ELEMENTS B1 & B2 POWER POINT SLIDES Class #22: Friday, October 14, 2016 National Dessert Day

(FYI: NOT PLAYED b/c AMAZON PROBLEMS) Music to Accompany Taber & Bartlett: Schumann, Piano Concerto in A Minor (1849) Grieg, Piano Concerto in A Minor (1872) Bavarian Radio Symphony Orchestra (2004) Conductor: Sir Colin Davis Pianist: Murray Perahia

I Have Your Tests with Numbers Hidden Practice Midterm I Have Your Tests with Numbers Hidden Pick Up at Break or After Class if You Don’t Have Already Don’t Open in my Presence By Monday: I’ll Post Grading Form w Instructions Roughly What I’m Using Fill Out for Your Own Test Exchange with a Colleague

UNIT II: EXTENSION BY ANALOGY (WHALING CASES) Back To TABER

Taber v. Jenny BRIEF: ISSUE Does killer of whale lose property rights when it leaves the body of the whale in the ocean [on facts here] ? Parties/Case suggest several ways to resolve issue: Salvage (DQ2.04) (OXYGEN/Yesterday) Whaling Customs (DQ2.02) (KRYPTON) Common Law of Property

Taber & Bartlett : Whaling Customs Generally (from yesterday) Existence and Scope of Custom is Question of Fact Whether to Treat Applicable Custom as Legally Binding is Question of Law Taber doesn’t address Bartlett discusses hypothetically Swift & Ghen provide legal framework

Quick Aside: Albers & Custom Case notes two fox-fur industry customs: Tattooing registration # in ears Killing by crushing or poisoning Case uses these customs as evidence of Finder’s Knowledge that fox had OO Like evidence of Finder’s Knowledge in Taber from use (by OO) & knowledge (by F) of usual whaling procedures

Quick Aside: Albers & Custom Case uses industry customs as evidence of Finder’s Knowledge that fox had OO Unlike whaling cases, nobody claimed in Albers that industry customs should be treated as legally binding rules to determine who had property rights in the fox pelt. Thus, should not use Albers in discussions of Swift/Ghen standards for when industry customs should be treated as binding

Quick Aside: Albers & Custom Having then neither statute nor applicable common-law rule governing the case, we must so apply general principles in the light of custom, existing facts, and common knowledge, that justice will be done. So the courts of England and the United States have acted from time immemorial, and so the common law itself came into existence. (2d Para. p.49)

Quick Aside: Albers & Custom Having then neither statute nor applicable common-law rule governing the case, we must so apply general principles [of law] (in the light of [= taking into account what we know about] custom, existing facts, and common knowledge), that justice will be done. QUESTIONS?

Taber DQ2.02: Customs (KRYPTON) 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 Have Developed?

Taber DQ2.02: Customs (KRYPTON) Custom: If a dead whale is found adrift [without an anchor], “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 this custom have developed? (1) PRACTICAL CONCERNS RE INDUSTRY/LABOR Whales often escape mortally wounded by harpoons Don’t want to waste value of whale to industry (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

Taber DQ2.02: Customs (KRYPTON) Custom: If a dead whale is found adrift [without an anchor], “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 this custom have developed? PRACTICAL CONCERNS RE INDUSTRY/LABOR (2) CERTAINTY/EASE OF APPLICATION Nice clear line for industry to use. After cutting in, distinct whale converted to fungible whale parts, hard to separate from rest when other parts already stored in ship

Taber DQ2.02: Customs (KRYPTON) 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.” DQ2.02: Is this custom consistent with the law of escaped animals?

Taber DQ2.02: Customs (KRYPTON) Is custom consistent w law of escaped animals? 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.” Underlying potential conflict only arises when 1st ship has killed whale & can prove (e.g., w marked harpoons) 2d ship finds whale dead & afloat

Taber DQ2.02: Customs (KRYPTON) Is custom consistent w law of escaped animals? 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.” Can view from two different angles 1st ship RETAINS whale carcass if they catch up to it before 2d ship cuts in. 2d ship ACQUIRES whale carcass (& 1st ship LOSES it) if 2d ship cuts in before 1st ship catches up.

