East River Steamship Corp. v. Transamerica Delaval Inc.
A shipbuilder contracted with respondent to design, manufacture, and supervise the installation of turbines that would be the main propulsion units for four oil-transporting supertankers constructed by the shipbuilder. After each ship was completed, it was chartered to one of the petitioners. When the ships were put into service, the turbines on all four ships malfunctioned due to design and manufacturing defects. Only the products themselves were damaged. Petitioners filed a five-count admiralty complaint in Federal District Court against respondent, alleging tortious conduct based on a products liability theory and seeking damages for the cost of repairing the ships and for income lost while they were out of service. The District Court granted summary judgment for respondent. The Court of Appeals affirmed, holding that petitioners' dissatisfaction with product quality did not state a claim cognizable in tort.
1. The fourth count should have been dismissed on the ground that the petitioner who chartered the ship referred to in that count lacked standing to bring the claim. P. 476 U. S. 863.
2. The torts alleged in the other counts clearly fall within admiralty jurisdiction. Pp. 476 U. S. 863-864.
3. Admiralty law, which already recognizes a general theory of liability for negligence, also incorporates principles of products liability, including strict liability. Pp. 476 U. S. 864-866.
4. But whether stated in negligence or strict liability, no products liability claim lies in admiralty when a commercial party alleges injury only to the product itself resulting in purely economic loss. Such a claim is most naturally understood as a warranty claim. Pp. 476 U. S. 866-876.
BLACKMUN, J., delivered the opinion for a unanimous Court.
In this admiralty case, we must decide whether a cause of action in tort is stated when a defective product purchased in a commercial transaction malfunctions, injuring only the product itself and causing purely economic loss. The case requires us to consider preliminarily whether admiralty law, which already recognizes a general theory of liability for negligence, also incorporates principles of products liability, including strict liability. Then, charting a course between products liability and contract law, we must determine whether injury to a product itself is the kind of harm that should be protected by products liability or left entirely to the law of contracts.
an owner), which in turn chartered the ship to one of the petitioners, also subsidiaries of Seatrain. Queensway Tankers, Inc., chartered the Stuyvesant; Kingsway Tankers, Inc., chartered the Williamsburgh; East River Steamship Corp. chartered the Brooklyn; and Richmond Tankers, Inc., chartered the Bay Ridge. Each petitioner operated under a bareboat charter, by which it took full control of the ship for 20 or 22 years as though it owned it, with the obligation afterwards to return the ship to the real owner. See G. Gilmore & C. Black, Admiralty §§ 4-1, 4-22 (2d ed.1975). Each charterer assumed responsibility for the cost of any repairs to the ships. Tr. of Oral Arg. 11, 16-17, 35.
The Stuyvesant sailed on its maiden voyage in late July, 1977. On December 11 of that year, as the ship was about to enter the Port of Valdez, Alaska, steam began to escape from the casing of the high-pressure turbine. That problem was temporarily resolved by repairs, but before long, while the ship was encountering a severe storm in the Gulf of Alaska, the high-pressure turbine malfunctioned. The ship, though lacking its normal power, was able to continue on its journey to Panama and then San Francisco. In January, 1978, an examination of the high-pressure turbine revealed that the first-stage steam reversing ring virtually had disintegrated, and had caused additional damage to other parts of the turbine. The damaged part was replaced with a part from the Bay Ridge, which was then under construction. In April, 1978, the ship again was repaired, this time with a part from the Brooklyn. Finally, in August, the ship was permanently and satisfactorily repaired with a ring newly designed and manufactured by Delaval.
The Brooklyn and the Williamsburgh were put into service in late 1973 and late 1974, respectively. In 1978, as a result of the Stuyvesant's problems, they were inspected while in port. Those inspections revealed similar turbine damage. Temporary repairs were made, and newly designed parts were installed as permanent repairs that summer.
When the Bay Ridge was completed in early 1979, it contained the newly designed parts, and thus never experienced the high-pressure turbine problems that plagued the other three ships. Nonetheless, the complaint appears to claim damages as a result of deterioration of the Bay Ridge's ring that was installed in the Stuyvesant while the Bay Ridge was under construction. In addition, the Bay Ridge experienced a unique problem. In 1980, when the ship was on its maiden voyage, the engine began to vibrate with a frequency that increased even after speed was reduced. It turned out that the astern guardian valve, located between the high-pressure and low-pressure turbines, had been installed backwards. Because of that error, steam entered the low-pressure turbine and damaged it. After repairs, the Bay Ridge resumed its travels.
for summary judgment, contending that the charterers' actions were not cognizable in tort.
The District Court granted summary judgment for Delaval, and the Court of Appeals for the Third Circuit, sitting en banc, affirmed. East River S.S. Corp. v. Delaval Turbine, Inc., 752 F.2d 903 (1985). The Court of Appeals held that damage solely to a defective product is actionable in tort if the defect creates an unreasonable risk of harm to persons or property other than the product itself, and harm materializes. Disappointments over the product's quality, on the other hand, are protected by warranty law. Id. at 908, 909-910. The charterers were dissatisfied with product quality: the defects involved gradual and unnoticed deterioration of the turbines' component parts, and the only risk created was that the turbines would operate at a lower capacity. Id. at 909. See Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d 1165, 1169-1170 (CA3 1981). Therefore, neither the negligence claim nor the strict liability claim was cognizable.
Judge Garth concurred on "grounds somewhat different," 752 F.2d at 910, and Judge Becker, joined by Judge Higginbotham, concurred in part and dissented in part. Id. at 913. Although Judge Garth agreed with the majority's analysis on the merits, he found no strict liability claim presented, because the charterers had failed to allege unreasonable danger or demonstrable injury.
Judge Becker largely agreed with the majority's approach, but would permit recovery for a "near miss," where the risk existed but no calamity occurred. He felt that the first count, concerning the Stuyvesant, stated a cause of action in tort. The exposure of the ship to a severe storm when the ship was unable to operate at full power due to the defective part created an unreasonable risk of harm.
We granted certiorari to resolve a conflict among the Courts of Appeals sitting in admiralty. [Footnote 1] 474 U.S. 814 (1985).
Initially, we conclude that the fourth count should have been dismissed because Richmond Tankers, Inc., the charterer of the Bay Ridge, lacks standing to bring a claim relating to the defective ring that was removed from the Bay Ridge when it was still under construction. The ring was installed in the Stuyvesant, where it remained until April, 1978, when it was removed due to disintegration. Richmond did not charter the Bay Ridge until May, 1979, after the ship was completed with a newly designed, nondefective, high-pressure turbine. See Plaintiffs' Answers to First Set of Interrogatories of Defendants, No. 42. Richmond therefore can allege no cognizable injury. Warth v. Seldin, 422 U. S. 490, 422 U. S. 501 (1975). Richmond, of course, has standing to bring the claim raised in the fifth count, as the damage from the reverse installation of the astern guardian valve allegedly occurred after Richmond chartered the Bay Ridge.
must have occurred on the high seas or navigable waters. See, e.g., 70 U. S. 3 Wall. 20, 70 U. S. 35-36 (1866). The first and fifth counts allege that the injury to the Stuyvesant's high-pressure turbine and the Bay Ridge's low-pressure turbine occurred while the ships were sailing on the high seas. The damage to the Williamsburgh and the Brooklyn, alleged in the second and third counts, occurred at sea, and was discovered in port, also a maritime locale. See Southern S.S. Co. v. NLRB, 316 U. S. 31, 316 U. S. 41 (1942).
When torts have occurred on navigable waters within the United States, the Court has imposed an additional requirement of a "maritime nexus" -- that the wrong must bear "a significant relationship to traditional maritime activity." See Executive Jet Aviation, Inc. v. Cleveland, 409 U. S. 249, 409 U. S. 268 (1972); Foremost Ins. Co. v. Richardson, 457 U. S. 668 (1982). We need not reach the question whether a maritime nexus also must be established when a tort occurs on the high seas. Were there such a requirement, it clearly was met here, for these ships were engaged in maritime commerce, a primary concern of admiralty law.
maritime law is an amalgam of traditional common law rules, modifications of those rules, and newly created rules. See Kermarec v. Compagnie Generale Transatlantique, 358 U. S. 625, 358 U. S. 630 (1959); Romero v. International Terminal Operating Co., 358 U. S. 354, 358 U. S. 373-375 (1959). This Court has developed a body of maritime tort principles, see, e.g., Kermarec, supra at 358 U. S. 632; see generally Currie, Federalism and the Admiralty: "The Devil's Own Mess," 1960 S. Ct. Rev. 158, 164, and is now asked to incorporate products liability concepts, long a part of the common law of torts, into the general maritime law. See Igneri v. Cie. de Transports Oceaniques, 323 F.2d 257, 260 (CA2 1963), cert. denied, 376 U.S. 949 (1964).
