FRIENDLY, Circuit Judge:
These libels, consolidated for trial before Judge Wyatt in the District Court for the Southern District of New York, see 241 F.Supp. 99 (1965), were brought to recover for damage to cargo on Pier 5, Bush Terminal, Brooklyn. The cause of the damage was a flooding of the pier due to storm surge and wave action created by Hurricane Donna which struck New York harbor in the early afternoon of Monday, September 12, 1960. The pier was 10' above mean low water, as against 9' required by New York City, but the unusually high level of the water covered the floor to a considerable height.
We are confronted at the outset by appellees' contention that the only issue before us is whether the district court's conclusion of lack of negligence was clearly erroneous. Appellees recognize the many decisions of this court which hold that, with respect to negligence as distinguished from the evidentiary facts on which it is based, a judge's determination is not entitled to the benefit of the "unless clearly erroneous" rule either in admiralty or in actions governed by F.R.Civ.P. 52; they suggest, however, that most of these cases antedated McAllister v. United States, 348 U.S. 19, 75 S.Ct. 6, 99 L.Ed. 20 (1954), and that in any event they cannot stand in the face of that decision.
The attempt to whittle down the precedents in this court must fail. In Romero v. Garcia & Diaz, Inc., 286 F.2d 347, 355-356, cert. denied, 365 U.S. 869, 81 S.Ct. 905, 5 L.Ed.2d 860 (1961), where we adhered to our long-standing rule, we cited three earlier post-McAllister decisions in which this court, speaking through eminent judges, had done precisely that. Dale v. Rosenfeld, 229 F.2d 855, 858 (1956) (Swan, J.,); New York, N. H. & H. R. R. v. Gray, 240 F.2d 460, 465 (Frank, J.), cert. denied, 353 U.S. 966, 77 S.Ct. 1059, 1 L.Ed.2d 915 (1957); and Verbeeck v. Black Diamond S.S. Corp., 269 F.2d 68, 70 (1959) (Clark, J.), cert. denied, 361 U.S. 934, 80 S.Ct. 374, 4 L.Ed. 2d 355 (1960). To this list we can now add Kane v. Branch Motor Express Co., 290 F.2d 503, 506-507, (1961), and, dealing with a somewhat different but related subject, Ellerman Lines, Ltd. v. The S.S. President Harding, 288 F.2d 288, 291-292 (1961). We find nothing to the contrary in Castro v. Moore-McCormack Lines, Inc., 325 F.2d 72, 75 (1963); rather that opinion recognized our established rule. However, the recurrent arguments on this point and the earnestness of appellees' presentation make further consideration appropriate.
The standard explanation of our rule was stated in Romero as follows: "determination of negligence involves first the formulation and then the application of a standard of conduct to evidentiary facts found to be established. When all this has been done by a judge, a reviewing court has no means of knowing whether he formulated the standard correctly, since he does not charge himself. Thus there must be free review of his ultimate determination of negligence although not of the facts on which it was based." See also Kane v. Branch Motor Express Co., supra, 290 F.2d at 506-507. Appellees say in effect, although they phrase it more politely, that this is mumbo-jumbo. Since every first-year law student knows what the standard of care is, how can an appellate court seriously wonder whether an experienced trial judge was aware of it? Particularly, how can any doubt be entertained on this score if the judge has correctly repeated the familiar formula? Does it not then follow that what the appellate court is attempting to oversee, at least in most cases, is the interpretation of particular circumstances in the light of a known rule of law? Is not such work the proper business of the trial courts, subject to review only under the "unless clearly erroneous" standards? And, however the argument on principle might stand, is not this what the Supreme Court decreed in McAllister?
The argument on principle makes many over-simplifications that fail to take into account the elaborations of the general standard of care and the need for consistency in judicial decision. Of course we do not doubt the knowledge of the district judges that the overall standard of conduct to which an actor "must conform to avoid being negligent is that of a reasonable man under like circumstances." ALI, Restatement (Second), Torts § 283 (1965). But this is a long way from being the whole story. That simple phrase in the Restatement is accompanied by two pages of explanation; twenty-five more sections, §§ 285-309, with comment spreading over eighty pages, are devoted to further specifications of the general standard. The law of negligence has thus followed the path anticipated in
This leaves the question whether McAllister compels a conclusion that our decisions are wrong as a matter of authority, however wise we may think them to be on principle. What proved to be the crucial issue in that case was not negligence, as to which this court had indicated a somewhat hesitant willingness to go along with the district judge's conclusion, but causation, see 207 F.2d 952, 954-955 (2 Cir. 1953); with respect to that question, this court, speaking through Judge A. N. Hand, did not specify what standard of review it was using. The brief opinion of Mr. Justice Minton assumed that we had applied the "unless clearly erroneous" standard, saying "We do not find that the Court of Appeals departed from this standard, although we do disagree with the result reached under the application of the standard." 348 U.S. at 20, 75 S.Ct. 6, 8, 99 L.Ed. 20. Taking this literally, one could argue that the decision laid down no legal doctrine at all but simply resolved a controversy over facts in favor of the view taken by the district judge. See Staring, Appeals in Admiralty Cases, 35 Tulane L.Rev. 1, 47-50 (1960). But it can be answered that since the Supreme Court ought not to have reversed us if in fact our power went beyond the rejection of a clearly erroneous finding, the Court necessarily decided that causation was a question of "fact" on which the decision of a district court was reviewable only for clear error. Accepting this broad reading for present purposes, we note that the issue in McAllister was simply whether the plaintiff had borne his burden of showing the probability that defendant's negligence rather than other circumstances caused the injury, as distinguished from questions of causation involving a mixture of law and fact such as whether the negligence was the "proximate" or "legal" cause. Finding no discussion in the Supreme Court's opinion directed at what could be considered application of a legal standard to established facts, we adhere
Hurricane Donna was first identified on September 2, 1960, as a severe hurricane several hundred miles east of Puerto Rico, but no one then regarded her as presenting any immediate threat to the northeastern United States. In the following week she moved slowly, in a generally westerly direction, passing north of Puerto Rico and Cuba and aiming toward the Florida keys and thence into the Gulf of Mexico. However, hurricanes on this general course are often subject to a phenomenon known as recurvature — a turn to the north or northeast as a result of encountering southerly and westerly winds near the western end of the Bermuda High, a large high pressure area of varying length which extends west from the Azores. The point at which recurvature occurs, whether off the east coast of the United States or in the Gulf of Mexico, depends on the length of the Bermuda High which tends to shorten progressively from August through the fall months; when recurvature occurs, the hurricane not only changes direction but accelerates from a speed of some 12 miles per hour to several times that rate.
