THE GLENDOLA

• Decision Date: 05 January 1931
• Docket Number: No. 107.,107.
• Citation: 47 F.2d 206
• Parties: THE GLENDOLA. STANDARD OIL COMPANY OF NEW JERSEY v. GLENDOLA S. S. CORPORATION.
• Court: U.S. Court of Appeals — Second Circuit

47 F.2d 206 (1931)

THE GLENDOLA STANDARD OIL COMPANY OF NEW JERSEY v. GLENDOLA S. S. CORPORATION.

No. 107.

Circuit Court of Appeals, Second Circuit.

January 5, 1931.

Shearman & Sterling, of New York City (Horace M. Gray and Sanford H. E. Freund, both of New York City, of counsel), for appellant.

W. H. McGrann and Kirlin, Campbell, Hickox, Keating & McGrann, all of New York City, for appellee.

Before MANTON, L. HAND, and SWAN, Circuit Judges.

L. HAND, Circuit Judge.

The libelant's steamer, Tilford, on the twenty-third day of April, 1925, was bound up the Cape Fear river for her pier in the city of Wilmington, North Carolina. When about two miles below the city she came into collision with the claimant's ship, Glendola, bound out, in which she was injured on her port bow, her plates being so bent that the seams opened, and her cargo of gasoline began to spurt from her side into the water. The circumstances were such as to persuade us that the Glendola was alone at fault, and we held her liable for the whole damages. 20 F.(2d) 1021. The question now arises as to the amount of the recovery.

After her injuries the Tilford kept on to her berth, leaking gasoline as she went, and a serious menace to herself, to nearby steamers, and to the wharves and the buildings upon them, after she reached her berth. Her ordinary way of berthing on the flood, which was then making, was to drop her anchor after a tug had come alongside her port bow. The combined power of the anchor and the tug, butting the stem, had theretofore proved enough to hold her bow against the tide, which meanwhile carried her stern upstream, and thus headed her across the river so that she could berth alongside the pier. Nobody questions the propriety of this navigation.

On the day in question it was not safe to order the tug, which was in attendance upon the steamer, upon her port bow, where the gasoline was leaking, for a spark on the surface of the water might have started a disastrous fire. Instead, a line was heaved from the starboard bow of the steamer to the bow of the tug, on which she backed with all her power, thus relieving the strain on the port anchor, which had been let go at the proper time. The two did not, however, serve to hold her, and she drifted upstream, though canting somewhat to starboard, until she took the ground astern in shallow water, thus suffering additional damages. Being thus fast astern, her bow, floating upstream, collided with the end of the pier, still further damaging her, and doing some injury to the pier.

This succession of misfortunes so injured her that she had to be laid off and go to dry dock, before she could safely resume her duty, though she went under her own steam from Wilmington to Newport News for repairs. The libelant has recovered for all the damages suffered by the steamer, for the damage to the pier which she paid, for her detention or "demurrage" while in dry dock, and for sundry items which it is not necessary to set out in detail.

The first question is whether the Glendola is liable not only for the injuries caused by the collision down the river, but also for the strand and the collision with the wharf. Her faulty navigation having caused the first collision, she was a wrongdoer, and nothing is more unsatisfactory than the discussion in the books and by legal writers as to the limits of liability in such cases. It is commonly agreed that the duty of care towards others depends upon the likelihood that its omission may cause injury. The extent of the duty is not measured actuarially, that is, only in terms of its probability; it varies with the gravity of the injury which may result. One may be liable for mutilating or killing another, though the risk one takes is less probable of realization than greater risks, from the consequences of which one would be immune, if the results must be trivial. The law does not establish a zone of consequences, fixed merely by their probability, and impose liability upon any one whose acts bring to pass anything within it. Along with other considerations, it balances the interests at stake, and restricts the foresight required, as the damage to be apprehended diminishes. Thus the excuse for the act is itself a factor in determining the consequences with which the actor is chargeable.

However, there is much uncertainty in the books as to whether liability should be extended to remote consequences once the actor is shown to have been at fault. On the one hand are the greater number of decisions, of which In re Polemis, 1921 L. R. 3 K. B. 560, is an extreme instance, in which, because the omission was in any case likely to cause some damage, liability is extended to injuries for which the defendant would not have been responsible if they alone were to be apprehended. The wrong, once established, involves the wrongdoer in all its consequences. On the other hand are those decisions which treat remote consequences as though the wrong consisted in causing these alone, and which hold the actor only for such as he should have foretold. Chicago, B. & Q. R. Co. v. Gelvin, 238 F. 14, L. R. A. 1917C, 983 (C. C. A. 8); Beldon v. Hooper, 115 Kan. 678, 224 P. 34; Stone v. Boston & Albany R. Co., 171 Mass. 536, 51 N. E. 1, 41 L. R. A. 794; Wood v. Penn. Ry. Co., 177 Pa. 306, 35 A. 699, 35 L. R. A. 199, 55 Am. St. Rep. 728. See Atchison, T. & S. F. Ry. v. Calhoun, 213 U. S. 1, 7, 29 S. Ct. 321, 53 L. Ed. 671. The distinction is acutely presented when the actor has committed a wrong to one person, which in a train of unpredictable events involves another. In Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 162 N. E. 99, 59 A. L. R. 1253, the court held that the defendant was not liable to the second person. If not, it is hard to see why it should make a difference that a single person is twice injured, once in a way that entails liability, and second, in such a way, as standing alone would be too remote. If he is so liable, a difference in ownership of the two pieces of property, successively injured, might exonerate a wrongdoer as to that injured last, though he would be liable, had both been owned by a single person — scarcely a relevant distinction. The broader liability seems to rest upon punitive notions, extending responsibility because the actor is at fault, not in respect of what actually happens, but of something nearer. 8 Holdsworth, 463, 464. Perhaps this better satisfies the demands of history, but we must confess ourselves in doubt as to its consistency with usual notions.

In the case at bar, however, that question does not really arise, because it appears to us that, judged by either rule, the Glendola is liable for the strand and second collision. Even if we accept the narrower doctrine, and find it necessary that the later injuries must be reasonably apprehended at the outset, they were such. The Tilford was a tanker, and her cargo was visibly either oil or gasoline. To break her sides was to cripple her more seriously than other ships. If her cargo leaked, as well it might, she became a menace to herself and all about her, and her navigation, disabled as she was, would be embarrassed whenever it required the approach of other steamers. She was bound to a pier and must soon dock; docking, especially in such a narrow berth, requires tugs and tugs carry fire. It did not require powers of divination to foresee that she would thus have...