consider the salient historical highlights of international action regarding safety of ships.

PRIOR SAFETY OF LIFE AT SEA
CONVENTIONS

UNTIL THE TURN of the century those nations that legislated on ship-safety matters did so primarily for their own vessels. Then with the shock caused by the loss of 1,489 lives in the sinking of the SS TITANIC in 1912, a ship widely regarded at that time as unsinkable, the first International Conference for the Safety of Life at Sea was called in London in 1914. At that first Conference, representatives of 16 countries met and drew up a Convention which provided, in the main, that passenger ships should have certain minimal standards of subdivision or watertight integrity, fireproof bulkheads, and minimal requirements for lifeboats and livesaving appliances. It also required the use of radio in all seagoing ships and called for creation of distress frequencies. The North Atlantic Ice Patrol was established for the purpose of protecting ships from icebergs and floes. The 1914 Convention also recommended the use of fixed routes for passenger vessels on the North Atlantic run. Although the First World War prevented this first Convention for the Safety of Life at Sea from coming into force, much of its substance was put into practice by many maritime countries."

Following the termination of World War I, consideration was given to holding a second like conference to carry forward the work commenced in 1914. Extensive preparatory work was undertaken, both in the United States and abroad, and on 16 April 1929, a second international conference was convened in London. Eighteen nations attended, and signed the Convention which resulted on May 31, 1929. In general, the 1929 Convention advanced the work begun in 1914, with special emphasis on ship construction, watertight integrity and mandatory radio equipment. This Convention was eventually ratified by 43 nations, including the United States, and for the first time the maritime world had an established international charter for safety of ships at sea." The 1929 Convention also made recommendations for changes to the Rules of the Road, but these were never adopted."

5. Ibid., Dec 29, 1952, p. 1024; USCG International Conventions and Conferences on Marine Safety, June 1, 1951, p. 9.

6. The 1929 Convention came into international force in 1933 but the U.S. did not ratify it until 1936, ibid., Note 5.

7. Hilbert, International Rules of the Road at Sea, Georgetown Univ., 1938, pp. 5-6; Farwell, Rules of the International Road, 1957, p. 11.

With the advances in nautical science and improved techniques accelerated during World War II, and with the loss of many ships by fire, including the SS ATLANTIQUE and SS NORMANDIE, it seemed obvious that a third conference would be called as soon as possible after the cessation of hostilities. Thus in 1948 a third conference was convened in London with 30 nations represented. The resultant 1948 Convention for the Safety of Life at Sea made structural provisions against fire more stringent, and required a continuous watch on the radio distress frequency for all ships over 1,600 gross tons. In general, many of the provisions of the 1929 Convention were made more strict. An important innovation, based on war-time experience, was that ships should carry portable radio transmitters which could be taken into a lifeboat. Another matter discussed was the establishment of search and rescue Rules of the Road procedures."

OF PARTICULAR INTEREST to the naval officer were the changes made by the 1948 Convention in the "Rules of the Road," formally called the Regulations for Preventing Collisions at Sea. This was the first time specific changes were adopted by an international body concerning the Rules which originally came into force in 1897 by international agreement. The advent of the International Rules of the Road occurred in 1862 when England and France agreed to recognize certain basic Rules for collision prevention. In 1879 England extended the scope of her Rules, and revised them in 1884. Between 1880 and 1885 these English Rules were adopted, with some changes, for use on the high seas by the United States, Belgium, Germany, France, Japan, Norway, and Denmark. In 1889 an international Conference was held in Washington, D.C., which drafted the basic Rules that later came into international effect in 1897. Our Congress codified these Rules by an Act in 1890.10

These rules were subsequently modified by the 1948 Safety Convention. Out of it came the International Regulations for Preventing Collisions at Sea, which are currently in international force and which were ratified by the United States." The more important changes

8. USCG International Conventions and Conferences on Marine Safety, June 1, 1951, pp. 18-22, 39.

9. Ibid., note 7, pp. 4-5; LaBoyteanx, Rules of the Road at Sea, 1920, pp. 1-2; Farwell, Rules of the Nautical Road, 1957, p. 11. 10. Act of Sept. 4, 1890, 26 Stat. 425; 33 USC 367, 368.

11. The revision of the International Rules of the Road came into force Jan. 1, 1954, TIAS (Treaties and other International Acts)

introduced by the 1948 revisions to the Rules of the Road were:

(1) The formerly permissive second white masthead or range light became compulsory, except for vessels less than 150 feet in length and for vessels engaged in towing.

(2) The formerly permissive stern light became compulsory and its range of visibility was increased from 1 to 2 miles.

