EXXON CO. USA v. SOFEC

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Argument of Shirley M. Hufstedler

Chief Justice Rehnquist: We'll hear argument first this morning in Number 95-129, Exxon Company v. Sofec, Inc.--

Ms. Hufstedler.

Mr. Hufstedler: Mr. Chief Justice and may it please the Court:

Exxon's tanker would never have stranded but for respondent's torts and breaches of warranty.

The question presented is whether these respondents should be totally absolved of all liability because the district court found that the tanker captain's navigation of the stricken vessel was grossly negligent.

The answer to that question is no.

The lower courts reached the opposite conclusion by failing to apply the comparative fault principles established by this Court in Reliable Transfer and its progeny by misconceiving and misapplying the common-law doctrine of superseding cause.

Unknown Speaker: You take the district court to task for having considered causation first and damages second, although it never got to damages.

I should have thought it would have been strange to do anything else.

You must have causation, mustn't you, before you inquire about damages and, of course, that leads to the next question, do you... you're not telling us, I take it, that but-for causation suffices?

Mr. Hufstedler: Not suffices but, but for that issue, you'd never reach the question whether there's any superseding cause, because superseding cause, if it applies at all in admiralty since Reliable Transfer, necessarily assumes, as the district court concluded, that there had been actual cause, or you'd never reach superseding cause.

You don't reach superseding cause, which is a limitation of liability, and it's not causation at all.

It's a question of fault.

Unknown Speaker: Well, but you must have, before you proceed to the question of damages, that legal cause, that cause which admiralty courts will recognize as sufficient to impose liability on the tortfeasor--

Mr. Hufstedler: Of course.

Unknown Speaker: --And I'm asking how you define that, other than but-for causation, because I take it it's something more.

Mr. Hufstedler: In admiralty, as in common law, you have to have but-for causation and legal cause.

I do not suggest for a moment that an admiralty claimant need not prove both.

The difficulty here is that the foreclosure orders of the district court prevented Exxon from ever proving its liability case-in-chief to prove that there was legal cause as well as but-for cause, and you never got to the issue of damages because you never finished proving liability.

All of Exxon's evidence with respect to everything that happened before the equipment failed was foreclosed by the district court.

It wasn't a question of order of proof.

It was the question of entering judgment before the liability case-in-chief was proved.

Unknown Speaker: But Ms.--

--Well--

--Well--

--if the district court had found out that some pirates had come, obviously unforeseen cause, I suppose he wouldn't have proceeded to any of those questions either.

And he was saying, rightly or wrongly as a matter of fact, but I think correctly as a matter of law, that he was going to first inquire whether or not the negligence of the Captain's tanker was a supervening cause of this extraordinary proportion, and you weren't foreclosed in producing any evidence on that issue, were you?

Mr. Hufstedler: Yes, because the Captain was reacting to a series of hazards that were created prior to the time the equipment failed.

Exxon was foreclosed from proving anything that happened before that, and even under common-law doctrine, no one can prove there is a superseding cause or that there is not unless there is first proved what the duties are with respect to each of the defendant's acts on the basis of their relationship with each other, and how those breaches of duties created the risks of harm, and until those facts are proved, there is no way in which a court can decide whether there has been superseding cause.

Unknown Speaker: Ms. Hufstedler, I don't read your... the questions presented in your petitioner to raise any question about the ordering of the trial.

Mr. Hufstedler: Oh, of course not.

Unknown Speaker: It raises just questions of law--

Mr. Hufstedler: Sure.

Unknown Speaker: --about what governs admiralty.

Mr. Hufstedler: That's correct.

Unknown Speaker: Ms. Hufstedler, as I understand the district court's findings, the findings were that, at a certain point, I think about 90 minutes after the difficulties began, the tanker reached a point of safety.

It was... according to the district court as I understand it, it was out of whatever danger had been created by the negligent acts of the defendants, and the finding was from that point on the causation for the ultimate grounding and the harm that resulted was entirely attributable to the navigational errors, errors of judgment on the part of the tanker's captain.

Do you claim that there is an error of law in what I understand to be the finding that the tanker had reached this zone of safety after which the prior negligence of the defendant simply was not operative?

Mr. Hufstedler: Justice Souter, the response is that the Court's conclusions of law cannot be reconciled with its other findings of fact.

The other findings--

Unknown Speaker: Well, I'm asking just a question of... well I asked whether there was an error of law.

I'm really asking, I guess, whether you claim that there is such a want of evidentiary basis for the finding about reaching the zone of safety that it was, in fact, a legal error to conclude that.

Mr. Hufstedler: --Yes.

Unknown Speaker: Okay.

How do we know whether you're right or wrong?

Tell me what your basis is for saying that there was no evidentiary basis to reach that conclusion?

Mr. Hufstedler: I say there's no evidentiary basis because the facts as found by the court on uncontradicted evidence was that the trailing hose caused the crane to collapse after the point at which the vessel was supposed to be safe, that the hose and the collapse of the crane caused the boom of the crane to sweep the decks, which threatened the vessel's life by explosion and threatened the lives of all the deck crew.

