Exner Sand & Gravel Corporation, as Owner of the Barge Florence E., Libelant-Appellant v. Petterson Lighterage & Towing Corp.

258 F.2d 1, 1958 U.S. App. LEXIS 5339

• Court: Court of Appeals for the Second Circuit
• Decided: June 13, 1958
• Docket: 24748_1
• Status: Published

Opinions

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 libel-ant 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 dry-docking 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. Stein-hauer, 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 inap-posite to the situation here. For Swen-son’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.

1 . It may be noted that where a barge settled on ice when the tide fell, the charterer was held not liable for the resulting damage. Sinram Bros., Inc., v. Reading Co., D.C.E.D.N.Y., 18 F.Supp. 109. Also “in the absence of unusual conditions, making the situation more than ordinarily hazardous, the barge demised for winter work may be towed in a broken-up ice field; if there be no negligence in the towing, damage caused by knocks from floating ice is chargeable to reasonable wear .and tear.” Dittmar v. Sargent, 2 Cir., 277 F. 237, 238.