Re:

["Steven M. Bellovin" <smb () research att com>]

In message <3.0.3.32.19990830132424.00971370 () mailhost sctc com>, Rick Smith wri
tes:
> Regarding the "due diligence" discussion, Steve Bellovin wrote:
>
> > I suspect you're thinking of the T.J. Hooper case, which Bill
> > Cheswick and I cited in our firewalls book.  ...
> > The issue was whether or not tugboats needed to be equipped with
> > radios to receive weather forecasts.
>
> Donn Parker cited the same case. I don't remember how the case was
> presented in C&B's "Firewalls," but Parker claimed that the judgement
> against the tugboat owner hinged on prevailing industry practice. The
> defendant lost because their tugs didn't carry radios to receive weather
> reports. Radios weren't required by law, *but* the owners of several other
> tugs testified that they carried radios, since the weather reports
> protected their boats from being caught in unexpected storms.

Umm -- no, I don't think so.  I'm not a lawyer, but the court's
language was quite clear.  Yes, the ruling in the TJ Hooper case
noted that some tugs did have radios, and that therefore the court
could rule that those were right.  But they also said, as I posted
the other day, "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."