s well-reasoned and wellexpressed opinion as to [a variety of omitted admiralty questions.]
I cannot agree,however,merely because “society has come to rely increasingly on insurance and other methods of loss-sharing” that the courts should,or have the power to,create a vast judicial insurance company which will adequately compensate all who have suffered damages.Equally disturbing is the suggestion that “[H]ere it is surely more equitable that the losses from the operators’negligent failure to raise the Michigan Avenue Bridge should be ratably borne by Buffalo’s taxpayers than left with the innocent victims of the flooding.” Under any such principle,negligence suits would become further simplified by requiring a claimant to establish only his own innocence and then offer,in addition to his financial statement,proof of the financial condition of the respective defendants.Judgment would be entered against the defendant which court or jury decided was best able to pay.Nor am I convinced that it should be the responsibility of the Buffalo taxpayers to reimburse the “innocent victims” in their community for damages sustained.In my opinion,before financial liability is imposed,there should be some showing of legal liability.
Unfortunate though it was for Buffalo to have had its fine vehicular bridge demolished in a most unexpected manner,I accept the finding of liability for normal consequences because the City had plenty of time to raise the bridge after notice was given.Bridges,however,serve two purposes.They permit vehicles to cross the river when they are down;they permit vessels to travel on the river when they are up.But no bridge builder or bridge operator would envision a bridge as a dam or as a dam potential.
The majority,in effect,would remove from the law of negligence the concept of foreseeability because,as they say,“[T]he weight of authority in this country rejects the limitation of damages to consequences foreseeable at the time of the negligent conduct when the consequences are ‘direct.’” Yet lingering thoughts of recognized legal principles create for them lingering doubts because they say:“This does not mean that the careless actor will always be held for all damages for which the forces that he risked were a cause in fact.Somewhere a point will be reached when courts will agree that the link has become too tenuous – that what is claimed to be consequence is only fortuity.” The very example given,namely,the patient who dies because the doctor is delayed by the destruction of the bridge,certainly presents a direct consequence as a factual matter yet the majority opinion states that “few judges would impose liability on any of the parties here,”under these circumstances.
In final analysis the answers to the questions when the link is “too tenuous” and when “consequence is only fortuity” are dependent solely on the particular point of view of the particular judge under the particular circumstances.In differing with my colleagues,I must be giving “unconscious recognition of the harshness of holding a man for what he could not conceivably have guarded against,because human foresight could not go so far.” (L.Hand,C.J.,in Sinram v.Pennsylvania Ro.Co.,61 F.2d 767,770 (2d Cir.,1932)) If “foreseeability” be the test,I can foresee the likelihood that a vessel negligently allowed to break its moorings and to drift uncontrolled in a rapidly flowing river may well strike other ships,piers and bridges.Liability would also result on the “direct consequence”theory.However,to me the fortuitous circumstance of the vessels so arranging themselves as to create a dam is much “too tenuous.”
