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Romantic Russia, London Symphony Orchestra
(recorded 1956, 1966)Music Mid- to Late 19th
Century

• ALUMINUM Written Swift Brief Due Wed. Mullett
  Briefs Available Mid-Day Tues.
• RADIUM Written Ghen Brief Due Fri. Manning
  Briefs Available by Mid-Day Thurs.
• Lunch Tuesday Foxhoven, Gordon, Herbert,
  Hickerson. Kinzer, Sanders, Warrick
• Lunch Thursday Cochran, Hernandez, Holcomb,
  ODell, Rutner, Sala, Watson

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EXAM-RELATED POSTINGS

• As soon as all my assigned practice exams in
• Ill post the practice exam question
• Ill post old exam Qs I II
• Ill post comments/best student answers for
• Practice Midterm 10/23
• Old Exam Qs I II 11/6

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DQ60 Bartlett Factual Differences from Taber?

• Marker Gone

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DQ60 Bartlett Factual Differences from Taber?

• Marker Gone Marking/Notice Less Strong
• Anchor not holding means?
• Anchor no longer attached to whale?
• Anchor attached to whale but not sea bottom?

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DQ60 Bartlett Factual Differences from Taber?

• Marker Gone Marking/Notice Less Strong
• Anchor not holding means?
• The right to this whale appears to stand on
  the same footing as the right to the anchor
  attached to it, which was very properly restored
  to its owner
• Anchor attached to whale but not sea bottom

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DQ60 Bartlett Factual Differences from Taber?

• Marker Gone Marking/Notice Less Strong, but
  anchor still present.
• Whale Adrift

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DQ60 Bartlett Factual Differences from Taber?

• Marker Gone Marking/Notice Less Strong, but
  anchor still present.
• Whale Adrift Maybe natural liberty, increase in
  distance, less likely OO will find less
  effective labor by OO

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DQ60 Bartlett Factual Differences from Taber?

• Marker Gone Marking/Notice Less Strong, but
  anchor still present.
• Whale Adrift Maybe natural liberty, increase in
  distance, less likely OO will find less
  effective labor by OO
• Longer Time (few hours v. next morning)

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DQ60 Bartlett Factual Differences from Taber?

• Marker Gone Marking/Notice Less Strong, but
  anchor still present.
• Whale Adrift Maybe natural liberty, increase in
  distance, less likely OO will find less
  effective labor by OO
• Longer Time Time a factor by itself less likely
  owner will return (which finder may be able to
  tell) maybe less effective labor by OO

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Taber Issue

• No procedural element because not an appeal (so
  no error by court below)

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Taber Issue

• Does killer of whale lose property rights when it
  leaves the body of the whale in the ocean where .

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Taber Issue

• Does killer of whale lose property rights when it
  leaves the body of the whale in the ocean where
  .
• killer anchors whale leaving marks indicating
  killers 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?

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Taber Issue

• Parties suggest several ways to resolve
• Law of salvage
• Whaling customs
• Common Law of Property

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LAW OF SALVAGE

• Party finds property belonging to another (OO) on
  open seas
• Finder recovers property returns to OO
• Finder receives standard salvage fee from OO
• Begins as custom, but is established as law by
  the time of these cases

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LAW OF SALVAGE

• Why not employed in Taber?

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LAW OF SALVAGE

• Why not employed in Taber?
• Zone owners never claimed salvage rights
• Zone didnt behave like salvor (return and ask
  for )
• Rule if try to adopt salvage property for own
  use, can forfeit salvage rights

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LAW OF SALVAGE

• Note the court in Taber uses the law of salvage
  to support its result
• Doctrinal Rationale Law says if property found
  adrift at sea, finder entitled to fee for salvage
  but not to property itself. Owner of property
  that is not adrift has an even stronger interest,
  so does not lose rights to finder.

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DQ61. 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.

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DQ61. 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.

• Reasons for development of custom
• Whales often escape when mortally wounded by
  harpoons
• Dont want to waste value of whale
• If killer doesnt arrive in time necessary to
  capture, arrange and cut, probably too far away
  to find whale anyway

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DQ61. 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.

• DQ61 Custom Consistent w Law of Animals?
• Could say returned to natural liberty without
  sufficient marks or pursuit (like Albers, not
  Kesler)
• Could say insufficient evidence of initial
  ownership
• But could be pretty short period of time before
  losing property rights

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DQ61. 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.

• Relevance to Taber?
• Doesnt apply because whale not adrift.

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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.

• Relevance to Taber?
• Doesnt apply because whale not adrift.

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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.

• DQ65 Relevance to Bartlett?
• Factual Finding Custom only applies if no
  anchor attached, so not applicable.
• Why is anchor different from harpoons?

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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.

• DQ65 Relevance to Bartlett?
• Factual Finding Custom only applies if no
  anchor attached, so not applicable.
• Why is anchor different from harpoons?
• Anchor Proof of actual possession

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Bartlett There is no custom giving a dead whale
is adrift to finder where theres an anchor
attached.

• And if it were not so, there would be great
  difficulty in upholding a custom that should take
  the property of A and give it to B under so very
  short and uncertain a substitute for the statute
  of limitations, and one so open to fraud and
  deceit.

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Bartlett Policy Rationale A rule that treated
whales that had recently gone adrift differently
from anchored whales would be imprudent because
it would take property rights from the OO in a
very short period and would encourage finders to
lie about what they found or to fraudulently set
the whale adrift.
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What do Taber Bartlett decide?

• Salvage Inapplicable
• No Relevant Custom
• Anchored Whale Remains Property of OO
• Forever?
• Unclear if longer time frame policy against
  wasting resource might change result

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Rationales

• Taber Policy Rule doesnt reward finder, who had
  clear info whale belonged to someone else.
• Taber Policy Rule rewards killer who did all in
  his power to mark whale and return ASAP.
• Bartlett Doctrine The law treats property in
  animals ferae naturae like other property once
  established, and so the owner retains rights even
  if the item is lost temporarily.
• Bartlett Policy The rule is fair because the
  anchor (unlike harpoons) provides notice that
  another whaler actually captured the whale and
  has superior rights.