to have radar at all, why should she be condemned if she has a set, but it is inoperative? If failure to maintain radar is a fault, but failure to have it is not, is a vessel to be condemned if she leaves her broken down radar on the bridge, but not if it is put ashore at the next port of call, or stowed in the paint locker? These questions suggest their own answer; if and when the courts hold that lack of radar equipment is a fault, a necessary corollary should be a requirement that reasonable means be taken to maintain such equipment in working order. But, unless lack of radar were considered a fault, it would seem illogical to hold it a fault to proceed to sea without making repairs, even though repair facilities were available in the port.

On the other hand, cases falling within the second category would appear to be more closely analogous to those concerning failure to use radar. If it is a fault to fail to switch on a vessel's radar when conditions warrant, it would seem just as clearly a fault to fail to replace a blown fuse, or make some other minor repair within the competence of the crew.

(4) Failure to Make Proper Use of Radar Information.

9

The first of the Recommendations annexed to the new Regulations cautions against the making of assumptions on the basis of "scanty information." This, of course, goes to the very heart of the radar problem. The great bulk of "radar assisted collisions" have occurred because the navigator of at least one of the colliding vessels made erroneous assumptions concerning the course and speed of the other, based on a casual observation of her echo, without any attempt to plot her relative movement by a series of observations made at timed intervals.

Recommendation No. 1 appears to be simply a succinct restatement of the existing case law, which very definitely condemns the vessel which fails to make proper use of radar-obtained information.

As the Supreme Court of Canada put it in The Chinook The Dagmar Salen: 10

If radar is to furnish a new sight through fog, then the report which it brings must be interpreted by active and constant intelligence on the part of the operator.

Lord Justice Willmer made a similar observation in The Nora," where he said in referring to

9. See The Burgan-The Bergechief, supra, note 2; The PolarusoilThe Sandefjord, 236 F. 2d 270 (2d Cir.), 1956 A.M.C. 1779; The Crescent Cities, 1960 A.M.C. 1451 (E.D. La.); The Anna Salen, [1954] 1 L.R. 475 (Adm. Div.).

10. [1951] 4 D.L.R. 1, 1951 A.M.C. 1253. 11. [1956] 1 L.R. 617 (Court of Appeal).

a radar-equipped vessel which collided with one not so equipped:

I think there is scope here for applying the Biblical maxim which says: "For unto whomsoever much is given, of him shall be much required." The possession of this radar equipment gives the Westerdam a great advantage over other vessels which are not similarly equipped; but it brings with it, in my judgment, a concurrent duty to see that intelligent and reasonable use is made of the equipment provided. If she makes a mistake, being so much better equipped than the Nora, so much the less does she have an excuse for doing so.

It is to be noted that the proposed Regulations make no specific mention of plotting radarobtained observations although, as will be seen in our subsequent discussion of the recommendations concerning "ascertainment of position" and "moderate speed", those recommendations seem to recognize a distinction between vessels which plot their radar observations and those which do not.

The existing case law does not categorically require plotting under all circumstances, although the decisions indicate that when time permits and plotting would assist in ascertaining the movements of a radar-observed vessel, a plot of some sort should be made.

Examples of the thinking of the courts on the question of plotting are to be found in The Prins Alexander,12 The Guildford,18 The Polarusoil— The Sandefjord,14 The Bornholm-The Fort Moultrie,15 and The Otco New York-The F. A. Verdon,16 in each of which a radar-equipped vessel was criticized for failing to plot. Going perhaps further in this direction than the language of any of these cases is the dictum in The Burgan-The Bergechief," wherein Judge Medina stated:

It is likely that there was time for plotting, and this would have revealed the exact speed and course of the Burgan. We cannot be sure of this. Although her speed was diminishing, the estimate of five knots could not have been much out of the way; and it would seem to be a good general rule that if a radar pip shows another vessel nearby and forward on your starboard bow, you should stop and make the time for a plot.

Mention should be made at this point of proposed Rule 16 (c) and of Recommendations Nos.

12. [1955] 2 L.R. 1 (Adm. Div.). 13. [1956] 2 L.R. 74 (Adm. Div.). 14. Supra, note 9.

