“Romantic Russia”, London Symphony
Orchestra (recorded 1956, 1966)
Music: Mid- to Late 19th Century
UNIT II: EXTENSION BY
ANALOGY (WHALING CASES)
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
Fall Break Logistics
Meeting with Me
• No Regular Office Hours
• I’m 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
Fall Break Logistics
Written Assignments Due Week After
• Generally: No PDFs
• Whaling Case Briefs
– Schedule:
• Bartlett (Krypton): Sun Oct 14 @ 4 p.m.
• Swift (Oxygen): Sun Oct 14 @ 4 p.m.
• Ghen (Uranium): Thu Oct 18 @ 9 p.m.
– Look at:
• Instructions for Briefing Trial Court Cases
• Intro to Whaling Cases & Glossary
• Taber Brief in Today’s Slides & Info Memo #5
Fall Break Logistics
Group Assignment #2: Due Sun 10/21 @ 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?
Taber v. Jenny BRIEF:
Statement of the Case
Identifying parties a little
complicated in these cases.
Initially looks like ship v. ship:
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
can’t really do these things. 
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?
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
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] ???
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?
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).
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.
Taber v. Jenny BRIEF:
Procedural Posture
Decision after a trial.
(See Briefing Instructions for Trial Court Cases)
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.
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)
Legal Framework of Taber & Bartlett
“Kodak Moment” (1913)
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: ISSUE
• No procedural element because not an
appeal (so no error by court below).
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]?
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?
Taber v. Jenny BRIEF: ISSUE
Parties/Case suggest several ways to
resolve issue:
–Whaling Customs (DQ61)
–Law of Salvage (DQ63)
–Common Law of Property
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)
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
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)
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.
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)
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."
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)
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.
Taber v. Jenny BRIEF:
Factual Disputes & Findings
Questions on this Part of Brief?
On to DQ60.
DQ60: Taber under Mullett
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
DQ60: Taber under Mullett
Natural Liberty
• What might you call the “natural
liberty” of a dead whale?
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”
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
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
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?
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”
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.
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 Isn’t
• If AR = Anchored, It Is
DQ60: Taber under Albers
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?
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
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.
DQ60: Taber under Albers
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?
DQ60: Taber under Albers
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.”
• 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)
DQ60: Taber under Albers
Protecting Labor/Industry
• Labor: What Labor Worth Protecting/Rewarding?
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
– Don’t encourage unnecessary risk-taking to keep
carcass (“Ishmael, stay here with the whale all night”)
DQ60: Taber under Albers
Time/Distance
• Time: Less than 12 hours
• Distance: Did not move “any considerable
distance”
Both Very Short (Less than Albers)
DQ60: 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
Parties/Case suggest several ways to
resolve issue:
–Whaling Customs (DQ61)
–Law of Salvage (DQ63)
–Common Law of Property
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
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)
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?
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
• Don’t want to waste value of whale (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