(3) An International danger signal was established, consisting of at least 5 short blasts for optional use by a vessel privileged by the Rules, when she is in sight of the other vessel and is in doubt whether sufficient action is being taken by the other vessel to avert collision. (4) The Rules were extended to include seaplanes on the water.

THE 1960 CONVENTION

AGAINST THE BACKGROUND of the foregoing, let us consider and speculate as to the general areas likely to be discussed in May of this year at the 1960 Safety of Life at Sea Conference. The interval since the last Convention is shorter-12 years as against 19 years-but, of greater import, as in those 12 years much has occurred in the realm of technological development in ship design, aids to navigation, lifeboats, effective weather prediction and reporting, and air-sea rescue.12

The most spectacular development is the application of nuclear power to ship propulsion. Consideration of this development is most acute to the United States Navy, and rightfully so, since our Navy is presently, and will be for the foreseeable future, the world's largest operator of nuclear-powered vessels. Besides our advances with nuclear submarines, the nuclearpowered guided missile cruiser USS LONG BEACH, christened July 20, 1959, is scheduled for delivery late in 1960, and the nuclear-powered world's largest aircraft carrier, the USS

2899; Act of Oct. 11, 1951, 65 Stat. 406-420, as amended by Act of June 26, 1953, 67 Stat. 83; 33 USC 143–147d; 49 USC 177(a), 560 (a).

12. An immense amount of work that has been done by the United States in preparing for that Conference. In early 1958, by an exchange of letters between the Departments of State and Treasury, the Commandant of the Coast Guard received a delegation of authority to assume overall responsibility for initiating and coordinating the preparation of proposals which the United States will advance at the 1960 Conference. In October 1958 various necessary committees were established and members appointed. These committees were six in number: General Construction, Lifesaving Appliances, Radio, Safety of Navigation, and Nuclear Power. (USCG Comdt. Instr. No. 15-58 of 21 Oct '58) The membership in these committees and subcommittees has been composed of some 250 experts and advisors from all interested United States Government agencies, shipping and allied industries, and principal labor unions. Of course, it must be appreciated that many other interested individuals answered the invitations of these various committees to submit recommendations. The Navy has representation on each of the six major Committees.

ENTERPRISE, is expected to be ready for sea in the fall of 1961. Concerning merchant ships, the NS SAVANNAH should be in operation this year and the Russian nuclear icebreaker LENIN began sea trials in 1959. There were, of course, no provisions in the 1948 Convention relating to nuclear-powered ships.

Nuclear propulsion of ships raises problems that go beyond those connected with the ship herself, since not only the ports which nuclear ships visit have shown concern but also other ships which may be navigating in their vicinity, particularly in close water, expectedly will manifest concern. Therefore, it is not unlikely that the Conference may discuss special provisions governing the construction of nuclear ships with regard to the protection afforded the reactor installation. Manning by qualified personnel may well be considered. Also, some type of certificates of safety evaluation by the government under whose flag the ship is registered may be debated. In such event, it should be and is expected that exemptions will be made for nuclearpowered men-of-war.13

THE USE, AND possible misuse, of radar is almost certain to evoke lengthy discussion in considering the Rules of the Road. The 1948 Convention made no changes in the Rules concerning radar but did give recognition thereto. In effect, the 1948 Convention stated that, although radar advances as a navigational aid had been appreciatively noted, the possession of radar in no way relieved a ship from her obligations under the Rules and in particular her duties to proceed at a moderate speed and use certain sound signals under conditions of restricted visibility (Rules 15, 16).14 Because of the various disasters in which vessels fitted with radar have been involved, it is probable that some of the more than 50 nations represented will attempt to incorporate some kind of "Radar Rule." It would seem that it would be indeed unfortunate if any Rule is adopted which would change the broad principles of the Rules for a ship having radar, because, after all, radar is only one of many aids to navigation available today. Unfortunately, some ship masters have thought that the possession of radar made it possible for them to make fast passages in limited visibility, instead of safe ones, and the result has often been a serious collision. The occur13. For further discussion of nuclear ship problems, see JAG Journal, Mar.-Apr. 1960, pp. 9-12; JAG Journal, Apr. 1959, pp. 2024; For discussion related to problems of radioactive waste disposal, see JAG Journal Apr. 1959, pp. 12-16, 25-28.