The Courts of Appeals sitting in admiralty overwhelmingly have adopted concepts of products liability, based both on negligence, Sieracki v. Seas Shipping Co., 149 F.2d 98, 99-100 (CA3 1945), aff'd on other grounds, 328 U. S. 328 U.S. 85 (1946), and on strict liability, Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F.2d 1129, 1135 (CA9 1977) (adopting Restatement (Second) of Torts § 402A (1965)). Indeed, the Court of Appeals for the Third Circuit previously had stated that the question whether principles of strict products liability are part of maritime law "is no longer seriously contested." Ocean Barge Transport Co. v. Hess Oil Virgin Islands Corp., 726 F.2d 121, 123 (1984) (citing cases).
service). The Court's rationale in those cases -- that strict liability should be imposed on the party best able to protect persons from hazardous equipment -- is equally applicable when the claims are based on products liability. Compare Sieracki, 328 U.S. at 328 U. S. 93-94, with Escola v. Coca Cola Bottling Co. of Fresno, 24 Cal.2d 453, 462, 150 P.2d 436, 441 (1944) (concurring opinion). And to the extent that products actions are based on negligence, they are grounded in principles already incorporated into the general maritime law. See Kermarec v. Compagnie Generale Transatlantique, 358 U.S. at 358 U. S. 632. Our incorporation of products liability into maritime law, however, is only the threshold determination to the main issue in this case.
Products liability grew out of a public policy judgment that people need more protection from dangerous products than is afforded by the law of warranty. See Seely v. White Motor Co., 63 Cal.2d 9, 15, 403 P.2d 145, 149 (1965). It is clear, however, that, if this development were allowed to progress too far, contract law would drown in a sea of tort. See G. Gilmore, The Death of Contract 87-94 (1974). We must determine whether a commercial product injuring itself is the kind of harm against which public policy requires manufacturers to protect, independent of any contractual obligation.
"public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market."
Co. of Fresno, 24 Cal.2d at 462, 150 P.2d at 441 (opinion concurring in judgment).
For similar reasons of safety, the manufacturer's duty of care was broadened to include protection against property damage. See Marsh Wood Products Co. v. Babcock & Wilcox Co., 207 Wis. 209, 226, 240 N.W. 392, 399 (1932); Genesee County Patrons Fire Relief Assn. v. L. Sonneborn Sons, Inc., 263 N.Y. 463, 469-473, 189 N.E. 551, 553-555 (1934). Such damage is considered so akin to personal injury that the two are treated alike. See Seely v. White Motor Co., 63 Cal.2d at 19, 403 P.2d at 152.
In the traditional "property damage" cases, the defective product damages other property. In this case, there was no damage to "other" property. Rather, the first, second, and third counts allege that each supertanker's defectively designed turbine components damaged only the turbine itself. Since each turbine was supplied by Delaval as an integrated package, see App. 162-163, each is properly regarded as a single unit.
"Since all but the very simplest of machines have component parts, [a contrary] holding would require a finding of 'property damage' in virtually every case where a product damages itself. Such a holding would eliminate the distinction between warranty and strict products liability."
has certain attributes of a products liability claim. But the injury suffered -- the failure of the product to function properly -- is the essence of a warranty action, through which a contracting party can seek to recoup the benefit of its bargain.
The intriguing question whether injury to a product itself may be brought in tort has spawned a variety of answers. [Footnote 3] At one end of the spectrum, the case that created the majority land-based approach, Seely v. White Motor Co., 63 Cal.2d 9, 403 P.2d 145 (1965) (defective truck), held that preserving a proper role for the law of warranty precludes imposing tort liability if a defective product causes purely monetary harm. See also Jones & Laughlin Steel Corp. v. Johns-Manville Sales Corp., 626 F.2d 280, 287, and n. 13 (CA3 1980) (citing cases).
whether or not the defect created an unreasonable risk of harm. [Footnote 4] See also LaCrosse v. Schubert, Schroeder & Associates, Inc., 72 Wis.2d 38, 44-45, 240 N.W.2d 124, 127-128 (1976). The courts adopting this approach, including the majority of the Courts of Appeals sitting in admiralty that have considered the issue, [Footnote 5] e.g., Emerson G. M. Diesel, Inc. v. Alaskan Enterprise, 732 F.2d 1468 (CA9 1984), find that the safety and insurance rationales behind strict liability apply equally where the losses are purely economic. These courts reject the Seely approach, because they find it arbitrary that economic losses are recoverable if a plaintiff suffers bodily injury or property damage, but not if a product injures itself. They also find no inherent difference between economic loss and personal injury or property damage, because all are proximately caused by the defendant's conduct. Further, they believe recovery for economic loss would not lead to unlimited liability, because they think a manufacturer can predict and insure against product failure. See Emerson G. M. Diesel, Inc. v. Alaskan Enterprise, 732 F.2d at 1474.
endangered ones," Russell v. Ford Motor Co., 281 Ore. 587, 595, 575 P.2d 1383, 1387 (1978), and permit only the latter to sue in tort. The determination has been said to turn on the nature of the defect, the type of risk, and the manner in which the injury arose. See Pennsylvania Glass Sand Corp. v. Caterpillar Tractor Co., 652 F.2d at 1173 (relied on by the Court of Appeals in this case). The Alaska Supreme Court allows a tort action if the defective product creates a situation potentially dangerous to persons or other property, and loss occurs as a proximate result of that danger and under dangerous circumstances. Northern Power & Engineering Corp. v. Caterpillar Tractor Co., 623 P.2d 324, 329 (1981).
We find the intermediate and minority land-based positions unsatisfactory. The intermediate positions, which essentially turn on the degree of risk, are too indeterminate to enable manufacturers easily to structure their business behavior. Nor do we find persuasive a distinction that rests on the manner in which the product is injured. We realize that the damage may be qualitative, occurring through gradual deterioration or internal breakage. Or it may be calamitous. Compare Morrow v. New Moon Homes, Inc., 548 P.2d 279 (Alaska 1976), with Cloud v. Kit Mfg. Co., 563 P.2d 248, 251 (Alaska 1977). But either way, since, by definition, no person or other property is damaged, the resulting loss is purely economic. Even when the harm to the product itself occurs through an abrupt, accident-like event, the resulting loss due to repair costs, decreased value, and lost profits is essentially the failure of the purchaser to receive the benefit of its bargain -- traditionally the core concern of contract law. See E. Farnsworth, Contracts § 12.8, pp. 839-840 (1982).
need to keep products liability and contract law in separate spheres and to maintain a realistic limitation on damages.
"The distinction that the law has drawn between tort recovery for physical injuries and warranty recovery for economic loss is not arbitrary, and does not rest on the 'luck' of one plaintiff in having an accident causing physical injury. The distinction rests, rather, on an understanding of the nature of the responsibility a manufacturer must undertake in distributing his products."
Seely v. White Motor Co., 63 Cal.2d at 18, 403 P.2d at 151. When a product injures only itself, the reasons for imposing a tort duty are weak, and those for leaving the party to its contractual remedies are strong.
The tort concern with safety is reduced when an injury is only to the product itself. When a person is injured, the "cost of an injury and the loss of time or health may be an overwhelming misfortune," and one the person is not prepared to meet. Escola v. Coca Cola Bottling Co., 24 Cal.2d at 462, 150 P.2d at 441 (opinion concurring in judgment). In contrast, when a product injures itself, the commercial user stands to lose the value of the product, risks the displeasure of its customers who find that the product does not meet their needs, or, as in this case, experiences increased costs in performing a service. Losses like these can be insured.
