The T.J. Hooper

United States Court of Appeals for the Second Circuit · 1932 · Torts

negligencecustomindustry standardseaworthinesstowing liabilityLearned Handcustom evidencereasonable prudence

Facts

Two tugs, the Montrose and the Hooper, towed coal barges from Norfolk to New York in March 1928, and two barges, No. 17 and No. 30, were lost off the New Jersey coast in an easterly gale. The weather was fair when the tows passed the Delaware Breakwater, but weather bureau broadcasts later predicted increasing east and southeast winds; several other tow masters who received those reports put into the Breakwater. The tugs did not receive the warnings because their private radio receiving sets aboard were not in working order. The barges also proved unseaworthy because they leaked in weather they should have withstood and their pumps failed or were rendered ineffective.

Issue

Whether the tugs were negligent and unseaworthy for failing to have working radio receiving sets that would have given them weather warnings, even though such sets had not yet been generally adopted in the trade. Also, whether the barges were unseaworthy for the service undertaken.

Rule

Reasonable prudence is not conclusively measured by common industry practice. A whole calling may lag in adopting new and available safety devices, and courts must ultimately decide what precautions are required; if a precaution is imperative, even universal disregard will not excuse its omission. Seaworthiness is measured by fitness for the service undertaken.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Blue Harbor Towing, based in Baltimore, sends a tug towing four loaded stone barges toward Providence in early November. A low-cost digital weather receiver, already used by a few competitors but not by most tug operators, would have delivered an evening gale bulletin; without it, the tug continues past a safe inlet and the tow is later damaged in a storm.

If the tow owners sue Blue Harbor Towing for negligence, which is the best argument for liability?

Explanation. The governing rule is that common practice is evidence of prudence but never its conclusive measure. If an available precaution is important and reasonably necessary for the service, a court may find negligence even though the industry has not generally adopted it. The majority reasoned that a whole calling may lag in adopting new safety devices, so the absence of general custom does not excuse omission.