Petitions of the Kinsman Transit Company, as Owner and Operator of the Steamer MacGilvray Shiras, and of Midland Steamship Line, Inc., as Owner and Operator of the Steamer Michael K. Tewksbury, Their Engines, Etc., for Exoneration From or Limitation of Liability, City of Buffalo, Claimant-Respondent-Appellant, Kelley Island New York Corporation, Claimants-Appellees

We have here six appeals, 28 U.S.C. 1292(a)(3), from an interlocutory decree in admiralty adjudicating liability. The litigation, in the District Court for the Western District of New York, arose out of a series of misadventures on a navigable portion of the Buffalo River during the night of January 21, 1959. The owners of two vessels petitioned for exoneration from or limitation of liability; numerous claimants appeared in these proceedings and also filed libels against the Continental Grain Company and the City of Buffalo, which filed cross-claims. The proceedings were consolidated for trial before Judge Burke. We shall summarize the facts as found by him:

The Buffalo River flows through Buffalo from east to west, with many turns and bends, until it empties into Lake Erie. Its navigable western portion is lined with docks, grain elevators, and industrial installations; during the winter, lake vessels tie up there pending resumption of navigation on the Great Lakes, without power and with only a shipkeeper aboard. About a mile from the mouth, the City of Buffalo maintains a lift bridge at Michigan Avenue. Thaws and rain frequently cause freshets to develop in the upper part of the river and its tributary, Cazenovia Creek; currents then range up to fifteen miles an hour and propel broken ice down the river, which sometimes overflows its banks.

On January 21, 1959, rain and thaw followed a period of freezing weather. The United States Weather Bureau issued appropriate warnings which were published and broadcast. Around 6 P.M. an ice jam that had formed in Cazenovia Creek disintegrated. Another ice jam formed just west of the junction of the creek and the river; it broke loose around 9 P.M.

The MacGilvray Shiras, owned by The Kinsman Transit Company, was moored at the dock of the Concrete Elevator, operated by Continental Grain Company, on the south side of the river about three miles upstream of the Michigan Avenue Bridge. She was loaded with grain owned by Continental. The berth, east of the main portion of the dock, was exposed in the sense that about 150' of the Shiras' forward end, pointing upstream, and 70' of her stern-- a total of over half her length-- projected beyond the dock. This left between her stem and the bank a space of water seventy-five feet wide where the ice and other debris could float in and accumulate. The position was the more hazardous in that the berth was just below a bend in the river, and the Shiras was on the inner bank. None of her anchors had been put out. From about 10 P.M. large chunks of ice and debris began to pile up between the Shiras' starboard bow and the bank; the pressure exerted by this mass on her starboard bow was augmented by the force of the current and of floating ice against her port quarter. The mooring lines began to part, and a 'deadman,' to which the No. 1 mooring cable had been attached, pulled out of the ground-- the judge finding that it had not been properly constructed or inspected. About 10:40 P.M. the stern lines parted, and the Shiras drifted into the current. During the previous forty minutes, the shipkeeper took no action to ready the anchors by releasing the devil's claws; when he sought to drop them after the Shiras broke loose, he released the compressors with the claws still hooked in the chain so that the anchors jammed and could no longer be dropped. The trial judge reasonably found that if the anchors had dropped at that time, the Shiras would probably have fetched up at the hairpin bend just below the Concrete Elevator, and that in any case they would considerably have slowed her progress, the significance of which will shortly appear.

Careening stern first down the S-shaped river, the Shiras, at about 11 P.M., struck the bow of the Michael K. Tewksbury, owned by Midland Steamship Line, Inc. The Tewksbury was moored in a relatively protected area flush against the face of a dock on the outer bank just below a hairpin bend so that no opportunity was afforded for ice to build up between her port bow and the dock. Her shipkeeper had left around 5 P.M. and spent the evening watching television with a girl friend and her family. The collision caused the Tewksbury's mooring lines to part; she too drifted stern first down the river, followed by the Shiras. The collision caused damage to the Steamer Drucken-miller which was moored opposite the Tewksbury.