See 10A G. Couch, Cyclopedia of Insurance Law 42:385-42:401, 42:414-417 (2d ed.1982); 7 E. Benedict, Admiralty, Form No. 1.16-7, p. 1-239 (7th ed.1985); 5A J. Appleman & J. Appleman, Insurance Law and Practice § 3252 (1970). Society need not presume that a customer needs special protection. The increased cost to the public that would result from holding a manufacturer liable in tort for injury to the product itself is not justified. Cf. United States v. Carroll Towing Co., 159 F.2d 169, 173 (CA2 1947).
Damage to a product itself is most naturally understood as a warranty claim. Such damage means simply that the product has not met the customer's expectations, or, in other words, that the customer has received "insufficient product value." See J. White & R. Summers, Uniform Commercial Code 406 (2d ed.1980). The maintenance of product value and quality is precisely the purpose of express and implied warranties. [Footnote 7] See UCC § 2-313 (express warranty), § 2-314 (implied warranty of merchantability), and § 2-315 (warranty of fitness for a particular purpose). Therefore, a claim of a nonworking product can be brought as a breach-of-warranty action. Or, if the customer prefers, it can reject the product or revoke its acceptance and sue for breach of contract. See UCC §§ 2-601, 2-608, 2-612.
agreements. [Footnote 8] The manufacturer can restrict its liability, within limits, by disclaiming warranties or limiting remedies. See UCC §§ 2-316, 2-719. In exchange, the purchaser pays less for the product. Since a commercial situation generally does not involve large disparities in bargaining power, cf. Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 161 A.2d 69 (1960), we see no reason to intrude into the parties' allocation of the risk.
(1929). Thus, both the nature of the injury and the resulting damages indicate it is more natural to think of injury to a product itself in terms of warranty.
A warranty action also has a built-in limitation on liability, whereas a tort action could subject the manufacturer to damages of an indefinite amount. The limitation in a contract action comes from the agreement of the parties and the requirement that consequential damages, such as lost profits, be a foreseeable result of the breach. See Hadley v. Baxendale, 9 Ex. 341, 156 Eng.Rep. 145 (1854). In a warranty action where the loss is purely economic, the limitation derives from the requirements of foreseeability and of privity, which is still generally enforced for such claims in a commercial setting. See UCC § 2-715; White & Summers, supra, at 389, 396, 406-410.
In products liability law, where there is a duty to the public generally, foreseeability is an inadequate brake. Cf. Kinsman Transit Co. v. City of Buffalo, 388 F.2d 821 (CA2 1968). See also Perlman, Interference with Contract and Other Economic Expectancies: A Clash of Tort and Contract Doctrine, 49 U.Chi.L.Rev. 61, 71-72 (1982). Permitting recovery for all foreseeable claims for purely economic loss could make a manufacturer liable for vast sums. It would be difficult for a manufacturer to take into account the expectations of persons downstream who may encounter its product. In this case, for example, if the charterers -- already one step removed from the transaction -- were permitted to recover their economic losses, then the companies that subchartered the ships might claim their economic losses from the delays, and the charterers' customers also might claim their economic losses, and so on. "The law does not spread its protection so far." Robins Dry Dock & Repair Co. v. Flint, 275 U. S. 303, 275 U. S. 309 (1927).
And to the extent that courts try to limit purely economic damages in tort, they do so by relying on a far murkier line, one that negates the charterers' contention that permitting such recovery under a products liability theory enables admiralty courts to avoid difficult line-drawing. Cf. Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931); Louisiana ex rel. Guste v. M/V Testbank, 752 F.2d 1019, 1046-1052 (CA5 1985) (en banc) (dissenting opinion), cert. pending sub nom. White v. M/V Testbank, No. 84-1808.
For the first three counts, the defective turbine components allegedly injured only the turbines themselves. Therefore, a strict products liability theory of recovery is unavailable to the charterers. Any warranty claims would be subject to Delaval's limitation, both in time and scope, of its warranty liability. App. 78-79. The record indicates that Seatrain and Delaval reached a settlement agreement. Deposition of Stephen Russell, p. 32. We were informed that these charterers could not have asserted the warranty claims. See Tr. of Oral Arg. 36. Even so, the charterers should be left to the terms of their bargains, which explicitly allocated the cost of repairs.
In the charterers' agreements with the owners, the charterers took the ships in "as is" condition, after inspection, and assumed full responsibility for them, including responsibility for maintenance and repairs and for obtaining certain forms of insurance. Id. at 11, 16-17, 35; App. 86, 88, 99, 101, 112, 114, 125-126, 127. In a separate agreement between each charterer and Seatrain, Seatrain agreed to guarantee certain payments and covenants by each charterer to the owner. Id. at 142-156. The contractual responsibilities thus were clearly laid out. There is no reason to extricate the parties from their bargain.
propulsion system itself, rather than to persons or other property. Even assuming that Delaval's supervision was negligent, as we must on this summary judgment motion, Delaval owed no duty under a products liability theory based on negligence to avoid causing purely economic loss. Cf. Flintkote Co. v. Dravo Corp., 678 F.2d 942 (CA11 1982); S. M. Wilson & Co. v. Smith International, Inc., 587 F.2d 1363 (CA9 1978). Thus, whether stated in negligence or strict liability, no products liability claim lies in admiralty when the only injury claimed is economic loss.
While we hold that the fourth count should have been dismissed, we affirm the entry of judgment for Delaval.
Compare East River S.S. Corp. v. Delaval Turbine, Inc., 752 F.2d 903 (CA3 1985) (en banc) (this case), with Ingram River Equipment, Inc. v. Pott Industries, Inc., 756 F.2d 649 (CA8 1985), cert. pending, No. 85-12; Miller Industries v. Caterpillar Tractor Co., 733 F.2d 813 (CA11 1984); Emerson G. M Diesel, Inc. v. Alaskan Enterprise, 732 F.2d 1468 (CA9 1984). See also Pan-Alaska Fisheries, Inc. v. Marine Constr. & Design Co., 565 F.2d 1129 (CA9 1977); and Jig The Third Corp. v. Puritan Marine Ins. Underwriters Corp., 519 F.2d 171 (CA5 1975). Cf. Louisiana ex rel. Guste v. MIV Testbank, 752 F.2d 1019 (CA5 1985) (en banc), cert. pending sub nom. White v. M/V Testbank, No. 84-1808.
The charterers do not ask us to defer to the law of New Jersey, the forum State. Nor is application of state law principles required here. New Jersey lacks any "pressing and significant" interest in the tort action. See Kossick v. United Fruit Co., 365 U. S. 731, 365 U. S. 739 (1961). In any event, reliance on state law would not help the charterers' case, since it mandates the same conclusion reached by the District Court and the Court of Appeals: that Delaval had no tort duty to the charterers. See Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J. 555, 679, 489 A.2d 660, 672 (1985).
The question is not answered by the Restatement (Second) of Torts §§ 395 and 402A (1965), or by the Uniform Commercial Code, see Wade, Is Section 402A of the Second Restatement of Torts Preempted by the UCC and Therefore Unconstitutional?, 42 Tenn.L.Rev. 123 (1974).
Congress, which has considered adopting national products liability legislation, also has been wrestling with the question whether economic loss should be recoverable under a products liability theory. See 1 L. Frumer & M. Friedman, Products Liability § 4C (1986). When S. 100, 99th Cong., 1st Sess. (1985) (the Product Liability Act) was introduced, it excluded, § 2(6), recovery for commercial loss. Suggestions have been made for revising this provision. See Amendment 16, 131 Cong.Rec. 5461 (1985); Amendment 100, id. at 11850, 11851. Other bills also have addressed the issue. See S.1999, id. at 38772 (1985); Amendment 1961, 132 Cong.Rec. 10304 (1986). See also H.R. 2568, 99th Cong., 1st Sess. (1985); H.R. 4425, 99th Cong., 2d Sess. (1986).
The issue also is of concern in the area of conflict of laws. See R. Weintraub, Commentary on the Conflict of Laws § 6.29 (2d ed.1980).
Interestingly, the New Jersey and California Supreme Courts have each taken what appears to be a step in the direction of the other since Santor and Seely. In Spring Motors Distributors, Inc. v. Ford Motor Co., 98 N.J., at 579, 489 A.2d at 672, the New Jersey court rejected Santor in the commercial context. And in J'Aire Corp. v. Gregory, 24 Cal.3d 799, 598 P.2d 60 (1979), the California court recognized a cause of action for negligent interference with prospective economic advantage.
