ELEMENTS D2 & D1 POWER POINT SLIDES

ELEMENTS D2 & D1 POWER POINT SLIDES Class #26 Monday, October 30, 2017 Tuesday, October 31, 2017 .

MUSIC to Accompany SWIFT: Richard WagnerThe RING CYCLE SELECTED MUSiC; Various ARTISTSCOMPOSED 1856-1876 Group Written Assignment #2 Due Tuesday Night @ 9pm

Swift v. Gifford (1872) “First Iron Holds the Whale”KRYPTON: Brief & DQ2.12-2.15

Swift v. Gifford (Krypton)BRIEF: Statement of the Case • Swift and others … ?, • sued Gifford … , • for [cause of action] • seeking [remedy].

Swift v. Gifford (Krypton)BRIEF: Statement of the Case • Swift and others, owners of a ship (H) whose crew killed a whale • sued Gifford … , ??? • for [cause of action] • seeking [remedy].

Swift v. Gifford (Krypton)BRIEF: Statement of the Case • Swift et al., owners of ship (H) whose crew killed whale • sued Gifford , managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, • for [cause of action] ??? • seeking [remedy].

Swift v. Gifford (Krypton)BRIEF: Statement of the Case • Swift and others, owners of a ship (H) whose crew killed a whale sued Gifford , managing owner of a ship (R) whose crew first harpooned the whale and later took it from H, • presumably for conversion • seeking [remedy]. ???

Swift v. Gifford (Krypton)BRIEF: Statement of the Case • Swift and others, owners of a ship (H) whose crew killed a whale, sued Gifford , managing owner of a ship (R), whose crew first harpooned the whale and later took it from H, presumably for conversion • Seeking damages for the value of the whale.

Swift v. Gifford (Krypton)BRIEF: Procedural Posture Decision after a trial.

Swift v. Gifford (Krypton)BRIEF: Facts • Crew of ship R harpooned a whale, but whale escaped with the harpoon attached. • Crew of ship H captured the whale, unaware that ship R was still pursuing it. • Crew of ship R came to ship H, found its harpoon in the whale, and took the whale. What Else Needs to Be Included?

Swift v. Gifford (Krypton)BRIEF: Facts • Crew of ship R harpooned a whale, but whale escaped with the harpoon attached. • Crew of ship H captured the whale, unaware that ship R was still pursuing it. • Crew of ship R came to ship H, found its harpoon in the whale, and took the whale. • Custom among whalers in N. Pacific was 1st iron holds whale if claim made before whale cut. Parties all understood custom. • NOTE: In brief, etc., You don’t need to indicate that the parties stipulated to the custom. For the purposes of the court’s decision, whether a fact is proved by testimony or agreed to by stipulation, it still is a fact.

Swift v. Gifford (Krypton)BRIEF: Facts • Custom among whalers in North Pacific was 1st iron holds whale if claim made before whale cut. (Parties all understood.) • Note: Hercules gave whale up voluntarily honoring custom (cf. Taber: reaction of Captain of Massachusetts to Zone) • Suggests maybe Swift et al. are new players in whaling game: • Hercules gets home & reports to Owners • Swift: “You did what??!!” • Swift = famous business family in Chicago, so a little speculation…

Mini-Comparison Box Boston Chicago White Sox (& New Found Cubs) Pork & Beef (Swift/Armour) Railroads “City of Broad Shoulders” & “Not for Breeding Purposes.” • Red Sox (& Long Lost Braves) • Cod & Lobster • Shipping • "So this is good old Boston. The home of the bean and the cod. Where the Lowells talk only to Cabots. And the Cabots talk only to God."

Swift v. Gifford Nature of Dispute • Escaping wild animals cases only apply to Taber & Bartlettby analogy. • By contrast, Swiftis a 1st possession wild animal case. Two hunters (ships) chasing a wild whale. Who gets? • First to harpoon & pursue (Rainbow) –OR— • First to kill (Hercules)

Swift v. Gifford: Nature of Dispute • Two ships chasing a wild whale. Who gets? • First to harpoon & pursue (Rainbow) –OR— • First to kill (Hercules) • Could decide using common law or custom. • We will look at: • How Swift addresses common law claim (from Brief) • How our ACs resolve without custom (DQ2.12) • How Swift addresses custom (DQ2.13-2.14)

Swift v. GiffordSwift Applying 1st Possession ACs • Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal • If so, Rainbow loses • NOTE: 1872 = Before Liesner and Shaw = Rules now different

Swift v. Gifford (Krypton)Swift Applying 1st Possession ACs • Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal • R Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” • Court says this reading of civil law is not “free from doubt.” • May come from Pierson dissent quoting Barbeyrac (p.6). • Note underlying argument that court should alter common law rule to follow trend in civil law. • Civil law might be particularly persuasive in Admiralty b/c involves transnational maritime trade.

