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REAR ADMIRAL WILLIAM C. MOTT, USN Judge Advocate General of the Navy
The JAG JOURNAL is published by the Office of the Judge Advocate General of the Navy as an informal forum for legal matters of current interest to the naval service. The objective of the JAG JOURNAL is to acquaint naval personnel with matters related to the law and to bring to notice recent developments in this field.
The JAG JOURNAL publishes material which it considers will assist in achieving this objective, but views expressed in the various articles must be considered as the views of the individual authors, not necessarily bearing the endorsement or approval of the Department of the Navy, or the Judge Advocate General, or any other Agency or Department of Government.
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REAR ADMIRAL ROBERT D. POWERS, JR., USN
Deputy and Assistant
COMMANDER RICHARD E. BLAIR, USN
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THE STATE OF THE LAW: COMPUTER DATA AS EVIDENCE
|T HAS BEEN proposed, and it is a reasonable expectation, that computers and automatic data processing equipment will be adopted for wide use by the military.' As in the case of any writings or records it is foreseeable that there will be a subsequent need to introduce information contained within an automatic data processing system into evidence as proof of some fact contained therein.
It does not appear that computer records will be inadmissible as a class. Census records are readily admissible in court, setting a compelling precedent, since these records are presently compiled by computers. If further precedent is desired an analogy can be garnered from the NLRB v. Pacific Intermountain Express Co. case and the case of State Wholesale Grocers v. Great Atlantic and Pacific Tea Co. In the former case graphic records of a tachometer showing the driving speed of a motor truck were accepted into evidence and in the Grocery case the parties entered into a stipulation concerning a survey tabulated on an IBM machine, which survey was subsequently admitted into evidence.
Although computer records should be admissible as a class various legal problems will arise when an at
tempt is made to introduce them into evidence. To be admissible they will of course have to fall within one or more of the generally accepted exceptions to the hearsay rule.
The first hearsay exception which immediately comes to mind is the Business Records rule. Generally, in order for a business record to be admissible as an exception to the hearsay rule it must be a written regular entry, made in the ordinary course of business, contemporaneous with the transaction recorded, with no motive to misrepresent or falsify.
The second hearsay exception, having special application in courts-martial, is the official statement or Official Record rule. This exception includes a record or entry recorded by one in the performance of an official duty, imposed upon him by law, regulation, or custom, with the requirement that the facts recorded are ascertained through trustworthy and appropriate channels of information. The entry, however, need not have been made contemporaneously with the events recorded. A service record entry is an example of such an official record.
One requirement, consistent in both the business entry and official record exceptions to the hearsay rule, is that the statement in question be in writing. A problem arises when computers are involved since the statement desired to be offered in evidence may be stored within the computer complex on magnetic tape, punched cards or discs, all unclassifiable as writing under present lay definitions. However, the legal definition of writing, as
(Continued on page 240)
1. It is anticipated that a completely integrated data processing
communication system in the Army will be available between 1965 and 1970. “Introduction to Automatic Data Processing,"
Army Department Pamphlet 1-250–3 (April 1958) p. 86. 2. DOTO v. United States, 223 F. 2d 309, 96 U.S. App. DC 17, cert.
den., 76 S. Ct. 59, 350 U.S. 847; 23 C.J.S. Criminal Law $ 845 (a) (2), note 30, and cases cited therein; 20 Am Jur 870, Evidence,
$ 1031. 3. 228 F. 2d 170 (8th Cir., 1955), cert. den., 351 U.S. 952 (1956);
Freed, “Computer Technology and Trial Technique," 1962 Trial
Lawyer's Guide, 113, 123. 4. 154 F. Supp. 471, 497 (N.D. Ill., 1957), See 21 FRD 502-3.
5. 5 Wigmore, Evidence, $ 1420 (1940, Supp. 1959). 6. United States v. Boling, NCM, 9 CMR 567 (1953).
