Ellerman Lines, Limited v. The President Harding, 287

Citation288 F.2d 288
Decision Date05 April 1961
Docket NumberDocket 26701.,No. 287,287
PartiesELLERMAN LINES, LIMITED, as Owner of THE Steamship CITY OF BRISTOL, Libelant-Appellee, v. THE Steamship PRESIDENT HARDING and American President Lines, Ltd., Claimant-Respondent-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

William Warner, New York City (Symmers, Fish & Warner, New York City), for claimant-respondent-appellant.

William E. Fuller, New York City, (Kirlin, Campbell & Keating, New York City), for libelant-appellee.

Before LUMBARD, Chief Judge, and WATERMAN and FRIENDLY, Circuit Judges.

FRIENDLY, Circuit Judge.

This appeal relates to an item of damages which libelant, Ellerman Lines, Limited, owner of the S.S. City of Bristol, claims to have resulted from a collision with the S.S. President Harding, while the City of Bristol lay at anchor in Ambrose Channel, fog-bound en route to New York, on Friday, February 11, 1955. The item, representing an agreed proportion (80%) of additional pier and unloading charges of $16,474.31 allegedly incurred by libelant due to the collision, was allowed by a commissioner appointed by the District Court for the Southern District of New York, whose award was confirmed by Judge Bryan in a considered opinion reported in 1960, 187 F. Supp. 948.

The President Harding had struck the City of Bristol on the starboard side at the No. 2 lower hold. Having informed her New York agents, the City of Bristol weighed anchor at 3 P. M. and headed for the Todd Shipyards in Brooklyn, where the agents had arranged for use of a graving dock. She had 7,700 tons of cargo on board, 3,200 of which were to be discharged at New York. The intention had been to berth her at Pier 5, Bush Terminal Docks and to begin unloading on Monday; other ships were docked at Pier 5 but there was room for another 3,500 tons of cargo. Starting at 2 P. M., the City of Bristol sent various messages reporting the rising of water in the hold. Peters, a partner in the agency firm, and Captain Lynes, libelant's New York marine superintendent, concluded that discharge of "the majority if not all of the ship's cargo" would be required. Since there would not be room for this at Pier 5 and the neighboring Pier 6 was empty, they obtained the right to use Pier 6 and pay for what space was used. At the same time, around 4 P. M., they arranged to have longshoremen available to unload the ship on Sunday at Pier 6.

The City of Bristol reached Todd Shipyards shortly after 6 P. M. Lynes was on hand; Peters had gone home at "5:00 or 6:00 or 7:00, something like that," and recalled no further communications with Lynes until Monday morning. During Friday evening the vessel was inspected and the damage found less serious than anticipated. It was decided that she would be able to proceed to a pier and unload after temporary repairs; these were completed before noon on Saturday and the City of Bristol then moved to Pier 6 under her own power. Appellee does not dispute that all the cargo whose removal to a pier proved to be required could have been handled at Pier 5.

Despite this appellee contended, and the commissioner and the District Court have held, that since the initial decision to engage Pier 6 was proper, appellee is entitled to the additional costs this entailed; it insists it ought not be expected to act with the advantage of hindsight. Appellant resists appellee's attempt, successful before the commissioner and the District Judge, to place that argument in its mouth; it claims, with considerable persuasiveness, not that appellee should have exercised hindsight, but that, instead of standing on its initial foresight, appellee should have taken another look as the facts unfolded.

It is often said, as the District Court did here, 187 F.Supp. at page 951, that a tort plaintiff has a "duty to mitigate damages." This form of statement has been criticized, see Burch, J., in Rock v. Vandine, 1920, 106 Kan. 588, 189 P. 157 — probably rightly so since a plaintiff assuredly has no "duty" in the Hohfeldian sense of the correlative of a right, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L.J. 16, 30-32 (1913). The formulation now fashionable is that the defendant is not liable for "avoidable consequences." American Law Institute, Restatement of Torts, § 918; McCormick, Damages (1935), p. 128, 2 Harper & James, The Law of Torts (1956), § 25.4. Perhaps as good a way to state the rule as any is that a tort defendant is not liable for consequences preventable by action that reason requires the plaintiff to take; per contra if the plaintiff takes such action within the range of reason, the defendant is liable for further damages resulting therefrom. It seems unnecessary to follow McCormick, pp. 127-128, and the Restatement, p. 602, in finding the root of this rule in a policy of discouraging persons from "wasting their resources both physical or economic"; it is enough that the community's notions of fair compensation to an injured plaintiff do not include wounds which in a practical sense are self-inflicted.

All this is easy enough; the troubles come when the standard of "reason" must be further refined and applied. It is not fatal to recovery that one course of action, reasonably open but not followed, would have avoided further injury whereas another, also reasonable and taken, produced it. "If a choice of two reasonable courses presents itself, the person whose wrong forced the choice cannot complain that one rather than the other is chosen." McCormick, supra, at p. 134. The standard of what reason requires of the injured party is lower than in other branches of the law. Surely it is nowhere near so high as the standard of prudence imposed on the fiduciary; McCormick says, ibid. — and in this respect the current phrasing of the rule may indeed lead to a different and sounder result than the older one — that "as a person wronged, he is not to be judged by the same standards as apply to one who has had presented to him the choice of whether he will adopt a course of conduct which will probably injure another," without explaining why. The explanation can hardly be that "it is always a conceded wrongdoer who seeks" the protection of the rule, ibid., pp. 133-134; only rarely is the defendant who has been cast for negligence a person whose conduct calls for reprobation. A better reason, applicable in many cases, if not in all, is that the very impact of the injury may leave only what seems a choice of evils, or may produce a tension that partially disables the reasonable man from acting with his usual reasonableness, as witness the wide latitude of judgment accorded masters of vessels damaged at sea, The Algonquin, 2 Cir., 1934, 70 F.2d 335; The Walter A. Luckenbach, 9 Cir., 1926, 14 F.2d 100.

Appellant insists with merit that there is no need to allow quite so much latitude in the case of a decision or, more accurately, a failure to reverse a decision, taken on shore, eight hours after a collision, when the danger of truly serious loss has disappeared. Its basic position is that Peters, who knew Pier 6 did not have to be paid for unless used, went home where he did not apply his mind to the developing facts, whereas Lynes, who kept current with the facts, did not apply his mind to them because he did not know the decision to use Pier 6 could be changed. Although the record clearly bears out ap...

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