Thus far there was no substantial conflict in the testimony; as to what followed there was. Judge Burke found, and we accept his findings as soundly based, that at about 10:43 P.M., Goetz, the superintendent of the Concrete Elevator, telephoned Kruptavich, another employee of Continental, that the Shiras was adrift; Kruptavich called the Coast Guard, which called the city fire station on the river, which in turn warned the crew on the Michigan Avenue Bridge, this last call being made about 10:48 P.M. Not quite twenty minutes later the watchman at the elevator where the Tewksbury had been moored phoned the bridge crew to raise the bridge. Although not more than two minutes and ten seconds were needed to elevate the bridge to full height after traffic was stopped, assuming that the motor started promptly, the bridge was just being raised when, at 11:17 P.M., the Tewksbury crashed into its center. The bridge crew consisted of an operator and two tenders; a change of shift was scheduled for 11 P.M, The inference is rather strong, despite contrary testimony, that the operator on the earlier shift had not yet returned from a tavern when the telephone call from the fire station was received; that the operator on the second shift did not arrive until shortly before the call from the elevator where the Tewksbury had been moored; and that in consequence the brige was not raised until too late.

The first crash was followed by a second, when the south tower of the bridge fell. The Tewksbury grounded and stopped in the wreckage with her forward end resting against the stern of the Steamer Farr, which was moored on the south side of the river just above the bridge. The Shiras ended her journey with her stern against the Tewksbury and her bow against the north side of the river. So wedged, the two vessels substantially dammed the flow, causing water and ice to back up and flood installations on the banks with consequent damage as far as the Concrete Elevator, nearly three miles upstream. Two of the bridge crew suffered injuries. Later the north tower of the bridge collapsed, damaging adjacent property.

Judge Burke concluded that Continental and the Shiras had committed various faults discussed below; that the faults of the Shiras were without the privity or knowledge of her owner, thus entitling Kinsman to limit its liability,1 46 U.S.C. 183; that the Tewksbury and her owner were entitled to exoneration; and that the City of Buffalo was at fault for failing to raise the Michigan Avenue Bridge. The City was not faulted for the manner in which it had constructed and maintained flood improvements on the river and on Cazenovia Creek, or for failing to dynamite the ice jams. For the damages sustained by the Tewksbury and the Druckenmiller in the collisions at the Standard Elevator dock, Judge Burke allowed those vessels to recover equally from Continental and from Kinsman, jointly and severally, subject however, to the latter's right to limit liability. He held the City, Continental and Kinsman equally liable jointly and severally (again subject to Kinsman's limitation of liability) for damages to persons and property sustained by all others as a result of the disaster at the bridge.2 But, on the basis of the last clear chance rule, he held the City solely liable for damages sustained by the other tort-feasors, to wit, the Shiras and Continental as operator of the Concrete Elevator, and refused to allow recovery by the City against them.

The complaints as to the judge's determinations are so numerous that, in order to deal properly with the most serious ones and avoid inordinate length, we must state our conclusions on the others in rather summary fashion:

( 1) Non-liability of the City of Buffalo for action and inaction in the upper reaches of the Buffalo River and Cazenovia Creek.

On conflicting evidence, the trial judge concluded that the City had not created 'a special hazard of ice jams' by its construction, completed twenty and thirty years previously, and its maintenance thereafter of flood improvements in the Buffalo River and Cazenovia Creek; he further found that the City's failure to dynamite ice jams on January 21, 1959, was not negligent. Since we accept these conclusions, it is immaterial at this point that we would disagree, for reasons later intimated, with his ruling that 'the claimed faults on the part of the City in creating and failing to control those conditions were not proximately contributing causes' since 'the disaster would not have occurred without the actionable faults of Continental and the Shiras.' Nor need we reach the City's contention that it could not in any event be cast in liability for deficiencies in the improvements, the original plan for which had been submitted to the Secretary of War under the Act of March 3, 1899, 33 U.S.C. 403, or for failure to take ameliorative action, either by way of further construction or through dynamiting, which allegedly would have been only voluntary on its part. Cf. Faust v. City of Cleveland, 121 F. 810 (6 Cir. 1903). But see City of Detroit v. Wyandotte Transp. Co., 76 F.2d 674 (6 Cir.), cert. denied, 296 U.S. 595, 56 S.Ct. 112, 80 L.Ed. 422 (1935).

(2) Negligence of Kinsman and Continental.