Most of the admiralty cases concerned fishing vessels. See Emerson G. M. Diesel, Inc. v. Alaskan Enterprise, 732 F.2d 1468, 1472 (CA9 1984) (relying on solicitude for fishermen as a reason for a more protective approach). Delaval concedes that the courts, see Carbone v. Ursich, 209 F.2d 178, 182 (CA9 1953), and Congress, see 46 U.S.C.App. § 533 (1982 ed., Supp. II), at times have provided special protection for fishermen. This case involves no fishermen.
We do not reach the issue whether a tort cause of action can ever be stated in admiralty when the only damages sought are economic. Cf. Ultramares Corp. v. Touche, 255 N.Y. 170, 174 N.E. 441 (1931). But see Robins Dry Dock & Repair Co. v. Flint, 275 U. S. 303 (1927).
If the charterers' claims were brought as breach-of-warranty actions, they would not be within the admiralty jurisdiction. Since contracts relating to the construction of or supply of materials to a ship are not within the admiralty jurisdiction, see Thames Towboat Co. v. The Schooner "Francis McDonald", 254 U. S. 242, 254 U. S. 243 (1920); Kossick v. United Fruit Co., 365 U.S. at 365 U. S. 735, neither are warranty claims grounded in such contracts. See 1 E. Benedict, Admiralty § 188, p. 11-36 (7th ed.1985). State law would govern the actions. See North Pacific S.S. Co. v. Hall Brothers Marine Railway & Shipbuilding Co., 249 U. S. 119, 249 U. S. 127 (1919). In particular, the Uniform Commercial Code, which has been adopted by 49 States, would apply.
We recognize, of course, that warranty and products liability are not static bodies of law, and may overlap. In certain situations, for example, the privity requirement of warranty has been discarded. E.g., Henningsen v. Bloomfield Motors, Inc., 32 N.J. 358, 380-384, 161 A.2d 69, 81-84 (1960). In other circumstances, a manufacturer may be able to disclaim strict tort liability. See, e.g., Keystone Aeronautics Corp. v. R. J. Enstrom Corp., 499 F.2d 146, 149 (CA3 1974). Nonetheless, the main currents of tort law run in different directions from those of contract and warranty, and the latter seem to us far more appropriate for commercial disputes of the kind involved here.
In contrast, tort damages generally compensate the plaintiff for loss and return him to the position he occupied before the injury. Cf. Sullivan v. O'Connor, 363 Mass. 579, 584-586, 588, n. 6, 296 N.E.2d 183, 187-188, 189, n. 6 (1973); Prosser, The Borderland of Tort and Contract, in Selected Topics on the Law of Torts 380, 424-427 (Thomas M. Cooley Lectures, Fourth Series 1953). Tort damages are analogous to reliance damages, which are awarded in contract when there is particular difficulty in measuring the expectation interest. See, e.g., Security Stove ¦ Mfg. Co. v. American Railways Express Co., 227 Mo.App. 176, 51 S.W.2d 572 (1932).


text:
Posted On May 30, 1927 by &filed under Calcutta High Court, High Court.
The defendants do pay to the plaintiffs the decretal amount mentioned therein within 15 days from the date on which the decree is signed. In default the defendants be ejected from the land in suit within 15 days from the date of the decree.
2. The opposite parties 1 to 4 claiming to be transferees of a portion of the holding deposited the decretal amount on their own account as such transferees. It is conceded that the holding was a non-transferable occupancy holding and that the opposite parties 1 to 4 are transferees of a portion of the holding. The landlord objected to their right to make the deposit but the Munsif accepted the deposit. The plaintiffs moved this Court as wall as preferred an appeal in the lower appellate Court. The appeal in the lower appellate Court was decided against him but their case before us is that no appeal lay to the lower appellate Court and that the present application which was filed in this Court within time from the judgment of the Munsif should be heard and decided on the merits. The learned vakil appearing for the opposite parties has taken a preliminary objection that this application does not lie as the question in dispute is governed by Section 47, Civil P.C. and that the petitioners should have come to this Court on second appeal. We are unable to give effect to this contention. There is-nothing in Act 8 of 1869 which makes the provision of the Civil P.C. applicable to sales under that Act.
3. This case comes from Sylhet where Act 8 of 1869 is in force and the decree that was passed in this case was passed under Section 52 of that Act. It is argued on behalf of the petitioners that under that section the opposite parties (we leave out of consideration the other opposite parties who are tenants and do not appear) are not entitled to make the deposit. The deposit contemplated under that section must be made by the tenant defendant himself or it may be made by any person on his behalf. On behalf of the opposite parties it is contended that the opposite parties having an interest in the property being purchasers of a portion of the holding are persons entitled to make the deposit under that section.
4. Reliance is placed on behalf of the opposite parties mainly upon the decision in the case of Kali Kishore Das v. Gopal Ram Shaha  23 C.W.N. 132. That case in its turn follows the decision in the case of Sarada Prasad Roy Chowdhury v. Nobin Chandra Dutt  1 Marshall’s Rep. 417. The learned vakil for the petitioners argues that these cases were wrongly decided and that the intention of the legislature may be gathered from the various sections of the Act to which reference will be made. We have considered this matter carefully as it raises considerations which affect the tenants in that part of the country but we are unable to accept the correctness of the above rulings if they purport to lay down an abstract proposition of law.
Any person desiring to eject a raiyat or to cancel a lease on account of non-payment of arrears of rent, may sue for such ejectment or cancelment and for recovery of the arrears in the same action or may adduce any unexecuted decree for arrears of rent as evidence of the existence of such arrears in a suit for such ejectment or cancelment.
6. We pause here to consider the effect of this part of the section. It empowers the landlord consistently with the provisions of Section 22 of the Act to sue for ejectment of the tenant when his rent remains in arrear and he may for that purpose join the claim for rent along with the claim for ejectment and may adduce evidence of there being arrears in the way indicated in the clause. This clause is followed by another clause with which we are concerned.
In all oases of suits for the ejectment of a raiyat or cancelment of a lease the decree shall specify the amount of arrears; and if such amount together with interest and costs be paid into Court within 15 days from the date of the decree execution shall be stayed.
Any person desiring to eject a tenant or cancel on account of non-payment of rent may sue for such ejectment or cancelment and for recovery of the arrears in the same action or may adduce any unexecuted decree for arrears of rent as evidence of the existence of such arrears in a suit for such ejectment or cancelment. In all cases of suits for the ejectment of a raiyat or the cancelment of a lease the decree shall specify the amount of the arrears, and if such amount together with costs of the suit be paid into Court within fifteen days from the date of the decree, execution shall be stayed.
In a suit for ejectment for an arrear of rent a decree passed in favour of the plaintiff shall specify the amount of the arrears and of the interest, if any, due thereon, and the decree shall not be executed if that amount and the costs of of the suit are paid into Court within fifteen days from the date of the decree or, when the Court is closed on the fifteenth day, on the day upon which the Court re-opens.
9. It is to be noticed that in all these enactments it is not distinctly said by whom the amount of the decree for arrears of rent may be deposited. The sections preceding Section 52 to which I have referred speak of the part the tenant may take previous to the bringing of a suit for arrears of rent. It is not permitted by law that the tender can be made by any others than the tenant himself or by the transferee of the whole or part of his interest; nor can such person deposit the money in a suit to challenge the plaintiff’s right to recover the money. It does not seem likely that the legislature intended that after the decree the door should be thrown open to the public to come and deposit in order to avoid the landlord’s right to re-enter. In the case of Sarada Prosad Roy Chowdhury v. Nobin Chandra Dutt , the learned Judges did not discuss the question of law in all its bearings. That was a decision under Section 78, Act 10, 1859 and the learned Judges said that as the Act did dot say that the arrear must be paid by the tenant or that it should not be paid by his transferee or by any other party interested in saving the forfeiture of the tenancy the party in that case to whom the defendant had assigned his right under the pottah was entitled to pay the amount of arrears and avoid the forfeiture. This seems to me to be a very poor reasoning, for it does not seem logical to argue that because the section does not mention by whom the payment may be made, though it speaks of decree for arrears of rent against the tenant only it can be held that any one is entitled to make the deposit. The further qualification that the learned Judges fixed of the person making the payment viz., that he may be a transferee or a person interested in saving the foreiture, is not warranted by the wording of the section. According to the interpretation given by the learned Judges to the words of the section it would seem that any one, even a stranger, may make the deposit and defeat the landlord’s claim for re-entry. If ordinary meaning is given to the words of the Section 52, Act 8 of 1869 they ca n only mean that if the money is not paid within time by the person who is liable to pay, the consequences mentioned in the clause will follow.