That was a direct result of the breaking of the chafe chain, of the breakage of the hose, of the lack of any safety equipment on the cargo hose, of the lack of any safety equipment--

Unknown Speaker: I think I know the train you're following, but I take it, then, in order to rule your way we would have to find that the... I guess the second of the conclusions of law is simply unsupportable, and that's the conclusion that such conduct... that is, of your captain... was a superseding cause, and the sole proximate cause of the stranding.

We would have to reject particularly that finding that it was the sole proximate cause, wouldn't we, in order to hold your way?

Mr. Hufstedler: --Yes, and I think the Court, unless it is going to retreat from decisions long embedded in the law, would have to say that that's incorrect, because you cannot decide, even under common law, whether there has been a superseding cause unless you have had an opportunity to know whether or not what actually happened was within the risks that were caused by the breaches of--

Unknown Speaker: Or you could simply assume that--

Mr. Hufstedler: --Yes, you--

Unknown Speaker: --and say, on that assumption, nonetheless, superseding cause.

Well, on any factual question, Ms.... we have a two-court rule which we usually follow.

The district court found against you and the court of appeals affirmed, so that anything that is a factual question I don't think we ordinarily reexamine.

Mr. Hufstedler: --I don't suggest you reexamine it, Your Honor.

What I suggest is that you look at the basis of the doctrine of superseding cause and, as a matter of law, you cannot determine whether there has been a superseding cause unless you have evidence that shows what the duties were that were breached.

That's a question of law.

Unknown Speaker: Ms. Hufstedler, my problem is this.

i didn't think we took this case, even if we're able to... even if the two-court rule does not apply, to make essentially factual determinations and say that, you know, the factual findings of the court below were wrong, or even that the findings of law were wrong, except in one regard.

I thought we were going to decide whether the doctrine of supervening cause applies, not whether, if it applies, it was properly imposed by the court here, and you're turning us into an examination of whether that doctrine has been properly applied here.

That's not how I read your question presented.

Mr. Hufstedler: You only reach the question you have suggested I presented if you get past the first point.

I believe that the Eleventh Circuit is entirely right, that after Reliable Transfer, that the superseding cause doctrine as it was applied sometimes in admiralty cases below, is no longer applicable.

Unknown Speaker: Ms. Hufstedler, on that point, it was pointed out by the respondent that many States, in fact most, now have comparative negligence systems, and in none of those has the supervening cause doctrine been declared incompatible.

Some have not considered it.

Some... a couple have considered it and said they're compatible.

My question is, is there any State with a comparative negligence regime that has said, now supervening cause is no longer valid because it conflicts with the notion of comparative negligence?

Mr. Hufstedler: I am unaware of any.

Unknown Speaker: How could it be that there wouldn't be a supervening cause doctrine?

Suppose that the ship had been floating around because of the negligence of the defendant, and it ran into a leftover World War II submarine that torpedoed it?

I mean--

Mr. Hufstedler: But Justice Breyer--

Unknown Speaker: --I mean, suppose the most fantastic coincidence, struck by lightning, suppose that... I mean, we can imagine any bizarre set of circumstance we want.

That would cut the causal chain, wouldn't it?

I mean, what has comparative negligence to do with that, some amazing coincidence, some odd circumstance that cuts the causal chain and in and of itself is the cause of the accident, the original negligence being simply a but-for condition that happened to place the ship in the particular part of the sea where the enemy submarine was lurking, or the lightning struck?

Mr. Hufstedler: --Justice Breyer, surely the admiralty defendant would not be responsible for whatever the results were in your illustration--

Unknown Speaker: Well, if that's so, how--

Mr. Hufstedler: --However, there is no reason why the admiralty defendant that has breached a duty and created a risk of some kind of harm should not be responsible for whatever portion of that damage was attributable to the acts before.

Unknown Speaker: --But then the judge says zero portion, because there was a supervening cause, just like the submarine which would have torpedoed the ship or the submarine that would have led to evasive action and an eventual stranding of the ship.

In this case the ship had come to rest, it was safe, there was no problem, and it was the Captain, himself, who then caused the trouble because of the Captain's failure to keep any chart, because of his failure to let the anchor down, because of his properly... because of failure, et cetera, et cetera, and he's listed about five.

I mean, once you say there could be some supervening cause, then how do you distinguish your case here?

Mr. Hufstedler: Well, as I read your own authorities, both with... and we're now talking only about the tort claims.

It doesn't go to the breach of the warranty claims, but talking only about the tort claims... there must be... before one can say that a cause has superseded, one must examine what the hazards were that were created in the first place, as Restatement Black Letter 442 states, that the cause is always proximate if what happened was within the risk that was created by the original misconduct and if there was a... or was also a contributing factor to that.

The only time you get a cause broken is in the illustrations that you just gave, where there is conduct of a third person that is either criminal or intentionally tortious.

Then the chain of causation is broken.

