Motor Vehicle Crash Fatalities and Fatality Rates (per Hundred Million Vehicle Miles Traveled), 1899-2009
D. Custom
197
John Langbein, The Disappearance of Civil Trial in the United States, 122 YALE L.J.
522 (2012).
Ironically, the decline in jury trials may not be a sign of the decline of jury power at all. In a world where discovery and pre-trial procedures such as Daubert hearings allow the parties to have increasingly good information about the value of their claims, plaintiffs and defendants alike will look to settle more often. But settlement happens in the shadow of the jury. Settlements, in other words, reflect the expected costs and benefits of going to trial with a jury. Indeed, the pervasiveness of settlement may
undermine one of the main complaints with juries. Many object that the random draw of lay juries injects an element of chance into the dispute resolution process. It is not fair, critics say, that important cases are resolved by the luck of the draw in juror selection.
But in a world of pervasive private settlements, one bad jury hardly matters. The quirks of any one jury’s outlier decision are washed away in the averaging that parties do when they estimate settlement values.
198
COXE,J. . . . [U]nless the Hooper and Montrose were under a duty to have radio apparatus capable of receiving reports of that kind, the charge against them of negligence must necessarily fail. . . .
Concededly, there is no statutory law on the subject applicable to tugs of that type, the radio statute applying only to steamers “licensed to carry, or carrying, fifty or more persons”; and excepting by its terms “steamers plying between ports, or places, less than two hundred miles apart.” U.S. Code Annotated, title 46, § 484. The standard of seaworthiness is not, however, dependent on statutory enactment, or condemned to inertia or rigidity, but changes “with advancing knowledge, experience, and the changed
appliances of navigation.” It is particularly affected by new devices of demonstrated worth, which have become recognized as regular equipment by common usage.
Radio broadcasting was no new or untried thing in March, 1928. Everywhere, and in almost every field of activity, it was being utilized as an aid to communication, and for the dissemination of information. And that radio sets were in widespread use on vessels of all kinds is clearly indicated by the testimony in this case. Twice a day the government broadcast from Arlington weather reports forecasting weather conditions. Clearly this was important information which navigators could not afford to ignore.
Captain Powell, master of the Menominee, who was a witness for the tugs, testified that prior to March, 1928, his tug, and all other seagoing tugs of his company, were equipped by the owner with efficient radio sets, and that he regarded a radio as part
"of the necessary equipment" of every reasonably well-equipped tug in the coastwise service. He further testified that 90 per cent. of the coastwise tugs operating along the coast were so equipped. It is, of course, true that many of these radio sets were the personal property of the tug master, and not supplied by the owner. This was so with the Mars, Waltham, and Menominee; but, notwithstanding that fact, the use of the radio was shown to be so extensive as to amount almost to a universal practice in the navigation of coastwise tugs along the coast. I think therefore there was a duty on the part of the tug owner to supply effective receiving sets.
How have the tugs met this requirement? The Hooper had a radio set which belonged to her master, but was practically useless even before the tug left Hampton Roads, and was generally out of order. Similarly, the radio on the Montrose was the personal property of Captain Walton, and was "a home made set," which was not in very good working order, and was admittedly ineffective. Neither tug received any of the radio reports broadcast on March 8th. And Captain Savage of the Hooper admitted that if he had received such reports he would "quite likely" have turned into the breakwater. . . . Likewise, Captain Walton of the Montrose admitted that if he had received the weather reports on the 8th, which were received by the other tug captains, he “certainly would have gone into Breakwater.” I cannot escape the conclusion, therefore, that if the two tugs had had proper radios, in good working order, on March 8th, they would have followed the Mars, Waltham, A. L. Walker, and Menominee into the breakwater, and would have avoided the storm which overtook them on March 9th.
199 . . . .
I hold therefore . . . that the tugs T. J. Hooper and Montrose were unseaworthy in failing to have effective radio sets, capable of receiving weather reports on March 8th . . . .
The T.J. Hooper, 60 F.2d 737 (2d Cir. 1932)
HAND,J. A March gale is not unusual north of Hatteras; barges along the coast must be ready to meet one, and there is in the case at bar no adequate explanation for the result except that these were not well-found. . . .
The weather bureau at Arlington broadcasts two predictions daily, at ten in the morning and ten in the evening. Apparently there are other reports floating about, which come at uncertain hours but which can also be picked up. The Arlington report of the morning read as follows: “Moderate north, shifting to east and southeast winds,
increasing Friday, fair weather to-night.” The substance of this, apparently from another source, reached a tow bound north to New York about noon, and, coupled with a falling glass, decided the master to put in to the Delaware Breakwater in the afternoon. The glass had not indeed fallen much and perhaps the tug was over cautious; nevertheless, although the appearances were all fair, he thought discretion the better part of valor. Three other tows followed him . . . .
Moreover, the "Montrose" and the "Hooper" would have had the benefit of the evening report from Arlington had they had proper receiving sets. This predicted worse weather; it read: "Increasing east and southeast winds, becoming fresh to strong, Friday night and increasing cloudiness followed by rain Friday." The bare "increase" of the morning had become "fresh to strong." To be sure this scarcely foretold a gale of from forty to fifty miles for five hours or more, rising at one time to fifty-six; but if the four tows thought the first report enough, the second ought to have laid any doubts. The master of the "Montrose" himself, when asked what he would have done had he received a substantially similar report, said that he would certainly have put in. The master of the
"Hooper" was also asked for his opinion, and said that he would have turned back also, but this admission is somewhat vitiated by the incorporation in the question of the
statement that it was a "storm warning," which the witness seized upon in his answer. All this seems to us to support the conclusion of the judge that prudent masters, who had received the second warning, would have found the risk more than the exigency warranted . . . .
They did not, because their private radio receiving sets, which were on board, were not in working order. These belonged to them personally, and were partly a toy, partly a part of the equipment, but neither furnished by the owner, nor supervised by it. It is not fair to say that there was a general custom among coastwise carriers so as to equip their tugs. One line alone did it; as for the rest, they relied upon their crews, so far as they can be said to have relied at all. An adequate receiving set suitable for a coastwise tug can