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Petitions of Kinsman Transit Co. v. City of Buffalo


decided: January 18, 1968.


Kaufman, Anderson and Feinberg, Circuit Judges.

Author: Kaufman

IRVING R. KAUFMAN, Circuit Judge:

The difficult question presented by this appeal is whether certain expenses incurred by claimant-appellants Cargill, Inc. (Cargill) and Cargo Carriers, Inc. (Cargo Carriers), as a result of an unusual concatenation of events on the Buffalo River during the night of January 21, 1959, are recoverable as a matter of law.

The misadventures leading to the catastrophe on the river that fateful evening were set forth when this litigation was previously before this court, 338 F.2d 708 (1964). For our purposes it is sufficient to state that as a result of the negligence of the Kinsman Transit Company and the Continental Grain Company the S.S. MacGilvray Shiras broke loose from her moorings and careened stern first down the narrow, S-shaped river channel. She struck the S.S. Michael K. Tewksbury, which in turn broke loose from her moorings and drifted downstream -- followed by the Shiras -- until she crashed into the Michigan Avenue Bridge.*fn1 The bridge collapsed and its wreckage, together with the Tewksbury and the Shiras, formed a dam which caused extensive flooding and an ice jam reaching almost 3 miles upstream. As a result of this disaster, transportation on the river was disrupted until approximately March 13, 1959 -- a period of about 2 months. Subsequent to our previous adjudication of the negligence issues, Judge Burke appointed a Commissioner to determine the damages of the various claimants.

At the time of the accident, Cargill had some 336,000 bushels of wheat stored aboard the S.S. Donald B. Gillies berthed in the Buffalo harbor below the Michigan Avenue Bridge. (It is apparently not an uncommon practice for companies to "winter storage" wheat in this manner.) Cargill, it appears, was under contract to deliver 124,000 bushels of the Gillies' wheat during the period from January through March 1959. Because of the accident the vessel could not be moved to Cargill's grain elevators located above the collapsed bridge so that it could be unloaded. In order to comply with its contractual obligations, Cargill was required to secure replacement wheat in the Midwest.*fn2 The Commissioner allowed Cargill $30,231.38 for its extra transportation costs and $8,232 for increased "storage costs."*fn3

Cargo Carriers' claim is somewhat different. When the calamity occurred it was in the process of unloading a cargo of corn from the S.S. Merton E. Farr at elevators located above the Michigan Avenue Bridge. Apparently the Farr was struck by one of the two free-drifting ships. Its cargo was undamaged but it broke loose from the dock at which it was moored. The by-product of this was that an ice jam formed between the Farr and the dock and normal unloading became impossible; the city fireboat and the harbor towing tugs which ordinarily would have broken up the ice jam were below the bridge wreckage and thus could not be of any assistance. The consequence of all this was that Cargo Carriers, which was under contract to transfer 10,322 bushels of the Farr's corn, was required to continue the ship's unloading with the aid of specially rented equipment. The Commissioner awarded it $1,590.40 for these incurred expenses.

Judge Burke refused to confirm either the Gillies or the Farr awards made by the Commissioner. He reasoned that the evidence established that the damages to Cargill and Cargo Carriers were caused by negligent interference with their contractual relations. In the absence of proof that the interference was intentional or with knowledge of the existence of the contracts, he concluded recovery could not be grounded in tort. Robins Dry Dock and Repair Co. v. Flint, 275 U.S. 303, 48 S. Ct. 134, 72 L. Ed. 290 (1927). We too deny recovery to the claimants, but on other grounds.

