Return to Aeronautical
Charting Home Page Edward J. Obloy and B. Helen Sharetts-Sullivan
Defense Mapping Agency
ABSTRACT
This paper begins by examining the current state of the law affecting the liability of the nautical chartmaker, with emphasis on protection of intellectual property rights in the domestic and international coproducer arenas. It concludes by suggesting that, as we move from hard copy, paper chart navigation into the era of the electronic chart (EC) and digital navigation, it is time to reexamine the traditional, parochial views of intellectual property rights and to adopt a new approach.
National hydrographic organizations can substantially influence the nature and scope of digital navigational data, as well as concepts of availability and exchange of digital navigational information, at the domestic and international levels. Recognizing how dynamic this new era of digital information is, this paper begins to define the parameters, to highlight the differences between traditional and potential approaches to liability in the information age, and to make a modest proposal to address the growing discord and confusion among producers of hard and soft copy charts concerning intellectual property rights.
1. INTRODUCTION
We have entered the era of "digital data." Some have said we are "mesmerized by the digit." Maybe this is the case, but everyday experience demonstrates that digital data is rapidly becoming the most important format of exchanging and using information since the development of the written word.
What makes digital data unique is that not only can it be used to convey information in many forms, but it can also be used to complete tasks. Digital data used to display or describe features on the earth's surface is also an integral part of the navigation systems of the most sophisticated weapons as well as simulators. We are entering into a new and exciting time for chartmakers. The versatility of digital data will not only affect navigation but will touch every aspect of the chart-making process: gathering, assessing, interpreting, depicting and disseminating navigational information. We are now beginning to see digital data used to reproduce a traditional paper chart on a video screen, systems which integrate radar and other electronic data emanating from gear on board as well as from shore points. No doubt soon we will see as commonplace things capabilities that automatically update electronic charts through such means as near real-time Notice to Mariner updates. Positioning information from Global Positioning Satellites (GPS) to give the navigator the most complete picture of the environment around him is already firmly in place.2 Indeed, many varied uses of digital navigational or positioning systems are being introduced almost daily. The electronic chart display is not merely a futuristic idea - it has arrived. Interestingly, the questions it raises concerning navigation as well as preparation are varied and complex - particularly in assessing its impact on liability for the producer, value-adder, and user. With this "brave new world" comes a need for all of the players involved to engage in a major paradigm shift and to view the world through lens as revolutionary as the tools they are producing, distributing and using.
2. LIABILITY
2.1 Negligence
To understand the problem posed by the specter of a new subject for dispute -- intellectual property rights -- it is necessary to have some appreciation of the current legal morass of liabilities which already faces chartmakers in the traditional and electronic arenas.
The need for accurate products to insure safety of navigation is codified in US law.3 Governments cannot be sued unless they have consented to be. This is an important legal concept known as "sovereign immunity."4
Although seemingly elementary, it is generally true that the Government cannot be found liable when a nautical chart accurately depicts information. As we now know, however, both governmental and private producers of cartographic products can be sued, and in some cases, held liable, for negligent charting, i.e. where there are definite errors in navigational aids which proximately cause injury to the user. From the users' perspective this may seem quite reasonable since they are required to have these navigational aids aboard in order for the ship to be considered seaworthy. The Defense Mapping Agency (DMA) has defended lawsuits concerning charts, publications and radio broadcasts. Not much has been left untouched. These cases can be extremely burdensome, regardless of the outcome. Just knowing that the potential for this type of major litigation exists can have what lawyers like to call a chilling effect. It may stifle activities, inhibit the free exchange of ideas and information, or prevent risk taking activities that might otherwise occur. "That's procedure" or "That's what the rules say" can become the easy answer to every attempt to innovate.