10. In the case of Kali Kishore Das v. Gopal Ram Shaha  23 C.W.N. 132, the learned Judges (Teunon and Cuming, JJ.) did not discuss the law, but relied for their decision upon the case of Sarada Prosad v. Nobin Chandra  1 Marshall’s Rep. 417 and on the Pall Bench case of Dayamoyi v. Ananda Mohan  42 Cal. 172. I have discussed the case of Sarada Prosad v. Nobin Chandra  1 Marshall’s Rep. 417 and I fail to see what bearing Dayamoyi’s case (1914) 42 Cal. 172 has on the question before us. In that case it was held that a person who is a transferee of a portion of a holding is one who can be said to have such interest as to make him a representative of the judgment-debtor under Section 47, Civil P.C., or for the matter of that, a person interested under Order 21, Rule 89, or Rule 90, Civil P.C. I do not think that Section 47, Civil P.C., has any application in the present case, the question being one of construction of Section 52, Act 8 of 1869, B.C., and, therefore the decision in the Full Bench case has hardly any bearing on the point in dispute here.
11. It is curious that shortly before the case of Kali Kishore Das v. Gopal Ram Shaha  23 C.W.N. 132 one of the learned Judges, (Teunon, J.) was a party to the deCision in the casts of Brojendra Nath Mitra v Arman Sheikh (1918) 27 C.L.J. 478. That case was decided under Section 66, Bengal Tenancy Act; and I have tried to show that there is hardly any difference between the language of that section and that of Section 52, Act 8, 1869. There Mr. Justice Teunon, sitting with Mr. Justice Newbould, held that Section 66(2), Bengal Tenancy Act, contemplates that the payment to be a good payment must be a payment by or on behalf of the judgment-debtor. The two decisions – one in Kali Kishore v. Gopal Ram  23 C.W.N. 132 and the other in Brojendra v. Arman Sheikh  27 C.L.J. 478 – seem to be conflicting for though they are under different sections of different Acts, they relate to the interpretation of almost similar language. The case of Brojendra v. Arman Sheikh  C.L.J. 478 was cited at the hearing of the case of Kali Kishore v. Gopal Ram  23 C.W.N. 132, but the learned Judges took no notice of it.
12. Reference to Sections 59 and 62, Act 8, 1869 may also be helpful. These sections deal with the sale of under-tenures. Under Section 59 a certain procedure is laid down with regard to the publication of the sale of an under-tenure; and Section 62 provides that if the sum due under the decree is paid before the data of sale by the defaulting holder of the under-tenure or any one on his behalf or anyone interested in the protection of the under-tenure, such sale shall not take place. Under Section 63 of the Act if a third party claims to be in lawful possession of the under-tenure the Court may stay the sale and adjudicate on his claim. This special provision with regard to under-tenures lends strength to the contention that the legislature did not extend it in the case of sale of non-transferable occupancy holdings, for it would have been as easy for it to mention the persons by whom the payment can be made as it was easy to enumerate them in the case of under-tenures. As for the principle which may be extended to a consideration o£ similar questions, I am referred to the recent Pall Bench decision in the case Jharu Mondal v. Khetra Mohan Bera A.I.R. 1926 Cal. 934 (F.B.) in which it has been held that the purchaser of the whole or portion of a non-transferable occupancy holding who has not been recognized by the landlord has not an interest in the holding which is voidable on the sale and is not entitled to make a deposit under Section 170(3), Bengal Tenancy Act. If a transferee of a non-transferable occupancy holding has not sufficient interest to avoid the sale by depositing the amount of the sale, it does not seem to me reasonable to hold that such a person is entitled to make the deposit under Section 66(2), Bengal Tenancy Act, or a similar provision in other enactments, to defeat the landlord’s decree for ejectment.
13. We have been asked to refer this matter, as we have disagreed with certain decisions of this Court to a Fall Bench. I do not think that necessity, for such a reference has arisen. The decision in Kali Kishore v. Gopal Ram  23 C.W.N. 132 is based upon no reasoning and is attempted to be based on one of certain decisions which does not support it. We are further of opinion that one of the learned Judges who was a party to the decision took a contrary view in respect of a similar controversy in Brojendra v. Arman  27 C.L.J. 478. besides, the facts in Kali Kishore’s case (1918) 23 C.W.N. 132 have not been fully reported and we do not know if the decree in that case is similarly worded as the decree in the case before us which leaves no room for doubt, in my mind, that it makes the sum decreed payable by the defendant alone. Taking all these circumstances into consideration we do not think that we are called upon in this case to refer the matter to a Pall Bench.
14. The result of all these considerations is that this rule must be made absolute and the orders of the lower Court3 allowing opposite parties 1 to 4 to make the deposit are set aside, The petitioners are entitled to their costs. Considering the number of hearings this matter had in this Court we a3se3s the hearing-fee at four gold mohurs.

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A need for a genomic species definition is emerging from several independent studies worldwide. In this commentary paper, we discuss recent studies on the genomic taxonomy of diverse microbial groups and a unified species definition based on genomics. Accordingly, strains from the same microbial species share >95% Average Amino Acid Identity (AAI) and Average Nucleotide Identity (ANI), >95% identity based on multiple alignment genes, <10 in Karlin genomic signature, and > 70% in silico Genome-to-Genome Hybridization similarity (GGDH). Species of the same genus will form monophyletic groups on the basis of 16S rRNA gene sequences, Multilocus Sequence Analysis (MLSA) and supertree analysis. In addition to the established requirements for species descriptions, we propose that new taxa descriptions should also include at least a draft genome sequence of the type strain in order to obtain a clear outlook on the genomic landscape of the novel microbe. The application of the new genomic species definition put forward here will allow researchers to use genome sequences to define simultaneously coherent phenotypic and genomic groups.
Microbial taxonomy comprises the identification of isolates into known species, the classification of new isolates (creation of new taxa), and nomenclature. While rules of the nomenclature are laid down in the Code of Nomenclature of Bacteria  the taxonomic schemes used for identification and classification need to be reliable, reproducible and informative. It is also desirable that the schemes are easy and affordable for the end-users of taxonomy. The phenotype-based taxonomy developed in the first half of the last century lead to a large multiplication of new species because very few features (colony morphology, physiologic aspects) were used as diagnostic for new taxa description. A complete revision in the number of recognized species was inevitable. More than 90% of all the species described in the Bergey’s Manual (1957) were subsequently reduced and only species included on the Approved Lists of Bacterial Names  became validly named species. Specifically, the major change in the schemes for species assessment occurred due to the development of DNA-DNA hybridization (DDH) and the introduction of the polyphasic taxonomy . The methodology simply relies on the physico-chemical properties of DNA of homolog and hybrids in order to determine genetic distance (reassociation values and ΔTm). Molecular fingerprinting (e.g. rep-PCR, AFLP, and PFGE), and DNA sequencing completed the set of molecular tools necessary to establish and develop the polyphasic taxonomy in solid better robust underpins . Taxonomic schemes still today based on the polyphasic approach that includes measures of evolutionary relationships using the gene sequences (most notably 16S rRNA gene), in order to determine the phylogenetic position of an isolate, combined with chemotaxonomic, physiological and cultural properties to assess novelty .