Unknown Speaker: So when you use superseding cause here, and you say it should not be recognized, are you talking about superseding cause as a cause attributed to the plaintiff, as distinct from the third party?

We have a terminological problem--

Mr. Hufstedler: Yes.

Unknown Speaker: --because 442, which you quote, says superseding cause by definition is only that which is set in play by a third party or a third force, and I take it we don't have that here.

Mr. Hufstedler: That's exactly right.

Unknown Speaker: Okay.

Mr. Hufstedler: That's why the doctrine doesn't apply at all, even if you assume that common-law superseding cause survived the adoption of the--

Unknown Speaker: All right.

Are we just talking, then, about labels, because let's assume we say, superseding cause is a third party or a third force phenomenon.

Mr. Hufstedler: --Yes.

Unknown Speaker: We don't have that here.

Mr. Hufstedler: That's right.

Unknown Speaker: However, it is findable in any comparative negligence case, I suppose, that a point is reached at which the defendant's original causation should no longer be recognized by the law, because it has become attenuated and so on, and in place of it the plaintiff's negligence is so overwhelmingly the cause that we should recognize that as proximate cause only.

Now, I take it you do not claim that that kind of analysis is somehow precluded by the comparative negligence doctrine.

Mr. Hufstedler: It is not that it can never happen where there has been a third person that has intervened.

Unknown Speaker: Well, no, let's assume there's no third person, as, indeed--

Mr. Hufstedler: Yes.

Unknown Speaker: --is true here, no third party.

Isn't it true, consistently with comparative negligence, that if the facts warranted a court or jury could conclude that the defendant's cause was no longer proximate, although the defendant had, in a but-for sense, set things in motion, and that the only proximate cause operative at the time of injury was the cause that the plaintiff had set in motion?

That is consistent with comparative negligence.

It has to be.

Mr. Hufstedler: It is consistent with comparative negligence if--

Unknown Speaker: Well--

Mr. Hufstedler: --you assume that... and I believe the close question does assume... that the risk that was run by the wrongful conduct did not encompass what happened.

Here--

Unknown Speaker: --In other words, if the defendant had foreseen that the plaintiff was going to do all the stupid things that he says he later did, then that is still within the risk--

Mr. Hufstedler: --I... to put--

Unknown Speaker: --and you would still leave the defendant in there.

Is that what you're saying?

Mr. Hufstedler: --To put it differently, the risk that was run was the risk of stranding.

It is not material, applying standard tort law that the risk came up... that what happened came about in a way that--

Unknown Speaker: Well, but that just--

--Not the risk of stranding a couple of hundred miles away on a reef instead of on shore.

I mean, that's the issue here, whether the... you know, the negligence in berthing gives rise to a risk of stranding on some distant reef, and why can't you say... by the way, I'm not sure I agree that there's no supervening cause.

I'm not sure that cause is the negligence.

I mean, the immediate cause is the darned reef which is... which destroys the ship, and can't you say that that cause is a supervening cause, apart from the negligence of the berthing?

Mr. Hufstedler: --I would say no, because stranding, no matter how it's stranded, was within the exact risks that were created by the respondent's torts.

Unknown Speaker: But my problem, Mrs. Hufstedler, is that your answers to Justice Breyer, Justice Souter, Justice Ginsburg, Justice Scalia, all are discussions within the regime of comparative negligence, and I think you concede that there's supervening cause.

I don't want to put words in your mouth.

I think... but you've presented this as an admiralty case where the rules somehow should be different.

That was, I thought, the gravamen of the question presented, and I don't see why the rule should be different, and it seems to me that you don't, either, because we've been discussing this in the regime of any comparative negligence system, admiralty or not.

Mr. Hufstedler: There... what I'm... I guess I have to say that while it's possible to take the view that superseding cause, criminal superseding cause survived comparative fault, nevertheless, it should not be applied in admiralty when to apply it violates the admiralty policies which this Court has repeatedly said are going to dominate what kind of law is going to be applied, and the admiralty policies are to place the risk of loss on those persons who are in the best situation to prevent--

Unknown Speaker: Well, then we're just talking about what is and what is not an appropriate supervening cause.

That's all the case is about.

Mr. Hufstedler: --It is with respect to... it is with respect to the negligence charge.

If I may, I would like to turn to the breach of warranty charges because, of course, superseding cause does not apply to breaches of warranty which are sounding in contract, not tort.

The so-called superseding cause doctrine is not relevant.

What you're talking about then is the ability to avoid the consequences of breaches of warranty, and that is an issue that goes to damages, not to liability.

There is no issue that I have discovered that has suggested otherwise, and this Court's decision in Italia Societa and Weyerhaeuser is quite clear that negligence on the part of the shipowner does not present recovery and/or breach of an admiralty warranty.

Unknown Speaker: But there's still a proximate cause requirement.

There's still a causation requirement, and I couldn't see where the cases you cited got you away from that.

You still have to prove that the damage was caused by the breach of warranty, and I don't see how you're released from the causation by shifting over to contract from tort.