The case of the stranding of PIONEER COMMANDER,5 provides one important exception to the general premise regarding liability of a US Government agency, in this case DMA, for negligent chartmaking. Following an extensive trial, which included for the first time admission into evidence of a computer simulation of the stranding, the court ruled in DMA's favor. In a rather unusual set of Findings of Fact and Conclusions of Law, the court also ruled that the United States was immune from the suit because the Suits in Adminralty Act had not waived sovereign immunity for charting prepared by DMA of international or foreign waters.6 The case of the tanker GLACIER BAY7 provides another, more recent, exception. The court dismissed a suit by the vessel owners, ruling that the Government's decision to issue a chart, notwithstanding what were arguable deviations from its internal directives, was a discretionary function and not subject to suit under the SAA. Therefore, whether the Government was negligent was irrelevant.
2.2 Products Liability
The term products liability is the name given the legal principle that strict liability may be imposed on: "One who sells any product in a defective condition...."8 Under this principle, a product manufacturer may bear some or all of the liability. The product may be accurate, yet still be determined to be defective, and thus visit legal responsibility upon the manufacturer, distributor, and seller jointly or severally for injuries sustained in the use of the product.9 Liability may also be found even where the product was accurate as to its content, but defective for some other reason. This is the single most significant legal consequence of a finding that a chart or other aid to navigation is a "product." The traditional defense that the chart correctly portrayed the information provided by the Government may not be sufficient to avoid liability if, for instance, it is shown that its design, i.e., scale, graphics, symbology, etc., misled the navigator.
Unfortunately this is not a mere exercise in speculation. The full impact of a finding of strict or products liability was dramatically demonstrated in the case Brocklesby v. Jeppesen & Co., 767 F.2d 1288 (9th Cir. 1985), involving a private manufacturer of aeronautical products. On September 8, 1973, an aircraft crashed into a mountain near Cold Bay Alaska, killing all six crew members and destroying the aircraft and its contents. The private producer of the charts used, Jeppesen and Company, and the United States as a supplier of information used on the chart, were sued by the survivors of the six dead crewmen. The Jeppesen approach charts graphically depicted the instrument approach procedures for an airport and were produced in accordance with specifications promulgated by the United States Federal Aviation Administration (FAA). Even though Jeppesen was not negligent, the court held that the company was strictly liable for injuries caused by the defective product [aeronautical instrument approach chart]. The court also noted, however, that the publisher had a right to seek tort law indemnification from its co-defendant, the US Government.
This case is sobering to say the least. The impact on Jeppesen was so great that a new law was passed to provide indemnification by the United States should this occur in the future.10
3. ELECTRONIC NAVIGATIONAL AIDS
Some understanding of how electronic navigational aids, including ECs, are produced is also necessary to understand the implications of the retrenchment which has arisen surrounding certain intellectual property rights issues.
The EC is but one of the navigational aids currently in existence, or planned for conversion, in a digital format. Creating an EC can involve little more than digitizing existing paper charts in a raster format, or it can extend to manipulating or transforming the data, adding new or additional data, changing the format from raster to vector, etc., the result of which would be a whole new database.
Navigation can be carried out using the EC to plan a track, determine the ship's position, and plot the track made good. The Automated Notice to Mariners System (ANMS) in use now is another example of digital navigational information. The most exciting and challenging prospect is the total integration of electronic navigational data and related systems now in use and planned for the future. The US Navy is procuring the Navigation Sensor System Interface (NAVSSI) which will incorporate the DMA digital nautical chart (DNC) to process and distribute navigation data. A fully operational test of this system is scheduled for mid 1994. DMA has also produced a digital Sailing Directions prototype as a proof-of concept.
The EC is here and is proceeding apace by both private and governmental developers as a digital equivalent of the conventional paper chart to be used alone or as part of an integrated system, e.g. an ECDIS.
The advantage of the EC seems to lie in its ability to improve on conventional products in two ways. One, it can be designed to show selected features, unclutter an oftentimes cluttered chart, while also presenting navigational aids, such as lights, in their true characteristic rather than relying on the description in a publication or the annotation on a chart. Two, integrated with GPS, it will greatly assist the navigator by providing a dynamic, essentially real-time capability unknown with today's static conventional paper products.