RADAR DECISIONS RE-EXAMINED
NICHOLAS J. HEALY III, Esq.*
ASED UPON AN analysis of the 17 radar collision cases decided up to 1956, the legal problems presented by the commercial use of radar fell into the following seven categories:
1. The effect of failure to equip a vessel with radar; 2. The effect of failure to use a vessel's radar when
conditions warrant; 3. The effect of failure to maintain existing radar
equipment properly; 4. The effect of failure to make proper use of radar
information; 5. Whether radar ever dispenses with the necessity
of a visual lookout; 6. Whether a vessel's position may be "ascertained"
by radar, excusing a failure to stop engines under
Rule 16(b); 7. The effect of radar on the speed in fog permitted
under Rule 16(a). To these should be added an eighth problem, particularly in the light of a recent American decision: whether Rules 17 to 24, inclusive (the Steering and Sailing Rules) can ever apply to approaching vessels while they can observe each other by radar only.
Our purpose here is to re-examine the answers to these problems in the light of the changes in the Collision Regulations recommended by the 1960 Safety of Life at Sea ("SOLAS") Conference.
Countless suggestions respecting radar were made by people interested in the subject the world over during the period of more than two years of preparation for the Conference, and these took almost every conceivable form. In the end, the changes recommended by the Conference were relatively few in number:
(1) The addition to Rule 1 (c) of a new definition, reading:
“(ix) Vessels shall be deemed to be in sight of one another only when one can be observed visually from the other.”
(2) The addition of a new paragraph to the Preliminary Note preceding the Steering and Sailing Rules, providing as follows: *Nicholas J, Healy III, Esq. is Adjunct Professor of Law, New York University School of Law; partner, Healy, Baillie & Burke, New York City.
This article is based on a paper originally read to the members of the Maritime Law Section of the Canadian Bar Association at the Annual Meeting of the Association held at Halifax in August 1962. For expanded treatment of this subject see “Radar and The New Collision Regulations.” Vol. XXXVII Tulane Law Review 621.
“4. Rules 17 to 24 apply only to vessels in sight of one another."
(3) The addition of a new paragraph (c) to Rule 16, reading:
"(c) A power-driven vessel which detects the presence of another vessel forward of her beam before hearing her fog signal or sighting her visually may take early and substantial action to avoid a close quarters situation but, if this cannot be avoided, she shall, so far as the circumstances of the case admit, stop her engines in proper time to avoid collision and then navigate with caution until danger of collision is over."
(4) The insertion of a Preliminary Note before the Fog Rules (15 and 16), reading: “(1) The possession of information obtained from
radar does not relieve any vessel of the obligation of conforming strictly with the Rules and, in particular, the obligations contained
in Rules 15 and 16. (2) The Annex to the Rules contains recommenda
tions intended to assist in the use of radar as an aid to avoiding collision in restricted
visibility." (5) The addition of the Annex referred to, which is entitled "Recommendations on the use of radar information as an aid to avoiding collisions at sea”, and consists of the following eight “recommendations": (1) “Assumptions made on scanty information may
be dangerous and should be avoided. (2) A vessel navigating with the aid of radar in
restricted visibility must, in compliance with Rule 16(a), go at a moderate speed. Information obtained from the use of radar is one of the circumstances to be taken into account when determining moderate speed. In this regard it must be recognized that small vessels, small icebergs and similar floating objects may not be detected by radar.
Radar indications of one or more vessels in the vicinity may mean that "moderate speed" should be slower than a mariner without radar
might consider moderate in the circumstances. (3) When navigating in restricted visibility the
radar range and bearing alone do not constitute ascertainment of the position of the other vessel under Rule 16 (b) sufficiently to relieve a vessel of the duty to stop her engines and navigate with caution when a fog signal
is heard forward of the beam. (4) When action has been taken under Rule 16 (c)
to avoid a close quarters situation, it is essential to make sure that such action is having the desired effect. Alterations of course or speed or both are matters as to which the
mariner must be guided by the circumstances
of the case.
effective action to avoid close quarters pro-
alterations of course should be avoided.