Mr. Hufstedler: The question is, is the concept which is built on legal policy of superseding cause one that should be applied to a breach of an admiralty warranty, and my response to that is, no, it should not, because that again is the question of what should be the policy of admiralty, as distinguished from the policy of common law in tort cases.

Unknown Speaker: But may I ask this question on that point.

How would you measure damages for the breach of contract?

Would you... in an admiralty case.

Would you not use the comparative fault approach, and if so, why wouldn't a finding of superseding cause be the equivalent of finding zero negligence, or is there a responsibility, is there a fault?

Mr. Hufstedler: Well, I would make the same response, Your Honor, as I would to the question that was raised in Italia Societa.

That is to say, it is true that but-for the breakage of the--

Unknown Speaker: No, my question is directed at the merits of your suggestion we apply a different test to the contract claim than the tort claim.

Mr. Hufstedler: --I have not seen a case in which the common-law doctrine of superseding cause has been applied to relieve a defendant in an admiralty case, or, indeed, another, of liability for breach of warranty, although, of course, it does go to the question of how much damages should be allowed.

Unknown Speaker: Well, if you're talking about basically a contract action, you've got the idea of contemplated damages that has the same sort of limiting principles, doesn't it, as the idea of supervening cause?

Mr. Hufstedler: It does.

What... however, I think the question, Mr. Chief Justice, is... I would put somewhat differently.

That is, in a breach of admiralty warranty case, all I believe that one needs to do is to say, what was within the contemplation, or should have been within the contemplation of these respondents in warranting this... that the berth was safe when they knew very well it was not, and one of the consequences would be that the vessels would strand.

Unknown Speaker: Hundreds of miles away?

Mr. Hufstedler: It is not that far away, Your Honor, looking at the findings and giving them full credence from the court.

Unknown Speaker: Why is... I mean, not any stranding.

Presumably not a stranding caused by evasive action against the submarine.

Not any stranding.

Mr. Hufstedler: Not any--

Unknown Speaker: Not a stranding 15 years later in some foreign place, so why is it that this stranding is within the contemplation, given the enormously negligent, grossly negligent, or however we call it, activity of the Captain.

I mean, and that seems to me to boil down to the same question as the other.

Why not?

Mr. Hufstedler: --There's no question whatever that the vessel would have been nowhere near the reef upon which she stranded but for the undisputed fact, as found by the district court, that this vessel was burdened with this enormous cargo hose that continued to be a danger to that vessel until 12 minutes before the turn.

Unknown Speaker: But that's a factual... I mean, I think you may have a good point there, but that goes to the apparent inconsistency between the finding that the negligence had terminated and that finding that the hose, up until half-an-hour before the grounding was still giving difficulty.

I agree that those two findings appear incompatible, but I don't see how that has anything to do with the question presented of whether there is or is not a doctrine of supervening cause.

That goes to the application of the rule, which is not the reason we took the case.

Maybe it's been applied incorrectly, but the question is, does the rule apply?

Mr. Hufstedler: And I would, and I do take the position that it should not apply.

It should not apply, because to apply it under circumstances in this case means that you reach results that are antithetical with the explicit admiralty policies that this Court has adopted in Reliable Transfer.

Unknown Speaker: Let's examine in principle why... I don't want to use up... I know you want to reserve some time, but why in principle should shifting to comparative negligence make any difference?

Before we shifted to comparative negligence, it was divided 50-50 whenever there was any negligence on either side.

Now, why would assessing, instead of 50-50, 80-20, or 90-10, why should that in theory have any effect upon the doctrine of supervening cause?

Mr. Hufstedler: Because I think it goes to who should bear what kind of risks for what kinds of losses in order to achieve the policies that this Court has said it wishes to achieve in admiralty law.

Unknown Speaker: The--

--If I took the comparative negligence doctrine from the common development, this Court did, took that over as part of admiralty law.

Why wouldn't it be natural also to look to the development in the States to develop the comparative law doctrine on the admiralty side?

Mr. Hufstedler: The only reason I would respond it is not appropriate, Justice Ginsburg, is that common law, superseding cause included, is made in 50 States by multiple courts that do not agree with each other, and this Court has said that one of the very reasons for reaching different conclusions is to strive for uniformity, and there can be none if the law with respect to what will be applied in admiralty is going to be made by multiple courts in 50 States.

Unknown Speaker: But you answered before that there is uniformity, at least so far on this point, that there is no State that has said supervening cause is inconsistent, incompatible with comparative negligence.

Mr. Hufstedler: What I've said, Justice Ginsburg, is that I'm not aware of such a case, but what that conceals is how differently different courts have perceived how superseding cause applies.

Unknown Speaker: Ms. Hufstedler, if we accepted your rationale, which I guess is the ultimate admiralty policy should be to place the responsibility where... damage responsibility on the party with the best chance of avoiding the harm, I suppose we wouldn't even have a comparative fault rule at all.

We'd simply decide which of the parties was in the best position to avoid the harm and we would attribute all of the damage to that party.

Mr. Hufstedler: I would suggest, Justice Souter, that that would not be your conclusion.

