1
Romantic Russia, London Symphony Orchestra
(recorded 1956, 1966)Music Mid- to Late 19th
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
• Im 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 _at_ 4 p.m.
• Swift (Oxygen) Sun Oct 14 _at_ 4 p.m.
• Ghen (Uranium) Thu Oct 18 _at_ 9 p.m.
• Look at
• Instructions for Briefing Trial Court Cases
• Intro to Whaling Cases Glossary
• Taber Brief in Todays Slides Info Memo 5

5
Fall Break Logistics

• Group Assignment 2 Due Sun 10/21 _at_ 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 cant
  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 1st 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 1st Ship Acquired
  Property Rights by Killing Whale
• Issue Like Escape Cases Did 1st 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
  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?

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
DQ60 Taber under Mullett

• 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 Isnt
• 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 Fs 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 Fs 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
• Dont 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.)
• Fs Knowledge? Knew of Claim Likely Return
• Protecting Labor/Industry? Both
• Time/Distance? Both Short
• Bottom Line Under Albers Strong Case for 1st
  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
• Dont want to waste value of whale (DKNPacific)
• If killer doesnt 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