An Exercise in Futility

Rabbi Avrohom Sebrow

The Bayside Canadian Railway is a 200 foot(!) railroad in Bayside, New Brunswick, Canada. The railway was designed to transport fish – frozen pollock, to be precise. It would seem to be a total waste to build a railroad to move fish a mere 200 feet. Moreover, after the fish is moved 200 feet, it is transported back to where it started. It seems to be an exercise in futility! Actually, though, the idea behind the railroad is brilliant. The Jones Act prohibits transporting fish or other items from one American seaport to another American seaport using foreign-flagged vessels. Only American ships may be used. The most economical way to transport frozen pollock from Alaska to the East Coast of the United States is by ship. The ship travels down the West Coast all the way to the Panama Canal. The ship then heads back up north to deliver its cargo to the East Coast of the United States. For numerous reasons, it is cheaper to use foreign-flagged vessels than American-flagged ones. However, this is illegal since the starting point and ending point of the trip are both in the United States. There is an exception to this rule. If the fish or other merchandise is transported by train in Canada, it may then continue its journey on foreign-flagged vessels. The American Seafoods Company (ASC) had a brilliant solution. They constructed a 200-foot railroad just to employ this loophole. The fish from Alaska travels on a truck for 200 feet on the Canadian railroad. Then the train reverses and lets the truck off in the same spot where it started! The fish may now continue its journey on foreign-flagged ships because it traveled 200 feet (actually 400 feet) on a Canadian railroad. The exercise in futility actually saved ASC quite a bit of money.

However, in May 2022, a federal court in Alaska ruled that the controversial “Canadian Railway” transport arrangement used by American Seafoods Company did, in fact, violate the Jones Act. This is due to the fact that the fish does not actually make any forward progress in its journey. It is just an exercise in futility, as the fish ends up exactly where it started. In Nedarim (24a), the Gemara discusses a case where Reuven utters a vow that Shimon may not derive any benefit from him, unless Shimon gives Reuven a sizeable present. The Sages rule that Reuven can annul this vow without the aid of hataras nedarim. Reuven can simply declare, “It is as if I received the present” even though he actually received nothing. The Ran explains the logic behind this ruling. Reuven wanted the present because he wanted to improve his own financial situation. When Reuven declares, “It is as if I received the present,” he in essence is declaring that his financial situation already improved. Therefore, the goal behind the vow was already accomplished, even though the exact stipulation was not. The Rashba, though, offers a different rationale, although his exact position is the subject of much controversy. One simple explanation is that in matters of money or objects one can always say, “It is as if I received the money or object.” If Shimon would have indeed given Reuven the present, it is abundantly clear that Reuven may subsequently return it to Shimon.

Therefore, explains the Rashba, what is the point of Shimon actually giving the present to Reuven, only to have Reuven give it back to him? It is an exercise in futility! Let Reuven just declare that it is as if he received the present and gave it back to Shimon. Reuven is in effect saying, “Let’s not, and say we did!” The Prisha says that this Rashba is the source for a curious halacha of the Rema (695:4). The Rema rules that if one offers mishloach manos to his friend, but his friend declines to accept it, he has nevertheless fulfilled his obligation. The commentators struggle with this halacha. How can it be that he fulfilled his obligation of mishloach manos if he never actually gave anything?! The Prisha explains that it is clear that the recipient of mishloach manos may give his food package back to the giver. Therefore, what then is the point of an exercise in futility, to receive the mishloach manos, only to return it? Let them both stipulate that it is as if the sender gave the mishloach manos and the recipient returned it! The Rashba in Nedarim is thus the source for the Rema’s halacha. However, the Mishna Berura notes that as a matter of practical halacha, the Pri Chadash and the Chasam Sofer do not accept this ruling of the Rema. (Perhaps American Seafoods Company and the federal judge were having the same machlokes!)

Rabbi Avrohom Sebrow is a rebbe at Yeshiva Ateres Shimon in Far Rockaway. In addition, Rabbi Sebrow leads a daf yomi chaburah at Eitz Chayim of Dogwood Park in West Hempstead, NY. He can be contacted at ASebrow@gmail.com.

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