14. 1948 Convention on Safety of Life at Sea, Recommendation No. 19, TIAS.

rence of such events probably coined the phrase "radar-assisted collisions." Obviously, radar is an aid to and not a substitute for vision. As an excellent expression of the hope that any Radar Rule will be conservatively considered, the following is a quote from a former Navy destroyer skipper's night order book:

The Officer of the Deck is responsible for knowing all that occurs on the sea, in the air, and under the sea about him. He himself must know these things. He must look, and see, and hear. To place full reliance upon radar assistance as a substitute for these natural senses is to court disaster.

IT SEEMS LIKELY that some discussion may arise on the improvement of the standards for ships' navigational lights both from the view of a more scientific approach to insure that required ranges are complied with, and possible consideration of increased ranges in certain cases. Other important aspects affecting ship navigation operation, or construction which probably will be considered are: recognition that ships engaged in launching and recovery of aircraft, minesweeping, and replenishment at sea, have restrictive maneuvering capabilities; improvement of air-sea rescue methods, requiring more ships to carry radio equipment and man the distress frequencies; installation of a radiotelephone automatic alarm system which would respond to distress signals; design of new merchant passenger ships to permit operation with a minimum of oily ballast; permissible use of inflatable liferafts; and prohibition against nesting of lifeboats. The 1960 Conference may also consider such questions as installation of bridge-to-bridge radiotelephony; mandatory sea lanes for passenger vessels; and review of the International Code of Signals.

Also, it may be anticipated that the issue of making the language of the Rules as simple as possible will be advocated. Such effort is always commendatory from the shiphandler's standpoint who generally appreciates Wordsworth's "A few strong instincts, and a few plain rules."

These potential issues of deliberation by the 1960 Conference have been based on the needs recognized by previous Safety of Life at Sea Conventions, on treaties and articles by authors and periodicals connected with the subject,15 15. Proceedings of the Merchant Marine Council, Nov. 1959, pp. 212215; Shipbuilding-Shipping Record, Jan. 21, 1960, pp. 80-81; Fairplay, Jan. 7, 1960, p. 7; Marine News, Feb. 1960, pp. 31, 68; Marine Journal, Aug. 1959, p. 3; Marine Engineering, Nov. 1959, pp. 82-86; U.N. Review, July 1958, p. 4; Marine Engineering and Shipping Review, Dec. 1948, pp. 41-44; Institute of Navigation Journal, Oct. 1958, pp. 407-408; International Organiza

and on the writer's experience. Quite apparently many new proposals will be countered with economic considerations, (e.g., cost of installation, necessary personnel, training, etc.,) and some propositions may have to run the gamut of political attacks, (i.e., nuclear-powered ship issues).

IMCO

PERHAPS THE MOST significant new provision that was included in the 1948 Convention was the recognition of a United Nations maritime organization then being organized. This organization was created by the United Nations in 1948 and is called the Intergovernmental Maritime Consultative Organization, generally referred to as "IMCO." The 1948 Convention on Safety of Life at Sea and the Intergovernmental Maritime Consultative Organization, by their charters, provided that any future international safety at sea conferences should be held under the auspices of IMCO.16

Prior to the 1948 Convention for Safety of Life at Sea, the United Nations, already in the process of forming specialized agencies in various fields, had explored the desirability of setting up such a specialized agency in the field of international shipping where a need seemed evident in order to have a permanent organization, rather than sporadic ad hoc diplomatic conferences, to deal with international problems involving safety of life at sea." The United Nations deemed that it needed certain specialized agencies to enable it to coordinate activities of world wide concern in the fields of transport and communication.18 To that end, it had already established the following specialized agencies: International Civil Aviation Organization, International Telecommunications Union, and World Meteorological Organization. To complete the picture, the United Nations established the Intergovernmental Maritime Consultative Organization, (IMCO), at a Geneva Convention in 1948 just before the 1948 Conference for Safety of Life at Sea.19 As a consequence, these two Conventions each recognized the other in that it was specifically provided by both that (Continued on page 19)

tion, Summer 1959, pp. 464-465; National Gazette, Sept. 1948, pp. 29-33; Am. Journal of International Law, Vol. 53, 1959, pp. 516-531.

16. 1948 Convention on Safety of Life at Sea, Art. XV, TIAS 2495; Convention of Intergovernmental Maritime Consultation Organization, 1948, Annex B, TIAS 4044.

17. U.N. Bulletin, Feb. 15, 1948, pp. 152-154; Survey Graphic, Oct. 1947, pp. 529-530, 555-557; U.N. Review, Mar. 1956, pp. 29-31. 18. Ibid., Note 4, Apr. 18, 1948, pp. 495-505.

