The fish bone in the fish chowder
One early afternoon in 1959, in Boston, USA, Ms Webster, her sister, and her aunt, enjoyed lunch in a restaurant. Webster had a cup of fish chowder (a stew). She ate about 3 or 4 spoonfuls, and became aware that something had lodged in her throat.
Webster had an oesophagoscopy (a scope through the mouth and into the oesophagus), and a fish bone was found and removed.
Webster sued the restaurant for damages for personal injury. The matter of Webster v Blue Ship Tea Room progressed to the Supreme Court of Massachusetts, where the question to be decided was described as:
“We must decide whether a fish bone lurking in a fish chowder, about the ingredients of which there is no other complaint, constitutes a breach of implied warranty.” and
“Was this fish bone a foreign substance that made the fish chowder unwholesome or not fit to be eaten?“
The judgment reads more like a culinary history or a recipe book than a record of legal proceedings. Reason being, the appropriate thickness of fish chowder was important. If the viscosity should be low, the restaurant could be expected to identity and remove all fish bones. If higher viscosity was reasonable, the restaurant had a chance of a successful defence.
The attorney for the restaurant eloquently argued the case:
” [N]o chef [should be] forced to reduce the pieces of fish in the chowder to miniscule size in an effort to ascertain if they contained any pieces of bone.” … In so ruling, “the court will not only uphold its reputation for legal knowledge and acumen, but will, as loyal sons of Massachusetts, save our world-renowned fish chowder from degenerating into an insipid broth containing the mere essence of its former stature as a culinary masterpiece.”
The judge was persuaded:
“[W]e consider that the joys of life in New England include the ready availability of fresh fish chowder. We should be prepared to cope with the hazards of fish bones, the occasional presence of which in chowders is, it seems to us, to be anticipated, and which, in the light of a hallowed tradition, do not impair their fitness or merchantability.”
“Thus, while we sympathize with the plaintiff who has suffered a peculiarly New England injury, the order must be … judgment for the defendant.”
The restaurant won.