A trespass, negligent or willful, upon the person of a wife, does not cease to be an unlawful act, though the law exempts the husband from liability for the damage. Others may not hide behind the skirts of his immunity. The trespass may be a crime for which even a husband may be punished, but, whether criminal or not, unlawful it remains.
In that regard Chief Judge Cardozo compared the situation before him to that in New Orleans & N.E. RR Co. v. Jopes (1891) 142 U.S. 18, 35 L. Ed. 919, 12 S. Ct. 109, where the employee's act that caused the alleged injury was found to be "lawful" and the employer therefore not liable under the doctrine of respondeat superior. In the Jopes case a conductor employed by the railroad had shot a passenger who was suing the railroad for the resulting injury. The railroad asserted that the passenger had started the ruckus (by approaching the conductor in a threatening manner with an open knife in his hand) and that the conductor had acted in self defense when he drew his pistol and shot the passenger. The trial court had charged the jury that this defense would only be available if the conductor had been in "actual" danger, and that the conductor's reasonable apprehension of danger would not suffice. 142 U.S. at 23. The Supreme Court held this to be error, observing that if the railroad could establish that its employee had had a common law defense of self-defense his action would have been "lawful" and the company could avail itself of such defense.
The basic principle established by Chief Judge Cardozo's opinion was adopted by the American Law Institute in its Restatement of the Law of Agency (1933), which now appears as Restatement (2d) Agency § 217. So far as here relevant, that section provides:
In an action against a principal based on the conduct of a servant in the course of employment:
(a) The principal has a defense if:
. . .
(iii) the agent had a privilege which he properly exercised on his principal's behalf . . .
On the other hand:
(b) The Principal has no defense because of the fact that:
. . .
(ii) the agent had an immunity from civil liability as to the act.
The innumerable authorities listed in the Citations to the First and Second Restatement under § 217 can best be summarized as follows: where the agent has an immunity from civil liability dependant on his or her peculiar status (as for example a family relationship to the injured party, official immunity of some sort or other, infancy, incompetence, etc.) subsection (b) applies and the principal cannot avail itself of its agent's defense. On the other hand, if the immunity arises out of the doing of the act itself (regardless of any peculiar quality of the actor), subsection (a) applies and the principal can avail itself of the defense.
In the case before us the immunity is provided to any person (regardless of any personal characteristic or status) whom a nominated classification society authorizes to do one of the specific acts for which the statute (§ 279) provides immunity. It would be hard to imagine a situation where the agent more clearly had "a privilege which he properly exercised on his principal's behalf," and we accordingly agree with Sir Leonard that upon the facts before us defendant is entitled to assert the defense that § 279 provides to its employee on the doctrine of respondeat superior.
Our conclusion that defendant can raise the shield of § 279 immunity with respect to good faith acts in issuing statutory safety certificates on behalf of the Bahamas raises the question of whether this case involves only claims in the issuance of those safety certificates, or also in issuing the classification certificate, which would not be within the protection of that section. It appears to us that while the complaint does assert negligence in the issuing of all certificates, the whole thrust of this litigation has been addressed exclusively to the protected statutory safety certificates.
Thus plaintiff's assertions at oral argument were specifically centered on it's claim with respect to the issuance of the SOLAS certificate. Counsel for plaintiff stated that "the law we are going under is the Safety of Life at Sea 1974. It is a very specific certificate, the passenger ship's safety certificate . . . It's the issuance of that certificate . . . not the Load Lines certificate by ABS per se that leads to the loss of the vessel" (Tr. at 17). And "the Safety of Life at Sea 1974. That's what applies in this case. This has to apply in this case" (Tr. at 33). And, with respect to defendant's control over the vessel, "look, there's those two holes, they can't be here, that ship can't sail, I have the passenger ship's safety certificate in my back pocket and I'll be damned if I am going to issue it" (Tr. at 86). And "the Sundancer founders and sank because of progressive flooding because she did not meet the requirements of the Safety of Life at Sea Convention" (Tr. at 88). Moreover, counsel for plaintiff appears to have acquiesced in two statements counsel for defendant made in this regard: "the essence of his case comes down to a charge that when ABS issued statutory safety certificates under the safety of Life at Sea Convention, it did so negligently, even grossly negligent" (Tr. at 22); and "we also undertook, also at the behest of owners, the statutory certificate work. And there we have to put some special emphasis, because we don't have a claim under the classification side of our work, we have a claim that is focussed on allegations of negligence in the issuance of statutory certificates" (Tr. at 24-25). It therefore seems to us that we are concerned here only with the statutory SOLAS certificates.
We grant defendant's motion for summary judgment and direct the clerk to enter an order dismissing the complaint. However, although a pre-trial order has been submitted and the parties have advised us that all discovery is complete, we wish to afford plaintiff an opportunity to consider whether anything contained in this opinion would legitimately entitle it to further discovery -- but not a general reopening of discovery -- in order (a) to persuade us that we are mistaken in any aspect of this opinion or (b) to complete the record for an appeal.
We therefore direct the Clerk of the Court to withhold entry of judgment until further order. Within 20 days plaintiff may submit a motion for reargument and/or an application for further discovery within the above narrow bounds. Should plaintiff make such an application, it must specify how it expects the requested discovery to further either or both of the above-stated objectives, and explain why such discovery had not been taken before the pre-trial order was filed. In the event plaintiff makes either such motion or application, defendant shall have 20 days to respond. Should oral argument seem appropriate it will be heard on Friday September 18 at 2:00 p.m. Should plaintiff prefer an immediate appeal on the present record, it may file with the Clerk of the Court a notice so advising him and a judgment dismissing the complaint will be entered forthwith.
New York, New York
July 31, 1992
WHITMAN KNAPP, U.S.D.J.