A bacterial species is defined as a group of strains (including the type strain), having > 70% DDH similarity, < 5°C ΔTm, < 5% mol G + C difference of total genomic DNA, > 98% 16S rRNA identity . The bacterial species definition is pragmatic and operational, aiming at the establishment of a rapid, reliable, reproducible, and useful taxonomic framework based on microbial evolution . This polyphasic definition is a consensus in microbiology, although it is not based on a concept (i.e. the biological processes behind speciation and species). It is crucial to highlight that the current polyphasic framework does not question if this definition corresponds to a biological reality . Within the framework of polyphasic taxonomy, strains of the same species have similar phenotypes (e.g. expression of different types of enzymes, ability to using different types of compounds as energy source, and growth in different temperatures and concentrations of acid and salt), genotypes (e.g. rep-PCR and AFLP), and chemotaxonomic features (e.g. FAME and polyamines), forming distinguishable tight groups . Ideally, these groups should be readily identifiable and differentiated from closely related species.
The advent of whole genome sequencing (WGS) allowed the establishment of taxonomic schemes based on the evolutionary information contained in the genome sequences, such as the Karlin genomic signatures, Average Amino Acid Identity (AAI), supertrees, and in silico Genome-to-Genome Distance Hybridization (GGDH) . Current sequencing technologies have become affordable to be used in routine microbial identification [9, 10]. It is becoming clear that bacterial species can be defined on the basis of genomic signatures [11–15]. It is plausible to consider that microbial taxonomy will be steadily more dependent on genome sequences than relying on the classic polyphasic, including phenotypic characterization using time-consuming laborious laboratory tests. The current microbial taxonomy will now rapidly switch to genomic microbial taxonomy.
Whole-genome sequencing (WGS) launched microbial taxonomy into the new era of genomic microbial taxonomy , with the possibility of establishing systematics on the basis of information retrieved from complete genomes. The genomic microbial taxonomy will not merely be an enriched polyphasic taxonomy as it will be framed on a fundamental genomic backbone. The genomic taxonomy is defined on the basis of an integrated comparative genomics approach that include, e.g., the analysis of multilocus sequence analysis (MLSA), supertree analysis, average amino acid identity (AAI), average nucleotide identity (ANI), genomic signatures, codon usage bias, metabolic pathway content, core and pan genome analysis. The main goal of the genomic taxonomy is to extract taxonomic information from WGS that can be used to establish a solid framework for the identification and classification of prokaryote species and even populations. While evolutionary biology studies may be mainly concerned with the validity of the Domains of Life, frequency and quality of horizontal transfer and genomic plasticity events that may obfuscate the phylogenetic structure of the Domains of Life , population genomics studies may be mainly interested in microevolution and events that may lead to speciation or the appearance of highly successful populations . Obviously, the first are interested in events on extremely large time scale events, whereas the second are concerned with contemporary events. Genomic taxonomy tries to embrace and connect these two study fields and is mainly concerned with species discovery and delineation.
Pioneering computational and mathematical studies performed in the 1990s [19–21], and confirmed by contemporaneous studies [22–28] suggested that genomes contain species-specific signatures. Genome signature is a compositional parameter reflecting the di-, tri-, or tetranucleotide relative abundance, which is similar between closely related species, and dissimilar between non-related species. Dinucleotide relative abundances (ρ*XY) is calculated using the equation ρ*XY = fXY/fXfY where fXY denotes the frequency of dinucleotide XY, and fX and fY denote the frequencies of X and Y, respectively [20, 21]. The difference in genome signature between two sequences is expressed by the genomic dissimilarity (δ*), which is the average absolute dinucleotide of relative abundance difference between two sequences. The dissimilarities in relative abundance of dinucleotides between both sequences are calculated using the equation described by Karlin et al. (1997) : δ*(f,g) = 1/16Σ| ρ*XY (f) - ρ*XY (g)| (multiplied by 1000 for convenience), where the sum extends over all dinucleotides. From this perspective, the set of dinucleotide biases constitutes a genomic signature that can discriminate sequences from different organisms. The dinucleotide biases appear to reflect species-specific properties of DNA stacking energies, modification, replication, and repair mechanisms . WGS also permit the reconstruction of more robust taxonomic trees (i.e. supertrees) based on whole-genome sequence alignment of all genes of the core genome [29–31]. A good congruence was obtained by the traditional 16S rRNA based trees and the novel supertree method [29–31]. In the same period of time, computational biology studies performed on the diversity of virus in the early 2000s provided some clues for the potential use of whole genome sequences in the taxonomy of virus .
A virus species is a group of viruses that constitute a replicating lineage and occupy a particular ecological niche. In general, size and shape of the capsule and tail are critical features to define virus species, as well as genome size and type (e.g., single-stranded RNA [ssRNA], ssDNA, double-stranded RNA [dsRNA], and dsDNA) . However, a new phage taxonomic structure based on Average Amino acid Identity (AAI) of complete phage genomes was proposed by Rohwer & Edwards (2002) . The new method grouped phages into taxa that predicted several aspects of phage biology and highlighted genetic markers useful for monitoring phage biodiversity. AAI is calculated based on conserved protein-coding genes between a pair of genomes which are determined by whole-genome pairwise sequence comparisons using the BLAST algorithm . For these comparisons, all protein-coding genes from one genome were searched against all protein-coding genes of the other genome. The genetic relatedness between a pair of genomes is measured by the average amino acid identity of all conserved genes between the two genomes. This study also indicated that genome signatures, such as the AAI, could be widely used in microbial taxonomy, beyond phage taxonomy.
In a similar fashion as proposed for phages , Konstantinidis & Tiedje (2005), Konstantinidis et al. (2006) [35–37] showed that the average amino acid identity (AAI) and average nucleotide identity (ANI) could be used to distinguish species of prokaryotes. Subsequently, a close relationship between DDH and ANI was shown , which was reassuring for the more traditional microbial taxonomists. Richter & Rosselló-Móra (2009)  suggested that the ANI between a given pair of genomes is the best alternative for a gold standard to species identification, since it mirrors DDH closely. The resulting averages reflected the degree of evolutionary distance between the compared genomes, and a value of higher than 94% ANI could represent the DDH boundary of higher than 70%. In addition, the authors showed that the tetranucleotide signature analysis correlated with ANI and that can be of help in deciding when a given pair of organisms should be classified in the same species. Because DDH is still the gold standard in prokaryotic taxonomy, most of the previous studies have tried to demonstrate the correlation between new methodologies and the traditional DDH experiments . However, the recent developments of standard operating procedures for calculating genome-to-genome distances based on high-scoring segment pairs and new computational tools that allow the digital DNA-DNA hybridization for microbial species delineation by means of genome-to-genome sequence comparison are significant advances in genomic taxonomy [41–43]. The genome distance is calculated using Genome-To-Genome Distance Calculator (GGDC) . Distances between a pair of genomes are determined by whole-genome pairwise sequence comparisons using one out of six supported local-alignment programs available in the GGDC. For these comparisons, algorithms are used to determine high-scoring segment pairs (HSPs) for inferring intergenomic distances for species delimitation. The corresponding distance threshold can be used for species delimitation. Any distance value above the threshold can be regarded as indication that the two genomes analyzed represent two distinct species. Distances are calculated by (i) comparing two genomes using the chosen program to obtain HSPs/MUMs and (ii) inferring distances from the set of HSPs/MUMs using three distinct formulas. Next, the distances are transformed to values analogous to DNA–DNA Hybridizations (DDH). These DDH estimates are based on an empirical reference dataset comprising real DDH values and genome sequences. The regression-based DDH estimate uses parameters from a robust-line fit, whereas the threshold-based DDH estimate applies the distance threshold leading to the lowest error ratio in predicting whether DDH is >70% or <70%. It is now possible to determine the DDH similarity between two microbial strains by means of whole genome sequences. The growing evidence obtained by various studies demonstrates the usefulness of genomic taxonomy. Light has been shed on the taxonomic structure of various microbial groups as discussed in the coming section.
