1. “Romantic Russia”, London Symphony Orchestra (recorded 1956, 1966) Music: Mid- to Late 19 th Century UNIT II: EXTENSION BY ANALOGY (WHALING CASES)

2. Fall Break Logistics To Be Posted on Course Page Midterm (by Sunday) Course Materials on Oil & Gas Info Memo #5: Comments/Best Answers for: – Practice Midterm – Albers & Kesler Briefs – Taber Brief

3. Fall Break Logistics Meeting with Me No Regular Office Hours I’m Mostly Around; E-Mail for Apptmt Graded Briefs (Await E-Mail from Letty) Albers should be ready this afternoon Kesler briefs will be ready during break

4. Fall Break Logistics Written Assignments Due Week After Generally: No PDFs Whaling Case Briefs – Schedule: Bartlett (Krypton): Sun Oct 14 @ 4 p.m. Swift (Oxygen): Sun Oct 14 @ 4 p.m. Ghen (Uranium): Thu Oct 18 @ 9 p.m. – Look at: Instructions for Briefing Trial Court Cases Intro to Whaling Cases & Glossary Taber Brief in Today’s Slides & Info Memo #5

5. Fall Break Logistics Group Assignment #2: Due Sun 10/21 @ 4 pm Recurring Q: Instructions say to make arguments “based on the materials in Unit One.” This means – No arguments based on Whaling Cases or Rose Article – (Can do these for your own studying later on) Other Qs re Assignment #2?

6. Taber v. Jenny BRIEF: Statement of the Case Identifying parties a little complicated in these cases. Initially looks like ship v. ship:

7. Taber v. Jenny BRIEF: Statement of the Case Hillman killed and anchored a whale Zone found and took the whale BUT a ship is an inanimate object that can’t really do these things. 

8. Taber v. Jenny BRIEF: Statement of the Case Hillman, a ship whose crew killed and anchored a whale Zone, a ship whose crew found and took the whale So who are Taber and Jenny?

9. Taber v. Jenny BRIEF: Statement of the Case Who are Taber and Jenny? Who would get value of goods created from whale carcass? – Not Crew: paid in wages, room & board – Might be Ship Captains, but probably salaried. Also case gives their names as Cook and Parker

10. Taber v. Jenny BRIEF: Statement of the Case Taber, presumably the owner of Hillman, a ship whose crew killed and anchored a whale sued Jenny presumably the owner of Zone, a ship whose crew found and took the whale …. for [cause of action]??? Seeking [remedy] ???

11. Taber v. Jenny BRIEF: Statement of the Case 1st Sentence of Case: “This is a libel to recover the value of a whale.” What does “libel” mean in this context?

12. Taber v. Jenny BRIEF: Statement of the Case 1st Sentence of Case: “This is a libel to recover the value of a whale.” The initiating pleading in an admiralty action [until 1966], corresponding to the declaration, bill, or complaint in an ordinary civil action. (Glossary) In context of an ordinary civil suit, libel = a tort (defamation in a written form).

13. Taber v. Jenny BRIEF: Statement of the Case Taber, presumably the owner of Hillman, a ship whose crew killed and anchored a whale sued Jenny presumably the owner of Zone, a ship whose crew found and took the whale …. Presumably for conversion (see Bartlett) (not libel!!) Seeking damages for the value of the whale.

14. Taber v. Jenny BRIEF: Procedural Posture Decision after a trial. (See Briefing Instructions for Trial Court Cases)

15. Legal Framework of Taber & Bartlett Basic Facts of Both Cases: Crew of 1st ship kills whale, marks and anchors it, leaves Whale found & taken by crew of 2d ship Exercise for You (if not turning in briefs): Trim facts of both cases to those that are relevant to analysis, as we did for Shaw.

16. Legal Framework of Taber & Bartlett Basic facts of both cases: – 1st Crew kills whale, marks, anchors, leaves – Whale found & taken by crew of 2d ship Uncontested that Crew of 1 st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

17. Legal Framework of Taber & Bartlett “Kodak Moment” (1913)

18. Legal Framework of Taber & Bartlett Basic facts of both cases: – 1st Crew kills whale, marks, anchors, leaves – Whale found & taken by crew of 2d ship Uncontested that Crew of 1 st Ship Acquired Property Rights by Killing Whale Issue Like Escape Cases: Did 1 st Crew Lose Property Rights by Leaving Whale Behind?

