Applying a Learned Hand to Nuclear Security

“There are precautions so imperative that even their universal disregard will not excuse their omission.”  Last month, at the IAEA’s International Conference on Nuclear Security:  Commitments and Actions, Kathryn Rauhut reminded participants of this finding by Judge Learned Hand in The T. J. Hooper v. Northern Barge Corporation (1932) case.  Judge Hand’s opinion is a pillar of U.S. tort law, but subsequent statutes (e.g. the Price-Anderson Act, and its international ilk), regulations, and international borders, complicate direct application of the “Hooper” principle to nuclear security, at least in a legally binding manner. 

Nonetheless, the wisdom of Judge Hand’s crystalline judgment remains.  The original case involved a tugboat that went to sea in 1928 with a short string of coal barges, but without a radio.  Therefore, the captain was unaware of an impending easterly gale.  The barges and their cargo were lost in the tempest.  Their owners sued.  The Northern Barge Corporation argued that it was common for ships to sail without radios, which were then a relatively new technology.  Judge Hand slayed their complacency. 

Rauhut highlights a useful line of analysis.  Examples of indispensible security measures can be found in an analysis published by Managing the Atom last spring, in INFCIRC/869’s joint commitment to strengthen nuclear security, and by the best practices promulgated by the World Institute for Nuclear Security. 

Nonetheless, both those responsible for the security of nuclear material and facilities and those who analyze such matters should consider what precautions might be imperative, even if they are not in widespread use.  Experts in cyber security are already thinking along these lines.  We in the nuclear security community would do well to learn from this past lesson and look for applications in the future.