An added potential benefit would lie in the possibility of automatically updating charts using transmitted Automated Notices to Mariners System data. It is inevitable that, rather than performing this critical activity in the current labor-intensive way, it will be performed regularly, accurately and automatically. By having appropriate programs and telecommunications gear, the transmitted ANMS information may be captured, stored and then used to update the appropriate file (electronic chart) without human intervention. Imagine being freed from the vagaries of the postal services!11
These very capabilities will change the standards of liability as it currently exists regarding negligent charting, safe navigation, and vessel seaworthiness, and indeed raise new and interesting legal issues.
3.1 The EC and Conventional Legal Standards
The EC will not eliminate the basic legal standards concerning the liability for negligent charting. The manufacturer/supplier of the database(s) required to reproduce the chart accurately will be held to the same duty as currently exists. That is, when the chart is displayed, the supplier/maker of the database which was used to generate that presentation will be under at least the same duties as currently apply to paper products regarding timeliness and accuracy. However, how that responsibility is discharged or even recognized that it has been, and at what point in time, is very intriguing. Will a simple certification by the manufacturer suffice? Probably not. How then will the user satisfy himself that the database is accurate? Will the manufacturer be willing to simply provide the database as it currently supplies charts without any requirement that the user acknowledge at the time it is transferred that it is accurate and accept responsibility for its accuracy?
The problem is the difference in the media. A paper chart is fixed as to its contents when it is printed. Any changes by the user are obvious. Such will probably not be the case with electronic databases. Their very nature subjects them to changes, both intentional and unintentional, by user manipulation, or simply by the infamous problem of computers: "The BUG."
The first and most obvious need is governmental regulation. There are regulations which require the navigator to have certain navigational aids aboard. It does not appear that the status quo will suffice to address the EC. At a minimum, date/time stamping of the file (EC) as to Notice to Mariners updates should be required in addition to identifying, in some fashion, the actual electronic chart (data and display) used to navigate at various times during a voyage and certainly upon approaching harbor.
Intriguing manufacturing questions and their related impact on liability are raised. For example, despite the professionalism and care that goes into producing a chart, inaccurate information is sometimes inadvertently portrayed. Often it is of a nature that is susceptible to human error in the editing process. These are discovered after the chart has been printed and is in distribution. Courts have not yet intervened in the chart-making process, but such may not be the case in a digital era. For example, if error checking routines could be established to find what otherwise would not have been discovered by current standards, no doubt a court will find that a failure to do so is negligence. Similarly, the duty placed on the navigator will likely change with these new capabilities. Courts will likely continue to require that the database be kept accurate. Interesting questions are: "When?" and "By whom?" Certainly the manufacturer will be required to distribute a database accurate as of a certain point in time and will be required to update it through the Notice to Mariners or a similar vehicle. The liability for accurate charting will remain the same, but will currency standards remain the same? Probably not.
The mariner may be required to have the capability to receive electronically transmitted Notices to Mariners in order to keep the databases as accurate as possible. Concomitantly, it seems the pressure on the hydrographic administrations to speed up incorporation of new correcting information in the database will grow. If you add to the system a capability to permit users to link-up with the electronic database through telecommunications, and transmit notice of new hazards, a new dimension in time is added to the liability equation.
The use of digital information in admiralty litigation has already occurred. In the trial of the SS PIONEER COMMANDER, infra, a video tape of a computer simulation of the stranding was introduced into evidence. The parties agreed to reproduce the events leading to the stranding by using the Computer Aided Operations Research Facility (CAORF) of the National Maritime Research Center, Kings Point, New York.12 In so doing it was necessary to generate simulated radar scenes, bottom soundings and horizon scenes. The simulated bridge consisted of a wheelhouse 20 feet wide and 14 feet deep. The equipment on the CAORF bridge was similar to that normally available in the merchant fleet and responds with realistically duplicated time delays and accuracy. The arrangement consisted of a contemporary bridge design containing among other things two radars capable of both relative and true motion presentations, collision avoidance systems, and a digital fathometer. For fear of stating the obvious, if the simulated information could have been "real data" recovered from the data stored on board the vessel in its electronic database, the video would not have been that of a "simulation" but more accurately a replay, like an instant replay in a sports contest. Such a capability is not new, it exists in the "black boxes" or flight recorders used in the aviation industry.