15. 279 F. 2d 419 (4th Cir.), 1960 A.M.C. 2294.

16. 192 F. Supp. 295 (S.D.N.Y.), 1960 A.M.C. 2392.

17. Supra, note 2. On the effect of failure to make proper use of radar information, see, also, The Southport, 82 L.R. 862 (Adm.) Div., 1949); The Gunnar Knudsen, (1961) 2 L.R. 433 (Adm. Div.); The Evje, (1960) 2 L.R. 221 (Adm. Div.).

3 to 8, inclusive, all of which relate to it. The delegates to the Conference wisely refrained from limiting application of this Rule to detection by radar, because of the possibility of detection of the presence of another vessel by other means before she comes within the range of hearing or of visual observation..

The new Rule specifically permits a vessel learning, by radar or other means, of the presence of another vessel which cannot be heard or seen, to take "early and substantial" action to avoid coming into "close quarters" with the other vessel. "Close Quarters" is not defined in the Annex, but in commenting on the recommendation, Lord Justice Willmer stated in The Verena: 18

It leaves open to argument what is meant by the phrase "close quarters situation." That, I think, must depend upon the size, characteristics and speed of the ships concerned. I think, however, that in the case of ships of the class that we have here it must mean a quite substantial distance, and, I would venture to think, a distance measurable in miles rather than in yards.

Once it is too late to avoid a "close quarters" situation, however, Rule 16 (c) will require a vessel observing another by radar to do what is now required by Rule 16 (b). So far as the circumstances of the case admit, she must "stop her engines" and "then navigate with caution until danger of collision is over." The words "in proper time to avoid collision" which follow the mandate to "stop" in Rule 16 (c) do not appear in Rule 16 (b), but it is doubtful that they will cause any different construction to be given to the new Rule than the courts have given to 16(b).

(5) Radar and Maintenance of a Visual Lookout.

In The Triton-The Baranof,19 the Exchequer Court of Canada made it clear that the use of radar does not dispense with the necessity of maintaining a visual lookout. Similar decisions. have been handed down by the English and American courts, including The BucentaurThe Wilson Victory,20 and The Anna Salen.21

While the new Regulations do not specifically codify the existing case law on this point, they do provide that vessels are to be deemed in sight of one another only when they can be observed visually. From this, and from the fact that no change was made in Rule 29, which, among other things, recognizes the necessity of maintaining a proper lookout, the plain inference is

18. Supra, note 1.

19. [1953] Can. Exch. 74, 1953 A.M.C. 393.

20. 125 F. Supp. 42 (S.D.N.Y.), 1955 A.M.C. 142.

21. Supra, note 9.

that the use of radar will not dispense with the requirement of maintaining a visual lookout. (6) Radar and Ascertainment of Position under Rule 16 (b).

Until three years ago, there seemed to be no serious doubt that a single radar observation did not constitute an "ascertainment" of position within the meaning of Rule 16 (b), excusing a vessel from stopping her engines upon hearing a fog signal apparently forward of her beam. This was indicated by the known limitations on the information conveyed by a single radar observation, and was confirmed by the decision of the House of Lords in The Prins Alexander.22

In 1959, however, the United States District Court for the Northern District of California said, in The Weyerhaeuser-The Pacific 28 that where each of two approaching vessels has the other on her radar screen, there is an "ascertainment" of position justifying a failure to stop engines under Rule 16 (b). The statement was dictum only, and it has not been followed in other cases. A contrary view has since been indicated by Judge Medina in The Burgan-The Bergechief 24 and by Mr. Justice Hewson of the Admiralty Division in The Gunnar Knudsen.25

A much more perplexing problem is whether or not a series of radar bearings, if carefully plotted by a competent navigator, can ever result in an "ascertainment" of position within the meaning of Rule 16 (b). This question was specifically left open by the House of Lords in The Prins Alexander, and does not seem to have been dealt with in any American or Canadian

cases.

The third recommendation contained in the Radar Annex to the new Regulations is that "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". Insofar as this recommendation relates to a single radar observation of bearing and distance, it is plainly merely a restatement of the rule indicated in The Prins Alexander.

