The Pennsylvania and Modern “But For” Causation
posted by Gerard Magliocca
The Pennsylvania is one of the most significant cases in American maritime law, but most lawyers have never heard of it. I want to introduce you to the decision, because it sheds light on an important question in torts–when should a party’s negligence be presumed the “but for” cause of an accident.
Two ships, one under sail (The Mary Troop) and the other mechanical (The Pennsylvania), were in a dense fog. An Act of Congress and an Act of Parliament provided that when in fog a sailing ship should sound a foghorn while under way and a bell while at rest. The Mary Troop was under way but decided to sound a bell instead of a foghorn. The ships collided and a lawsuit was brought. The Pennsylvania was found negligent for going too fast in the fog. The issue of interest here was whether The Mary Troop’s negligence in not complying with the statutory requirements was (at least in modern parlance) a but-for cause of the accident and thus should lead to the imposition of divided damages (the maritime doctrine holding that when both parties were at fault the plaintiff recovered 50% of its damages).
The problem, as is often true in accidents, is that The Pennsylvania could not meet its burden of proof to show that if it had heard the proper signal (a foghorn) the accident would have been avoided. Basically, this was an impossible burden to meet under the circumstances. The Supreme Court held, however, that but for cause should be presumed when a safety statute designed to prevent certain kinds of accidents is violated and then that kind of accident occurs.
What’s interesting is that this rule is usually attributed to Cardozo’s opinion in Martin v. Herzog, which was written more than forty years after The Pennsylvania. Herzog involved a buggy that did not have its headlights on at night and got into an accident. A state statute provided that you had to have lights on at night while driving. Proving that the accident was caused by the lack of lights was a problem. Cardozo reasoned, though, that causation should be presumed because a violation of a safety statute was involved. He did not cite The Pennsylvania. That is not surprising, as common-law courts were not inclined to cite admiralty decisions. But this is just one of many areas when maritime law got to the right answer first.
UPDATE: The cite is 86 U.S. (19 Wall.) 125 (1873).
March 8, 2010 at 11:09 am
Posted in: Tort Law, Uncategorized
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Responses (4)
Mark McKenna - March 8, 2010 at 11:41 am
What’s the cite?
Concurring Opinions » The Pennsylvania and Modern “But For” Causation | PA Blog - March 8, 2010 at 4:15 pm
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Ken - March 8, 2010 at 8:22 pm
Non-attorney here…
Admiralty aside, isn’t this a basic principle of torts commonly referred to as “contributory negligence?” My understanding of the principle is that if defendant can show that plaintiff’s negligence *contributed* to the accident, (which is weaker than “caused the accident”), then defendant’s culpability is reduced. This sounds exactly like the characterization here of a “but for” cause that leads to divided damages.
Gerard Magliocca - March 8, 2010 at 8:25 pm
Ken,
Basically, you’re right (though most states today have comparative fault). But you still need to show causation to establish a defense of contributory fault.
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