Resort to the "black box" for evidentiary purposes in litigation of any kind where navigation is an issue is obvious.13 Of course, some agreement regarding standards will need to be set as to time and type of information that must be recorded, and recorded in such a manner that it cannot be tampered with. This technology would permit increased training opportunities through the use of computer simulations of "real" navigational problems encountered. The maritime community is currently addressing this issue. The International Hydrographic Organization's Legal Advisory Committee has been asked to examine the legal liability associated with the requirement to keep a record of the ECDIS in which the system should, at a minimum be able to store and reproduce the ship's past track: time, position, heading, and speed; and to insure a record of official data used: chart source, edition date, cell and update history for the previous 12 hours. Also, it should not be able to change the recorded data and should be capable of preserving the previous 12 hours and the voyage track. From the authors' perspective, it seems an additional requirement to allow the master to archive the data in 12 hour segments is desirable. With today's data storage techniques, such an additional requirement seems easily implemented at minimal cost.
The unique situations discussed above are not speculative. One need only look to the case of the 1987 grounding of the fishing vessel HOOP op ZEGEN on one of the Banjard sandbanks.14 The skipper had aboard an electronic chart and integrated navigation system. He entered his course into the system without resort to paper charts because he viewed them as "old fashioned," then merely insured his actual course tracked with it.15 He set the chart for a scale of 1:100,000. What the system did not take into account was the depth over the length of his course. No automatic warning of any kind notified him to use a larger scale chart or of the problem of his intended course: he was likely to run aground! As the board of inquiry noted, "..each manufacturer [of an electronic chart] has been able to decide what will appear on the screen; this provides no guarantee that a complete, updated chart can be presented in an acceptable manner".16 Whether a design that does not provide some minimal warnings or "sanity checks" on user choices is defective, is open for debate. However, one of the observations of the Maritime Board of Inquiry in the HOOP op ZEGEN case was that international operational standards "...for an acceptable electronic chart system: [should include] a warning signal if a chart is shown underscale or overscale and its use constitutes a danger to navigation."17 Depending on the damages sustained, had this occurred in US waters, a suit on a theory of products liability against the manufacturer of the electronic chart system would most probably have been filed. The apparent system design deficiency present in this case: not prompting the user to use the appropriate scale chart, is strikingly similar to the defective product in the BROCKLESBY case discussed earlier.
4. COPYRIGHT ISSUES
Having set the stage, we can now discuss the addition of a new variable to the legal issues involved in nautical chart production-copyright protection of intellectual property rights. The EC raises both traditional and novel copyright issues.18 For the legal community, such questions are the stuff of which dreams (and fortunes) are made. To the various players involved in developing and using this new medium, however, they can be a legal nightmare.
Painful though it may be, some understanding of basic copyright law related to traditional, paper charts is necessary to understand the impact of the electronic chart on copyright issues. We start with a few definitions. "Copyright" is a form of intellectual property that protects the expression of an idea, fact, thought, concept, principle, method, etc. It does not protect the underlying idea, fact, principle, concept or method.19 "Copyright protection" is the legal protection given to an original work, by an author, which is fixed in a tangible medium of expression.20 It gives the copyright holder the right to prevent others from copying, misusing or misrepresenting his original work for a period of time fixed by law - in effect, a limited monopoly. This is seen as a fair exchange between competing interests. It protects and rewards authors and, at the same time, it promotes the wide dissemination of information and exchange of ideas.