I would suggest that you would actually compare the degrees of fault, as this Court taught in Reliable Transfer, and in doing so, in comparing those degrees of fault, when you discover that one party, or in this case several parties, were tremendously at fault and the shipowner was slightly at fault... you can't decide whether somebody is grossly negligent unless you're comparing it with something.

Here, there is no comparison possible, because the court excluded all of the evidence of what--

Unknown Speaker: May I ask one question on that point?

Conclusion of Law 44--

Mr. Hufstedler: --Yes.

Unknown Speaker: --contains the statement that the negligence of the Captain was the sole proximate cause of the stranding.

Mr. Hufstedler: Mm-hmm.

Unknown Speaker: And do you accept that?

Should we accept that for purposes of a decision, or do you contend that because it's a conclusion of law we should review it?

Mr. Hufstedler: I contend, Justice Stevens, that it is a conclusion of law.

It is not a finding of fact, and it could not be a finding of fact that would make sense because it is already admitted that one of the causes--

Unknown Speaker: Let me push you one step further, then.

If it is a conclusion of law, must we disagree with it to accept your position on the doctrine of superseding cause?

Mr. Hufstedler: --Yes.

Unknown Speaker: But you say that's not a finding of fact, so we may do that.

Mr. Hufstedler: That's exactly right.

If I may, I will save my remaining time.

Unknown Speaker: Very well, Ms. Hufstedler.

Mr. Playdon.

Argument of George W. Playdon

Mr. Playdon: Mr. Chief Justice, and may it please the Court:

The facts of this case are as found by the courts below.

They are unchallenged by Exxon.

They are binding, and they clearly support the judgment below.

We simply cannot read the decision of Reliable Transfer--

Unknown Speaker: Which ones are correct?

I mean, the ones that favor you, or the ones that don't favor you?

Mr. Playdon: --Oh, I think they all favor me, Justice Scalia.

Unknown Speaker: They tend to contradict each other is the problem.

Mr. Playdon: Well, I think you... Justice Scalia, you tried... you focused in on the presence of this hose that remained aboard the vessel until a few... 12 minutes before that final fatal turn occurred.

Let me offer an answer to your, perhaps question, and justify how Judge Fong actually said that some hour and 17 minutes earlier before that hose had gone off, it had reached a point of safety.

At that time, at 1830, about 1 hour and 2 minutes after the breakaway, that vessel had traversed the leeward coast, it had gotten itself into fair water, and only at that point of time, when the Captain made an unforced decision to linger and remain, did that hose become a problem.

And the hose, Justice Scalia, was under the control of the assist vessel NENE, and if it presented a problem, it was a problem to the maneuverability of the vessel, not to the navigation of the vessel, and it was the navigation of the vessel subsequent to this time, the navigation subsequent to this 1830, that resulted in the stranding of the vessel an hour and 39 minutes later.

Unknown Speaker: But the Captain had this loose boom that was swinging across the deck, causing risk of injury to seamen and also causing a risk of explosion, as I understand it, isn't that right?

Mr. Playdon: Whatever risk it was, Justice Scalia, he had--

Unknown Speaker: And you wanted him to sit down calmly at his maps and chart at what point in the ocean he was at this time.

Mr. Playdon: --If not he, then someone else on his bridge that should have been there to do so.

The vessel needed to be navigated.

The Captain was there to navigate the vessel, not to micromanage what was going on on the deck, and what was going on on the deck was a hazard to the vessel only because of the unforced decisions that were made by the Captain an hour and 17 minutes earlier.

Unknown Speaker: Well, I think the two findings are hard to reconcile, but... all right.

Mr. Playdon: I would differ with the Justice, but I will accept that's your opinion.

The doctrine of superseding cause has been part and parcel of the law of admiralty for literally generations.

Unknown Speaker: Well, let me ask you this, is it possible to have a so-called superseding cause if it's not caused by a third party?

Mr. Playdon: Yes.

Unknown Speaker: If it's caused by the plaintiff itself?

Mr. Playdon: Certainly.

I see nothing--

Unknown Speaker: I don't see why that wouldn't be just a matter of comparable negligence rather than superseding cause.

Mr. Playdon: --Well, certainly--

Unknown Speaker: What is... under the Restatement, does it contemplate a third party?

Mr. Playdon: --The key part of the Restatement, section 442, actually contemplates an intervention to bring about a harm different in kind than that which would otherwise have resulted.

Unknown Speaker: But it's a third party intervention, isn't it?

I mean, I think Justice O'Connor and I are both bothered by a question of terminology.

Under 442 there's got to be a third party or a third force.

It's not plaintiff's negligence, right?

Mr. Playdon: I disagree.

I believe it can be any act that occurs after the initial act.

Unknown Speaker: Well, let me just read from 442(b).

I mean, it's saying that the defendant doesn't get off the hook.

I'm reading from page... where it's set out on page 30 of the blue brief.

Except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor's conduct.

I mean, isn't that pretty clearly a third person rule?

