EXNER SAND & G. CORP. v. PETTERSON LIGHT. & TOW. CORP.

• Decision Date: 13 June 1958
• Docket Number: No. 99,Docket 24748.,99
• Citation: 258 F.2d 1
• Parties: EXNER SAND & GRAVEL CORPORATION, as owner of THE Barge FLORENCE E., Libelant-Appellant, v. PETTERSON LIGHTERAGE & TOWING CORP., Respondent-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

258 F.2d 1 (1958)

EXNER SAND & GRAVEL CORPORATION, as owner of THE Barge FLORENCE E., Libelant-Appellant, v. PETTERSON LIGHTERAGE & TOWING CORP., Respondent-Appellee.

No. 99, Docket 24748.

United States Court of Appeals Second Circuit.

Argued November 20, 1957.

Decided June 13, 1958.

Vincent A. Catoggio, New York City (Purdy, Lamb & Catoggio, New York City, on the brief), for libelant-appellant.

Edward L. Smith, New York City (Kirlin, Campbell & Keating and James Proud, New York City, on the brief), for respondent-appellee.

Before HINCKS, LUMBARD and WATERMAN, Circuit Judges.

HINCKS, Circuit Judge.

This is an appeal by the libelant, Exner Sand & Gravel Corporation, as owner of the Barge Florence E., from a decree holding that the respondent, Petterson Lighterage & Towing Corp., as charterer of said barge, although concededly liable in the amount of $525 for damage to the barge's bow suffered in the course of the charter, was not liable for bottom damage in the amount of some $11,000 sustained after redelivery of the barge or for side damage in the amount of some $7,000 first observed one week after redelivery. The facts are sufficiently stated in Judge Waterman's dissenting opinion.

Bottom Damage.

It was stipulated that the bottom damage occurred five days after the charterer had redelivered the barge to the libelant at libelant's request and while the barge was in process of being dry-docked for the repair of the bow damage caused by the respondent "under the circumstances and in the manner described in the opinion, findings of fact and conclusions of Galston, D. J." in the libel theretofore brought by Exner against John Swenson Drydocks (Exner Sand & Gravel Corp. v. Swenson) D.C., 110 F.Supp. 531, affirmed 2 Cir., 212 F. 2d 205. Merely because in that action the libelant failed to prove Swenson negligent in causing the bottom damage, it does not follow, of course, that the libelant is entitled to recover it from the respondent who had never had any control of the drydock and no control of the barge for the preceding six days.

The appellant formulates his principal contention by posing the following question:

"When a barge under charter concededly sustains damage for which the charterer is liable and that damage necessitates drydocking and during the course of that drydocking after the termination of the charter, the barge sustains additional damage, is not the charterer liable for that additional damage, as in the case of one who tortiously inflicts bodily injury on another and the original injuries are aggravated by the malpractice of a treating doctor or hospital?"

We think the question imperatively requires a negative answer. Surely one who damages a rented vessel or other vehicle may not ordinarily be held for other damage done to it by another a week subsequent to its return to the owner while the vessel or vehicle is in a shop for the repair of the damage done by the bailee.¹ It may be true that the later damage would not have occurred "but for" the bailee's negligent act. And it may be true that it was foreseeable that the original damage would require repair in a drydock or garage. But it was not reasonably foreseeable that the course of repair in a drydock or garage would result in further damage. Harper and James, The Law of Torts § 20.5; Cleary Bros., Inc., v. Port Reading R. Co., 2 Cir., 29 F. 2d 495; The Glendola, 2 Cir., 47 F.2d 206, 208, certiorari denied sub nomine Standard Oil Co. v. Glendola S. S. Corporation (Glendola S. S. Corporation v. Standard Oil Co.) 283 U.S. 857, 51 S.Ct. 650, 75 L.Ed. 1463. The damage done in drydocking was not the natural and proximate result of the respondent's negligence in causing the bow damage. Cf. Cooley, Torts 69-71. Nor was respondent's negligence a substantial factor in producing the damage occurring when the barge was drydocked. Cf. Smith, Legal Causes in Actions of Tort, 25 Harv.L.Rev. 103, 223, 303, 309-310. It was not a continuation of the active force which caused the bow damage. Beale, The Proximate Consequences of an Act, 33 Harv.L.Rev. 633, 635. It was not a direct physical consequence of the negligence in causing the bow damage which a reasonable man would have foreseen. Winfield, Torts 71-72 (4th ed.1948). And, in view of the absence of serious threat to the general security from the respondent's conduct in causing the bow damage, we hold that the bottom damage occurring in drydocking was not within the ambit of the risk created by the respondent. Pound, Causation, 67 Yale L.J. 1, 13 (Nov. 1957). In short, none of the successive tests in the history of legal causation which Dean Pound has sketched in the above-cited "article", when applied to the facts of this case, demonstrate that the causal relationship between the respondent's negligence and the bottom damage is such as to fasten liability on the respondent.

