1. ELEMENTS B POWER POINT SLIDES Class #18 Monday, October 12, 2015

2. “Romantic Russia” London Symphony Orchestra (recorded 1956, 1966) Music: Mid- to Late 19 th Century Uranium Brief #1 Should Be Available for Pick-Up Sometime Tomorrow; Check Course Page for Status Group Assignment #2 I’ll Take Qs in Class Wednesday

3. UNIT II: EXTENSION BY ANALOGY (WHALING CASES)

4. KRYPTON Taber v. Jenny: KRYPTON(ITE) In-Class Brief & DQ 2.01

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

6. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): 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. 

7. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): 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? Who would get value of goods created from whale carcass?

8. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): 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

9. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): 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 of the owners of that ship…. – See Bottom p.46: When the whale had been killed and taken possession of by the boat of the Hillman, it became the property of the owners of that ship….

10. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): 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 …. But court refers to libellants & respondents in the plural, so …

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

12. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): 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?

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

14. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): Statement of the Case Taber and others, presumably the owners of Hillman, a ship whose crew killed and anchored a whale sued Jenny and others, presumably the owners 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.

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

16. E.g., Legal Framework of Taber & Bartlett Basic Facts of Both Cases: Crew of 1st ship kills whale, marks and anchors it, leaves Whale carcass moves some, then 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 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?

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

19. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): ISSUE Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [facts]? Most Important Facts for This Purpose?

20. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): 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? (in last paragraph)

21. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): ISSUE Parties/Case suggest several ways to resolve Legal Issue: – Law of Salvage (DQ2.04) (URANIUM) – Whaling Customs (DQ2.02) (URANIUM) – Common Law of Property

22. KRYPTON) Taber v. Jenny BRIEF (KRYPTON): ISSUE Parties/Case suggest several ways to resolve: – Law of Salvage (DQ2.04) (URANIUM) – Whaling Customs (DQ2.02) (URANIUM) – Common Law of Property Before we look at those: – Look at Factual Disputes/Findings to Clarify Details – Try Applying Escape Cases (DQ2.01) (KRYPTON)

23. KRYPTON Taber v. Jenny BRIEF (KRYPTON): 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 & findings – Look for language suggesting parties disagreed or evidence conflicted – Look for language indicating court resolved dispute by accepting one version of facts (unresolved factual disputes likely irrelevant to legal analysis)

24. KRYPTON Taber v. Jenny BRIEF (KRYPTON): 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 Distinguishing Factual from Legal Disputes – Facts occur out in world without reference to legal system (usually prior to filing of lawsuit) – Legal disputes address what legal consequences should be from given set of facts.

25. KRYPTON Taber v. Jenny BRIEF (KRYPTON): 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.65)

26. KRYPTON Taber v. Jenny BRIEF (KRYPTON): 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. KRYPTON Taber v. Jenny BRIEF (KRYPTON): 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.65)

28. KRYPTON Taber v. Jenny BRIEF (KRYPTON): 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. KRYPTON Taber v. Jenny BRIEF (KRYPTON): 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. 65)

30. KRYPTON Taber v. Jenny BRIEF (KRYPTON): 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. KRYPTON Taber v. Jenny BRIEF (KRYPTON): Factual Disputes & Findings Questions on this Part of Brief? On to DQ2.01 & First Set of Arguments by Analogy

32. (KRYPTON) DQ2.01: Taber under Mullett (KRYPTON)

33. KRYPTON DQ2.01: Taber under Mullett (KRYPTON): Abandonment Easy to Apply to Almost Any Kind of Property Evidence of No Abandonment?

34. KRYPTON DQ2.01: Taber under Mullett (KRYPTON) 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

35. KRYPTON DQ2.01: Taber under Mullett (KRYPTON) Natural Liberty What might you call the “natural liberty” of a dead whale? (from last time) – “free from artificial restraint” – “free to follow the bent of its natural inclination”

36. KRYPTON DQ2.01: Taber under Mullett (KRYPTON) 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. KRYPTON DQ2.01: Taber under Mullett (KRYPTON) 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. KRYPTON DQ2.01: Taber under Mullett (KRYPTON) Intent to Return Clearly Dead Whale Has No Intent at All Note: Escape Cases Don’t Use This to Mean Intent of OO to Return or to Get Property Back, So Can’t Really Use Evidence of 1 st Crew’s Intent to Return Can You Think of Something in This Scenario that Might Serve the Same Function as Animal’s Intent to Return?

39. KRYPTON DQ2.01: Taber under Mullett (KRYPTON) 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. KRYPTON DQ2.01: Taber under Mullett (KRYPTON) 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. KRYPTON DQ2.01: Taber under Mullett (KRYPTON) Overall: If You Accept My Metaphors, Easy Case for OO Under Mullett Lots of Evidence of No Abandonment If NL = Adrift (a little stretch), It Isn’t If AR = Anchored (a bigger stretch), It Is

42. KRYPTON DQ2.01: Taber under Albers (KRYPTON)

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

44. KRYPTON DQ2.01: Taber under Albers (KRYPTON) 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. (KRYPTON) DQ2.01: Taber under Albers (KRYPTON) 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 [means?], need not now be considered.” (p.65 last sentence) Taber explicitly makes marks relevant.

46. (KRYPTON) DQ2.01: Taber under Albers (KRYPTON) 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. (KRYPTON) DQ2.01: Taber under Albers (KRYPTON) 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.” PLUS F in industry (like Albers) & marks of type that is customary in industry (like fox tattoos; per Stonebraker) [Matters because…?] “[T]he appearance of the whale” would “show to the finders that it could have been killed only a short time, not exceeding twelve hours.” [Matters because…?]

48. (KRYPTON) DQ2.01: Taber under Albers (KRYPTON) 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.” PLUS F in industry (like Albers) & marks of type that is customary in industry (like fox tattoos) “[T]he appearance of the whale” would “show to the finders that it could have been killed only a short time, not exceeding twelve hours.” – Thus killer’s return likely; whale probably not lost or abandoned.

49. (KRYPTON) DQ2.01: Taber under Albers (KRYPTON) Protecting Labor/Industry Labor: What Labor Worth Protecting/ Rewarding?

50. (KRYPTON) DQ2.01: Taber under Albers (KRYPTON) Protecting Labor/Industry Labor: Voyage; Killing; Careful Marking/Securing; Abandonment Only by Compulsion; Return as Soon as Practical Industry: How Might You Protect Industry & Participants?

51. (KRYPTON) DQ2.01: Taber under Albers (KRYPTON) Protecting Labor/Industry Labor: Voyage; Killing; Careful Marking/Securing; Abandonment Only by Compulsion; Return as Soon as Practical Industry: – Protect whalers 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”)

52. (KRYPTON) DQ2.01: Taber under Albers (KRYPTON) Time/Distance Time: Less than 12 hours Distance: Did not move “any considerable distance” Both Very Short (Less than Albers)

53. DQ2.01: 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)

54. 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] ? 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: – Law of Salvage (DQ2.04) (URANIUM) – Whaling Customs (DQ2.02) (URANIUM) – Common Law of Property

55. (URANIUM) Taber DQ2.04: Salvage (URANIUM) Definition: Party finds property belonging to another (OO) adrift on open seas. – Finder recovers property & returns to OO. – Finder then receives standard “salvage” fee from OO. Begins as custom, but is established as law by the time of these cases. Parties that regularly conduct trade on the high seas will periodically lose property to storms and wrecks, so (mostly) willingly participate in system.