Traditionally, in the nautical chart arena, copyright issues have revolved around protecting the original work - the paper chart - itself. In the United States, for example, a chart which includes some originality may be entitled to protection as a "compilation,"21 i. e., the original arrangement or presentation of existing information or material.22 Protection is limited, however, to the author's original, creative contribution, which in most cases includes only the selection and arrangement of information and any original art work. The facts contained on the chart are not copyrightable, regardless of the amount of effort involved in their collection.23 The original contribution and, therefore, the amount of protection a copyright provides, are likely to vary widely. Limited though this protection may be, it can be sufficient to prevent others from copying and using the copyrighted chart without the author's permission. So, while anyone can, of course, copy and use the facts contained on the chart, copying the chart, itself, without permission would be infringement. It is important to note that copying in this context includes moving the chart from one medium to another, e.g., scanning and digitizing the paper chart into an electronic database.
The digital arena presents other questions, as well. Unlike a paper chart, one can not see or touch an electronic "work." While it may be contained in the memory of a computer, sent electronically to a printer or from one location to another, or captured on a CD/ROM, floppy disk, optical disk or other medium, none of these is, per se, the "work". For an electronic chart, the work is the electronic database. It may also include the software used to manipulate the data in the database and/or to create the visual display(s).
All of these - the displays, the software and the database - may be entitled to some form of copyright protection. Computer programs, or software, are entitled to copyright protection, if original. The display(s) may be entitled to protection as copyrightable expressions of the computer program. The electronic chart databases, like their paper counterparts, are entitled to copyright protection as compilations. Like paper compilations, they must meet the requisite standards to qualify, including expression and some degree of originality.
Also as in the world of paper compilations, while anyone may copy the facts contained in an electronic chart, copying of the electronic chart, itself, without permission is infringement. What is less than clear, however, is the dividing line between where the facts end and the intellectual property rights in the arrangement of those facts begins. This is particularly true with an EC that is created in whole or in part from existing paper charts. The digital data, because of its electronic nature, is routinely reformatted, manipulated, massaged, rearranged, and reconfigured. At some point in this transformation process, the copyrightable 'original expression' which existed in the paper charts is lost and only the facts remain. It is also one of the underlying rationales for the modest proposal presented in this paper.
While there are private chart producers, the key players in the copyright controversy are the official governmental or government-sponsored chart producers, such as the Defense Mapping Agency (DMA), in the United States. The US Government has chosen, as a matter of policy, not to permit the domestic copyright of its government-produced works, including its government produced nautical charts.24 Many other governments, though, do authorize and promote government copyrights both inside and outside their borders. For paper charts, this means that others may not copy and use those charts without the governmental copyright holder's permission. Permission can often include a licensing arrangement and payment of a royalty.
For many years, the exchange and use of hard copy data among the maritime nations of the world posed little problems regarding intellectual property rights. Bilateral and multilateral arrangements worked fine. The IHO was a blanket agreement which made bilateral exchange agreements generally unnecessary except for MOD fax. International agreements among governments permitted exchange and reproduction of paper charts between governmental organizations. For example, the Defense Mapping Agency has over one hundred such agreements. However, these agreements have traditionally placed conditions and limitations on the use and reproduction of the products exchanged, including the protection of national copyrights. Many Defense Mapping Agency agreements do permit copying and use by the governmental parties, but do not allow unrestricted distribution or sale to the public.
As a result of Government policy, US Government chart producers have traditionally chosen to foster the safety of navigation by permitting free access to its nautical products. In the past, when other governments' national chart producing organizations battled to protect their parochial interests in paper charts to the detriment of the maritime community, US producers stayed aloof. Eventually, the maritime community recognized the destructive nature of these squabbles and honored a multinational solution of regulations/standards adoption through the International Maritime Organization (IMO) and the International Hydrographic Organization (IHO). The community, through these international organizations, has been successful in placing the safety of navigation ahead of parochial interests such as restricting dissemination and obtaining royalty fees. Material is freely exchanged across national boundaries.