19. Taber v. Jenny BRIEF: ISSUE No procedural element because not an appeal (so no error by court below).

20. Taber v. Jenny BRIEF: ISSUE Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [facts]?

21. Taber v. Jenny BRIEF: ISSUE Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [for example] – killer anchors whale leaving marks indicating killer’s identity – killer returns as soon as practicable to collect whale – finder of whale sees identifying marks and knows whale is less than 12 hours dead?

22. Taber v. Jenny BRIEF: ISSUE Parties/Case suggest several ways to resolve issue: – Whaling Customs (DQ61) – Law of Salvage (DQ63) – Common Law of Property

23. Taber v. Jenny BRIEF: ISSUE Parties/Case suggest several ways to resolve: – Whaling Customs (DQ61) – Law of Salvage (DQ63) – Common Law of Property Before we look at those: – Look at Factual Disputes/Findings to Clarify Details – Try Applying Escape Cases (DQ60)

24. Taber v. Jenny BRIEF: Factual Disputes & Findings New Section of Brief for Trial Court Cases In case without jury, Trial Judge responsible for making “findings” resolving factual disputes between the parties Read carefully to identify disputes

25. Taber v. Jenny BRIEF: Factual Disputes & Findings Zone relied on a custom that applied to whales that are found adrift. “But, from the evidence, it does not appear that this whale was found adrift. On the contrary, I am satisfied that it was anchored when taken by the boat of the Zone.” (top p.60)

26. Taber v. Jenny BRIEF: Factual Disputes & Findings “from the evidence, it does not appear that this whale was found adrift. On the contrary, I am satisfied that it was anchored when taken by the boat of the Zone.”  Dispute #1: Was whale anchored when found by ship Z? Finding #1: Yes.

27. Taber v. Jenny BRIEF: Factual Disputes & Findings “Whether it was found in the place where it had been left by the captors, or had dragged the anchor [MEANS?], and if it had dragged, how far, is left in some uncertainty. I do not think it is shown to have dragged, certainly not to any considerable distance….” (top p.60)

28. Taber v. Jenny BRIEF: Factual Disputes & Findings “Whether it … had dragged the anchor, and if it had dragged, how far, is left in some uncertainty. I do not think it is shown to have dragged, certainly not to any considerable distance….”  Dispute #2: Had whale dragged its anchor when found by ship Z? Finding #2: No, at least not "to any considerable distance."

29. Taber v. Jenny BRIEF: Factual Disputes & Findings “I do not think [the whale] is shown to have dragged [its anchor], certainly not to any considerable distance, and if it had, there is no proof of usage embracing such a case.” (top p. 60)

30. Taber v. Jenny BRIEF: Factual Disputes & Findings “I do not think [the whale] is shown to have dragged [its anchor], … and if it had, there is no proof of usage embracing such a case.”  Dispute #3: Was there a custom [= usage] in whaling industry that if an anchored whale dragged its anchor, ownership can be lost? Finding #3: No evidence of such a custom.

31. Taber v. Jenny BRIEF: Factual Disputes & Findings Questions on this Part of Brief? On to DQ60.

32. DQ60: Taber under Mullett

33. Abandonment Easy to Apply to Almost Any Kind of Property Lots of Evidence of No Abandonment: – Value of Whale – Anchored & Marked – Left Due to Fog: Returned as Soon as Could – Search/Pursuit When Missing

34. DQ60: Taber under Mullett Natural Liberty What might you call the “natural liberty” of a dead whale?

35. DQ60: Taber under Mullett Natural Liberty What might you call the “natural liberty” of a dead whale? – “free from artificial restraint” – “free to follow the bent of its natural inclination”

36. DQ60: Taber under Mullett Natural Liberty What might you call the “natural liberty” of a dead whale? – “free from artificial restraint” – “free to follow the bent of natural inclination” MAYBE: A dead whale adrift = NL

37. DQ60: Taber under Mullett Natural Liberty Maybe a dead whale adrift = NL – Would float with current – Whale out of control of OO & hard to find – Could be there naturally – F might have trouble locating OO If NL means “adrift”, no NL here

38. DQ60: Taber under Mullett Intent to Return Clearly Dead Whale Has No Intent at All Can You Think of Something in This Scenario that Might Serve the Same Function?