19. Although IMCO was created in 1948 it did not come into force until 1958 when the necessary 21st nation accepted.

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2

HE SUBJECT OF entrapment is becoming increasingly important, and coincidentally complex. While the general rules of entrapment can be stated briefly, their exact application often is troublesome. Traditionally, entrapment existed where the plan of a crime was conceived by government agents who planted the idea in the mind of an otherwise innocent man and induced him to commit the crime. If the scheme originated in the mind of the accused there was no entrapment even though the government agents afforded him ample opportunity to commit the crime or used artifice and stratagem to catch him. But where the scheme originated with the government agents, who then induced "a suspected" man to do the deed, entrapment was established.

As may be surmised, it is often difficult to determine when the criminal intent originated in the mind of the accused. The Court of Military Appeals has adopted certain rules to assist in making this determination. One of these rules is that there is no entrapment where the accused indicated his willingness to commit the crime by ready complaisance to the suggestion of a government agent. For example, where a government agent went to the accused and urged him to smoke marihuana cigarette, and the accused readily agreed because of his "curiosity", it was held there was no entrapment.* Nor was there entrapment where the accused, at the insistence of an informer, administered

Lieutenant (jg) Francis J. MacLaughlin, Jr., USNR, is presently assigned to the staff of the Commandant, First Naval District. He received his B.A. from Yale University in 1955 and his LL.B. from the University of Michigan Law School in 1958. He is a member of the Illinois bar and a certified trial and defense counsel.

1. With regard to the entrapment defense, Chief Judge Learned Hand has remarked guardedly that "... the law is not as definite as one might wish . . .” U.S. v. Chiarella, 184 F2d 903 at 908 (C.A., 2d) (1950).

2. A recent Navy Board of Review has noted candidly that ". the decisions of the courts of the Military arena have not been too clear." U.S. v. Edwards, NCM 56-00745, 25 CMR 695. 3. U.S. v. Buck, 3 USCMA 341, 12 CMR 97; U.S. v. Hawkins, 6 USCMA 135, 19 CMR 261.

4. U.S. v. Norman, ACM 4702, 5 CMR 675.

5

6

heroin to himself; nor where the accused was asked by his commanding officer, who had reason to suspect that the accused had been on rest and recuperation, to sign a statement that he had not been on rest and recuperation; nor where the accused illegally obtained marihuana at the request of a government agent." However, entrapment was proved where the accused was urged repeatedly by a government agent to commit an offense, after which the accused reluctantly acquiesced."

The criminal scheme is deemed to have originated with the accused even though a government agent assisted, at the request of the accused, the accused to commit the crime. Thus, there is no entrapment where the accused approached a friend with a scheme to rob the ship's store and the friend, after reporting the scheme to the authorities and being directed by them to assist the accused in his scheme, assisted the accused in committing the robbery." There are numerous other examples of the same situation as where the accused approached a supply sergeant with a scheme for selling military film on the black market; 10 or where the accused asked a guard to get pistols from the armory for illegal sale to civilians; 11 or where the accused asked a postal officer to fraudulently exchange military payment certificates for postal money orders; 12 or where the accused asked a supply sergeant to furnish a large quantity of chevrons for illegal sale. 13

It is well established that the criminal scheme originated with the accused even though the government set a very tempting trap or decoy to apprehend him. So, where marked money was placed in a wallet and the wallet was left

5. U.S. v. Alexander, ACM 13419, 24 CMR 533.

6. U.S. v. Avent, CM 348187, 2 CMR 242.
7. U.S. v. Horne, ACM 14533-R, 27 CMR 995.
8. U.S. v. Smith, NCM 295, 14 CMR 524.

9. U.S. v. Choat, 7 USCMA 187, 21 CMR 313.

10. U.S. v. Emerson, ACM 8816, 16 CMR 690.
11. U.S. v. Tamas, 6 USCMA 502, 20 CMR 218.
12. U.S. v. Cascio, ACM 8212, 16 CMR 799.
13. U.S. v. Buck, 3 USCMA 341, 12 CMR 97.

in open sight on an enlisted man's bunk, the criminal scheme originated in the mind of the accused who picked up the wallet and there was no entrapment. There are other examples: there was no entrapment where the government agents persuaded a young boy to walk to a deserted bathhouse in the presence of a suspected homosexual, and the homosexual then committed the expected criminal act; 15 nor was there entrapment where military police staked out an abandoned car along a road to an army base and a passing serviceman stopped and stole a wheel from the car.16 However, the Court of Military Appeals, Judge Quinn speaking, has remarked in this connection: 17

The first duties of the officers of the law are to prevent, not to punish crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it.

