Posted on May 16, 2014
I had a bet with fellow law blogger Karim Renno of Irving Mitchell Kalichman, better known to the internet as the author of the excellent À Bon Droit. The bet was: if the Boston Bruins won their best-of-seven playoff series with the Montreal Canadiens, then Karim would write a guest post for Letters Blogatory and would send along a photo of himself eating a bowl of chowder. If, on the other hand, the Canadiens bested the Bruins, then I would write a guest post for him and send a picture of myself eating a nice helping of poutine.
Well, let’s just say that in Montreal they are drinking aught but champagne, and I congratulate Karim on his team’s win. There was some gnashing of teeth chez Folkman, but not too much, as my wife was born and raised in Montreal and she has, I’m sorry to say, corrupted the youth—my kids are Canadiens fans, too. I hope Karim knows what a bullet he dodged. As Justice Reardon pointed out in Webster v. Blue Ship Tea Room, Inc., 347 Mass. 421 (1964), there is no warranty that a bowl of honest New England fish chowder will be bone-free:
The defendant asserts that here was a native New Englander eating fish chowder in a ‘quaint’ Boston dining place where she had been before; that ‘[f]ish chowder, as it is served and enjoyed by New Englanders, is a hearty dish, originally designed to satisfy the appetites of our seamen and fishermen’; that ‘[t]his court knows well that we are not talking of some insipid broth as is customarily served to convalescents.’ We are asked to rule in such fashion that no chef is 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,’ we are told (in the defendant’s brief), ‘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.’ Notwithstanding these passionate entreaties we are bound to examine with detachment the nature of fish chowder and what might happen to it under varying interpretations of the Uniform Commercial Code.
Chowder is an ancient dish preëxisting even ‘the appetites of our seamen and fishermen.’ It was perhaps the common ancestor of the ‘more refined cream soups, purées, and bisques.’ Berolzheimer, The American Woman’s Cook Book (Publisher’s Guild Inc., New York, 1941) p. 176. The word ‘chowder’ comes from the French ‘chaudière,’ meaning a ‘cauldron’ or ‘pot.’ ‘In the fishing villages of Brittany * * * ‘faire la chaudière’ means to supply a cauldron in which is cooked a mess of fish and biscuit with some savoury condiments, a hodge-podge contributed by the fishermen themselves, each of whom in return receives his share of the prepared dish. The Breton fishermen probably carried the custom to Newfoundland, long famous for its chowder, whence it has spread to Nova Scotia, New Brunswick, and New England.’ A New English Dictionary (MacMillan and Co., 1893) p. 386. Our literature over the years abounds in references not only to the delights of chowder but also to its manufacture. A namesake of the plaintiff, Daniel Webster, had a recipe for fish chowder which has survived into a number of modern cookbooks and in which the removal of fish bones is not mentioned at all. One old time recipe recited in the New English Dictionary study defines chowder as ‘A dish made of fresh fish (esp. cod) or clams, stewed with slices of pork or bacon, onions, and biscuit. ‘Cider and champagne are sometimes added.’’ Hawthorne, in The House of the Seven Gables (Allyn and Bacon, Boston, 1957) p. 8, speaks of ‘[a] codfish of sixty pounds, caught in the bay, [which] had been dissolved into the rich liquid of a chowder.’ A chowder variant, cod ‘Muddle,’ was made in Plymouth in the 1890s by taking ‘a three or four pound codfish, head added. Season with salt and pepper and boil in just enough water to keep from burning. When cooked, add milk and piece of butter.’ The recitation of these ancient formulae suffices to indicate that in the construction of chowders in these parts in other years, worries about fish bones played no role whatsoever. This broad outlook on chowders has persisted in more modern cookbooks. ‘The chowder of today is much the same as the old chowder * * *.’ The American Woman’s Cook Book, supra, p. 176. The all embracing Fannie Farmer states in a portion of her recipe, fish chowder is made with a ‘fish skinned, but head and tail left on. Cut off head and tail and remove fish from backbone. Cut fish in 2-inch pieces and set aside. Put head, tail, and backbone broken in pieces, in stewpan; add 2 cups cold water and bring slowly to boiling point * * *.’ The liquor thus produced from the bones is added to the balance of the chowder. Farmer, The Boston Cooking School Cook Book (Little Brown Co., 1937) p. 166.
Thus, we consider a dish which for many long years, if well made, has been made generally as outlined above. It is not too much to say that a person sitting down in New England to consume a good New England fish chowder embarks on a gustatory adventure which may entail the removal of some fish bones from his bowl as he proceeds. We are not inclined to tamper with age old recipes by any amendment reflecting the plaintiff’s view of the effect of the Uniform Commercial Code upon them. We are aware of the heavy body of case law involving foreign substances in food, but we sense a strong distinction between them and those relative to unwholesomeness of the food itself, e. g., tainted mackerel, and a fish bone in a fish chowder. Certain Massachusetts cooks might cavil at the ingredients contained in the chowder in this case in that it lacked the heartening lift of salt pork. In any event, we 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. While we are bouyed up in this conclusion by Shapiro v. Hotel Statler Corp., in which the bone which afflicted the plaintiff appeared in ‘Hot Barquette of Seafood Mornay,’ we know that the United States District Court of Southern California, situated as are we upon a coast, might be expected to share our views. We are most impressed, however, by Allen v. Grafton, where in Ohio, the Midwest, in a case where the plaintiff was injured by a piece of oyster shell in an order of fried oysters, Mr. Justice Taft (now Chief Justice) in a majority opinion held that ‘the possible presence of a piece of oyster shell in or attached to an oyster is so well known to anyone who eats oysters that we can say as a matter of law that one who eats oysters can reasonably anticipate and guard against eating such a piece of shell * * *.’
But enough about the delights of our chowder. What can we say about our two fair cities? For one thing, most people think we are second cities but we know that’s not true. (I’m looking at you, New York and Toronto). We both are the birthplace of basketball. (Well, Springfield, but close enough). We both speak a language that many of our countrymen can’t really understand. We both won the War of 1812. Great hockey rivalries aside, we have a lot in common and ought to be the best of friends.
Congratulations again to Karim and his Canadiens! The Bruins will be back next year. I will be sending along my poutine picture after I return from the Hague.