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NFR Wizards Archives: (no subject)

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Steven M. Bellovin (smbresearch.att.com)
Fri, 27 Aug 1999 16:08:21 -0400

In message <In message <Pine.LNX.3.91.990826191745.19365Dgargoyle>, "Paul D. Robertson" wr
> On Thu, 26 Aug 1999, Rick Smith wrote:
> > almost any bank's physical security if one takes the time to look). What
> > matters is that the measures are consistent with reasonable and prudent
> > practice in the associated industry. This is, of course, a pretty low bar
> [Warning: US-centric content]
> I don't think this test necessarily applies to current caselaw. While
> "best current practice" and "in the associated industry" come up
> constantly, the citations I've heard say that a case (Forgive me for not
> having a direct citation, I'm not sure where I stored the original
> comments anymore) in the early 1900's that applied to commercial shipping
> organizations and not providing lifevests to crewmembers applies and that
> "best common practice" isn't a high-enough standard no matter what an
> industry may think (at the time, few to no Great Lakes commercial fishing
> vessels issued lifejackets to crewmembers.) If there's conflicting
> caselaw, I'd like to know, and I'll dig up the exact citation for the
> above example, making lawyers nervious is almost as fun as grilling
> "technical sales support" people.

I suspect you're thinking of the T.J. Hooper case, which Bill
Cheswick and I cited in our firewalls book. Here's the quote from
the Court of Appeals ruling (60 F.2d 737, 2nd Cir. 1932):

        Indeed in most cases reasonable prudence is in face common
        prudence; but strictly it is never its measure; a whole
        calling may have unduly lagged in the adoption of new and
        available devices. It may never set its own tests, however
        persuasive be its usages. Courts must in the end say what
        is required; there are precautions so imperative that even
        their universal disregard will not excuse their omission...
        But here there was no custom at all as to receiving sets;
        some had them, some did not; the most that can be urged is
        that they had not yet become general. Certainly in such
        a case we need not pause; when some have thought a device
        necessary, at least we may say that they were right, and
        the others too slack. ... We hold [against] the tugs
        therefore because [if] they had been properly equipped,
        they would have got the Arlington [weather] reports. The
        injury was a direct consequence of this unseaworthiness.

The issue was whether or not tugboats needed to be equipped with
radios to receive weather forecasts.

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