Harbor Bancorp & Subsidiaries - Page 53

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          monitor the Whitewater and Ironwood transactions and in allowing            
          the messes to happen.1                                                      
                                         II.                                          
               In addition to being arbitrage bonds, the bonds were also              
          taxable industrial development bonds under section 103(b)(1) of             
          the 1954 Code.                                                              
               Petitioners have conceded that the Whitewater and Ironwood             
          bonds were industrial development bonds within the meaning of               

               1    What I have in mind here was said by Judge Learned Hand           
          in the landmark tort case in which he made it clear that a                  
          normative standard of care and reasonableness--that courts are              
          authorized to determine and impose--trumps the customary                    
          practices of a particular industry:                                         
                    Is it then a final answer that the business had                   
               not yet generally adopted receiving sets?  There are,                  
          no doubt, cases where courts seem to make the general practice of           
          the calling the standard of proper diligence; we have indeed                
          given some currency to the notion ourselves.  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 never              
          may 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.  But here there was no custom at all as to                  
          receiving sets; some had them, some did not; the most that can be           
          argued is that they had not yet become general.  Certainly in               
          such a case we need not pause; when some have thought a device              
          necessary, at least we may say that they were right, and the                
          others too slack.  The statute does not bear on this situation at           
          all.  It prescribes not a receiving, but a transmitting set, and            
          for a very different purpose; to call for help, not to get news.            
          We hold the tugs therefore because had they been properly                   
          equipped, they would have got the Arlington reports.  The injury            
          was a direct consequence of this unseaworthiness.  [The T.J.                
          Hooper v. Northern Barge Corp., 60 F.2d 737, 739 (2d Cir. 1932);            
          citations omitted.]                                                         






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