The text writers, some of them at least, use it... use superseding to refer to plaintiff's conduct, but 442 talks about a third party, doesn't it?

Mr. Playdon: Well, third... yes, it does, Justice--

Unknown Speaker: Okay, so if we're going to take the Restatement view, we're going to look for a third party and we don't have one here, right?

Mr. Playdon: --I believe the acts of the Captain are the third party, but--

Unknown Speaker: I thought the Captain was working for Exxon.

Mr. Playdon: --Well, he was with his acts, and the gross negligence of the operation of the vessel subsequent were in fact found by Judge Fong to be that supervening--

Unknown Speaker: Well, but maybe he was just engaging in a terminological mistake.

He wasn't saying that the Captain had ceased to be the agent of the ship and had somehow gone beyond the scope of his employment.

He was simply doing his job in a grossly negligent fashion, and in normal terminology, that still makes him identical with Exxon for this purpose, doesn't it?

Mr. Playdon: --Yes.

His employment--

Unknown Speaker: Okay.

Mr. Playdon: --I think it was specifically found by the--

Unknown Speaker: All right.

Now--

--Of course, it wouldn't make very much sense to have a doctrine of supervening... I mean, maybe you want to give it a different name, but it wouldn't make any sense to say that the defendant gets off the hook if some third party caused the injury that the plaintiff is suing for, but the defendant does not get off the hook if the plaintiff himself caused the injury that the plaintiff is suing for.

That wouldn't make any sense at all.

Mr. Playdon: --It wouldn't make any--

Unknown Speaker: So don't use the Restatement.

Mr. Playdon: --No, but--

Unknown Speaker: Why don't you use these other commentators instead?

But it's just a question of terminology.

I'm trying to understand what you're saying, and when you use superseding cause, I take it you are using it not in the Restatement sense but in the broader sense that plaintiff's acts can be superseding cause.

Mr. Playdon: --Yes, Justice.

Unknown Speaker: Okay.

Mr. Playdon: Yes.

Unknown Speaker: Is it true, I don't know... I didn't notice this in the brief particularly, but is it true in the case of a corporate defendant where there are many different individuals involved and they're all the plaintiffs, sorry, corporate plaintiff, the third person in the Restatement was not meant to refer to employees of the same plaintiff?

Do you know that?

I mean, I don't know.

the answer to me is not obvious.

Mr. Playdon: It's--

Unknown Speaker: I did notice now that, since it's pointed out--

Mr. Playdon: --Yes.

Unknown Speaker: --that it does say third person, and I don't know how that was meant to apply in the... nobody seems to argue that at length.

Maybe they did, but--

Mr. Playdon: I don't believe anybody did.

Unknown Speaker: --do we know how that word, third person, was meant by the Restatement drafters to apply--

Mr. Playdon: I don't.

Unknown Speaker: --in the case of the corporate plaintiff with many employees?

Mr. Playdon: Justice Breyer, I don't know.

It would seem to make no logical sense to have it apply in any other sense than in the context in which it is being presented in this particular action.

Clearly, a superseding cause should be one that occurs after an initial event, and surely superseding cause should be used to terminate a liability at some point of time short of eternity, just as--

Unknown Speaker: May--

Mr. Playdon: --you have suggested there may come a logical time at some point when, in fact, an act ceases to act, and in this particular--

Unknown Speaker: --Well, what I'm actually thinking is that if the employee, if the plaintiff company happens also to employ my submarine captain, it would make no sense not to apply the doctrine of supervening cause, but if the employee happens to be the person who himself, let's say, was physically injured in a tort case, then it would seem more likely and reasonable to apply the comparative negligence.

At least that's an initial reaction.

I haven't thought it through, and that's why I'm puzzled as to how this third party doctrine does apply.

Mr. Playdon: --I wouldn't be as quite concerned with the semantics as when we're looking at the doctrine.

We're looking at the doctrine of when does the act of someone else, whether it is the captain or the employee, or submarine captain, or something, operate to block any prior fault, so that that prior fault just simply no longer is active in the scenario.

Unknown Speaker: Well, could Exxon say, did it ever say here that the tort was concluded when the ship parted from the mooring?

That was the tort.

That's the tortious conduct here.

Everything else is simply a question of mitigating damages, or avoidable consequences.

Mr. Playdon: Well, I think Judge Fong--

Unknown Speaker: Because I don't see some independent tort coming from what the Captain did.

Mr. Playdon: --Justice Kennedy, I would respectfully disagree, because I think what you found and what you saw here in the application by Judge Fong was, in fact, independent fault in the faulty navigation of the vessel of making a wrong turn without knowing where he was, violating the Louisiana--

Unknown Speaker: May I interrupt--

--But in the usual case we think about an independent tort, a third person, the submarine captain or something, creating a tort.

I don't see a second tort here.

I see an initial tort, arguably the parting of the chain, followed by a failure to mitigate, or a failure to take avoidable consequences of damages which might get you where you want to go, but I'm not sure that it's superseding or supervening cause.

