elements b power point slides class #18 monday, october 12, 2015

ELEMENTS B POWER POINT SLIDES

Class #18 Monday, October 12, 2015

““Romantic Russia” Romantic Russia” London Symphony Orchestra London Symphony Orchestra

(recorded 1956, 1966)(recorded 1956, 1966)Music: Mid- to Late 19Music: Mid- to Late 19thth Century Century

Uranium Brief #1Should Be Available for

Pick-Up Sometime Tomorrow; Check

Course Page for Status

Group Assignment #2I’ll Take Qs in Class

Wednesday

UNIT II: EXTENSION BY ANALOGY (WHALING CASES)

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

Taber v. Jenny BRIEF (KRYPTON)KRYPTON): Statement of the Case

Identifying parties a little complicated in these cases.

Initially looks like ship v. ship


• 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.


• 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?

Taber v. Jenny BRIEF (KRYPTON)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


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– 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 of the owners of that ship….owners of that ship….


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 …


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] ???


1st Sentence of Case: “This is a libel to recover the value of a whale.”

What does “libel” mean in this context?


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 suitIn an ordinary civil suit, libel = a tort (defamation in a written form).


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.

Taber v. Jenny BRIEF (KRYPTON)KRYPTON):Procedural Posture

Decision after a trial.(See Briefing Instructions for Trial

Court Cases)

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 1st Ship Acquired Property Rights by Killing Whale (Kodak Moment)

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?

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

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


• Does killer of whale lose property rights when it leaves the body of the whale in the ocean where …. [facts]?

Most Important Facts Most Important Facts for This Purpose?for This Purpose?


• 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)


Parties/Case suggest several ways to resolve Legal Issue: –Law of Salvage (DQ2.04) (URANIUM)–Whaling Customs (DQ2.02) (URANIUM)–Common Law of Property


• 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)

Taber v. Jenny BRIEF (KRYPTONKRYPTON): 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)


• 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.


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)


“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.

Taber v. Jenny BRIEF (KRYPTONKRYPTON):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)


“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."


“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)


“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.


Questions on this Part of Brief?

On to DQ2.01 & First Set of Arguments by Analogy

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

DQ2.01: Taber under Mullett (KRYPTONKRYPTON):

Abandonment•Easy to Apply to Almost Any Kind of Property•Evidence of No Abandonment?

DQ2.01: Taber under Mullett (KRYPTONKRYPTON)

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


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”


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


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


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 1st 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?


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”

DQ2.01: Taber under Mullett (KRYPTONKRYPTON)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.


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

DQ2.01: Taber under Albers (KRYPTONKRYPTON)


Marking•Evidence:– Anchor & Tow-Line– Waif (8-foot staff w flag at top)– 2 Irons (harpoons)

•How strong are marks (and why)?


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

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

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

DQ2.01: Taber under Albers (KRYPTON) (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)•“[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 [Matters because…?] because…?]

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

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

Protecting Labor/Industry

•Labor: What Labor Worth Protecting/ Rewarding?

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

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

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

Time/Distance•Time: Less than 12 hours •Distance: Did not move “any considerable distance”

Both Very Short (Less than Albers)

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 1st Ship (OO)

Taber v. Jenny BRIEF: ISSUE

• Does killer of whale lose Does killer of whale lose property rights when it leaves property rights when it leaves the body of the whale in the the body of the whale in the ocean [on facts here] ? ocean [on facts here] ? • Parties/Case suggest several ways to

resolve issue: –Law of Salvage (DQ2.04) (URANIUM)Law of Salvage (DQ2.04) (URANIUM)–Whaling Customs (DQ2.02) (URANIUM)–Common Law of Property

Taber DQ2.04: Salvage (URANIUM)(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.

elements b power point slides class #18 monday, october 12, 2015

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