39. DQ60: Taber under Mullett Intent to Return Can You Think of Something in This Scenario that Might Serve the Same Function? Try This Characterization of AR: “Labor by OO Enabling OO to Safely Allow Animal Out of Her Immediate Control”

40. DQ60: Taber under Mullett Intent to Return Can You Think of Something in This Scenario that Might Serve the Same Function? Try This Characterization of AR: Labor by OO Enabling OO to Safely Allow Animal Out of Her Immediate Control Maybe Anchoring Animal Serves Same Role; if so, they did here.

41. DQ60: Taber under Mullett Overall: If You Accept My Metaphors, Easy Case for OO Under Mullett Lots of Evidence of No Abandonment If NL = Adrift, It Isn’t If AR = Anchored, It Is

42. DQ60: Taber under Albers

43. DQ60: Taber under Albers: Marking Marking Evidence: – Anchor & Tow-Line – Waif (8-foot staff w flag at top) – 2 Irons (harpoons) How strong are marks?

44. DQ60: Taber under Albers Strength of Marking Evidence: – Anchor & Tow-Line – Waif (8-foot staff w flag at top) – 2 Irons (harpoons) w initials H.N.B. Very Clear Indication of an OO Man-Made & Specifically Identify OO

45. DQ60: Taber under Albers Strength of Marking “A whale not being the product of human care or labor, does not, of itself, purport [means?] to be property, and what would have been the right of the finders, if the captors had abandoned it without any marks of appropriation, need not now be considered.” (p.60 last sentence) Taber explicitly makes marks relevant.

46. DQ60: Taber under Albers Evidence of F’s Knowledge? Marks: “the anchor, waif and irons, were unequivocal proofs, not only that it had been killed and appropriated, but of the intention of the captors to reclaim … it.” Other Evidence?

47. DQ60: Taber under Albers Evidence of F’s Knowledge? Marks: “the anchor, waif and irons, were unequivocal proofs, not only that it had been killed and appropriated, but of the intention of the captors to reclaim … it.” F in industry (like Albers) “the appearance of the whale” would “show to the finders that it could have been killed only a short time, not exceeding twelve hours” (so return likely; whale not lost or abandoned)

48. DQ60: Taber under Albers Protecting Labor/Industry Labor: What Labor Worth Protecting/Rewarding?

49. DQ60: Taber under Albers Protecting Labor/Industry Labor: Voyage; Killing; Careful Marking/Securing; Abandonment Only by Compulsion; Return as Soon as Practical Industry: – Protect whaler that did best job they could under circumstances – Don’t encourage unnecessary risk-taking to keep carcass (“Ishmael, stay here with the whale all night”)

50. DQ60: Taber under Albers Time/Distance Time: Less than 12 hours Distance: Did not move “any considerable distance” Both Very Short (Less than Albers)

51. DQ60: Taber under Albers: Overall Marking? Strong (Man-Made; Owner I.D.) F’s Knowledge? Knew of Claim & Likely Return Protecting Labor/Industry? Both Time/Distance? Both Short Bottom Line Under Albers: Strong Case for 1 st Ship (OO)

52. Taber v. Jenny BRIEF: ISSUE Parties/Case suggest several ways to resolve issue: – Whaling Customs (DQ61) – Law of Salvage (DQ63) – Common Law of Property

53. Taber DQ61: Whaling Customs Existence and Scope of Custom is Question of Fact – Determine through testimony of experts & experienced whalers – We discussed in context of DQ3

54. Taber DQ61: Whaling Customs Existence and Scope of Custom is Question of Fact Whether to Treat Custom as Legally Binding is Question of Law (Discussed in the other whaling cases)

55. Taber DQ61: Whaling Customs Custom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” Why Might Such a Custom Develop?

56. Taber DQ61: Whaling Customs Custom: If a dead whale is found adrift, “the finding ship may appropriate it to her own use, if those who killed it do not appear and claim it before it is cut in.” Why did custom develop? Whales often escape mortally wounded by harpoons Don’t want to waste value of whale (DKNPacific) If killer doesn’t arrive in time necessary for finder to capture, arrange and cut, – probably too far away to find whale anyway – F has put in signif. labor