Mamiye Bros. v. Barber Steamship Lines, Inc.

• Decision Date: 13 April 1966
• Docket Number: Docket 29939.,No. 155,155
• Citation: 360 F.2d 774
• Parties: MAMIYE BROS., et al., Libellants-Appellants, v. BARBER STEAMSHIP LINES, INC., et al., Respondents-Appellees and Cross-Appellants, v. ATLANTIC STEVEDORING CO. Inc., et al., Impleaded-Respondents — Cross-Appellees. GELMART KNITTING MILLS, INC., et al., Libellants-Appellants, v. BARBER STEAMSHIP LINES, INC., et al., Respondents-Appellees and Cross-Appellants, v. ATLANTIC STEVEDORING CO. Inc., et al., Impleaded-Respondents — Cross-Appellees. ISAAC COHEN & SONS CORP. et al., Libellants-Appellants, v. BARBER STEAMSHIP LINES, INC., et al., Respondents-Appellees and Cross-Appellants, v. ATLANTIC STEVEDORING CO., Inc., et al., Impleaded-Respondents — Cross-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

360 F.2d 774 (1966)

MAMIYE BROS., et al., Libellants-Appellants, v. BARBER STEAMSHIP LINES, INC., et al., Respondents-Appellees and Cross-Appellants, v. ATLANTIC STEVEDORING CO. Inc., et al., Impleaded-Respondents — Cross-Appellees.

GELMART KNITTING MILLS, INC., et al., Libellants-Appellants, v. BARBER STEAMSHIP LINES, INC., et al., Respondents-Appellees and Cross-Appellants, v. ATLANTIC STEVEDORING CO. Inc., et al., Impleaded-Respondents — Cross-Appellees.

ISAAC COHEN & SONS CORP. et al., Libellants-Appellants, v. BARBER STEAMSHIP LINES, INC., et al., Respondents-Appellees and Cross-Appellants, v. ATLANTIC STEVEDORING CO., Inc., et al., Impleaded-Respondents — Cross-Appellees.

No. 155, Docket 29939.

United States Court of Appeals Second Circuit.

Argued December 14, 1965.

Decided April 13, 1966.

Vincent L. Leibell, Jr., New York City (Bigham, Englar, Jones & Houston, Charles W. Harvey and Christopher R. Knauth, New York City, of counsel), for libellants-appellants.

Eli Ellis, New York City (Hill, Betts, Yamaoka, Freehill & Longcope, Robert H. Peterson and Robert W. Mullen, New York City, of counsel), for impleaded-respondents — cross-appellees.

Tallman Bissell, New York City (Haight, Gardner, Poor & Havens, Thomas R. H. Howarth and Philip V. Moyles, New York City, of counsel), for respondents-appellees and cross-appellants.

Before WATERMAN, FRIENDLY and KAUFMAN, Circuit Judges.

FRIENDLY, Circuit Judge:

These libels, consolidated for trial before Judge Wyatt in the District Court for the Southern District of New York, see 241 F.Supp. 99 (1965), were brought to recover for damage to cargo on Pier 5, Bush Terminal, Brooklyn. The cause of the damage was a flooding of the pier due to storm surge and wave action created by Hurricane Donna which struck New York harbor in the early afternoon of Monday, September 12, 1960. The pier was 10' above mean low water, as against 9' required by New York City, but the unusually high level of the water covered the floor to a considerable height.¹ Some of the cargo was inbound, having been unloaded on or before Friday, September 9, from the M/V Toreador, the M/V Tatra and the M/V Turandot; other cargo was outbound, having been delivered on or before September 9 for shipment on the Turandot and the Tatra. The respondent shipowners impleaded Atlantic Stevedoring Co., the pier operator, which carried the burden of the defense. After trial Judge Wyatt dismissed the libels on the ground that the loss was attributable to an "Act of God" within the meaning of the Carriage of Goods by Sea Act, 46 U.S.C. § 1304(2) (d).² In a thorough opinion, he recognized that under the statute the carriers and pier operator were liable for damage to the cargo caused by their negligence and had the burden of showing either freedom from negligence or that the loss could not have been prevented by the exercise of reasonable care. He held, however, that in view of the Weather Bureau estimates as to the probable course of the hurricane they had not been negligent. On appeal no one challenges his analysis of the governing legal principles; the attack by the cargo owners is on the correctness of his conclusion that the burden of negating negligence was satisfied.

I.

We are confronted at the outset by appellees' contention that the only issue before us is whether the district court's conclusion of lack of negligence was clearly erroneous. Appellees recognize the many decisions of this court which hold that, with respect to negligence as distinguished from the evidentiary facts on which it is based, a judge's determination is not entitled to the benefit of the "unless clearly erroneous" rule either in admiralty or in actions governed by F.R.Civ.P. 52; they suggest, however, that most of these cases antedated McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954), and that in any event they cannot stand in the face of that decision.

