Burns Bros. v. The Central RR of New Jersey

• Decision Date: 27 March 1953
• Docket Number: Docket 22585.,No. 180,180
• Citation: 202 F.2d 910
• Parties: BURNS BROS. v. THE CENTRAL R. R. OF NEW JERSEY, No. 42 et al.
• Court: U.S. Court of Appeals — Second Circuit

202 F.2d 910 (1953)

BURNS BROS. v. THE CENTRAL R. R. OF NEW JERSEY, No. 42 et al.

No. 180, Docket 22585.

United States Court of Appeals Second Circuit.

Argued March 3, 1953.

Decided March 27, 1953.

Vincent E. McGowan, John J. McElhinny, New York City, for Central R. Co. of New Jersey.

Sydney A. Schwartz, Alexander & Ash, Edward Ash, New York City, for Burns Bros.

Burlingham, Hupper & Kennedy, Stanley R. Wright, New York City, for respondent-appellee Wyer.

Before SWAN, Chief Judge, and L. HAND and FRANK, Circuit Judges.

L. HAND, Circuit Judge.

This suit is a sequel to that which we disposed of in Burns Bros. v. Long Island Railroad Co., 2 Cir., 176 F.2d 406, 950. The libellant, Burns Bros., there sued the Long Island Railroad for injury to a barge by a carfloat of the Central Railroad of New Jersey that had broken from her moorings while in possession of the Long Island Railroad, and had collided with the barge. The libellant joined the Central Railroad of New Jersey as a co-respondent; but, since the libel was in personam against both respondents, it was necessary to find each personally at fault, and, although we held the Long Island Railroad at fault, we dismissed the libel against the Central Railroad because there was no evidence that any servant of the road had been personally negligent. The Long Island Railroad had meanwhile gone into reorganization, so that Burns Bros. was doubtful whether a decree against it would be good, and for that reason it moved for a rehearing, seeking to hold the carfloat in rem. This petition we denied, saying, however: "Had this suit been brought in rem, it is apparent that the Central's carfloat could, and should, have been held secondarily liable." Acting upon this suggestion, Burns Bros. then filed this libel in rem, and arrested the carfloat, as it could then do because the Central Railroad's reorganization under § 77 — which had been going on during the first suit — had ended. At the trial the libellant by consent put in the record in the first suit, and argued that it had so established a lien of collision against the carfloat which it was entitled to foreclose. The Central Railroad as claimant asserted that the decree in the first suit was a bar to a suit in rem; and in addition that the libellant had been guilty of laches because it could, and should, have obtained leave from the bankruptcy court to arrest the carfloat in the first suit, and should then have proceeded in rem against her. Judge Byers thought that the decree in the first suit was not a bar, and, following our admonition, held the carfloat liable. The claimant appealed; and the libellant has also appealed, because the judge refused to allow interest upon the award after the date of petition filed in the reorganization of the Long Island Railroad. This second question we shall reserve for the moment.

It is obvious that the decree in the first suit determined no facts that stand in the path of the libellant's recovery here; on the contrary, it might be argued that it had found all the facts necessary to hold the carfloat liable in rem, for we exonerated the Central Railroad only because none of its servants had been personally at fault. So far therefore as the decree could be treated at all as an "estoppel" — as opposed to a "bar" — it would appear to favor the libellant. At any rate it is only as a "bar" that the Central Railroad now invokes it. Whether the "cause of action" is the same is not clear as a matter of first impression. It is true that the injury and the means by which it was accomplished are identical; on the other hand one of the constitutive facts in the first suit (personal negligence of the owner) is not a necessary fact in the suit at bar. Courts have vacillated in defining a "cause of action," some taking the view that it is the nexus of all those facts that must be proved to enable the plaintiff to recover; others, that it is only the interest — or "right" — for whose invasion the plaintiff seeks redress. The following statement is an example of the second view, and we must accept it as authoritative for us, regardless of any opinion we might have personally. "Upon principle, it is perfectly plain that the respondent suffered but one actionable wrong, and was entitled to but one recovery, whether his injury was due to one or the other of several distinct acts of alleged negligence, or to a combination of some or all of them. In either view, there would be but a single wrongful invasion of a single primary right * * *. A cause of action does not consist of facts, but of the unlawful violation of a right which the facts show."¹ So defined, we can see no escape from considering the "cause of action" at bar as the same as that in the first suit. It is true that the first libel alleged that the Central Railroad, the owner, had been negligent, and that libel at bar alleges that the carfloat was negligent; but, although that was an absurd and meaningless allegation, it would make no difference whose negligence caused the damage. If a "cause of action does not consist of facts, but of the unlawful violation of a right which the facts show," there was in any event but one "cause of action" for only "a single primary right" was invaded.

It would still remain true that the first decree would not be a bar, if the carfloat were to be regarded as the defending party in the case at bar, for to be a bar the first decree must have been in a suit between the same parties. As is well known, it has from the beginning been true that in suits in rem the vessel has been regarded as the tort-feasor. "The idea that guilt attaches to the thing by which wrong has been done lingered on in our criminal law till the nineteenth century. Till 1846 the instrument which by its motion directly caused death was forfeit to the crown as a deodand."² "In Edward the First's time some of the cases remind us of the barbarian laws at their rudest stage. If a man fell from a tree, the tree was deodand. If he drowned in a well, the well was to be filled up. It did not matter that the forfeited instrument belonged to an innocent person. `When a man killeth another with the sword of John at Stile, the sword shall be forfeit as deodand, and yet no default is in the owner.'"³ It is of course true that such animistic notions have for most purposes long since disappeared; but it is hard to explain the present law as to liens for collision on any other theory than as a vestigial devolution⁴ out of the notion that anything that moves and kills a man shall be deodand to the king.⁵ It was only at a later stage that the law began to consider "fault" as a constituent of such a tort; and Story, J., could still say in 1827 of goods seized by the Treasury: "The thing is here primarily considered as the offender, or rather the offence is attached primarily to the thing; and this whether the offence be malum prohibitum or malum in se. The same principle applies to proceedings in rem on seizures in the admiralty."⁶ This language he quoted in United States v. The Brig Malek Adhel, 2 How. 210, 234, 11 L.Ed. 239, as well as the following passage from an earlier opinion at Circuit of Marshall, C. J., in a libel of information against a ship for violating the embargo: "This is not a proceeding against the owner; it is a proceeding against the vessel for any offence committed by the vessel which is not less an offence * * * because it was committed without the authority and against the will of the owner."⁷ The opinion in The China, 7 Wall. 53, 19 L.Ed. 67, cited at length those English decisions that had persistently continued to apply the doctrine after Parliament had pretty plainly abolished it: they show how deep had been the roots of the atavistic habit; and in 1901, Brown, J., said: "Whatever may be the English rule * * * the law in this country is entirely well settled that the ship itself is to be treated in...