United States Circuit Court of Appeals, Second Circuit, 1947.
159 F.2d 169.
Prosser, pp. 139-141
Facts: Conners Co.’s workers were
absent from their barge, the Anna C.
Carroll owned a tugboat whose workers caused the barge to come lose and
eventually sink. The
Issue: If no one is working on a barge and the barge causes injuries to others, is the owner of the barge liable?
Rule: No rule! Just some general guidelines to determine the bargee’s duty.
Analysis: Learned Hand says that the owner’s duty depends on three variables:
1. How likely is it that the barge will break away from its moorings?
2. How big an injury did it cause?
3. How expensive would precautions be?
If the expense of precautions is less the expectation value of the injury, then the court will conclude that the owner had a duty that was breached.
Conclusion: The court finds that there should have been a bargee aboard during working hours. Thus, Conners is partly responsible for the harm caused.
Notes and Questions
1. In the present case, Hand acts as though the three factors are quantifiable, and he actually does the algebra and comes up with an answer. I actually think that in fact a judge is better equipped to make these judgments than a jury.
2. This seems like one big jumble of factors.
3. Based on Hand’s analysis, the brief asserts that P is very low and B is rather high, such that even a great L doesn’t justify the additional expenditure on safety.
4. Here, B is very small and L is quite large. It also seems that P is just big enough to find that the manufacturer could be found negligent.
5. Here, B is moderate and P is very small where L is fairly high. This wouldn’t be an easy case, but I think the fact that the harm is very unlikely and unforeseeable wins out.