Vibrios are ubiquitous Gammaproteobacteria in the aquatic environment and can be found in association with animal or plant hosts. Currently, there are 152 known vibrio species (113 Vibrio spp.; 24 Photobacterium spp.; 6 Aliivibrio spp.; 4 Enterovibrio spp.; 4 Salinivibrio spp.; 1 Grimontia sp.) (http://www.bacterio.cict.fr/index.html). Some species are animal (e.g. V. coralliilyticus and V. shiloi) or human (e.g. V. cholerae, V. parahaemolyticus, and V. vulnificus) pathogens, and others form mutualistic relationships (e.g. V. fischeri) . Identification of vibrios has been based on MLSA [45, 46], DDH , ΔTm , and more recently in whole genome sequences [11, 12, 48]. The identification of vibrios remains a difficult task particularly for some sister species, e.g. the pairs V. cholerae and V. mimicus, V. coralliilyticus and V. brasiliensis, and the V. splendidus group, because they have similar genomes and phenotypes. In spite of the genome similarity, these species can be recognized as different evolutionary units in nature . We analyzed a set of 43 genomes and observed that all strains formed groups that resemble the formal species. We also observed that the vibrios were distributed in three major groups or genera (Vibrio, Photobacterium and Aliivibrio) . Based on the new genomic taxonomy, a Vibrio species is defined as a group of strains that share > 95% DNA identity in MLSA and supertree analysis, > 96% AAI, < 10 Karlin genomic signature, and > 70% GGDH. Strains of the same species and species of the same genus form monophyletic groups on the basis of MLSA and supertree analysis. Haley et al. (2010)  used a genomic taxonomy approach for the description of the new species V. metecus and V. parilis. These new species are phylogenetically closely related to V. cholerae and V. mimicus, respectively.
In addition to species identification and classification, genomics may also aid in the population structure studies of vibrios [51, 52]. For instance, the distinct ecologic populations of the V. splendidus group appear to be organized in ecotypes, some occupying the particles or zooplankton, others occupying the free-living fraction of the plankton . Subtle genomic differences in specific loci, related to e.g. chitin utilization, may explain the preferences of certain populations for the plankton than for the water column. However, a closer taxonomic examination indicated that some populations recognized in those studies are actually different species within the V. splendidus group and in other species groups previously recognized by polyphasic approaches, suggesting the need to reconciliate nomenclatures in population genomics and taxonomy [53, 54].
Genomics has enhanced our understanding on the population structure of well known bacterial pathogens. For instance, V. cholerae O1 strains originated from Ghana (Africa) and from the Brazilian Amazonia were closely related on the basis of the MLSA and genome sequences, suggesting that i. nearly identical populations of V. cholerae could inhabit simultaneously these two continents and ii. the possible spread of successful populations to different geographic regions [46, 55]. Further to this observation, the study of 25 V. cholerae O1 and Non-O1 isolates related to massive epidemics in 2009 and 2010 in Nigeria suggested the occurrence of multidrug resistant atypical El Tor strains, with reduced susceptibility to ciprofloxacin and chloramphenicol, characterized by the presence of the SXT element, and specific loci (gyrA, parC, rstR, ctxB, and tcpA), indicating a vast pathogenic potential in this geographic area . It is possible that the recent Nigeria outbreaks of 2009 and 2010 were determined by multidrug resistant atypical O1 El Tor and non-O1/non-O139 . The typical El Tor strain, from the beginning of seventh cholera pandemic, is no longer epidemic/endemic in this country, similarly to what was observed in other countries in East Africa and Asia .
Mycoplasmas are one of the smallest and simplest prokaryotes (Tenericutes), having only the minimal cellular machinery required for self-replication and survival. They appear to have evolved from Gram-positive bacteria by a process of degenerative evolution towards genome reduction and the loss of a cell wall [58, 59]. Currently, there are 124 Mycoplasma species. They are widespread in nature as parasites of humans, mammals, reptiles, fish, arthropods, and plants. They may be symbionts of isopods , songbirds , wild and reared fish , and deep sea Lophelia corals of Gulf of Mexico and Norwegian Fjords . Many Mycoplasma species are pathogenic for humans, animals, plants, and insects . In addition, mycoplasmas have been a problem as intracellular contaminants in human cell therapy, and in the animal (poutry and swine farming) production as pathogens. Thus, rapid diagnostics and identification of mycoplasmas is crucial for various activities. Since the 1970s, serology has been established as the most important and widely used tool for defining and identifying Mycoplasma species (ICSB Subcommittee on the Taxonomy of Mycoplasmatales, 1972; ICSB Subcommittee on the Taxonomy of Mollicutes, 1979, 1995;) . Roughly and as a first attempt, serological characterization is in agreement with DDH data and with 16S rRNA sequence data. However, differentiation of closely related species using 16S rRNA gene sequence and even DDH is very difficult because some Mycoplasma species may have up to 100% 16S rRNA gene similarity and approx. 70% DDH similarity. For instance, the pairs M. pneumoniae and M. genitalium, M. mycoides and M. capricolum have 98% and 99.8% 16S rRNA sequence similarity, respectively. Serology is also very cumbersome, requiring special reagents and the expertise of very few international laboratories. The high genomic and phenotypic diversity of mycoplasmas may also result in cross-reaction or misidentification based on serology. In order to test the feasibility of the genomic taxonomy in mycoplasmas, several genomic markers were analyzed in a collection of 46 genomes. The availability of whole genome sequences of several closely related species, such as M. pneumoniae and M. genitalium formed an ideal test case for the establishment of the genomic taxonomy of Mycoplasmas. Disclosing species-specific patterns for the different genome-wide markers reinforced their usefulness in mycoplasma taxonomy.
Mycoplasma pneumoniae and M. genitalium had only 73% MLSA similarity, 67% AAI, and 88 for Karlin genomic signature. Codon usage of the phylogeneticaly distantly related species M. conjunctivae and M. gallisepticum was identical, in spite of clear differences in MLSA, AAI, and Karlin signature, suggesting that these two species were subjected to convergent adaptation due to similar environmental conditions. Similar to our observations in the study of the genomic taxonomy of vibrios, Mycoplasma species may be defined based on genomic features, such as DNA identity in MLSA, AAI and Karlin genomic signature. According to the phylogenetic reconstructions based on genome signatures, the genus Mesoplasma appeared to be nested within Mycoplasma, putting in question its taxonomic validity. The genera Acholeplasma and candidate Phytoplasma appeared at the outskirts of the phylogenetic tree, whereas the genus Ureaplasma formed a separated branch distinct from the genus Mycoplasma. The genus Mycoplasma appeared to be paraphyletic, indicating the power of the genomic analysis in order to refine and enhance the taxonomic structure of complex microbial groups.
Prochlorococcus is globally abundant and dominates the total phytoplankton biomass and production in the global oligotrophic ocean. Prochlorococcus is currently one of the best studied marine microbes [66–69]. They can reach 3 × 105 cells per mL in a wide range of environments from the bottom of the euphotic zones to the upper layer of the oligotrophic zones of the global ocean . According to the temperature and other environmental parameters preferences, the Prochlorococcus are identified in at least six ecotypes. An ecotype is defined as a genetically coherent population within a species, having a subtle niche preference, different from other conspecific populations, Until recently, the taxonomic structure of the genus Prochlorococcus was poorly defined though. There was only one species formally described in this genus, named P. marinus, and two subspecies, P. marinus subsp marinus and P. marinus subsp pastoris (http://www.bacterio.cict.fr/index.html). In spite of the apparent mix of strains, the apparent high genomic similarity among the different types of known and unknown ecotypes, and the apparent unstable taxonomic structure, a closer examination of the currently available genomic data of Prochlorococcus allowed us to make significant progress in the taxonomy of this group.
We analyzed the 13 representative complete genome sequences of cultured Prochlorococcus strains and over 100 marine metagenomes in order to determine the taxonomic structure of the genus by means of several genomic taxonomy tools. In our hands, the current species P. marinus actually comprised 10 cryptic species (Figure 1). This newly established taxonomic framework for the genus Prochlorococcus was then used to identify metagenomic sequences. We observed that there may only be a total of 35 Prochlorococcus species in the world’s oceans, but some species (e.g. Prochlorococcus chisholmii AS9601T) are very abundant, whereas others (e.g. Prochlorococcus swingsii MIT9313T) appear to be restricted to fewer locations. The incongruence between the ecotype designation previously used in the Prochlorococcus and our newly proposed taxonomic framework is because the ecotype designation is given to populations within species with subtle niche preferences, whereas the species designation refers to organisms that have diversified a long time ago and thus have different genomes and phenotypes based on the criteria used for species circumscription [10, 12]. In support of our view, several studies have advanced the utility of a genomic taxonomy for prokaryotic species delineation [54, 70, 71].