COURT-MARTIAL personnel should be aware that in the last 2 years the Court of Military Appeals has adopted an important corollary to the traditional notion of entrapment described above. In the McGlenn case, 18 it was held that even where a government agent planted the scheme in the mind of the accused, there is no entrapment if the government agent had reasonable cause to suspect that the accused had engaged in the commission of a crime or was about to do so. This was expanded, in subsequent cases, to mean there is no entrapment if the government agent reasonably suspected the accused was engaged previously in similar criminal activity.19

The Court has stated in dictum that the reasonableness of the government's suspicion may be shown by evidence of prior convictions for similar offenses, statements, by the accused relative to previous similar acts, and evidence of the accused's bad reputation.20 However, it was held expressly that the accused's admission he had previously engaged in two similar crimes, by itself, did not show that the government's

14. U.S. v. Boucher, CGCMS 20270, 20 CMR 565.
15. U.S. v. Stevens, CM 365138, 13 CMR 220.
16. U.S. v. Germain, CM 395479, 23 CMR 566.

17. Judge Quinn here quoted the language of Judge Sanborne in
Butts v. U.S., 273 F 35 at 38 (C.C.A., 8th) (1921).
18. U.S. v. McGlenn, 8 USCMA 286, 24 CMR 96. There was some
precedent for this holding in earlier military decisions where the
result in U.S. v. Chiarella, 184 F. 2d 903 at 908, (C.A., 2d) (1950)
had been quoted with approval, to-wit: U.S. v. Hawkins, 6
USCMA 135, 19 CMR 261; U.S. v. Cascio, ACM 8212, 16 CMR
799; U.S. v. Alexander, ACM 13419, 24 CMR 533.

19. U.S. v. Rock, 9 USCMA 503, 26 CMR 283.

20. U.S. v. McGlenn, 8 USCMA 286, 24 CMR 96.

21. U.S. v. McGlenn, 8 USCMA 286, 24 CMR 96; this ruling was quoted with approval in U.S. v. Horne, ACM 14533-R, 27 CMR 995.

suspicion was reasonable." Similarly, the government's suspicion was not reasonable where the only basis of the suspicion was some unexplained rumors that someone in the accused's unit had committed similar offenses.22 The government's suspicion was reasonable, however, where the accused had previously committed a similar crime in the presence of a government informer and had invited the informer to join him in that crime.23

At first glance, the McGlenn corollary may appear to have minor significance but, in actuality, it has important implications. Now, it is possible for government agents to conceive a criminal scheme and induce the accused to execute the scheme and then defeat the defense of entrapment by showing reasonable grounds for suspecting the individual had been engaged in a similar criminal activity or was reputed to have engaged in similar criminal activity. To defeat the entrapment defense, the government must show only that its suspicions were reasonable it is immaterial, apparently, whether those suspicions were accurate.24

THE DEFENSE COUNSEL must decide, at the outset of his case, whether to raise the defense of entrapment. This decision is not always easily made for several reasons, one of which is that the accused is not permitted to argue that he did not commit the deed alleged in the charge and in the alternative, even if he did commit the deed, he was entrapped.25 The defense counsel finds himself on the horns of this dilemna: he must either (1) forego the defenses of entrapment, or (2) admit the accused committed the acts alleged and rely solely upon the defense of

22. U.S. v. Edwards, NCM 56-00745, 25 CMR 695.

23. U.S. v. Rock, 9 USCMA 503, 26 CMR 283; a similar result was reached in U.S. v. Horne, ACM 14533-R, 27 CMR 995.

24. Judge Latimer offered the following criticism of the McGlenn ruling in his dissenting opinion in that case, 8 USCMA 286 at p. 294-5, where he quoted with approval the language of Mr. Justice Roberts in Sorrells v. U.S., 287 US 435, 53 S Ct 210, 77 L ed 413: "Whatever may be the demerits of the defendant or his previous infractions of law these will not justify the instigation and creation of a new crime, as a means to reach him and punish him for his past misdemeanors. He has committed the crime in question, but, by supposition, only because of instigation and inducement by a government officer. To say that such conduct by an official of government is condoned and rendered innocuous by the fact that the defendant had a bad reputation or had previously transgressed is wholly to disregard the reason for refusing the processes of the court to consummate an abhorrent transaction.... The accepted procedure, in effect, pivots conviction in such cases, not on the commission of the crime charged, but on the prior reputation or some former act or acts of the defendant not mentioned in the indictment.'"

25. U.S. v. Bouie, 9 USCMA 228, 26 CMR 8; U.S. v. McGlenn, 8 USCMA 286, 24 CMR 96; for example, an accused charged with wrongful sale of marihuana cannot testify that he did not make the sale and later argue that, even if he made the sale, he was entrapped.