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In re Eastern Transportation Co. (The T.J. Hooper), 60 F.2d 737 (2d Cir. 1932) (full-text).

Factual Background[]

Two tugboats, one of which was The T.J. Hooper, were towing barges. During a storm, the barges sank and their cargoes were lost. The owners of the cargo sued the barge owners, who in turn sued the tugboat owners. The barge owners claimed that the tug operators were negligent because they failed to equip their tugs with radios that would have warned them of the bad weather.

The tugboat companies defended under the "prevailing practice" theory. They claimed that because no other tugboat operators in the area were using radios, this constituted the standard of care for the industry.

Appellate Court Proceedings[]

Judge Learned Hand found the tugboat companies liable because they did not use readily available technology, the radio receivers, to listen for broadcast weather reports, even though the use of radios was not yet [[standard] industry practice. He observed:

Indeed in most cases reasonable prudence is in fact common prudence, but strictly it is never its measure. A whole calling may have unduly lagged in the adoption of new and available devices. . . . Courts must in the end say what is required. There are precautions so imperative that even their universal disregard will not excuse their omission.