We do not encounter difficulty with Judge Burke's analysis because it lacks some support in the case law; instead, we hesitate to accept the "negligent interference with contract" doctrine in the absence of satisfactory reasons for differentiating contractual rights from other interests which the law protects. The argument, frequently heard, that to allow recovery in such instances would impose a penalty far out of proportion to the defendant's fault or open the field to collusive claims and increased litigation, see Prosser, The Law of Torts, 964 (3d ed. 1964), which are the spectres commonly raised whenever the law extends its protection. Here, as elsewhere, the answer must be that courts have some expertise in performing their almost daily task of distinguishing the honest from the collusive or fraudulent claim. And, "if the result is out of all proportion to the defendant's fault, it can be no less out of proportion to the plaintiff's entire innocence." Id. at 296. Moreover, several cases often cited as illustrations of the application of the "negligent interference with contract" doctrine have been convincingly explained in terms of other, more common tort principles. See 1 Harper and James, The Law of Torts, 505-10 (1956). Indeed, Professors Harper and James suggest that the application of the doctrine is wholly artificial in most instances. Id. at 501. We therefore prefer to leave the rock-strewn path of "negligent interference with contract" for more familiar tort terrain. Cargill and Cargo Carriers argue broadly that they suffered damage as a result of defendants' negligence and we will deal with their claims in these terms instead of on the more esoteric "negligent interference" ground.

Having determined our course, we nevertheless conclude that recovery was properly denied on the facts of this case because the injuries to Cargill and Cargo Carriers were too "remote" or "indirect" a consequence of defendants' negligence.

Numerous principles have been suggested to determine the point at which a defendant should no longer be held legally responsible for damage caused "in fact" by his negligence. See Prosser, supra, 282-329; 2 Harper and James, supra, 1132-61; Hart and Honore, Causation in the Law, chs. VI and IX (1959). Such limiting principles must exist in any system of jurisprudence for cause and effect succeed one another with the same certainty that night follows day and the consequences of the simplest act may be traced over an ever-widening canvas with the passage of time. In Anglo-American law, as Edgerton has noted, "except only the defendant's intention to produce a given result, no other consideration so affects our feeling that it is or is not just to hold him for the result so much as its foreseeability" Legal Cause, 72 U.Pa.L.Rev. 211, 352 (1924). E.g., Brady v. Southern Railway Co., 320 U.S. 476, 483, 64 S. Ct. 232, 88 L. Ed. 239 (1946).

When the instant case was last here, we held -- although without discussion of the Cargill and Cargo Carriers claims -- that it was a foreseeable consequence of the negligence of the City of Buffalo and Kinsman Transit Company that the river would be dammed.*fn4 It would seem to follow from this that it was foreseeable that transportation on the river would be disrupted and that some would incur expenses because of the need to find alternative routes of transportation or substitutes for goods delayed by the disaster.*fn5 It may be that the specific manner was not foreseeable in which the damages to Cargill and Cargo Carriers would be incurred but such strict foreseeability -- which in practice would rarely exist except in hindsight -- has not been required. Hart and Honore, supra at 233.*fn6

On the previous appeal we stated aptly: "somewhere a point will be reached when courts will agree that the link has become too tenuous -- that what is claimed to be consequence is only fortuity." 338 F.2d at 725. We believe that this point has been reached with the Cargill and Cargo Carriers claims. Neither the Gillies nor the Farr suffered any direct or immediate damage for which recovery is sought. The instant claims occurred only because the downed bridge made it impossible to move traffic along the river.*fn7 Under all the circumstances of this case, we hold that the connection between the defendants' negligence and the claimants' damages is too tenuous and remote to permit recovery. "The law does not spread its protection so far." Holmes, J., in Robins Dry Dock, supra, 275 U.S. at 309, 48 S. Ct. at 135.*fn8

In the final analysis, the circumlocution whether posed in terms of "foreseeability," "duty," "proximiate cause," "remoteness," etc. seems unavoidable. As we have previously noted, 338 F.2d at 725, we return to Judge Andrews' frequently quoted statement in Palsgraf v. Long Island R.R., 248 N.Y. 339, 354-355, 162 N.E. 99, 104, 59 A.L.R. 1253 (1928) (dissenting opinion): "It is all a question of expediency * * * of fair judgment, always keeping in mind the fact that we endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind."




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