Phylogenetic trees of the 16S rRNA gene (A) and MLSA (B) based on maximum likelihood method. Distance estimation was obtained by the model of Kimura 2-Parameter. Bootstrap percentages after 2,000 replications are shown. Scale bar, estimated sequence divergence. Synechococcus elongates PCC6301 was used as an outgroup. MLSA tree: new Prochlorococcus species (T type strains), MLSA (%), AAI (%), GGD (%) and Genome Signature (GS) values for each Prochlorococcus pair, location and depth are indicated on the right side of the tree. This figure is reproduced with permission from Thompson et al. .
Phenotypic identification is critically important in different fields of microbiology because it provides the clues e.g. for treatment of infectious agent for humans, animals and plants, and for technological applications. It is becoming evident that phenotypic tables commonly found in new species descriptions and diagnostic manuals will be constructed using genome information to complement, or even replace the use of commercially available phenotypic tests (such as API and BIOLOG substrate panels) currently used in taxonomy. Though apt for many species, the commercial systems are rarely devised to characterize the broad spectrum of environmental strains. Because phenotypic features can be obtained directly from the genome sequences by means of the analyses of the presence or absence of diagnostic genes, it is now possible to derive diagnostic phenotypes from the genotypes in different taxonomic groups [15, 72, 73]. For instance, the species V. cholerae is positive for D-mannose and sucrose fermentation, Voges-Proskauer, and lipase activity, whereas its sister species, V. mimicus is negative according to genome sequence analysis . Similarly, the phenotypic identification of Prochlorococcus was also performed based on the presence of diagnostic genes. As automated genome annotation tools (e.g. the RAST, Kbase, and Model SEED) progress, we will be able to automatically and accurately determine the major phenotypic characteristics of microbes from their genome sequences. Of course, complex metabolism may still require culture-based experiments.
Microbial taxonomy is critically important for different fields, including medicine, agriculture, marine ecology and conservation . A unified prokaryotic species definition based on genomics would consider that strains from the same species share <10 in Karlin signature, >95% AAI and ANI, >95% identity based on multiple alignment genes, and > 70% in silico GGDH. Species of the same genus will form monophyletic groups on the basis of 16S rRNA gene sequences, MLSA and supertree analysis. Some exceptions may occur, e.g. in the case of Prochlorococcus where different species may have nearly identical Karlin signatures, suggesting convergent evolution in this genomic feature. In spite of the possible exceptions, this definition should be widely applicable for different types of microbes. The recent developments in genomic prokaryotic taxonomy demonstrate their importance in the development of more ample and refined taxonomic schemes.
Taxa descriptions have increased sharply in the last ten years due to technological developments and the environmental surveys in different locations of the globe. The number of new species descriptions in the 1990s was 2,082, whereas in the last decade, 69 new families, 688 new genera, and 3,344 new species, were described . Most of the descriptions are based on one strain and included the concomitant proposal of the higher ranks. Clearly, there is no sign of reduction in the species descriptions in the coming decade. However, the standards for species descriptions need to be refined and more unified. Some requirements and suggestions were discussed by an ad hoc committee, including ample phenotypic characterization, examination of several (at least five) strains, high quality 16S rRNA sequences (>1,300 nt, <1% ambiguous nt), DDH with closely related neighboring strains, and MLSA data . In addition to all these requirements, we propose that new taxa descriptions should also include at least a draft genome sequence, with at least a 20X coverage, of the type strain, in order to obtain the majority of the genomic landscape of the novel bacterium. The genome sequence of the new taxa can be deposited in large public databases, such as the EMBL and GenBank, in order to allow assess by the scientific community and automatic identification of microbial species through the internet [11–15]. The application of the new genomic species definition and taxonomic frameworks put forward here will allow researchers to use genome sequences to define phenotypically and genomically coherent and cohesive groups.
We thank CNPq, FAPERJ, and CAPES for funding.
All authors contribute equally to this commentary. All authors read and approved the final manuscript.

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§ 51-3 Terms of office.
§ 51-4 Powers and functions.
§ 51-6 Municipal Open Space, Recreation, Floodplain Protection, and Farmland and Historic Preservation Trust Fund.
§ 51-7 Accumulation and use of funds.
§ 51-8 Sale of property.
§ 51-9 Review of Committee activities; report.
There is hereby established an Open Space Committee which shall consist of seven members and whose terms and the powers of the Committee are hereinafter set forth.
Two citizens of the Township appointed by the Township Council.
The citizens appointed by the Mayor and the Township Council shall hold no other municipal office, position, or employment in the municipal government.
The Mayor and the member of the Township Council appointed to the Open Space Committee shall have terms which shall correspond with the term of their respective elective offices.
The Administrative Officer shall serve as a member of the Open Space Committee as long as he or she is employed by the Township in the capacity of Township Administrative Officer.
One of the citizens of the Township appointed by the Mayor and one appointed by the Township Council and so designated by the Mayor and Township Council at the time of appointment shall have a term of three years.
One of the citizens of the Township appointed by the Mayor and one appointed by the Township Council and so designated by the Mayor and Township Council at the time of appointment shall have a term of two years.
The terms of members of the Open Space Committee appointed by the Mayor and/or the Township Council pursuant to Subsections C and D of § 51-3, after their initial terms pursuant to said subsections, shall be three years.
The Open Space Committee shall make an initial determination of which parcels of land should be acquired in fee and/or those parcels of land from which the Township should acquire development rights only.
The Open Space Committee shall submit to the Township Council a prioritized list of properties to be acquired and/or properties from which development rights should be acquired. The Township Council shall, within 45 days, either approve, disapprove, or modify the list as submitted and state the amount of funds that the Council shall make available for such acquisition. If the Township Council shall fail to act affirmatively by either approving, disapproving or modifying the list submitted by the Open Space Committee within 45 days after submission, the list shall be deemed approved as submitted by the Committee in its entirety with full financial authorization.
After approval of the list referred to in Subsections A and B above, the Township may proceed to acquire, by gift, purchase or by eminent domain proceedings pursuant to N.J.S.A. 20:3-1 et seq., the parcels as prioritized on the list, within the financial constraints established by the Township Council.
The Open Space Committee may employ and/or contract for professional services by legal counsel, appraisers and staff as it may deem necessary subject to budget appropriation and Township Council passage of professional services resolutions establishing the rates of compensation to be paid.
The Open Space Committee shall hold public meetings, which public meetings shall be held in accordance with the Open Public Meetings Act, and the Committee shall give appropriate notification of said meetings.
The Mayor shall serve as Chairman of the Open Space Committee, and the Open Space Committee shall select from among the four citizen members a Vice Chairman to serve as a presiding officer in the absence of the Chairman. The Committee shall also select a Secretary whose function shall be to maintain minutes of the Committee's meeting and records of the proceedings of the Committee.
The Open Space Committee shall hold its initial organization meeting shortly after this chapter takes effect.
Not less than $0.01 shall be used for the acquisition of lands for recreation and conservation purposes.
The foregoing provisions in § 51-7A(1) through (3) to the contrary notwithstanding, in the event that the governing body determines, from time to time, that funds are not required for the purposes set forth in § 51-7A(1) and (2), the governing body shall allocate the funds, in amounts to be determined by the governing body, for the purposes set forth in § 51-7A(3).
The funds as allocated in § 51-7A may be utilized as a down payment for the issuance of bonds or the payment of debt service on indebtedness issued or incurred by the Township for any of the purposes set forth in § 51-6A, B, D, E, or G, at the discretion of the governing body. For purposes hereof and in accordance with N.J.S.A. 40:12-15.1, "acquisition” shall mean the securing of a fee simple or lesser interest in land, including, but not limited to, an easement restricting development, by gift, purchase, installment purchase agreement, devise or condemnation.
No property acquired with these funds from the Municipal Open Space, Recreation, Floodplain Protection, and Farmland and Historic Preservation Trust Fund shall be leased or sold until the sale or lease of same has been approved by the voters at a referendum.
In the event that no property is acquired under this chapter for a period of three consecutive years, then the Mayor and Township Council shall review the activities of the Open Space Committee and issue a report with recommendations and conclusions concerning the Municipal Open Space, Recreation, Floodplain Protection, and Farmland and Historic Preservation Trust Fund.