The mooring of the Shiras, as to which more will be said under the next heading, was the joint work of Kinsman, acting through Captain Davies, her former master, and of Continental. The judge was justified in holding that, with her bow protruding into the river just below a bend and with the eroded bank incapable of taking a long lead line or an anchor chain, the Shiras ought to have put out an anchor from her port bow. He was also warranted in finding that Continental was at fault for the inadequately secured 'deadman' and the Shiras for the shipkeeper's failure to ready the anchors in the interval between 10 P.M. and 10:40 P.M. on January 21. The current and ice conditions on the fateful evening were not so unexpectable as to go beyond the range of foreseeability and hence to come within the principle of inevitable accident; the conditions were of the very sort that had been occurring for years, although not in quite the same degree. Kinsman and Continental say that no ship had drifted loose in the river as the result of the breaking of an ice jam since an episode in 1916 relating to The Anna C. Minch, 271 F. 192 (2 Cir. 1921), and that we exonerated her. However, the basis for exoneration was not that the strong currents and heavy ice were unexpectable but that the Minch had taken all reasonable precautions against them.

(3) Limitation of Kinsman's liability.

We find this issue more difficult; some further statement of the facts is required.

Kinsman's principal office is in Cleveland. It owned five vessels, four of which were in Buffalo in the winter of 1958-59. Kinsman is a family corporation; Henry Steinbrenner was its president and his son, George, then only twenty-eight years old and without maritime studies or experience, had become its vice president and treasurer in 1957.

The Shiras arrived in Buffalo with a cargo of grain for Continental late in November and was moored for the winter at the coal dock of the Lackawanna Railroad in the ship canal. Inspection of the grain revealed heating, which made it desirable to unload the Shiras and then reload her for further storage. George Steinbrenner went to Buffalo on December 8 to work out the plans; he returned to Cleveland on the 12th and, having gone to Florida on a vacation, was not in Buffalo again until after the accident. It is not shown that he had knowledge of the precise place where or the manner in which the Shiras would ultimately be moored.

When Kinsman had mooring or loading problems in Buffalo during the winter, it sometimes relied on its agents, Boland & Cornelius, and sometimes would dispatch one of its masters, grounded for the winter, who were paid for such work on a per diem basis. On this occasion it took the latter course. Henry Steinbrenner assigned the task to Captain Davies who had been master of the Shiras during the 1958 season. Davies came to Buffalo on three occasions. On the first he supervised the shifting of the Shiras to the unloading leg of the Concrete Elevator dock, on the second to the loading leg, and on the third, January 7, to the place east of the loading leg where she was expected to remain moored for the rest of the winter. The remooring was effected, without the aid of tugs, by a gang of Continental employees bossed by Kruptavich, which placed the lines on the shore. Kinsman had never made any effort to obtain information as to winter weather or harbor conditions in Buffalo but relied on inspection and approval by United States Salvage Association, which was employed to that end by the Great Lakes Protective Association, a mutual insurance association of steamship operators. Rozycki, a marine surveyor employed by United States Salvage, inspected the mooring on January 8 and made a favorable report; a formal certificate of approval was later sent to Henry Steinbrenner.