Unfortunately, this spirit of cooperation has all but disappeared in the fervor over the new electronic medium. We have again begun to see various countries' national chart producers attempting to restrict the free flow of nautical information unless they receive royalty payments for their so-called intellectual property rights in the data contained in the EC's of others.
There is one significant difference between today and previous circumstances. Previously, the United States chose not to weigh into this controversy. However, in October 1992 DMA began to assert its own intellectual property rights. DMA products now contain a copyright notice. While DMA does not claim copyright protection under domestic US copyright law, it does assert these rights outside of the borders of the United States. We believe this approach to be completely consistent with the intent of the US lawmakers.25 It promotes the free exchange of the data within the US borders. At the same time, it protects the interests of the US taxpayers who paid for the data's creation. As long as other governmental chart producers continue to attempt to restrict the free flow of nautical information, DMA must do the same to protect US interests.
One significant exception to the norm is the Digital Chart of the World (DCW). DCW is the product of a cooperative effort of the governments of Australia, Canada, the United Kingdom and the United States. As part of the project, the participating countries have agreed to certain waivers of the enforcement of their statutory copyrights in order to promote public distribution and use of the DCW product.
It is this spirit of cooperation which we propose to renew. The safety of navigation must come first. If the parties can agree on this premise, we believe that the barriers to the free-flowing exchange of digital information, which currently may appear to some to be insurmountable, can be overcome.
5. A MODEST PROPOSAL
It is clear to the authors that many believe digital navigational data is the "pot of gold" at the end of the rainbow. It may be. However, absent some rational, multilateral approach to exploitation of this data, the gold in that pot may be nothing more than "fools gold" and the real stuff will be spent on legal fees. As was noted above, there is no end to the problems associated with asserting an intellectual property interest in "facts." A single digital vector map, based on a copyrighted hard copy source provides sufficient fertilizer to grow the most robust legal garden. Do we really wish to till that soil?
Commercial exploitation of digital geographic information (DGI) presents a unique problem to public and private producers. Today, anyone with a personal computer and a color laser printer can print maps. Consequently, unlawful exploitation of DGI is much more likely than the occasional hard copy 'rip-off.' However, we should not let that interfere with the very important business of insuring safety of marine navigation.26 Just as the maritime community recognized the changing nature of the responsibility of the navigator in the digital era, and responded in a multilateral way through the IMO and IHO, so too must the maritime chart producing countries face these unique issues on an international multilateral level.
In order to insure safe and facilitated navigation it would seem reasonable to adopt an international approach along the following principles:
a. Each producing country would grant a free, nonexclusive unlimited use license of its hard/soft copy navigational information only for use by any government or academic institution of such countries, to other cooperating governments who also agree to these terms;
b. Each producing country would agree to reimburse the providing country for any "public sales" of foreign produced or derived data in accordance with an agreed upon cost/price scheme established through multilateral or bilateral arrangements. The arrangement would permit the selling country to either transfer title with unlimited rights or grant a limited use license. Any further use of the information by private producers would require a licensing arrangement by the country(s) asserting an intellectual property interest.
c. The parties would agree that no country "surcharge" would be added to any transaction. For example, country A would not require country B to pay some fee when country A sells country B's product.
It is the authors firm belief that unless the producing nations agree to some such scheme, the courts will define the extent of the rights of producers and exploiters and those results may be far less than satisfactory for all concerned.
6. CONCLUSION
The entrance on the scene of the electronic chart and other digital systems thrusts the producer, distributor and seller into the information age. This will affect every aspect of liability faced in the era of navigation by conventional means.
The system designers of hardware and software will be subject to liability. They will have to insure that the hardware, processor, data storage, etc. actually assist in prudent navigation, not hinder it. For example, is the video display of an appropriate resolution and type, mono or color, size, etc., to insure that the information in the database is properly displayed. Many other issues arise: whether a capability to produce a hard copy should be included; how extensive should the error handling capabilities of system characteristics such as the software/hardware be; how user friendly should the system be; how extensive should the user manuals be? These are questions which must be answered. It is probably safe to assume that no matter what the answer, when a disaster occurs, someone will allege that the answer was the wrong one.