The appellant relies on a line of cases holding that a trespasser who has wrongfully caused personal injuries is liable for any aggravation thereof immediately caused, negligently or otherwise, by a physician in the treatment of the injuries, citing e. g., Texas & Pacific Ry. Co. v. Hill, 237 U.S. 208, 35 S.Ct. 575, 59 L.Ed. 918; Stephenson v. Steinhauer, 8 Cir., 188 F.2d 432; Wagner v. Mittendorf, 232 N.Y. 481, 134 N.E. 539, 20 A.L.R. 520.

We think such cases completely inapposite to the situation here. For Swenson's Drydock (which may be likened to the physician of the appellant's cases) was not repairing the bow damage when it damaged the bottom: the damage occurred, as it were, while the "patient" was entering the physician's office before any treatment whatever of its bow had been begun. None of the personal injury cases cited by the appellant hold the original tort-feasor liable for injuries to the plaintiff resulting solely from a fall (for example) by the plaintiff in the doctor's hallway, or while mounting the examination table, or from a taxicab accident on the way to the doctor's office — in short, for any aggravation suffered prior to actual treatment of the injury.

Moreover, libelant has cited no case applying this rule to property cases and the Restatement of Torts, § 457, expressly restricts the operation of the rule to "bodily harm." We think this limitation is sound. For the rationale of the rule, as expressed in the Restatement, finds its basis in the risks which in view of "human fallibility" are "normally recognized as inherent in the necessity of submitting to medical, surgical or hospital treatment." Id. § 457, comment (d.) Generally, when property has been damaged no such risk is "normally recognized as inherent" in the services of the repairman. Cf. Pound, Causation, supra, at page 13.

Side Damage.

We find even less merit in appellant's claim for damage to the sides of the barge. It was found below, the appellant's protestations to the contrary notwithstanding, that the appellant had failed to sustain the burden of proving by a fair preponderance that the side damage occurred during the brief period of the charter. Certainly that finding was not clearly erroneous: indeed, there was no evidence as to how or when the side damage was sustained. So far as appeared there was no causal relationship at all between the respondent's conduct and the side damage.

Affirmed.

WATERMAN, Circuit Judge (dissenting).

I concur with my colleagues in holding that the appellee may not be held liable for the side damage suffered by the barge, for there is no evidence from which we may conclude that this damage was sustained either during the term of the charter or in consequence of a risk created by the appellee. I dissent, however, from so much of the majority's decision as denies libelant-appellant recovery for the bottom damage proved to have been sustained by the barge while it was being drydocked in order to undergo repairs made necessary by the appellee's conceded negligence.

The libelant, as owner of the barge Florence E., brought suit in the District Court to recover for damages sustained to the bow, bottom and sides of the barge during late January and early February 1948. By stipulation of the parties the cause was referred, pursuant to Admiralty Rule 43, 28 U.S.C.A., to a commissioner who, after a hearing, rendered a report recommending that libelant recover for damage to the barge's bow planks. The report denied recovery for the bottom and side damage claimed by the libelant. To this portion of the report the libelant filed exceptions with the district court. The Court overruled the exceptions and confirmed the report, whereupon this appeal was perfected.

The pertinent facts follow. On January 29, 1948 the Florence E., then seaworthy, was orally chartered to respondent "under the usual New York form of harbor demise charter." Delivery was made to respondent at Pier 22, Brooklyn, where the barge was taken in tow by respondent's tug Bonn and brought to Pier F, Jersey City. She was then towed by respondent's steam lighter Atlantic to Lord's Drydock, New Jersey. Upon arrival at the latter point the bargee discovered that a bow plank had been damaged near the light water line, probably as a result of ice floes encountered during the journey.¹ An examination of the plank indicated that the damage was not substantial, and later that day the Florence E., together with another scow, the Cleary 78, was taken in tow by the lighter Pacific to pick up crated automobiles in Tarry-town. The Florence E., being towed bow first, was astern of the Pacific, and ahead of the Cleary 78. Two smaller tugs accompanied the tow. Their function was to clear a channel through floating ice in the river and through packed ice near the dock where the automobiles were to be loaded. When the flotilla reached the vicinity of the George Washington Bridge, the bargee aboard the Florence E., discovered that the bow damage was worse than had been realized and that the scow was leaking heavily. Thereupon, the Florence E. was placed...