Taber DQ2.02: Customs (KRYPTON) 1st ship RETAINS whale carcass if they catch up to it before 2d ship cuts in. Consistent w law of escaped animals? Not abandoned. Marked w harpoons & F’s knowledge from quick claim. Maybe not NL b/c pursuing & short time & distance. Kesler.

Taber DQ2.02: Customs (KRYPTON) 2d ship ACQUIRES carcass (& 1st ship LOSES it) if 2d ship cuts in before 1st ship catches up. Consistent w law of escaped animals? ARGUMENTS YES: If 1st ship not present, could say returned to NL without sufficient marks or pursuit (more like Mullett than Kesler) Could say by the time F cuts in: F has invested a lot of labor (Be Careful re F’s Labor) Insufficient evidence that OO had or could get control Likely a lot of distance from kill to find

Taber DQ2.02: Customs (KRYPTON) 2d ship ACQUIRES carcass (& 1st ship LOSES it) if 2d ship cuts in before 1st ship catches up. Consistent w law of escaped animals? ARGUMENTS NO: OO spent labor to pursue & mortally wound Could be pretty short period of time before losing property rights F aware that another whaler had some claim

Taber DQ2.02: Customs (KRYPTON) 2d ship ACQUIRES carcass (& 1st ship LOSES it) if 2d ship cuts in before 1st ship catches up. Consistent w law of escaped animals? POLICY REASONS SUPPORTING CUSTOM (Benefits Industry. Albers.) Strong Policy to have Someone in Industry Recover Valuable Carcass if Possible Any Given Whaler as Likely to be Winner as Loser (Unlike Albers/Kesler)

Taber DQ2.02: Customs (KRYPTON) 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.” DQ2.02: Is this custom consistent with the law of escaped animals? Questions on Analysis?

Taber DQ2.02: Customs (KRYPTON) 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.” DQ2.02: What is the relevance of the custom to the facts of Taber?

Taber DQ2.02: Customs (KRYPTON) 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? Doesn’t apply because whale not adrift.

Captain Bennett of the Massachusetts: Taber DQ2.03 (OXYGEN) Captain Bennett of the Massachusetts: Goes on board Zone with Captain Cook of Hillman to demand bone and oil. Uses “violent and abusive language” to Captain Parker of Zone in Parker’s own cabin (causing Parker to throw Hillman’s anchor overboard!!) Significance? (besides clear need for anger management training)

Taber DQ2.03 (OXYGEN) Captain Bennett of the Massachusetts: Goes on board Zone with Captain Cook of Hillman to demand bone and oil. Uses “violent and abusive language” to Captain Parker of Zone in Parker’s own cabin (causing Parker to throw Hillman’s anchor overboard!!) Suggests Zone’s conduct way out of line Could be evidence going to finding that custom doesn’t apply to anchored whales. Could be evidence going to notion that industry/expert finder here should know that OO likely to return

Taber v. Jenny BRIEF: HOLDING Court says OO retained property rights Doesn’t apply custom or salvage. Rather seems to rely on ordinary (non-animals) rule that you don’t lose property rights simply by losing control of object. Applies to dead whales, at least … where there are “clear marks of appropriation” and little time passed.

Taber v. Jenny BRIEF: Narrow Holding (from last time) Killer of whale doesn’t lose property rights when it leaves the body of the whale in the ocean where: killer anchors whale leaving marks indicating killer’s identity; killer returns as soon as practicable to collect whale; and finder of whale sees identifying marks and knows whale is less than 12 hours dead

Taber v. Jenny BRIEF: Possible Broader Holding Killer of whale doesn’t lose property rights when it leaves the body of the whale in the ocean where killer leaves marks of appropriation and is gone only for a short time.

Taber v. Jenny BRIEF: Possible Supporting Policies See Sample Brief for Full Formulations Rule doesn’t reward knowing finder, who had clear info whale belonged to someone else. Rule rewards labor of killer who, in addition to the capture, did all in his power to mark whale and return ASAP. Rule protects industry by not providing incentives for whaling ships to try to “find” other ships’ kills instead of trying to kill more whales of their own. Questions on Taber?