Mr. Playdon: --Let me then perhaps argue from a different perspective, Justice Kennedy.

The harm that was envisioned by the breakout from the mooring at 28 minutes past 5 in the evening would be that that vessel would somehow, before it regained control of itself, find itself aground in the vicinity of the mooring.

That was the harm that was envisioned if, in fact, the breakout was a cause.

But what we have here is, we have a passage of almost 3 hours where a fully manned, fully staffed, fully functional tanker managed to--

Unknown Speaker: Yes, but Mr. Playdon, let me interrupt you with a question.

So you're asking... you're saying the entire cause of the accident was the navigational errors of the Captain.

Mr. Playdon: --Yes.

Unknown Speaker: Now, supposing the trial judge said well, why did he make these navigational errors?

One reason, presumably... he might have made a finding, one reason was that he was still concerned about the hose that was trailing along the vessel.

That distracted him, and that caused him to only give 90 percent attention to navigation where he should have given 100 percent attention.

If that was one of the facts that caused him to navigate improperly, why would that not have been inconsistent with the view that his... that one side is entirely responsible for the accident?

Mr. Playdon: Well, now, Justice Stevens, what you're doing is you're going in and we're sort of changing the fact pattern a bit.

Unknown Speaker: I'm just assuming if there had been such a finding.

Mr. Playdon: Absolutely.

If there had been such a factfinding that the--

Unknown Speaker: And instead we're saying he was just dumb.

It's 100 percent the answer.

Or he was incompetent.

Mr. Playdon: --I think both of those things, Justice Stevens.

Unknown Speaker: And it's inconceivable that the condition of the ship with the trailing on it had any bearing on his navigational errors.

Mr. Playdon: Well, it wasn't found by the court below.

Unknown Speaker: I understand.

Mr. Playdon: It certainly wasn't.

Now, if we are to assume--

Unknown Speaker: But isn't the conclusion of law based on an assumption that such a finding could not have been made?

Mr. Playdon: --That's correct.

That's correct, and--

Unknown Speaker: Could not have been made, or was not made?

Mr. Playdon: --Probably both.

Unknown Speaker: Could not have been made?

So if I think that such a finding could have been made, that on the evidence here you could have made a finding that he was distracted by the hose you, think I should find against you?

Mr. Playdon: No, I don't believe so.

Unknown Speaker: I didn't think you meant that.

Then what did you mean?

Mr. Playdon: I meant that given the facts as they are below, and they are not challenged in this Court, that such a finding--

Unknown Speaker: Given the facts as they are below, or given the findings below?

Mr. Playdon: --Well, remember that Judge Fong, he sort of gave us a safety valve when he said look, if I've made findings of fact that are really conclusions, they should be held to be conclusions, and if I made conclusions that are really findings, then they should be deemed by findings, and that's what we're saying.

The finding of causation, of proximate cause, is a factual finding.

It's--

Unknown Speaker: And you're saying we should treat Conclusion of Law 44 as a finding of fact?

Mr. Playdon: --Certainly.

Unknown Speaker: Yes.

Well, isn't proximate cause a mixed question?

I mean, it involves the application of facts as found to a concept of limited causation, which is a legal concept.

Mr. Playdon: Absolutely.

Unknown Speaker: It's mixed.

Mr. Playdon: Yes, Justice Souter, it is, and insofar as it contains the factual determination that in fact Captain Coyne was the sole proximate cause, that is a factfinding that this Court, I think under the two-court rule referred to by Justice... Chief Justice Rehnquist is one that they're bound to adhere to.

Unknown Speaker: It may be a mixed question, but it is the kind of question if you had a judge-jury you would give it to a jury.

Mr. Playdon: Absolutely, Justice Ginsburg, and in this particular case Judge Fong was both the judge and the jury in this case.

Unknown Speaker: But going back to Justice Stevens' question, doesn't that underscore the impropriety of splitting this trial?

That is, in order to determine if there really was a break in this negligence on the part of the defendants, one would have to have the whole scene played out.

Mr. Playdon: I would respectfully disagree, Justice Ginsburg.

Let me indicate that perhaps we might take some note of the Union Oil v. SAN JACINTO case, where 3 years before Reliable Transfer this Court took that case thinking, my, this may be the case to deal with divided damages.

And then the Court took a look at it and said, you know, and the orderly disposition of issues requires addressing the issue of liability before we address the question of damage, and when it went through the analysis it found that there really wasn't two causes of this particular incident on the Columbia River, that really there was only one person at fault, and that was the tug coming out of a fog bank at right angles and striking the SAN JAC... excuse me, the SANTA MARIA as it was proceeding up past Portland.

And that certainly would say that the inquiry done by Judge Fong is not only appropriate but an essential part, and it's clearly within his mandate of Rule 42(b), which gives the trial court sound discretion to be able to structure a case so that it can be conserving of its time and resources, recalling that this particular case took 3 weeks of the court's time, bench time, just to try the issue of causation.

So surely that tort of examination would indicate that Exxon over those 3 weeks had an abundant opportunity to be heard on all of the issues and to present all of the proof that it could on the issue of causation.