The question remains, however, does it, or does it not mean that when a vessel's course and speed are calculated by plotting a series of observations of radar range and bearing, the observed vessel's position can be "ascertained" under Rule 16 (b)?

22. Supra, note 12

23. 174 F. Supp. 663 (N.D. Cal.), 1959 A.M.C. 1869. While The Burgan-The Bergechief does not concern the precise problem, the opinion seems to point the other way.

24. Supra, note 2.

25. Supra, note 17.

Although the recommendations are not yet officially in force, debate has already commenced on this question, and one can foresee the likelihood of its continuing for years to come.

In an article 26 which appeared in the February, 1961 Proceedings of the Merchant Marine Council, published by the United States Coast Guard, the author, Paul A. Reyff," expressed the opinion that under Recommendation No. 3 radar-obtained information could never constitute an "ascertainment" of position excusing a failure to stop engines on hearing a fog signal forward of the beam.

Issue with this statement has been taken by Captain F. J. Wylie, R.N., the well-known author of The Use of Radar at Sea, and a member of the British Delegation to the 1960 SOLAS Conference. In a subsequent issue of the Proceedings,28 Captain Wylie stated:

There is no doubt that the Rules must be conformed with strictly, but the question here is not "whether" but "how" to conform with Rule 16(b). Courts have shown that one does not necessarily have to see the other vessel at the moment of ascertainment and Lord MacMillan in the N.Y.K. v. China Navigation Co. ruled that the other vessel must be known "to be in such a position that both vessels can safely proceed without risk of collision."

29

This would seem to involve knowledge of at least the direction of the other vessel's movement, if any, or, if stopped, the direction of heading and therefore of probable initial movement. A single radar range and bearing alone cannot give either piece of information but a plot of a number of observations might well be held to do so and ascertainment might be said to have been effected if there was no reasonable doubt of identity between the sources of the radar echo and of the fog signal.

It is my understanding that the wording of Item (3) of the Annex "the radar range and bearing alone" was held to mean exactly what it says, no more no less.

I do not think it is correct to say that plotting postulates steady course and speed; the whole object of plotting is to discover the past course and speed and to detect any changes in it, with the minimum possible interval between past and present. No radar information can possibly bridge the interval but inference will be drawn which will be considered justified or not according to the level of intelligence shown to have been employed.

Captain Wylie, as a member of the Delegation largely responsible for the Radar Annex, is pre

26. Legal Consequences of the New Rules of the Road, Vol. 18, Proceedings of the Merchant Marine Council, No. 2, p. 31. 27. Former Director of the Radar Training Branch of the United States Maritime Administration (Pacific Coast District).

28. Radar and the Rules of the Road, Vol. 19, Proceedings of the Merchant Marine Council, No. 4, p. 63 (April 1962). 29. [1935] A.C. 177, 50 L.R. 155 (1934).

sumably in a position to know what was intended by Recommendation No. 3. If, as he states, it envisages the possibility of "ascertainment" by plotting a series of radar bearings, its wisdom may be open to some question. After all, 16(b) concerns only cases where the approaching vessels are within hearing range, and when they are that close, it would not seem an undue burden to require the engines to be stopped, rather than to permit the navigator to decide that the accuracy of his plot is sufficient to entitle him to keep going.

The problem was recognized by Mr. Justice Hewson in The Gunnar Knudsen.30 In referring to Recommendation No. 3, he stated:

As I have indicated, it needs much more than a distance and bearing at a particular time. The minimum amount of knowledge required is that you must know the other vessel's course and speed and, it may even be, her probable future course and speed. It is not necessary for me to decide that in this case.

It will be interesting to see how the courts will deal with the problem when it is put squarely to them, as it undoubtedly will be before long.

(7) Radar and Moderate Speed in Fog.

This is a subject which the Delegates had to treat with extreme delicacy. That radar equipped vessels generally proceed at speeds far in excess of what would be considered reasonable for vessels not so equipped is now a matter of common knowledge. One need only make an ordinary Atlantic crossing as a passenger and note the day's run after twenty-four hours of dense fog, to learn at first hand that nothing more than a token reduction in speed is made, no matter how bad the conditions. The North Atlantic passenger lines would probably have to forfeit most of their remaining business to the airlines if their vessels were to reduce speed to bare steerageway in thick fog.