UNIT II: EXTENSION BY ANALOGY (WHALING CASES) ON To BARTLETT: RADIUM for Brief & DQs 2.05 & 2.07 URANIUM for DQs 2.06 & 2.08-2.09

Bartlett v. Budd BRIEF: (RADIUM) Statement of the Case Bartlett and others, … ? sued Budd and others … ? for [Cause of Action]? seeking [Remedy]?

Bartlett v. Budd BRIEF: (RADIUM) Statement of the Case Bartlett and others, owners of a ship (CP) whose crew killed and anchored a whale sued Budd and others … ? for [Cause of Action]? seeking [Remedy]?

Bartlett v. Budd BRIEF: (RADIUM) Statement of the Case Bartlett and others, owners of a ship (CP) whose crew killed and anchored a whale sued Budd and others, owners of a ship (E) whose crew found and took the whale for [Cause of Action]? seeking [Remedy]?

Bartlett v. Budd BRIEF: (RADIUM) Statement of the Case Bartlett and others, owners of a ship (CP) whose crew killed and anchored a whale sued Budd and others, owners of a ship (E) whose crew found and took the whale for conversion (see last sentence of case) seeking [Remedy]?

Bartlett v. Budd BRIEF: (RADIUM) Statement of the Case Bartlett and others, owners of a ship (CP) whose crew killed and anchored a whale sued Budd and others, owners of a ship (E) whose crew found and took the whale for conversion (see last sentence of case) seeking damages for the value of the whale.

Bartlett v. Budd BRIEF: (RADIUM) Procedural Posture Decision after a trial. (See Briefing Instructions for Trial Court Cases)

Bartlett v. Budd Facts: DQ2.05 (RADIUM) DQ2.05: Crew of E found “the whale adrift, the anchor not holding…” Might mean either: The rope or chain connecting the anchor to the whale has broken, so the anchor is no longer attached to the whale; (OR) The anchor is still attached to the whale but is no longer lodged in the seabed.

Bartlett v. Budd Facts: DQ2.05 (RADIUM) DQ2.05: Crew of E found “the whale adrift, the anchor not holding…” Might mean either: The rope or chain connecting the anchor to the whale has broken, so the anchor is no longer attached to the whale; (OR) The anchor is still attached to the whale but is no longer lodged in the seabed. Which of these is true in Bartlett? How do you know?

Bartlett v. Budd Facts: DQ2.05 (RADIUM) DQ2.05: Anchor Not Holding” Means …? “[T]he 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” (p.66, 3d para.) Anchor was still attached to whale but not to the sea bottom.

Bartlett v. Budd BRIEF: (RADIUM) Apparent Factual Disputes: How Does Court Resolve? Is there a custom that a whale found adrift with an anchor attached belongs to the finder? Did 1st Officer of CP notify E’s crew of his claim “on the spot”?

Bartlett v. Budd BRIEF: (RADIUM) Factual Disputes/Findings? Factual Dispute: Is there a custom that a whale found adrift with an anchor attached belongs to the finder? Finding of Fact : No. Custom does not apply so long as there are marks of appropriation other than harpoons. Parties disputed whether 1st Officer of CP notified E’s crew of his claim BUT The court never resolved the dispute, suggesting it was irrelevant. Thus, you should not include it in this section of the brief.

Bartlett v. Budd Facts: DQ2.06 (URANIUM) DQ2.06: Key Factual Differences from Taber (When Whale Carcass Found) Waif & Irons Gone from Carcass Whale Adrift Longer Time Before Whale Found Taber: Less Than 12 Hours Bartlett: Afternoon Next Morning OTHERS?

Bartlett v. Budd Facts (URANIUM) DQ2.06: Other Factual Differences from Taber Behavior of 1st Ship’s Crew Details Different than in Taber No evidence crew had to leave when they did No evidence waited to ensure anchor held Consistent with Other Factual Differences, Suggests Labor of OO Less Good

Bartlett v. Budd Facts (URANIUM) DQ2.06: Other Factual Differences from Taber Whale in Bay, Not Open Ocean CP argued matters b/c custom doesn’t apply Court doesn’t need to resolve Finds custom doesn’t apply anyway b/c of anchor Maybe Limits Where Whale Can Drift (Helps OO) Could say not NL b/c some restraint Could say like AR b/c prevents carcass from getting too far away

Bartlett v. Budd Facts: DQ2.06 (URANIUM) DQ2.06: Significance of Differences Under Animals Escape Cases? Waif & Irons Gone from Carcass?