The attempt to whittle down the precedents in this court must fail. In Romero v. Garcia & Diaz, Inc., 286 F.2d 347, 355-356, cert. denied, 365 U.S. 869, 81 S.Ct. 905, 5 L.Ed.2d 860 (1961), where we adhered to our long-standing rule, we cited three earlier post-McAllister decisions in which this court, speaking through eminent judges, had done precisely that. Dale v. Rosenfeld, 229 F.2d 855, 858 (1956) (Swan, J.,); New York, N. H. & H. R. R. v. Gray, 240 F.2d 460, 465 (Frank, J.), cert. denied, 353 U.S. 966, 77 S.Ct. 1059, 1 L.Ed.2d 915 (1957); and Verbeeck v. Black Diamond S.S. Corp., 269 F.2d 68, 70 (1959) (Clark, J.), cert. denied, 361 U.S. 934, 80 S.Ct. 374, 4 L.Ed. 2d 355 (1960). To this list we can now add Kane v. Branch Motor Express Co., 290 F.2d 503, 506-507, (1961), and, dealing with a somewhat different but related subject, Ellerman Lines, Ltd. v. The S.S. President Harding, 288 F.2d 288, 291-292 (1961). We find nothing to the contrary in Castro v. Moore-McCormack Lines, Inc., 325 F.2d 72, 75 (1963); rather that opinion recognized our established rule. However, the recurrent arguments on this point and the earnestness of appellees' presentation make further consideration appropriate.

The standard explanation of our rule was stated in Romero as follows: "determination of negligence involves first the formulation and then the application of a standard of conduct to evidentiary facts found to be established. When all this has been done by a judge, a reviewing court has no means of knowing whether he formulated the standard correctly, since he does not charge himself. Thus there must be free review of his ultimate determination of negligence although not of the facts on which it was based." See also Kane v. Branch Motor Express Co., supra, 290 F.2d at 506-507. Appellees say in effect, although they phrase it more politely, that this is mumbo-jumbo. Since every first-year law student knows what the standard of care is, how can an appellate court seriously wonder whether an experienced trial judge was aware of it? Particularly, how can any doubt be entertained on this score if the judge has correctly repeated the familiar formula? Does it not then follow that what the appellate court is attempting to oversee, at least in most cases, is the interpretation of particular circumstances in the light of a known rule of law? Is not such work the proper business of the trial courts, subject to review only under the "unless clearly erroneous" standards? And, however the argument on principle might stand, is not this what the Supreme Court decreed in McAllister?

The argument on principle makes many over-simplifications that fail to take into account the elaborations of the general standard of care and the need for consistency in judicial decision. Of course we do not doubt the knowledge of the district judges that the overall standard of conduct to which an actor "must conform to avoid being negligent is that of a reasonable man under like circumstances." ALI, Restatement (Second), Torts § 283 (1965). But this is a long way from being the whole story. That simple phrase in the Restatement is accompanied by two pages of explanation; twenty-five more sections, §§ 285-309, with comment spreading over eighty pages, are devoted to further specifications of the general standard. The law of negligence has thus followed the path anticipated in the celebrated passage of Holmes' lectures of 1881, fulfilling "the tendency * * * to become more and more concrete by judicial decision and by statute" without interfering with "the general doctrine maintained as to the grounds of liability." The Common Law 89-103 (Howe ed. 1963). This very case presents issues whether the judge gave adequate weight to the principle that "As the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less," Prosser, Torts 151 (3d ed. 1964), and whether, as appellants claim, he acted on the erroneous view that unless all the cargo could be protected from damage, none needed to be. Save when the trial judge has gone to unusual lengths in his opinion, the only way in which an appellate court can determine whether he correctly apprehended these manifold specifications of the general standard is by reviewing his result, and if that review is to be effective, it must be unimpeded. Beyond this, the need for consistency militates against considering a judge's application of even an admitted legal standard as a finding of "fact" subject to F.R.Civ.P. 52(a) or its admiralty analogue, even though a jury's doing the same would constitute a determination of "fact" protected by the Seventh Amendment. It would be shocking if contrary decisions of two district judges in this circuit on exactly the same facts had to be left standing, although there would be no similar shock if such a divergence should happen as a result of the deliberation of two different juries. Compare United States v. Maybury, 274 F.2d 899 (2 Cir. 1960). Yet uniformity within a circuit or among circuits³ can be achieved only if appellate review of the application of a legal standard is free of the shackles of the "unless clearly erroneous" rule.

This leaves the question whether McAllister compels a conclusion that our decisions are wrong as a matter of authority, however wise we may think them to be on principle. What proved to be the crucial issue in that case was not negligence, as to which this court had indicated a somewhat hesitant willingness to go along with the district judge's conclusion, but causation, see 207 F.2d 952, 954-955 (2 Cir. 1953); with respect to that question, this court, speaking through Judge A. N. Hand, did not specify what standard of review it was using. The brief opinion of Mr. Justice Minton assumed that we had applied the "unless clearly erroneous" standard, saying "We do not find that the Court of Appeals departed from this standard, although we do disagree with the result reached under the application of the standard." 348 U.S. at 20, 75 S.Ct. 6, 8, 99...