The case gives point to the comment that the statutory phrase, 'without the privity or knowledge of such owner,' is largely 'devoid of meaning,' Gilmore & Black, Admiralty, 695 (1957)-- a statement supplemented with the admittedly unhelpful comment: 'Where a vessel is held in corporate ownership, the imputation of 'privity or knowledge' to the corporate owner will be made if a corporate officer sufficiently high in the hierarchy of management is chargeable with the requisite knowledge or is himself responsible on a negligence rationale. How high is 'sufficiently high' will depend on the facts of particular cases * * *.' Ibid. 701. Henry and George Steinbrenner were 'sufficiently high,' but George had no knowledge of the mooring, and Henry had none save for Davies' report on his return from Buffalo and the United States Salvage certificate, both of which were reassuring rather than the reverse. They were not negligent in assigning the task to Davies, whose competence was established. Davies was not 'sufficiently high,' under the authorities cited below. His knowledge is imputed to the corporation on the issue of exoneration, but that is precisely what the statute forbids on the issue of limitation. Still it seems likely that if Kinsman's headquarters had been in Buffalo, limitation would be denied under Spencer Kellogg & Sons v. Hicks, 285 U.S. 502, 52 S.Ct. 450, 76 L.Ed. 903 (1932), on the basis that it was negligent not to check the adequacy of the mooring of the Shiras when dangerous conditions threatened on January 21, or even that it was negligent to fail to make a cautionary inspection of the moorings of Kinsman's vessels in the harbor at an earlier date. If the latter view were taken, one might query the good sense of a distinction that would lead to a different result in this age of rapid transportation and communication because Kinsman's office was a few hundred miles away from the harbor where four of its five ships were berthed. The query seems especially pertinent when, as here, there is every indication that nothing different would have been done if George Steinbrenner had been on the scene during the final mooring as he had entrusted the operation to one admittedly more competent to oversee it than he was. Indeed, the whole rationale of the doctrine is of questionable application in a case like this where there was no need for the owner to rely on the skill of a master or other agents as he must when a vessel is at sea or in a distant port. All this, however, is not for us; shipowners and their insurers are entitled to rely on the statute and the decisions applying it, and we must take these as we find them until a higher authority intervenes. Although we doubt that the decisions can all be reconciled, this case is closer to Craig v. Continental Ins. Co., 141 U.S. 638, 12 S.Ct. 97, 35 L.Ed. 886 (1891); Quinlan v. Pew, 56 F. 111 (1 Cir. 1893); The Annie Faxon, 75 F. 312 (9 Cir. 1896), and The Erie Lighter 108, 250 F. 490 (D.N.J.1918), allowing limitation, than to McGill v. Michigan SS. Co., 144 F. 788 (9 Cir.), cert. denied, 203 U.S. 593, 27 S.Ct. 782, 51 L.Ed. 332 (1906); The Marguerite, 140 F.2d 491 (7 Cir. 1944); The Cleveco, 154 F.2d 605 (6 Cir. 1946); The Edmund Fanning, 105 F.Supp. 353, 363-366, 371 (S.D.N.Y.1952), aff'd as to this point, 201 F.2d 281 (2 Cir. 1953), and States SS. Co. v. United States, 259 F.2d 458 (9 Cir. 1957), cert. denied, 358 U.S. 933, 79 S.Ct. 316, 3 L.Ed.2d 305 (1959); Admiral Towing Co. v. Woolen, 290 F.2d 641 (9 Cir. 1961), and The Derrick Trenton, 189 F.Supp. 400 (S.D.N.Y.1960), denying it. We are aware of the difference in the ages of the two sets of decisions, but we find nothing in the later cases reflecting on the authority of the earlier ones on fact situations within their sweep-- aview which Coryell v. Phipps, 317 U.S. 406, 63 S.Ct. 291, 87 L.Ed. 363 (1943), tends to confirm.

Two other points must be considered. If the Shiras was not seaworthy in what has been termed the 'primitive sense' of being 'tight, staunch, strong and well and sufficiently tackled, appareled, furnished and equipped,' a corporate owner who has failed in his duty to provide such a ship does not escape full liability, Gilmore & Black, supra, 702. It is argued that the Shiras was unseaworthy in this sense on the basis that although she put out all the mooring lines she had, their number was inadequate. The latter claim was the subject of conflicting testimony, and we take the judge's failure to fault the Shiras on this score as a finding, not clearly erroneous, that the claim was not established. Continental's claim that, under the 'personal contract' exception, Gilmore & Black, Admiralty, 10-26ff., Kinsman may not limit liability to it because of breach of the warranty of seaworthiness in the storage contract signed by Henry Steinbrenner, is defeated both by lack of proof of breach3 and by the fact that the exception would apply only to damage to the stored cargo, which did not occur. See 3 Benedict, Admiralty, 373 (1940).

(4) Exoneration of Midland and of the Tewksbury.

The exoneration of the Tewksbury and of her owner is challenged by the argument that the Tewksbury should have put out an anchor and an anchor chain and that it was negligent for her shipkeeper to be away. As to the former we see no sufficient reason to reject the judge's conclusion that, in view of the Tewksbury's sheltered position, the omission to take these added precautions, even in the conditions that had developed on January 21, was not negligent. As to the second point, it is not altogether clear whether the judge rested his conclusion on absence of negligence and also on lack of causal relation or solely on the latter. We should have difficulty in saying it was not negligent to leave the Tewksbury unguarded on what was known to be a perilous night, especially in view of the Buffalo ordinance forbidding any 'master or other person owning or having charge of any vessel' to leave her in the harbor 'without having on board or in charge thereof some competent person to control, manage or secure the same, without first obtaining permission of the harbor master.' But we accept the judge's conclusion that the shipkeeper's presence would not have averted the disaster. The only ameliorative measure which it is suggested he might have taken is the dropping of the one anchor left to the Tewksbury after the Shiras destroyed the other. But it is highly questionable whether such action would have had a significant effect on the short rock-bottomed stretch between the Standard Elevator and the bridge. See The Anna C. Minch, 260 F. 522, 527 (W.D.N.Y.); 271 F. 192, 198 (2 Cir. 1921). Moreover, the shipkeeper might well have been reasonably reluctant to drop an anchor knowing that if it held, the Shiras would crash into the Tewksbury again.

