“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, O’Dell, Rutner, Sala, Watson

EXAM-RELATED POSTINGS As soon as all my assigned practice exams in: I’ll post the practice exam question I’ll post old exam Qs I & II I’ll post comments/best student answers for Practice Midterm 10/23 Old Exam Qs I & II: 11/6

DQ60: Bartlett: Factual Differences from Taber? Marker Gone

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?

DQ60: Bartlett: Factual Differences from Taber? Marker Gone: Marking/Notice Less Strong “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” Anchor attached to whale but not sea bottom

DQ60: Bartlett: Factual Differences from Taber? Marker Gone: Marking/Notice Less Strong, but anchor still present. Whale Adrift:

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

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):

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

Taber: Issue No procedural element because not an appeal (so no error by court below)

Taber: Issue Does killer of whale lose property rights when it leaves the body of the whale in the ocean where ….

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 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?

Taber: Issue Parties suggest several ways to resolve: Law of salvage Whaling customs Common Law of Property

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

LAW OF SALVAGE Why not employed in Taber?

LAW OF SALVAGE Why not employed in Taber? Zone owners never claimed salvage rights Zone didn’t behave like salvor (return and ask for $) Rule: if try to adopt salvage property for own use, can forfeit salvage rights

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.

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: 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 Don’t want to waste value of whale If killer doesn’t arrive in time necessary to capture, arrange and cut, probably too far away to find whale anyway

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

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? Doesn’t apply because whale not adrift.

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.

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?

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

Bartlett: There is no custom giving a dead whale is adrift to finder where there’s 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.”

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.

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

Rationales Taber Policy: Rule doesn’t 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.