The owner's duty to maintain a seaworthy vessel will be affected. A decision point will come as to when and to what degree these new systems should be placed on board ship. One can only hope that this will come through industry initiative and not at some point prior to general acceptance or regulatory requirement to do so, in much the same manner as what occurred in the case of THE T. J. HOOPER.27
The private producer of the electronic chart can also expect increased legal exposure to the growing body of law involving products or "information" liability.
Complicating matters is the extreme flexibility of digital data and the probable competition in the private sector to produce "the system." For example, providers of systems that either modify what is currently the conventional standard describing what must be portrayed, or allow the user to do so, run the risk of finding themselves in the same position that Jeppesen did in the BROCKLESBY case. The information may be accurate but how it was displayed was in error and resulted in a finding that the chart was a defective product. Liability for defects could extend to the software routines as well.28 Only time and actual litigation will define the parameters of liability.
Finally, the authors wish to commend the maritime community for its very active approach in addressing the many issues raised in this paper through the IHO and the IMO. When first addressed in 1986, the legal issues were merely speculative. The basic liability issues identified were worth raising and still await a final analysis. In the interim period there is a need to articulate standards for using the electronic chart. While it is clear that the maritime community has stated that the electronic chart is not now the primary tool for navigation, certain rules and standards should be established beyond that. It is possible that a maritime disaster will occur and a question will arise as to whether there was negligent navigation (or whether the ship was even seaworthy?), where the navigator relied on the erroneous paper chart when resorting to the electronic chart and its capabilities to integrate with other systems would have averted the disaster. Well reasoned regulatory guidance is necessary. Leaving it to the courts may be a simple way out but the consequences in having them act as regulator may be less than desirable. Fortunately, preliminary performance standards for the electronic chart have been agreed to and final standards should be effective in 1995. Is this mere speculation? In 1986, yes, today, no.
The electronic chart will not eliminate nor unduly exacerbate the current standard of liability for negligent chartmaking, but it will change it. While it appears that certain types of errors will be less likely to occur, new causes of action will arise, probably involving new parties heretofore unfamiliar with negligent charting, such as software designers and computer systems analysts.
1. This is based in part on a paper, presented at the Radio Technical Commissions for Maritime Services 1992 Annual Meeting, Bal Harbour, Florida. The views expressed are the private views of the authors and do not represent the views or position of the Defense Mapping Agency, the Department of Defense, or the United States Government.
2. Spradling, GPS and the Law, 9, December 1990 pp 49-51. Unique legal liability issues are introduced by reliance on GPS.
3. 10 U.S.C. �#167; 2791-96; 44 U.S.C. � 1336 [Nautical charting]; 49 U.S.C. App. �� 1301, 1348(b)(3) [Aeronautical charting].
4. 28 U.S.C. �� 1346(b) and 2671, et seq; 46 U.S.C. �� 741-752. DeBardeleben Marine Corp. v. United States, 451 F.2d 140 (5th Cir. 1971). In the United Kingdom, a lawsuit would be brought pursuant to the Crown Proceedings Act of 1947,10 & 11 Geo. 6 c. 44; and in Canada pursuant to the Crown Liability Act, 1952-53, c. 30, s. 1. See also, Warewick Shipping Ltd v. Her Majesty the Queen, 2 F.C. 147 (1982), aff'd 48 NM.R. 378 (1 983) (Although a chart was misleading, the Crown was not liable for the stranding of the GOLDEN ROBIN because no duty of care was owed to individual mariners nor did their master or pilot rely on the chart). For a detailed discussion of the facts and law as it pertains to the stranding of the GOLDEN ROBIN, see, The Charting and Safekeeping of Oceans and Waterways: Legal Implications, Dalhousie Law Journal 578.