We thus come to what we consider the most serious issues: (I) Whether the City of Buffalo was at fault for failing to raise the bridge on learning of the prospective advent of the Shiras and the Tewksbury; (II) the consequences of the time relation of the City's failure to the prior faults of the Shiras and Continental; and (III) the effect of the allegedly unexpectable character of the events leading to much of the damage-- and here of the Palsgraf case, infra.

I. The City's failure to raise the bridge.

If this were a run of the mine negligence case, the City's argument against liability for not promptly raising the Michigan Avenue Bridge would be impressive: All the vessels moored in the harbor were known to be without power and incapable of controlled movement save with the aid of tugs. The tugs had quit at 4 P.M.; they were not docked in the river, and would not undertake after quitting time to tow a vessel into or out of the inner harbor. Since the breaking loose of a ship was not to be anticipated, it would have been consistent with prudence for the City to relieve the bridge crews of their duties.4 Neglect by the crews ought not subject the City to liability merely because, out of abundance of caution, it had ordered them to be present when prudence did not so require. The case is unlike those in which a railway or a city, having undertaken to give warning signals at a crossing although under no duty to do so, is held liable to a plaintiff who relied on the absence of warning when it failed to continue its practice. See Prosser, Torts, 187, and fn. 87 (1955). It would be nonsense to suppose that Continental and the Shiras did what they did, and didn't what they didn't, in reliance on the bridge operators being sufficiently alert to avert disaster if the Shiras should break loose.

Buffalo's adversaries answer with 4 of the Bridge Act of 1906, 33 U.S.C. 494, which requires, inter alia, that if a bridge over a navigable stream 'shall be constructed with a draw, then the draw shall be opened promptly by the persons owning or operating such bridge upon reasonable signal for the passage of boats and other water craft.' Buffalo replies that this general language cannot reasonably be construed to require that all drawbridges over all navigable streams in all fifty states shall be tended at all times of day or night, summer or winter, despite the near certainty that no traffic will approach. Alternatively it is arguable that a signal given when no traffic was to be expected would not be a 'reasonable signal' unless this gave the bridge owner reasonable time to get someone down to the bridge to open it. However, an older statute, 28 Stat. 362 (1894), as amended, 33 U.S.C. 499, makes it 'the duty of all persons owning, operating, and tending the drawbridges * * * across the navigable rivers and other waters of the United States, to open, or cause to be opened, the draws of such bridges under such rules and regulations as in the opinion of the Secretary of the Army the public interests require to govern the opening of drawbridges for the passage of vessels and other watercrafts, and such rules and regulations, when so made and published, shall have the force of law. * * *' The section goes on to authorize the promulgation of such regulations by the Secretary of the Army and to make it a misdemeanor to delay unreasonably the opening of a draw after reasonable signal. Pursuant to this authority, the Corps of Engineers promulgated 33 C.F.R. 203.707, as follows:

'(a) The Michigan Avenue bridges across Buffalo River and Buffalo Ship Canal will not be required to open for the passage of vessels from 7:00 to 7:30 a.m., 8:00 to 8:30 a.m., 3:45 to 4:30 p.m., and 5:15 to 6:00 p.m. ' (d) The closed periods prescribed in this section shall not be effective on Sundays and on New Year's day * * * (and other holidays). '(e) The draws of these bridges shall be opened promptly on signal for the passage of any vessel at all times during the day or night except as otherwise provided in this section.' (None of the unquoted subsections provide otherwise.)