Swift v. Gifford (Krypton)Swift Applying 1st Possession ACs • Court: Common Law Rule = must have “actual and complete possession” to get property in wild animal • Rainbow Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” • Court deals with this claim with reference to disputed fact, apparently assuming “reasonable prospect” = “reasonable probability”

Swift v. Gifford (Krypton)BRIEF: Factual Dispute “The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up.” (p.69 end of first para.)

Swift v. Gifford (Krypton)BRIEF: Factual Dispute “The only disputed question of fact or opinion was concerning the reasonable probability that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up.” (p.69)  Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? How does court resolve?

Swift v. Gifford (Krypton)BRIEF: Factual Dispute Where on List is “Reasonably Probable”? • Absolute Certainty • High Probability • No More Named Storms This Hurricane Season • No Controversial Tweets by President Before 11/1 • [Rebus:]

Swift v. Gifford (Krypton)BRIEF: Factual Dispute Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? (Very bottom p.69) “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

Swift v. Gifford (Krypton)BRIEF: Factual Dispute Where on List is “A Possibility of Success”? • Absolute Certainty • High Probability • Reasonable Probability • No More Named Storms This Hurricane Season • No Controversial Tweets by President Before 11/1 • Snowball in Hell

Swift v. Gifford (Krypton)BRIEF: Factual Dispute Levels of Probability • Absolute Certainty • High Probability • Reasonable Probability • No More Named Storms This Hurricane Season • No Controversial Tweets by President Before 11/1 = A Possibility [of Success] • Snowball in Hell So how does court resolve disputed fact?

Swift v. Gifford (Krypton)BRIEF: Factual Dispute Factual Dispute: Was it reasonably probable that the whale would have been captured by the Rainbow, if the boats of the Hercules had not come up? • “Reasonably probable” = “[much] more than a possibility of success.” Factual Finding: NO! “[I]t would be impossible for me to say that the [Rainbow], though continuing the chase, had more than a possibility of success.”

Swift v. Gifford (Krypton)BRIEF: Factual Dispute • Rainbow Owner argued that “modern civil law has introduced the modification that a fresh pursuit with reasonable prospect of success shall give title to the pursuer.” • Court deals with claim by finding supposed test from civil law not met on these facts, so doesn’t have to decide: • If civil law really has adopted test raised by R • Whether to make test part of common law QUESTIONS?

Swift v. Gifford (Krypton) DQ2.12: Applying 1st Possession ACs Swift facts under Pierson Majority? Pierson Majority • Mortal Wound + Pursuit Enough • Pursuit Alone Not Enough Swift Facts • Wound + Harpoon + Pursuit Enough under Pierson?

Swift v. Gifford (Krypton) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit • Falls into Gap in Literal Language of Pierson • Can resolve with other language. E.g., Did Rainbow Deprive Whale of NL?

Swift v. Gifford (Krypton) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit • Falls into Gap in Literal Language of Pierson • Can resolve with other language like “deprived of NL” • Can resolve w resort to underlying policies. Try: • Reward Effective Labor? • Certainty? • Notice to Others of Claim?

Swift v. Gifford (Krypton) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson • General Policy : Reward Effective Labor • Might look at how likely R was to succeed without H • Killing Whales Generally Hard to Do • Finding of Fact was low probability, so maybe no reward • Could Check if H’s labor dependent on R’s labor • If1st iron seriously wounds whale, might slow down so easy to kill • Might be relatively minor wound • Certainty:?

Swift v. Gifford (Krypton) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson • Certainty: • Maybe Clearer Rule than 1st to Kill • Don’t Have to Decide if Wound is Mortal • In Pierson, Continued Pursuit After MW Shows No Intent to Abandon. • Does Harpoon + Cont’d Pursuit Serve Same Purpose Here?

Swift v. Gifford (Krypton) DQ2.12: Applying 1st Possession ACs Wound + Harpoon + Pursuit: Resolve Using Underlying Policies from Pierson • In PiersonContinued Pursuit After Mortal Wound Shows No Intent to Abandon. Does this pursuit + harpoon serve purpose? • F unaware of pursuit & harpoon when caught • BUT easy to tell when 2d ship arrives b/c marked iron • Again, may depend on whether 1st iron slows whale noticeably.