5. United States Lines Inc. v. United States, No. 79 Civ. 4209 (S.D.N.Y., May 12, 1983).
6. Id
7. In re the GLACIER BAY, No.A88-0115-CV (HRH) (consolidated) (D. Alaska, December 13, 1 993).
8. See, RESTATEMENT(SECOND) OF TORTS Sect. 402A (1965):
9. Aetna Casualty and Surety Co. v. Jeppesen & Co., 642 F.2d 339 (9th Cir.1981); Saloomey v. Jeppesen & Co., 707 F.2d 671 (2nd Cir. 1983)(Jeppesen found strictly liable for its mass produced navigational chart erroneously indicating that airport had full instrument landing system on the basis that the chart was a "product" under products liability law).
10. Sec. 328, P.L. 99-190, Dec. 19, 1985.
11. 33 CFR �164.33. All vessels must have the most recent, available and currently corrected chart from both the DMA Notice to Mariners and the Local Coast Guard Notice to Mariners.
1 2. The CAORF is a sophisticated ship-maneuvering simulator operated by the US Maritime Administration for controlled research into man-ship-environment problems. The major subsystems are: wheelhouse, central data processor, image generator, radar signal generator, control station and human factors station.
13. Marcette, Animated Evidence Delta 191 Crash Re-created Through Simulation At Trial, A B A Journal, December 1989, pp 52-56. More than 40 different parameters from the digital flight recorder were used to produce a 55 minute presentation.
14. Verdict No. 27, The Maritime Board of Inquiry, Netherlands State Paper No. 178, Wednesday, 14 Sept. 1988, The Hague, Netherlands.
15. Wells, Eaton, Malsinen, Eichlrolz, What Would Make Small Boat Electronic Charts Safe for Navigation?, concluded that since an ECDIS is much more convenient to use, chart users are not going to consult paper charts as often as they should.
16. Id. at p.5.
17. Id. at p.6.
18. For a summary of the traditional legal issues related to the electronic chart, see remarks by Edward J. Obloy, The Liability of the Negligent Electronic Chartmaker for Negligent Chartmaking, International Hydrographic Review, Monaco, LXVII(2), July 1990; and Proshanto K. Mukherjee, The Electronic Chart - An Overview - Legal Issues: Old and New, Proceedings of the International Conference on Maritime Law and the Electronic Chart- Ottawa, 1990.
19. 17 U.S.C. �102(b).
20. 17 U.S.C. �102(a).
21. See generally, Rockford Map Publishers, Inc. v. Directory Service Company of Colorado, Inc., 768 F.2d 145 (7th Cir. 1985), cert. den. 474 US 1061 (1986). Contra, Kern River Gas Transmission Co v. Coastal Corporation, 899 F.2d 1458 cert. den. 498 U.S. 952 (merger doctrine prevents copyright for maps).
22. 17 U.S.C. �101.
23. Feist Publications, Inc., v. Rural Telephone Company, Inc., 499 U.S. 340, 111 S.Ct. 1282, at 1289 (March 27, 1991) .
24. 17 U.S.C. �105.
25. Historical Note to 1 7 U.S.C.A. �105. Notes of the Committee on the Judiciary. House Report No. 94-1476. Scope of the Prohibition.
26. Of paramount concern to DMA is the "standardization and integrity" of its digital data, particularly as it is exploited in the private sector in navigational systems. Therefore, as result of the international community's approach to the intellectual property issues involved in DGI, DMA is both asserting intellectual property rights in its products outside the borders of the Untied States and now seeking legislation that will permit it to copyright domestically as well, not for economic purposes but for the purposes stated above.
27. The T. J. Hooper, 60 F.2d 737 (2nd. Cir. 1932), cert den. sub nom., Eastern Transportation Co. v. Northern Barge Corp., 287 U.S. 662 (1932).
28. See, Liability Case Against Lotus Raises Fears in Industry, InfoWorld, July 28,1986.
Return to Aeronautical
Charting Home Page