It is possible to read this statute and the regulations thereunder as creating by implication a cause of action, irrespective of negligence, for any person, or at least for any ship, injured by their breach. The power of Congress with respect to navigable streams is plenary; nothing prevents Congress from 'abating any erections that may have been made, and preventing any others from being made, except in conformity with such regulations as it may impose.' Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 12-13, 8 S.Ct. 811, 817, 31 L.Ed. 629 (1888). Responsive to that decision Congress has enacted that 'The creation of any obstruction not affirmatively authorized by Congress, to the navigable capacity of any of the waters of the United States is prohibited; * * *,' 33 U.S.C. 403; the Michigan Avenue Bridge was allowed to exist only subject to the conditions as to its raising previously stated. However, we are not here required to decide whether the statute and regulations create such an implied cause of action and, if so, in whose favor. See United States v. Perma Paving Co., 332 F.2d 754 (2 Cir. 1964). It is enough for this case that they lay down a standard of care with which bridge owners must comply in the absence of circumstances, not here present, excusing such compliance.

There can be no question as to this being so with respect to vessels in the ordinary course of navigation. City of Chicago v. Chicago Transp. Co., 222 F. 238, L.R.A.1915F, 1062 (7 Cir.), cert. denied, 238 U.S. 626, 35 S.Ct. 664, 59 L.Ed. 1495 (1915); City of Cleveland v. McIver,109 F.2d 69 (6 Cir.1940). Cf. Nassau County Bridge Auth. v. Tug Dorothy McAllister, 207 F.Supp. 167 (E.D.N.Y.1962), aff'd 315 F.2d 631 (2 Cir. 1963). The same rule has been held applicable as to drifting vessels, Dorrington v. City of Detroit, 223 F. 232 (6 Cir.1915). Although these were doubtless not in the forefront of Congress' mind, they too were within the general purpose of insuring freedom of navigation at which the statute was aimed. Compare De Haen v. Rockwood Sprinkler Co., 258 N.Y. 350, 179 N.E. 764 (1932); Urie v. Thompson, 337 U.S. 163, 191, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949); contrast Gorris v. Scott, L.R. 9 Ex. 125 (1874), and see A.L.I. Restatement 2d, Torts 286 (Tent.Draft No. 4, April, 1959), and Prosser, Torts, 157-58 (1955). The effect of the Corps of Engineers' regulation was to withdraw decision as to when the bridge might be left untended from what would otherwise have been a permissible area for exercise of the City's prudent judgment. See The Pennsylvania, 19 Wall. (86 U.S.) 125, 22 L.Ed. 148 (1874). Indeed, Buffalo exercised no judgment contrary to the regulation; the fault lay in its employees' failure to carry out the United States' commands and those of their employer.

II. The time relation of the City's failure to the prior faults of the Shiras and Continental.

All three parties held liable complain of the effect which the judge gave to the failure of the City to raise the bridge. Kinsman and Continental contend that the City's failure insulates them from liability for damages to others resulting from the collision at the bridge; the City objects to the imposition of sole liability for damage to the Shiras and to Continental and to the exoneration of these parties from liability for destruction of the bridge.

We speedily overrule the objections of Kinsman and Continental. Save for exceptions which are not here pertinent, an actor whose negligence has set a dangerous force in motion is not saved from liability for harm it has caused to innocent persons solely because another has negligently failed to take action that would have avoided this. See A.L.I. Restatement, Torts 439, 447 and 452; Restatement 2d Torts 442A, 442B, and 452(1), comments b and c (Tent.Draft No. 9, April, 1963); Harper & James, The Law of Torts, 1146 (1956); James, Last Clear Chance: A Transitional Doctrine, 47 Yale L.J. 704, 708 (1938). As against third persons, one negligent actor cannot defend on the basis that the other had 'the last clear chance.' See Prosser, Torts, 291 and fn. 72 (1955); Bohlen, Contributory Negligence, 21 Harv.L.Rev. 233, 237-41 (1908); MacIntyre The Rationale of Last Clear Chance, 53 Harv.L.Rev. 1225, 1234-35 (1940). The contrary argument grows out of the discredited notion that only the last wrongful act can be a cause-- a notion as faulty in logic as it is wanting in fairness. The established principle is especially appealing in admiralty which will divide the damages among the negligent actors or nonactors.