According to the Chief of the National Hurricane Center, a specialized research and warning service of the United States Weather Bureau stationed at Miami, Donna's recurvature began at 7:00 A.M. EST on Friday, September 9, "when it changed from a predominantly western trajectory, first to west-northwest and later to northwest." However, the "advisories" issued by the Weather Bureau during that day did not make alarming news out of this; the 5 P.M. advisory, noting the north-northwest course and the reduced speed of 9 mph, predicted "no material change * * * in intensity, speed or direction during the next 12 hours," and the 11 P.M. advisory went only so far as to forecast that "the direction of movement will likely change to slightly more northerly." In fact, until late in the evening of Saturday, September 10, the Hurricane Center expected that over the weekend Donna would pass up the Gult of Mexico some 60 or 70 nautical miles west of Tampa, cross the Florida coast near Cedar Key, and then move northeast off Cape Hatteras by early Monday. Instead, the center of the hurricane hugged the west coast of Florida only as far as the Tampa area, then turned northeast across the state, and moved up the Atlantic Coast at a considerably greater speed than the experts anticipated. No Weather Bureau report extending hurricane warnings to include New York was issued until Sunday, September 11, at 10 P.M. EDT; although this correctly estimated that Donna would reach the latitude of New York on Monday morning, it erroneously predicted her passage a short distance off the eastern end of Long Island. Later, at 11:55 P.M., the New York Weather Bureau issued a local statement warning that tides on Monday morning might be as high as 5' to 8' above normal from the northern New Jersey shore to Long Island; the following morning's report repeated this forecast but added that in New York harbor tides would be about 3' to 4' above normal. In fact, traveling somewhat west of the anticipated course, the "eye" of the hurricane brushed the New Jersey shore, and between 2:30 and 3:30 P.M. on September 12 passed over central Long Island. The ensuing storm surge in New York harbor was unusually great because of the unprecedented width of the eye and the proximity of its northeastern quadrant where surge is maximized. With Donna hitting exactly at the time when the astronomical tide reached its peak of 4.5', New York harbor experienced the highest recorded water level in its history, some 10.7' to 10.9' above mean low water in the area of the Bush Terminal.
The claimants do not criticize the conduct of the pier operator once the Sunday evening advisories had been issued. The terminal superintendent got down early on Monday morning and, finding that the Turandot and the Tatra
An actor is required to know "the qualities, characteristics, and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community," Restatement (2d), Torts § 290(a). This will suffice unless he is "engaged in an activity, or stands in a relation to others, which imposes upon him an obligation to investigate and find out, so that he becomes liable not so much for being ignorant as for remaining ignorant." Prosser, Torts 163 (3d ed. 1964). The pier operator clearly met the less stringent test; there was no general knowledge in the New York community of the probable approach of Donna until Sunday evening. And even if the claimants are right in saying that the situation on Friday afternoon had sufficient elements of danger that the operator should have made further inquiry before immobilizing itself for 63 hours, there is no evidence that the knowledge which it would thus have obtained and with which it must be charged should have led to a different course of conduct. If the operator had communicated with the meteorologist in charge of the New York Weather Bureau, it would have learned that, as he later testified, he was not then "very excited about it [Donna] affecting the New York City area, especially over the weekend." If it
In appraising the operator's conduct, it is necessary to resist the strong human temptation to review action by looking backward "with the wisdom born of the event," Greene v. Sibley, Lindsay & Curr Co., 257 N.Y. 190, 192, 177 N.E. 416, 417 (1931). Though the unlikelihood of the risk must be factored upward by its gravity, see Prosser, Torts 150-51 (3d ed. 1964), nothing the operator knew or could have known on Friday should have led it to believe that the risk of the concatenation of adverse circumstances which actually occurred was sufficiently appreciable to call for emergency precautions entailing substantial expense.
There remains only the claimants' contention that the district court should have followed World Products, Inc. v. Central Freight Serv., Inc., 222 F.Supp. 849 (D.N.J.1963), affirmed without further discussion of this issue, 342 F.2d 290 (3 Cir. 1965), where a warehouseman on the Jersey side of the Hudson was held liable for flooding by Hurricane Donna. Although Judge Wyatt pointed to some differences of fact between the two cases, see 241 F.Supp. at 119, determination whether these or others were significant would require us to engage in a scrutiny of the record of World Products as thorough as we have made of the record here. In view of the firm conclusion we have reached after full consideration of this well tried and well argued case, we do not believe that effort would be rewarding.