Bartlett v. Budd Facts: DQ2.06 (URANIUM) DQ2.06: Significance of Differences Under Animals Escape Cases? Waif & Irons Gone from Carcass Marking/Notice Less Strong BUT Anchor Still Attached Whale Adrift?

Bartlett v. Budd Facts: DQ2.06 (URANIUM) DQ 2.06 Significance of Differences Under Animals Escape Cases? Whale Adrift Maybe Natural Liberty Increase in distance Less likely OO will find Less effective labor by OO Longer Time Before Whale Found (Few Hours v. Next Morning)?

Bartlett v. Budd Facts: DQ2.06 (URANIUM) DQ2.06: Significance of Differences Under Animals Escape Cases? Longer Time Before Whale Found (Few Hours v. Next Morning)? Time itself a factor in some escape cases Less likely OO will return (which F may be able to determine) Maybe less effective labor by OO (slower return)

Bartlett v. Budd Facts: DQ2.06 (URANIUM) DQ 2.06: Significance of Differences Under Animals Escape Cases? All Differences Make Case Stronger for Finder (except maybe Bay) Thus, Key Q in Bartlett is Whether Differences Together are Sufficient to Change Taber Result Court Decides They Aren’t & Follows Taber

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?

Bartlett v. Budd 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 but the anchor doesn’t hold; and whale found the next day adrift with anchor attached?

Bartlett & Customs DQ2.07 (RADIUM) & 2.08 (URANIUM) Custom: If dead whale 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.” In Taber, custom didn’t apply b/c whale not adrift. In Bartlett, whale was adrift, but court still does not apply it, because of factual finding above: Custom does not apply where anchor still attached.

Bartlett DQ2.07: Customs (RADIUM) Custom: If dead whale 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.” In Bartlett, whale was adrift, but court still does not apply it, because custom does not apply where anchor still attached. DQ2.07: Custom does apply if harpoons still attached to whale. Why is anchor different from harpoons?

Bartlett DQ2.07: Customs (RADIUM) Custom: If dead whale 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.” DQ2.07: Custom does not apply where anchor still attached to whale, but does apply if harpoons still attached. Why is anchor different from harpoons? Anchor is proof killer had actual possession of whale, and therefore earned property rights (under 1st Possession animals cases). BUT can lodge harpoons in whale without ever taking actual possession.

Bartlett DQ2.08: Customs (URANIUM) Bartlett determines that there is no custom giving a dead whale found adrift with an anchor attached to the finder. The court then says (top p. 67): “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.” DQ2.08 This Phrase Means…?

Bartlett DQ2.08: Customs (URANIUM) Bartlett determines that there is no custom giving a dead whale found adrift with an anchor attached to the finder. The court then says (top p. 67): “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.” DQ2.08 This Phrase Means…?

Bartlett DQ2.08: Customs (URANIUM) “[T]here 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.” Bartlett (in dicta) provides first example of an argument for refusing to treat a particular industry custom as law (we’ll revisit in Swift & Ghen).

Bartlett v. Budd: Possible Policy Rationale The court said that 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 time period and would encourage finders to lie about what they found or to fraudulently set the whale adrift.

Bartlett v. Budd: Possible Policy Rationale The court said that 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 time period and would encourage finders to lie about what they found or to fraudulently set the whale adrift. Thus, the court held that anchored whales would remain the property of the OO for at least some period of time even when the anchor didn’t hold.

Taber & Bartlett : The “Escaped” Carcass Issue No Relevant Custom (b/c Anchor Attached) Salvage Inapplicable (b/c of Finders’ Behavior) Anchored Whale Remains Property of OO Forever? Taber & Bartlett = Short Time Frame Result unclear if longer time frame; policy against wasting resource might change result

Taber & Bartlett : The “Escaped” Carcass Issue As “Animals Cases” in XQ1, Treat as Escape Cases w Info About: Marking & Finder’s Knowledge Time/Distance Labor/Industry

Taber & Bartlett : The “Escaped” Carcass Issue QUESTIONS?