On the other hand, we disagree with the judge's holding that because the City had 'the last clear chance,' Kinsman and Continental as plaintiffs against it are absolved of their negligence and the City as plaintiff is left without recourse against them. Here, as in the case of the injuries to persons not at fault, the damages should be divided. Explanation of our reasons requires some analysis of the origin of the last clear chance rule and of its application in admiralty.

As has been pointed out, the earliest common law decisions upholding the defense of contributory negligence were cases where the plaintiff's negligence came later than the defendant's and rested on the now discarded belief that only the last negligent act could be a legal cause. See Bohlen, Contributory Negligence, supra, 21 Harv.L.Rev. at 238; 8 Holdsworth, A History of English Law 459 (2d ed. 1925); Harper & James, supra, 1241-45. This same notion that had thus given rise to contributory negligence as a complete defense then became the basis for avoiding it; the first and still the most current explanation of the last clear chance rule is that under such circumstances the plaintiff's negligence is not a proximate cause of his injury. Dowell v. General Steam Nav. Co., 5 El. & Bl. 195 (1855); Tuff v. Warman, 5 C.B. (N.S.) 573, 585, 141 Eng.Rep. 231, 236 (1858). The error in this has been often demonstrated, see Prosser, Torts, 291; Harper & James, The Law of Torts, 1244, and fn. 18; the theory is, of course, entirely inconsistent with the acknowledged right of third persons to recover against the first as well as the second actor in the temporal chain. But, despite its demonstrable fallacy, the last clear chance doctrine has remained popular at common law as ameliorating the harshness of the rule whereby a negligent act of the plaintiff, often very slight in comparison to the dangerous conduct of the defendant, would otherwise bar recovery.

Although it might have been thought that the less severe consequences attributed to contributory negligence by the admiralty would have prevented the last clear chance doctrine from entering maritime law, see The Norman B. Ream, 252 F. 409, 414 (7 Cir.1918), a number of factors dictated otherwise. One was the influence of English cases in the common law courts involving collisions in territorial waters; another was the manning of the Court of Appeal and the House of Lords and of both trial and appellate admiralty tribunals in this country with lawyers whose principal training was in the common law; a third-- no longer applicable in England since the Brussels Rules for apportioning damages in proportion to fault were adopted by the Maritime Conventions Act, 1 & 2 Geo. V, c. 57, 1(1) (1911), but highly influential here-- is that the doctrine, selectively applied, has helped to overcome results of the equal division principle which are sometimes quite as shocking as those of the common law bar for contributory negligence-- especially in cases where reliance by a relatively innocent plaintiff on the 'major-minor fault' exception has been thought to be barred by the rule of The Pennsylvania, 19 Wall. (86 U.S.) 125, 22 L.Ed. 148 (1874), that a party to a collision who has violated a statutory rule of navigation may not escape liability except on proof that the violation could not have contributed to the accident. See MacIntyre, supra, 53 Harv.L.Rev. at 1236-41; Gilmore & Black, Admiralty, 403-407, 438-442.

None of the cases in which this Court has applied the last clear chance rule to impose sole liability in admiralty is at all analogous to this one; indeed we doubt whether this case would come within the principle as generally applied at common law. One line of authority that is plainly distinguishable is where the vessel committing the later fault was contractually bound to care for the one guilty of an earlier fault of which the vessel held solely liable had become aware-- typified by the tug that neglects a leaky tow, as in Henry Du Bois Sons Co. v. Pennsylvania RR., 47 F.2d 172 (2 Cir.1931), or in what was fated to be Judge Learned Hand's last opinion, Chemical Transporter, Inc. v. M. Turecamo, Inc., 290 F.2d 496 (2 Cir.1961). See also Sternberg Dredging Co. v. Moran Towing and Transp. Co., 196 F.2d 1002 (2 Cir.1952). In the other cases relied on by Continental and the Shiras, as in those just cited, the vessel solely charged had engaged in dangerous conduct in full knowledge of the peril created by the other's fault, often small although statutory. The Perseverance, 63 F.2d 788 (2 Cir.), cert. denied sub nom. Cornell Steamboat Co. v. Lavender, 289 U.S. 744, 53 S.Ct. 692, 77 L.Ed. 1490 (1933); The Sanday, 122 F.2d 325 (2 Cir. 1941); The Socony No. 19, 29 F.2d 20 (2 Cir. 1928); The Syosset, 71 F.2d 666 (2 Cir. 1934); The Cornelius Vanderbilt,