tion with other vessels. (6) The direction of an alteration of course is a
matter in which the mariner must be guided by the circumstances of the case. An alteration to starboard, particularly when vessels are approaching apparently on opposite or nearly opposite courses, is generally preferable
to an alteration to port. (7) An alteration of speed, either alone or in con
junction with an alteration of course, should be substantial. A number of small alterations
of speed should be avoided. (8) If a close quarters situation is imminent, the
most prudent action may be to take all way
off the vessel.” It was not until 1953 that a sufficient number of maritime nations finally approved the recommendations of the 1948 SOLAS Conference for them to become effective on January 1st of the following year. A similar delay is not unlikely in the case of the proposals made by the 1960 Conference.
Meanwhile, in December 1960, the British Ministry of Transport issued its now well known Notice No. M 445 to Shipowners, Masters and Navigating Officers, calling attention to the proposed changes, and stating that “a mariner obeying the provisions concerned with radar and navigating in accordance with the guidance offered in the Annex to the new Rules would not thereby in any way contravene the present Regulations; rather, he would comply with them both in letter and in spirit in a commendable and seamanlike manner.”
Whether the recommendations of the Conference would “in any way contravene the existing Regulations" would seem to be a question for the courts to decide, and from a purely legal standpoint, the quoted statement would seem to be merely an expression of opinion on the part of the Ministry. The Ministry's statement has, however, since received the blessing of the Court of Appeal of England. In the Verena," Lord Justice Willmer said:
For my part, I think that, although that Notice only came into existence some four years after the collision, we can properly accept and adopt the recom
mendations made therein as furnishing a useful test in respect of the navigation of a vessel in the position of the Grepa.
From a reading of his opinion as a whole, it appears the "recommendations" to which Lord Justice Willmer was referring were not merely those contained in the proposed Annex to the Collision Regulations, but to the Ministry's recommendations that mariners should obey the radar provisions contained in the new Rules as well as in the Annex thereto.
The Court of Appeal thus seems to look upon the radar proposals made by the Conference as little more than a codification of existing law and practice. This is clearly so of some of them, but with the greatest respect for the opinions of that eminent court, I question whether the proposed changes do not include several substantial changes in the present law. What I have in mind will, I trust, become apparent in the following discussion of the eight radar problems to which I have referred.
(1) Lack of Radar Equipment.
The Conference made no recommendations concerning the necessity of equipping vessels with radar, but I do not believe that any particular legal significance should be attached to this omission. After all, the Regulations do not specify that vessels shall be equipped with rudders, or anything else, except navigational lights, balls, shapes, whistles, and bells.
While there are thus far no statutes requiring radar, it is not beyond the realm of possibility that some, if not all of the world's maritime countries, may eventually enact legislation requiring such equipment, at least on large, oce going, power-driven vessels.
Meanwhile, there are indications that before long, the equipment of such vessels with radar will become a practice so universally accepted that the courts will consider lack of radar as unseaworthiness.
Perhaps the strongest indication in this direction is the dictum of Judge Medina of the United States Court of Appeals for the Second Circuit in The Burgan—The Bergechief: 2
Though the question is not before us in this case, as both ships were equipped with radar, the question arises in limine as to the duty of a vessel to carry radar. No statute or regulation requires this. And this is so though radar has to a considerable degree lessened the importance of other navigation aids required aboard various types of vessels. Nor have the courts as yet formulated any rule requiring radar. A District Court has found that the failure of a destroyer to carry navigational radar in 1942 did not 2. 274 F. 2d 469, 1960 A.M.C. 1380.
