concurring specially.
I join in the affirmance of the judgment below substantially for the reasons so well *1035stated in Judge Higginbotham’s cogent opinion, with which I am in general agreement. I particularly agree with its analysis of the insufficiency of the proximate cause, foreseeability and remoteness formulations to alone provide an adequate guide for distinguishing, on a normative, pre-event basis, between the classes of cases in which recovery will be allowed and those in which it will not. And I concur, for the reasons ably stated by Judge Higginbotham, in the view that physical harm to or invasion of a proprietary interest is generally an appropriate condition for recovery of negligently caused economic loss, and that the “particular damage” theory of public nuisance law, at least if broadly read, is not an adequate substitute, as it suffers in this respect from deficiencies analogous to those of the proximate cause, foreseeability and remoteness formulations. As the Court’s opinion correctly states, to allow appellants “recovery for their losses under a public nuisance theory ... would permit recovery for injury to the type of interest that ... we have consistently declined to protect.” * And I believe we wisely leave to one side the claims of the commercial fishermen, who are not before us. I write separately only to explicitly suggest what seems implicit in the Court’s opinion, namely, that the physical harm or invasion requirement may not be inflexible or without exception, and that, in certain unusual instances, a relatively restrictive application of the public nuisance theory of damage or invasion different in kind, rather than degree, or something analogous thereto, may be an appropriate substitute. I am in full accord with the desirability of a general rule in accordanee with the principles stated by Judge Higginbotham, and for the reasons he articulates. However, we need not in this case either foreclose, or define the precise contours of, possible rare exceptions.
Except for the vessel operators (and the recreational fishermen, who suffered no economic loss), the injury suffered by all appellants consists of interference, not with their own actions, but rather entirely with their prospective economic relations with others, either as suppliers or customers. As to the vessel operators, in my view their situation is aptly described in Kinsman II:
"To anyone familiar with N.Y. traffic there can be no doubt that a foreseeable result of an accident in the Brooklyn Battery Tunnel during rush hour is that thousands of people will be delayed. A driver who negligently caused such an accident would certainly be held accountable to those physically injured in the crash. But we doubt that damages would be recoverable against the negligent driver in favor of truckers or contract carriers who suffered provable losses because of the delay or to the wage earner who was forced to ‘clock in’ an hour late. And yet it was surely foreseeable that among the many who would be delayed would be truckers and wage earners.” 388 F.2d 821 at 825 n. 8.