Come senators, congressmen
Please heed the call
Don’t stand in the doorway
Don’t block up the hall
For he that gets hurt
Will be he who has stalled
- Bob Dylan (1964)
“I’ll tell ya, now I know why tigers eat their young!”
- Al Czervik (Rodney Dangerfield), Caddyshack
Growing up in Kansas City, Missouri, I can only assume we did not have reliable clocks in the house. Or thermometers. Why, you ask? Any time I was curious about either measure, and wanted to be certain, I dialed 844-1212. The “official” UMB Bank time and temperature awaited me. It would still leave me wondering if it were the same at home as at the branch, wherever that was. I did not know the service tied up every single iteration of 844s, from 0000 to 9999, so for grins I could have dialed a different number every time. After 50 years of reporting, (and over 20 years ago now), UMB ended the dial-a-clock service. Why, you ask? Well, the phone companies wanted those 10,000 numbers, plus we have that information at our fingertips. Another casualty of Moore’s Law. And Apple. Both ravenous fathers that eat their young.
You see, Kronos, youngest of the Titans and Greek Mythological figure known as the “father of time,” reportedly devoured his children for fear they would later depose him, which they did. His story is a sad and terrifying one we will explore in detail in future articles, but for now, his tale – eating his kids – is symbolic of time ravenously devouring the ages and facing an inevitable end. Time marches on, but the weather, well, as they say in St. Louis, where I live now, “if you don’t like it, wait five minutes.” With a changing climate, the weather is more and more unpredictable. In the 1920s, it was unpredictable for different reasons – we truly lacked the technology to do so. But, technologies that revolutionized the field – barometers, new mathematical calculations, weather balloons and radios – began to emerge. And that last tech breakthrough, the radio, is the central character in my next tale…
We turn the UMB Clock back exactly 91 years, to early 1930s New York, still struggling with the impacts of the Great Depression. Coal was the primary fuel source for residential heating, factories and conveyances, and a hot commodity, despite seeing a drop in annual production of nearly 200 million tons in the early 30s. It was transported up the North Atlantic on barges pulled by seafaring tugboats for offloading and distribution in New York City. The tugboat captured the essence of a working class ship, pulling 100x its weight and fueling the global economy. Their captain required an enormous level of skill and judgment. And so, the stage is set and the players identified. Coal, tugboats, barges, weather, a ship’s captain, oh and the radio.
On a beautiful day, March 7, 1928, two tugboats, the Montrose and the T.J. Hooper, left port in Hampton Roads, where the Chesapeake Bay flows into the Atlantic Ocean in Southern Virginia, on their way to ports in New York and New England, each of them pulling three barges fully loaded with coal. The story reads like a Gordon Lightfoot dirge, with things looking good to start with high hopes for an epic voyage. As you can imagine, they end with a sinking feeling. On the morn of March 9, a terrible storm arrived somewhat suddenly, and the trailing barges of each tug began taking on water. Their masters noted their pumps were failing, and the water was gaining. The weather worsened, a gale force wind began blowing and rain was pouring. The men on the barges were evacuated, and the Northern 17 and Northern 30 sank to the bottom of the sea, taking with them 3,600 tons of coal, valued at around $40,000.00, nearly three quarters of a million of today’s dollars, so not an insignificant amount.
The owners of the coal, barges and tugs decided to get litigious, and everyone brought suit. In response to the lawsuits, the tug owners sought a declaration they were immune from liability. You see, there was a law on the books, The Shipowners Limitation of Liability Act of 1851 (46 USC 183), which could toss out the entire case against them. The Act was originally passed to limit American shipowners’ liability for seafaring accidents to stimulate investment in shipping. The statute provided shipowners a complete defense to claims, or alternatively limited their liability to the value of the owner’s interest in the vessel and the pending freight, in the event of a searing loss. Under the statute, if a claimant could not prove an act of negligence or unseaworthy condition of the vessel led to the loss, the shipowner would be completely exonerated. (For an excellent article on the history of the Act, see: https://www.braislaw.com/files/limitation_of_liability.pdf) .