1.  2 L.R. 127.
render her unseaworthy. Anglo-Saxon Petroleum Co. v. United States, D.C. Mass. 1950, 88 F. Supp. 158. However, conditions have changed since the fledgling days of radar in 1942 and the value of Anglo-Saxon Petroleum Co. as a precedent today is doubtful. Lurking in the background is T. J. Hooper, 2 Cir., 1932, 60 F. 2d 737, certiorari denied, Eastern Transportation Co. v. Northern Barge Corp., 1932, 287 U.S. 662, 53 S. Ct. 220, 77 L. Ed. 571, where in 1932, despite the absence of statutes, regulations or even custom as to radio receiving sets, Judge Learned Hand found a vessel unseaworthy for lack of one. Two barges had been lost in a storm and the tugs and their tows might have sought shelter in time had they received weather reports by radio. We think this case shows which way the wind blows and have little doubt that a rule requiring radar, subject to some limitations and qualifications, will sooner or later be formulated.
Judge Medina made reference to The Chusan, where an English court said that one could “expect” to find a modern vessel equipped with radar.
The cost of a good marine radar is small in comparison with the overall cost of a modern passenger liner, freighter or tanker, but it is still entirely beyond the means of the owner of many fishing vessels and other small craft which are subject to the Collision Regulations. It is therefore scarcely conceivable that the Courts will, in the foreseeable future, condemn small vessels for lack of radar equipment.
If the day should come when lack of radar is considered a fault, it would seem to follow that the owner of a vessel not equipped with radar would be unable to limit the amount of his liability with respect to a resulting collision. "Fault” in this respect would necessarily be “actual fault or privity” of the owner, within the meaning of the Brussels Limitation of Liability Convention of 1957, or within the owner's “privity or knowledge”, within the meaning of the present United States Limitation of Liability Statute.
(2) Failure to Use Existing Radar.
The United States Delegation to the SOLAS Conference proposed an amendment to Rule 29, the Rule of Good Seamanship, which would specifically require a vessel to make proper use of her radar, if installed and operational, in order to avoid collision. This proposal had some support, but was opposed by the British and Canadian delegations, among others, on the ground that it was unnecessary, and in the end this view prevailed. The silence of the new Regulations is certainly not to be taken as indicating 3. (1955] 2 L.R. 685 (Adm. Div.). 4. 46 U.S.C.A. 89 183 et. seq.
any change in the existing case law, which is now quite abundant on this point.
It is clear beyond question that a vessel equipped with properly functioning radar equipment must make use of it when visibility is restricted. This was held as far back as 1946 in The Thomas H. Barry—The Medford' which, as far as I am aware, was the first radar case to come before the courts.
A similar decision was reached by the Admiralty Division of the High Court of Justice in The Esso Plymouth, where a vessel was condemned for failing to switch on her radar in time for it to "warm up” before she entered a bank of smoke which her navigator knew she was approaching.
The rule laid down in The Thomas H. BarryThe Medford and The Plymouth was recently strengthened by the United States Court of Appeals for the Second Circuit in The Burgan, The Bergechief,? wherein the Court held that the failure of a vessel to use her radar when conditions warrant its use imposes upon her the burden of proving that her failure did not contribute to the collision. (3) Failure to Maintain Radar Equipment
Properly. The new Rules are likewise silent on the question of maintenance of existing radar equipment. Again, it is felt that this is of no particular significance, and that their adoption will not preclude the courts from establishing standards of conduct in this area from which a departure would constitute actionable negligence.
As far as I am aware, no case has yet been decided which squarely passes upon the question whether or not failure to maintain existing radar in good order is an actionable fault, and one can do no more than speculate on what the answer will be if and when it is presented to the courts.
Perhaps the most logical way of dealing with the problem would be to separate it into two parts: (1) the effect of a failure to make major repairs, and (2) the effect of a failure to make those of a routine nature which could readily be made by the crew.
It is difficult to see any valid reason why maintenance cases falling within the first category should be treated any differently than cases involving lack of radar. If a vessel is not required 5. 65 F. Supp. 622, 1946 A.M.C. 795 (E.D.N.Y.). 6.  1 L.R. 429 (Adm. Div.). 7. Supra, Note 2. 8. In The Duke of York-The Haiti Victory, 131 F. Supp. 712, 1955
A.M.C. 1160 (E.D. Va.), aff'd, 230 F. 2d 139 (4th Cir.), 1956