To provide, in the Collision Regulations, that radar equipped vessels, even when making proper use of their equipment, may never proceed at greater speeds in fog than vessels not so equipped would, I now feel, be to enact legislation which, like Prohibition laws, would be more honored in the breach than in the observance. Such a provision would be so generally disobeyed that it would tend to encourage disrespect for the Regulations generally.

On the other hand, it was perhaps felt that a specific rule or recommendation giving radarequipped vessels the right to proceed at greater speeds might be interpreted by careless navigators as a license to speed, without making sure,

30. Supra, note 17.

by proper use of radar, that they were not endangering life or property in so doing.

The far from perfect solution to this dilemma was the adoption of the first paragraph of the Preliminary Note to the Fog Rules (15 and 16) and the second recommendation contained in the Radar Annex. The note enjoins radar vessels to obey the Fog Rules, and the recommendation specifically provides that radar vessels must go at "moderate speed." However, the recommendation then proceeds to state that radar-obtained information is a circumstance to be taken into account in determining "moderate speed." This is followed by a warning, inserted at the suggestion of the American Delegation, that it should be recognized that small vessels, small icebergs, and similar floating objects may not be detected by radar. Finally, there is the statement that radar indications of nearby vessels may mean that "moderate speed" should be slower than might be considered moderate to a navigator without radar.

Captain Wylie states, 81 in referring to Recommendation No. 2:

If this item was not intended to imply that radar should have some effect on the choice of moderate speed it would hardly have been included; so it is fair to assume that either increases or decreases or both were envisaged. The final sentence in the item is devoted to a warning that in certain circumstances moderate speed should be slower than in the absence of radar indications; the impression that the second sentence must therefore have the implication of an increase is irresistible. The third sentence is a caution which sets comfortably on this implication, removing any suggestion that it is a general invitation to speed.

That the courts will quite probably share Captain Wylie's views on Recommendation No. 3 is indicated by Mr. Justice Hewson's dictum in The Kurt Arlt: 82

. . . While, if properly used. . ., it may give some justification for a speed in restricted visibility which would otherwise be immoderate, such a speed can only be justified so long as it is safe so to proceed and provided that timely action is taken to reduce it or take off all the way in the light of the information supplied or to be inferred from the radar.

A possible solution may lie in the direction of burden of proof. The courts may interpret Recommendation No. 2 as recognizing a different standard of "moderate speed" for a radarequipped vessel, but may impose upon such a

31. Radar and the Rules of the Road, supra, note 28. Cf. Reyff, Legal Consequences of the New Rules of the Road, supra, note 26. Mr. Reyff differs from Captain Wylie on the question of "moderate speed" as well as on the question of ascertainment of position. 32. [1962] 1 L.R. 31 (Adm. Div.).

vessel the burden of proving that she was making such correct use of radar-obtained information as to justify her greater speed, and that it did not contribute to the collision.33

(8) Radar and the Application of the Steering and Sailing Rules.

As early as 1951, the Supreme Court of Canada, in The Chinook-The Dagmar Salen,34 criticized a vessel for taking rudder action on the basis of radar information alone. The question of the applicability of the Steering and Sailing Rules (17 to 24) does not appear to have come before the courts again until 1959, when the United States District Court for Northern California, in The Weyerhaeuser-The Pacific,35 held one of two meeting vessels at fault for failing to turn to starboard, even though she could observe the other by radar only. The decision. has been widely criticized, and would probably not be followed by other American courts.36

In any event, the new Regulations will lay at rest any lingering doubts on this aspect of radar navigation. They specifically provide that "Rules 17 to 24 apply only to vessels in sight of one another", a term which the Regulations will define as meaning only that "one can be observed visually from the other."

