ABSTRACT
This paper, prepared for a BePress symposium on Vincent, argues that Vincent is the incarnation of an important form of strict liability. In the dire necessity of the storm, Vincent’s property right to exclude yields to Lake Erie’s equal right to save its own ship, and justifies Lake Erie in using Vincent’s dock without Vincent’s permission. But Vincent’s property right yields only as far as it must for Lake Erie to save its ship. Lake Erie’s duty of reparation thus rests in part on the residual force of Vincent’s property right. That property right resists making Vincent’s property the instrument of Lake Erie’s benefit. But it also rests on an independent principle of fairness. It is only reasonable – only fair – that Lake Erie bear the cost of the harm that it imposes on Vincent in order to save its own ship. Failing to do so commits the conditional wrong of harming-without-repairing. Lake Erie acted reasonably in using – and in damaging – Vincent’s property. But it acted unreasonably in failing to make reparation for the harm that it inflicted. Saving its ship did not require that Lake Erie fail to repair that harm, and both respect for Vincent’s property right and fairness favor reparation. The strict liability formed by these considerations of right and fairness is of a piece with other harm-based strict liabilities in tort: with strict liability in Rylands v Fletcher and for abnormally dangerous activities, and with the strict liability of Boomer v Atlantic Cement. This form of strict liability embodies a principle of responsibility for harms that should not be avoided; it asserts that fairness sometimes requires that such harms be shouldered by those responsible for their infliction.
Keating, Gregory C, Property Right and Tortious Wrong in Vincent v Lake Erie (December 29, 2005). Issues in Legal Scholarship, Article 6 (2005).
First posted 2019-09-06 08:11:47
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