Swift v. Gifford (Krypton) DQ2.12: Applying 1st Possession ACs Overall: Looks Like Testable Hypo • Wound + Mark (iron) probably make this stronger case for 1st Hunter than Pierson • Clearly less good control than Liesner boys or net-owners in Shaw. Leave to You: Other Arguments from Pierson Arguments from Shaw & Liesner

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? • Custom: 1st iron holds whale if claim made before whale cut. • Note: Stronger custom for 1st ship than version of custom discussed in Taber & Bartlett • Whale can be still alive/swimming (v. adrift) • 1st ship just has to get harpoon to stick (v. kill)

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? • Swift decidesto treat custom here as binding law and provides an important discussion explaining its decision. • v. Pierson (custom ignored) • v. Bartlett (says likely wouldn’t adopt as law)

Krypton: Swift v. Gifford When Should Custom Become Law? Swift decidesto treat custom here as binding law and provides an important discussion explaining its decision. DQ2.14. What problems with using custom as law does Swift recognize?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems w using custom as law include: • Surprise to Outsiders • Note references to LOCAL custom and to ABUSES • Problem grows as commerce reaches further • Uncertainty (re what custom is/when it applies) • “loose and inconclusive customs” • “liable to great misunderstandings and misinterpretations” • Custom may be Unreasonable.

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems with using custom as law include: • Surprise to outsiders • Uncertainty as to what custom is or when it applies • Custom may be unreasonable • See Bartlett (open to fraud & deceit) • Note discussion on p.70 re what laws can be overturned by custom: “some [laws] represent great rules of policy and are beyond the reach of convention….”

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Problems with using custom as law include: • Surprise to outsiders • Uncertainty as to what custom is or when it applies • Custom may be unreasonable (see Bartlett) With these in mind, court gives us a list of considerations to use when deciding whether to treat custom as law.

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? Should Custom  Law: Swift Considerations • Doesn’t affect outsiders • Used by entire business for a long time (equivalent of a contract) • Where legal rule is hard to apply on site, use of custom may prevent quarrels • Custom is reasonable We’ll describe each and apply (2.13) to Swift and (2.14) to hunter’s customs noted in Pierson.

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (1) Doesn’t Affect Outsiders • DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. • Concern about outsiders generally (just did). • Relevance in Swift?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (1) Doesn’t Affect Outsiders • MEANS: Q here is whether custom is likely to be applied to uninformed outsiders to their surprise/disadvantage. (NOT asking whether industry affects outsiders.) • In Swift: Usage here is “not … open to the objection that it is likely to disturb the general understanding of mankind by the interposition of an arbitrary exception.” p.70 (Nobody but whalers likely to be involved). DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) • DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. • Meaning of Reference to Contract Generally? • Relevance in Swift?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (2) Used by Entire Business for a Long Time (Equivalent of a Contract) • Reference to “Contract”: If all agreed to & relied on, reasonable to treat as legally binding. • Custom here “embraced an entire business, and had been concurred in for a long time by everyone engaged in that trade.” • DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (3) Legal rule may be hard to apply on site, so use of custom prevents quarrels • DQ2.13: Describe each consideration noted by court and explain how it applied in Swift.

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (3) Legal rule may be hard to apply on site, so use of custom prevents quarrels • May be harder to determine 1st killer or mortal wound than 1st harpoon. • “Every judge who has dealt with this subject has felt the importance of upholding all reasonable usages of the fishermen, in order to prevent dangerous quarrels in the division of their spoils. “ (p.70) • DQ2.14. Reasons to treat customs in Swift differently from hunters’ customs in Pierson?

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable • DQ2.13: Describe each consideration noted by court and explain how it applied in Swift. • Court explicitly says custom is “reasdonable.” • Note: “Reasonableness” allows you to bring in a variety of concerns that don’t fit neatly in other categories (fairness, benefits to industry, rewarding labor, etc.)

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable • Contrasts custom proposed inBartlettwith custom at issue in Swift: • Re Bartlett: “If it were proved that one vessel had become fully possessed of a whale, and had afterwards lost or left it, with a reasonable hope of recovery, it would seem unreasonable that the finder should acquire the title merely because he is able to cut in the animal before it is reclaimed.” (p.71)

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable • Contrasts custom proposed in Bartlett with custom in Swift: • Re Bartlett: “If it were proved that one vessel had become fully possessed of a whale, and had afterwards lost or left it, with a reasonable hope of recovery, it would seem unreasonable that the finder should acquire the title merely because he is able to cut in the animal before it is reclaimed.” (p.71) • Might say that here, • 1f 2d ship hasn’t cut in, not really fully possessed yet. • Custom here reasonable b/c only gets whale if fully possessed.

Krypton: Swift v. Gifford & DQ2.13-2.14 When Should Custom Become Law? (4) Custom is Reasonable • Contrasts custom proposed inBartlettwith custom at issue in Swift. • Why is Judge Lowell especially authoritative on meaning of Bartlett?

ELEMENTS D2 & D1 POWER POINT SLIDES