CONCLUSION

The new Collision Regulations relating to radar represent the earnest efforts of many men to find a way to lessen the number of tragic collisions which continue to occur despite the invention of radar-a device which it was once thought would prevent virtually all fog collisions. They are a not perfect solution to the problem and indeed it appears impossible to find a perfect solution, unless one considers discontinuance of the use of marine radar as fulfilling such a definition. But of course, to discontinue the use of marine radar because it is sometimes mishandled would be just as unthinkable as to discontinue jet airplanes because they are not always handled with perfection.

Properly used, radar will certainly prevent infinitely more collisions than it will cause, and if navigators can be taught how to use it properly, the new Regulations should, in the main, assist in making radar function as the greatest anti-collision device which human ingenuity has thus far developed.

33. Earlier cases on the effect of radar on moderate speed in fog include The Southport, supra, note 17, and The Bucentaur-The Wilson Victory, supra, note 20.

34. Supra, note 10.

35. Supra, note 23.

36. See The Burgan-The Bergechief, supra, note 2.

As

AS CRIMINALS HAVE become more sophisticated in their means of committing crime, the means available to law enforcement agents to detect crime have also advanced. In recent years rapid advances in the electronics field have made available to law enforcement officers the means to monitor the most intimate conversations between criminal suspects and their partners in crime or other persons. The Supreme Court stated in the Silverman case that: We are favoured with a description of "a device known as the parabolic microphone which can pick up a conversation three hundred yards away." We are told of a "still experimental technique whereby a room is flooded with a certain type of sonic wave," which, when perfected, "will make it possible to overhear everything said in a room without ever entering it or even going near it." We are informed of an instrument "which can pick up a conversation through an open office window on the opposite side of a busy street."

But to the trial counsel charged with prosecuting an accused, these modern advances in the electronic art are of little help unless the evidence obtained by them is legally admissible into evidence. It is the purpose of this article to examine the pertinent legal authorities-Federal as well as military-that may govern the admissibility of such evidence. It is the hope of the author that the conclusions reached may be of some help to those who may become involved in a case in which this issue may be raised.

THE CONSTITUTIONALLY PROTECTED RIGHT OF

PRIVACY

The privacy of one's person, his home, his papers and effects is a cherished right under our system of Government. This right was of such

*Commander Robertson is currently assigned to the District Legal Office, Fifth Naval District. He holds the B.S. degree from the U.S. Naval Academy and the LL.B. degree from Georgetown University Law Center. He is a member of the District of Columbia Bar, the American Bar Association and the American Society of International Law.

1. Silverman v. United States, 365 U.S. 505 (1961), and see sources referred to in footnote 2 of the Court's opinion.

2. Where used herein the term "Federal Courts" refers to courts of the Federal judiciary system other than the military court system: i.e., Federal District Courts, U.S. Courts of Appeal and the U.S. Supreme Court.

fundamental importance to the founding states that they insisted on its incorporation into the constitution itself by Amendment. The so-called Bill of Rights contained as one of its key provisions a prohibition against unreasonable searches and seizures. The Fourth Amendment to the Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

To ensure compliance with this constitutional guarantee by law enforcement officials, the Federal courts have adopted a rule which excludes from evidence the product of an illegal search and seizure. The armed forces had adopted a similar rule even prior to the enactment of the Uniform Code of Military Justice. It has been preserved under the Uniform Code."

The rule in both the Federal and the military courts excludes only the products of "unlawful" searches. The term "unlawful" finds its basis in the constitutional prohibition of "unreasonable" searches. Without becoming involved in an exercise in semantics, we can, it would appear, accept the proposition that the term "unlawful search" is, to all intents and purposes, synonymous with the constitutional phrase "unreasonable search." "

Although the test of admissibility of evidence obtained as the result of a search is the same in courts-martial as it is in the Federal courts, the application of the principles involved is slightly different because of the different circumstances which exist in the military and civilian communities. The primary difference which exists is the absence in the military of a requirement for a search warrant issued on probable cause and supported by oath or affirmation. While the U.S. Court of Military Appeals has recognized the validity of certain deviations

3. Weeks v. United States, 232 U.S. 383 (1914).

4. United States v. Doyle, 1 USCMA 545, 4 CMR 137 (1952). . 5. Ibid.

6. United States v. Doyle, supra, note 4.