Probability,Burden and Liability

United States v.Carroll Towing Co.

United States Court of Appeals,Second Circuit,1947

159 F.2d 169

[In the height of World War II,the United States,in order to send 200 tons of flour (necessary military material) to Europe,had engaged the Pennsylvania Railroad Company which,at New York Harbor,chartered a barge,the “Anna C,”from The Connors Marine Co.,which was loaded and moored at Pier 52.

On a windy morning of January 4,1944,The Grace Line,Inc.sent a “Harbormaster” with a deckhand on board a tug hired from the Carroll Towing Co.to “drill”out another barge at Pier 53.Because the line of barges at Pier 53 were tied to those barges at Pier 52,the Harbormaster and the deckhand had to untie the line at Pier 52 and then retie them after drilling out the barge they wanted.However,they did not sufficiently tie the Anna C fast to her mooring which,under the swift current of January tide and strong wind,went loose and collided with a tanker at Pier 51 whose propeller broke a hole near her bottom.In a few hours,the Anna C careened and sank,dumping her cargo into the North River (Hudson).

The bargee,the one supposed to be onboard the Anna C 24 hours a day,had been absent for 21 hours from the night before until after the incident in the afternoon.Had he been on duty,he could have signaled for help and the several tugboats nearby could have saved the barge with their siphoning pumps.

The United States sued to recover property damages for the loss of the cargo against all parties;Pennsylvania Railroad sued the Grace Line for the Harbormaster’s failure to pass on the fasts when he retied the Anna C for “collision damages,” and the Carroll Towing Co.for the salvaging and damage of the Anna C (“sinking damages”).In defense,the Carroll Towing Co.alleged contributory negligence,due to the bargee’s unexcused absence,being imputable to the Conners Marine Co.]

L.HAND,Circuit Judge.

It appears … that there is no general rule to determine when the absence of a bargee or other attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings.However,in any cases where he would be so liable for injuries to others,obviously he must reduce his damages proportionately,if the injury is to his own barge.It becomes apparent why there can be no such general rule,when we consider the grounds for such a liability.Since there are occasions when every vessel will break from her moorings,and since,if she does,she becomes a menace to those about her;the owner’s duty,as in other similar situations,to provide against resulting injuries is a function of three variables: (1) The probability that she will break away;(2) the gravity of the resulting injury,if she does;(3) the burden of adequate precautions.Possibly it serves to bring this notion into relief to state it in algebraic terms: if the probability be called P;the injury,L;and the burden,B;liability depends upon whether B is less than L multiplied by P: i.e.,whether B>PL.Applied to the situation at bar,the likelihood that a barge will break from her fasts and the damage she will do,vary with the place and time;for example,if a storm threatens,the danger is greater;so it is,if she is in a crowded harbor where moored barges are constantly being shifted about.On the other hand,the barge must not be the bargee’s prison,even though he lives aboard;he must go ashore at times.We need not say whether,even in such crowded waters as New York Harbor a bargee must be aboard at night at all;it may be that the custom is otherwise,as Ward,J.,supposed in “The Kathryn B.Guinan,” and that,if so,the situation is one where custom should control.We leave that question open;but we hold that it is not in all cases a sufficient answer to a bargee’s absence without excuse,during working hours,that he has properly made fast his barge to a pier,when he leaves her.In the case at bar the bargee left at five o’clock in the afternoon of January 3rd,and the flotilla broke away at about two o’clock in the afternoon of the following day,twenty-one hours afterwards.The bargee had been away all the time,and we hold that his fabricated story was affirmative evidence that he had no excuse for his absence.At the locus in quo – especially during the short January days and in the full tide of war activity– barges were being constantly “drilled” in and out.Certainly it was not beyond reasonable expectation that,with the inevitable haste and bustle,the work might not be done with adequate care.In such circumstances we hold – and it is all that we do hold – that it was a fair requirement that the Conners Company should have a bargee aboard (unless he had some excuse for his absence),during the working hours of daylight.

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.

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.