They simply failed to be able to prove to the Court that the events set in motion by the breakout proceeded in a causal manner to result in the stranding that occurred some 3 hours later.

Unknown Speaker: I take it... I just noticed out of interest that in one of your... the red briefs they've cited cases from Scotland, Australia, Canada, England, and I guess a number of other places.

In any of those other places in the world have they shed light on either the third party doctrine, the third party part or the supervening cause part?

Were those cases actually--

Mr. Playdon: No, I can't... one doesn't come to mind, Justice Breyer.

You know, the one that comes to mind is perhaps the most illustrative of a foreign jurisdiction.

It was cited in the corespondent's brief, and that's the PALUDINA case which occurred in 1927, in a case where they had an initial breakout, then hit another vessel that hit a third vessel, and then the vessels were separated for a period of time, and then the SARA struck another vessel and they tried to bring in the original vessel, the PALUDINA.

And basically the English court said, now, wait a minute, whatever was started by the PALUDINA had long since passed before the ultimate harm.

Unknown Speaker: --I'm not sure that you need a doctrine of supervening cause.

Isn't the doctrine of supervening cause anything other than Pfalzgraf?

I mean--

Mr. Playdon: Well--

Unknown Speaker: --when you say, you know, that the negligence, the causality, they had long since terminated.

Once you say you're out of the scope of the risk, what do you need a doctrine of supervening cause for?

And isn't that basically your case?

Mr. Playdon: --I smiled.

I never envisioned 30 years ago--

Unknown Speaker: Yes.

Mr. Playdon: --that I would have the opportunity of standing before you--

Unknown Speaker: Of arguing Pfalzgraf, right.

Mr. Playdon: --of arguing Pfalzgraf.

[Laughter]

Obviously, Pfalzgraf is a foreseeability doctrine, just like Hadley v. Baxendale is a foreseeability problem.

I think that the supervening cause gives us a set of sort of workable parameters within which we can work this doctrine as opposed to having it exist as merely a name, or a title.

You know, one of the... as the commentators have commented on, that sometimes it becomes difficult to apply this, and perhaps the Restatement gives us some sort of guidelines.

Unknown Speaker: But I mean, I could say that whenever it's beyond the scope of the risk under Pfalzgraf I could say, no, you were not the cause of it.

There was this other cause, because basically it was beyond the scope of the risk that you created.

Mr. Playdon: Sure.

Unknown Speaker: And I can call that other cause, if I want, a supervening cause, and I guess that makes everything sound nicer, but I don't know that it's any different.

Mr. Playdon: It probably may not.

It may be a distinction without a difference, Justice Scalia.

I think what happened, you know, in practicality is that when the trial court, when Judge Fong was presented with just the facts, or the basic facts of what was occurring, that the grounding... excuse me, the stranding that occurs 3 hours later at a remote distance around Barbers Point, that that just in and of itself cried out for a proceeding that examined causation.

And when he examined that causation, it was clearly that the operative events of the breakout simply had no bearing on the ultimate harm.

Unknown Speaker: Mr. Playdon, can you tell me one fact that really puzzles me?

Why was it going to take the Coast Guard 2 hours to get vessels out there?

It just puzzled me.

Mr. Playdon: I guess we'd have to ask the Coast Guard.

I mean, they had buoy tenders, and they had some cutters that were tied up in Honolulu Harbor, I guess in order to turn the O-N, the O-F-F switch and get that vessel moving and get it out of the harbor and over to the berth would have taken the period of time.

That's the only explanation I have.

Actually, in point of fact, Justice Stevens, there was a... we found out later and during the course of the trial that there was a Navy salvage vessel that was within about 30 or 40 minutes of the HOUSTON but was never called, never asked for, but in fact was one of the responding vessels that ultimately helped to pull the vessel off the reef.

Members of the Court, we believe that the decision of the Ninth Circuit--

Unknown Speaker: If you've got a minute or two extra, let me ask one other question.

Mr. Playdon: --Oh, absolutely, Justice... I was looking out at a--

Unknown Speaker: Yes.

Is there a... there's a description in the facts here about negligence which occurred before 1830.

Is that relevant, the failure to let the anchor down all the way and so forth?

Mr. Playdon: --I don't really think so.

You know, the attempt to anchor was within about 12 minutes of the breakaway.

The Captain felt that, you know, he might be pulling the anchor, and maybe he didn't think to pull it up more sharp to hold the vessel.

But thereafter he then, at about 1803 the little assist vessel NENE... by the way, it was about 65 feet, and 75 tons, and 800 horsepower... had that hose under control, and they backed across the face of the south coast of Oahu, cleared Barbers Point, and that's that 1830 position, Justice Stevens.

Unknown Speaker: Right.

Mr. Playdon: In summation, we just believe that there is no causal nexus to any of the breakout, and I want to thank the Court.

Chief Justice Rehnquist: Very well.

Ms. Hufstedler, your time has expired.

The red light went on just as you were sitting down.

The case is submitted.