MUSIC: MAX BRUCH
Violin Concerto #1 (1868)
Scottish Fantasy (1880)
Royal Philharmonic Orchestra (Recording 1972)
Rudolf Kempe, Conductor * Kyung Wa Chung, Violin
Last §D Lunch Today
Meet on Bricks @ 11:55
Dawson * Ferman * Furmanski * George
Luttinger * Street
LOGISTICS CLASS #21
• Ghen Briefs (Uranium): Due Sun 10/19 @ 9 p.m.
– Now Can Look At:
• Sample Kesler Brief Online
• Instructions for Briefing Trial Court Cases
• Intro to Whaling Cases & Glossary
• Taber Brief in Class 20/21 Slides & Online
• Quizzes on Other Whaling Cases
– Available by Friday Afternoon (Don’t Finalize Until …)
• Graded Kesler Brief Available
• Ghen Quiz Online
• Class Discussion & Slides on Swift
LOGISTICS CLASS #21
Group Assignment #2: CHANGE
• New Due Date & Time: Sat 10/25 @ 9 pm
– Available Next Week:
• Graded Assignment #1
• Completed Comments & Model Answers.
– Suggestion:
• Work to Original Due Date & Time
• Then Edit After Assignment #1 Info Available
Qs re Assignment #2?
“Escaping” Whale Carcasses:
Taber, Bartlett, and the Analogy To Escaping
Animals Ferae Naturae
I.
Introduction & Application of Mullett &
II.
III.
IV.
V.
Custom
Salvage (Wed-Thu)
Holdings & Significance (Wed-Thu)
Critiquing the Analogy (Wed-ThuFri)
Albers
“Escaping” Whale Carcasses:
Taber, Bartlett, and the Analogy To Escaping Animals
Ferae Naturae
Introduction & Application of Mullett & Albers
I.
A.
Intro to Taber & Brief: KRYPTON (last time)
B.
DQ 2.01: Escape Cases Applied to Taber Facts
1)
Mullett Analysis: KRYPTON (last time)
2)
Albers Analysis: KRYPTON (last time  NOW)
C.
Intro to Bartlett Brief: URANIUM
D.
DQ 2.05-2.06: Bartlett Facts: URANIUM
E.
Issues in Bartlett & Taber
Taber & Bartlett :
The “Escaped” Carcass Issue
Overview (from last time)
• 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?
DQ2.01: Taber under Mullett
(from last time)
DQ2.01: Taber under Mullett
(from last time)
Overall: If You Accept My Metaphors, Easy
Case for OO Under Mullett
• Lots of Evidence of No Abandonment
• If NL = Adrift, Carcass Wasn’t
• If AR = Anchored (bigger stretch), Carcass
Was
DQ2.01: Taber under Albers
DQ2.01: Taber under Albers
(started last time)
Strength of Marking: Very High
• 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)
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)
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)
DQ2.01: Taber under Albers (KRYPTON)
Protecting Labor/Industry
• Labor: What Labor Worth Protecting/Rewarding?
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?
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”)
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)
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)
Bartlett v. Budd BRIEF: (URANIUM)
Statement of the Case
• Bartlett and others, … ?
• sued Budd and others … ?
• for [Cause of Action]?
• seeking [Remedy]?
Bartlett v. Budd BRIEF: (URANIUM)
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: (URANIUM)
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: (URANIUM)
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: (URANIUM)
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: (URANIUM)
Procedural Posture
Decision after a trial.
(See Briefing Instructions for Trial Court
Cases)
Bartlett v. Budd Facts:
DQ2.05 (URANIUM)
DQ2.05: Crew of E found “the whale adrift, the
anchor not holding…” Might mean either:
a. The rope or chain connecting the anchor to the whale
has broken, so the anchor is no longer attached to the
whale; (OR)
b. The anchor is still attached to the whale but is no
longer lodged in the seabed.
Bartlett v. Budd Facts:
DQ2.05 (URANIUM)
DQ2.05: Crew of E found “the whale adrift, the anchor
not holding…” Might mean either:
a. The rope or chain connecting the anchor to the whale has
broken, so the anchor is no longer attached to the whale; (OR)
b. 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 (URANIUM)
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.63, 3d para.)
Anchor was still attached to whale but not
to the sea bottom.
Bartlett v. Budd BRIEF: (URANIUM)
Apparent Factual Disputes:
How Does Court Resolve?
1. Is there a custom that a whale found adrift with
an anchor attached belongs to the finder?
2. Did 1st Officer of CP notify E’s crew of his
claim “on the spot”?
Bartlett v. Budd BRIEF: (URANIUM)
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
• 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
o
o
o
o
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
• 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?
Taber & Bartlett :
The “Escaped” Carcass Issue
Parties/Cases suggest several ways to
resolve issue:
– Whaling Customs (DQ2.02; 2.07-2.08)
– Law of Salvage (DQ2.04)
– Common Law of Property
“Escaping” Whale Carcasses:
Taber, Bartlett, and the Analogy To Escaping
Animals Ferae Naturae
I.
Introduction & Application of Mullett &
Albers
II. Custom
III. Salvage (Wed-Thu)
IV. Holdings & Significance (Wed-Thu)
V. Critiquing the Analogy (Wed-ThuFri)
“Escaping” Whale Carcasses:
Taber, Bartlett, and the Analogy To Escaping Animals
Ferae Naturae
II.
Custom
A.
Generally
B.
DQ 2.02-2.03: KRYPTON
C.
DQ 2.07-2.08: URANIUM
Taber & Bartlett :
Whaling Customs Generally
• Existence and Scope of Custom is
Question of Fact:
– Determine through testimony of experts &
experienced whalers
– We discussed in context of DQ1.03
– In exam Q, can think of as similar to application
of a legal standard: Do facts meet standard for
when custom applies?
Taber & Bartlett :
Whaling Customs Generally
• 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
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 Develop?
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 did custom develop?
• 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
• Certainty:
– Nice clear line for industry to use. (Centurion §B)
– After cutting in, distinct whale converted to fungible whale parts
(Bartz/Pinkert §D)