Lloyd's Maritime and Commercial Law Quarterly
PRIDE AND PRECEDENT: ECONOMIC LOSS—THE SEARCH FOR A NEW BRIGHT LINE
The Hon. Mr Justice C.S.C. Sheller*
I am honoured to be asked to deliver this address, in memory of a great contributor to maritime law in Australia and a founder of this Association, Frank Stewart Dethridge. Rather as, on that fateful early morning in July 1981, the Mineral Transporter, after her starboard anchor failed, drifted away towards the Iberaki Maru, so have I, in the last few years moved away from close involvement with the law of the sea. Your invitation has reminded me of the influence that the law developed in maritime cases has had upon the common law generally. It is striking how many of the leading cases on economic loss have to do with seafaring.
The Tar Baby
According to “Uncle Remus”,1 Brer Rabbit was bred and born in the briar patch. Brer Fox much wanted Brer Rabbit to join him for dinner. To forestall refusal of the invitation, he set up a Tar Baby contraption by the side of the road. Brer Rabbit came by and greeted the Tar Baby, but the Tar Baby said nothing. Thinking her stuck-up, Brer Rabbit decided to bust the Tar Baby wide open. He hit her with one fist and it stuck, he hit her with the other fist and that, too, stuck. Then he kicked her and both feet stuck. He head butted her and his head stuck. He was at the mercy of Brer Fox. But by using his wits Brer Rabbit escaped. In an inspired moment of reverse psychology he told Brer Fox that he did not care what Brer Fox did, as long as he did not throw him into the briar patch. So Brer Fox was persuaded to do just that and Brer Rabbit made his escape.
The judgment of Mr Justice Oliver Wendell Holmes in Robins Dry Dock & Repair Co. v. Flint,2 which has been treated as having affirmed a “bright line rule” excluding recovery of damages in negligence for economic loss in the absence of injury to the plaintiff, was described in 1985 as the Tar Baby of tort law with a briar patch far away.3 This intriguing metaphor may have been intended to call attention to the traps of unyielding adherence to precedent and the increasing difficulty of escape as precedent builds on precedent.
* Judge of the Court of Appeal, Supreme Court of New South Wales. This paper is the text of the Frank Stewart Dethridge Memorial Address delivered to the Maritime Law Association of Australia and New Zealand conference at Leura on 22 July 1994.
1. See Joel Chandler Harris, The Essential Uncle Remus.
2. (1927) 275 U.S. 303, 309.
3. State of Louisiana v. M/V Testbank (1985) 752 F. 2d 1019, 1035, per Circuit Judge Wisdom.
203