The cases were tried in the Southern District of New York, before the Honorable Alfred Conkling Coxe, Jr., himself son of a Federal Court of Appeals Judge, in October 1931. The case is somewhat famously titled after the lead culprit tug, “The T.J. Hooper,” not to be confused with the early 80s procedural of nearly the same name…While the barges were quickly found unseaworthy, the central actor in the story, the tugs, were next to fall.
The cargo owners claimed the tug owners and captains were negligent in not anticipating the storm that broke, and also the vessels were unseaworthy because they were not equipped with radio sets that would have permitted them to receive weather forecasts, allowing them to take shelter in the Delaware Breakwater. As to the negligence claims, the tug operators claimed they relied upon all the technology of the day, using a sailor’s “storm glass” which was reading fine, their barometer was normal, and the wind direction was not alarming. It was noted the only disquieting indication was a ring around the moon the night before. (Frankly, I think the local meteorology crew here in St. Louis still rely on these devices.) They also argued there was no statutory or other authority that required tugs be equipped with working radios, and so the seaworthiness claim should fail.
Judge Coxe found it significant that there were three other tugs in the area that all turned back in time and sought safety from the coming storm, because they were all equipped with working radios and received an adverse weather warning on them. He still held that, since the tugs in question were not “under a duty to have radio apparatus capable of receiving reports of that kind, the charge against them of negligence must necessarily fail.”
The trial judge next turned to the seaworthiness claim, again recognizing there was no statutory requirement to carry radios on these vessels. However, he must have been an advocate of early adoption, because he noted “seaworthiness” is not a static term, but changes with advancements in knowledge, experience and, yes, technology. Both tug had radios, but they were the personal property of their captains, and were not in working order. Further, both tug captains, apparently not well prepared to testify, admitted they would have turned in if they had gotten the weather reports. (“Objection, your honor, calls for speculation!” Anyone??) Judge Coxe then concluded that the tugs were therefore unseaworthy, for, if they were equipped with radios, they would have turned in and avoided the storm.
But, the case did not end there, and neither did the analysis of the facts. The tug owners appealed, and that is when the case not only got famous, but impactful in a long-standing, even for us today, kind of way. You see, on appeal the case landed at
the feet of, well, Judge Learned Hand, of the Second Circuit Court of Appeals. (More about him in future articles). He reopened an analysis of the facts, particularly on the issue of whether the captains of the tugs were negligent, an exercise made completely unnecessary if his intent were to find against the owners of the tugs, since the trial court had already declared the tugs unseaworthy, and therefore liable for the loss.
But alas, that is where the beauty of the opinion comes. Judge Hand posited an interesting question that all actors must answer, particularly professionals, when deciding whether or not to act in a certain way:
a master is not justified in putting his tow to every test which she will survive, if she be fit. There is a zone in which proper caution will avoid putting her capacity to the proof; a coefficient of prudence that he should not disregard.
He noted that radios were coming into fashion, some tug operators utilized them, even though they were not required, by either custom or statute, but that many did not. They could act as the “ears of the tug,” just as a set of binoculars were its eyes. Since tugs were not maneuverable, and the crew’s ability to predict weather was limited by the times, the radio would provide them a means of protection they could get in no other way. Had radios become the “standard of care” even though not formally recognized as such? Learned Hand, in maybe his most memorable of ways, so ruled:
Indeed in most cases reasonable prudence is in fact 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.
He affirmed the opinion of the lower court, but in so doing, also held the fact that there were no radios as a deviation from the standard of care, by definition negligence.
The case still merits analysis and attention nearly 100 years later. In 2023, technology is approaching the Singularity. Time, it seems, continues to consume at an ever advancing pace the ways of yesterday. What lawyers did last week, as an example, have been eclipsed today thanks to AI. As professionals, we must embrace technology and cannot do things ye olde fashionde way any longer. Simply because a specific technology has not been fully adopted by an industry does not mean that it is not negligent for a profession to ignore it, just like radios in 1920s seafaring. Thanks to the T.J. Hooper, we are required to leap and bound along with technology, to stay not with the times but ahead of them, or we risk being negligent. Or being eaten by our dads. So, go ahead, jump in, the water’s warm. I promise. Just dial 844-1212.
If you are asking yourself why you should care about standard of care, check out my article on the topic:
And look for much more to come on the intersection of technology/AI and its impacts on the standard of care of design professionals!