Tuesday, March 31, 2009

The Action for Proportion of General Average

"If goods are thrown overboard in order to lighten a ship, the loss incurred for the good of all shall be made good by the contribution of all. The French ordinance [observed in the US and Great Britain] in express terms excludes from the benefit of general average, goods stored upon the deck of the ship . . . [that is,] the owners of the cargo under cover are not required to contribute to the jettison of the goods on deck. . . . [Thus, in the US,] the master is only authorized to load on deck by special contract with the shipper.

" . . . That the case of jettison . . . was . . . understood to be put as a mere illustration of a more general principle, Mr. Justice Story thinks is abundantly clear from the context of the Roman law, where a ransom paid to pirates to redeem teh ship is declared to be governed by the same rule. The same rule, he remarks, was applied to the case of cutting away or throwing overboard of the masts or other tackle of the ship to avert the impending calamity, and the incidental damage occasioned thereby to other things.
. . . . .
"The principle is, that all ordinary loss and damage sustained by the ship must be borne by the ship owners; but if upon a particular emergency articles are used or expenses incurred for the general benefit of all the parties interested in the ship, cargo, and freigh, then all of those for whose benefit teh same are used or incurred, should contribute to pay therefore . . . . And wages to the crew employed in rendering services toward such recovery may be included among those expenses."
. . . .
"[In addition, the doctrine requires] that by that sacrifice [of the jettisoned cargo] the safety of the other property should be presently and successfully attained [for the duration of the voyage].
. . . . .
"In New York it is a settled rule that a party who is obliged to pay and bear charges, as owner of the ship, is entitled, even if a case of contribution exists, to recover the whole of it, in the first instance, of the insurer upon the ship, and to leave it to him to call upon the ownesr or insurerers of the cargo and freigh for their contributory shares."

2 Robinson's Practice 386--394 (1855) (citations omitted).

Recoveries were available at both law (via an implied promise) and equity. Mr. Robinson did not specify the method for apportioning the contribution obligation, but one assumes that it would be pro rata based upon the value of the preserved cargo.

Sunday, March 29, 2009


"It was a question in the Roman law, whether a wild beast belonged to him who had wounded it so that it might easily be taken. The civilians differed on the question; but Justinian adopted the opinion, that the property in the wounded wild beast did not attach until the beast was actually taken. So, if a swarm of bees had flown from the hive of A, they were reputed his so long as the swarm remained in sight, and might easily be pursued; otherwise they became the property of the first occupant. Merely finding a tree on the land of another, containing a swarm of bees, and marking it, does not vest the property of the bees in the finder. Bees which swarm upon a tree do not become private property until actually hived.*

* . . . Bees which take up their abode in a tree, belong to the owner of the soil, if unreclaimed, but if reclaimed and identified, they belong to the former possessor. Goff v. Kilts, 15 Wendell 550."

Kent, 6 Commentaries 349--350 (6th Ed.).

Cf., Ghen v. Rich, 8 F. 159 (D. Mass. 1881) (iron-holds-the-whale).

Tuesday, March 24, 2009

A Problem

There are a fair number of intelligent people in the world. A not insignificant portion of these utilize some routine mechanism (e.g. a blog) for sharing their learning with other people. But at least some of these people are so caught up in hand-wringing, navel-gazing, and nuance-finding that it is truly surprising that they manage to get out of bed in the morning. That, or they have given themselves over to being indulgently obnoxious and simply maintain the guise of nuanced hand wringing out of habit or convenience. Let us point, as a prime example, to the majority of the legal nawobs who post at Mirror of Justice (I won't link them---I would prefer not to shackle myself to trackbacks). "Oh difficulty! Oh the moral uncertainty and decrepitude of everything and everyone except myself! Oh how insightful are my inconclusive forays into ameteur moral theology!" Day in and day out, that's almost all there is, the chattering of a room full of Anthony Kennedy clones (with a touch more moral judgmentalism thrown in). Prof. Garnett is the exception, of course, but it only demonstrates his charity all the more that he stays associated with people who cannot cease talking about how they cannot see beyond their own noses.

Thursday, March 19, 2009

Frederick the Great

You think you know a historical figure, and then one day he does something out of left field. Case in point: Frederick the Great composed well over 100 pieces of music for the flute, apparently the instrument of favor at his court. At least some of these are good enough to remain the subject of published recordings. Who knew?

Wednesday, March 18, 2009

"The Call for a Realist Jurisprudence"

"One of the most common [features of legal realism] is faith in masses of figures as having significance in and of themselves. . . . If, for example, we are studying congestion of the criminal dockets in certain parts of the country, and its effects upon the enforcement of a particular law, and find that in those places the percentage of sentences to imprisonment runs from 4 to 6, whereas in the country at large it is 41, these figures throw much light upon the workings of 'bargain days' and 'cafeteria courts.' Of themselves they mean nothing. They get their significance from the connection in which they were sought for and the conclusion, probably reached in the first instance on another basis, which they confirm. Masses of figures do not make a piece of work scientific. But a scientific inquirer may have an idea which he can fortify or confirm by knowing where and how to find a mass of figures significant for his purpose. Very little experience of using current official statistics is required to convince that statistics gathered for no purpose beyond filling a report with impressive tabulations are seldom valuable for anythign else."
Roscoe Pound, 44 Harv. L. Rev. 697, 703.

Erie for Dummies

"Erie R. Co. v. Tompkins indicated that Congress does not have the constitutional authority to make the law that is applicable to controversies in diversity of citizenship cases." Bernhardt v. Polygraphic Co. of America, 350 U.S. 198, 202 (1956).

J. Stone has presented perhaps the most effectively succinct articulation of that over-wrought doctrine ever made.

Tuesday, March 17, 2009

Hannibal Hamlin

The 15th Vice President of the United States has always intrigued me, not because I regard him as a remarkably admirable man or because he made notable accomplishments, but simply because I enjoy his name. Who names his child after a rampaging Carthaginian?

Hamlin came from Maine, where his ascendancy to the Vice Presidency cemented the state GOP in national prominence for many years. He served in the state legislature, and after failing to be renominated in 1864, as a U.S. Senator and ambassador to Spain in the Garfield administration. He died playing cards in Bangor.

He advocated the position that all American citizens enjoyed the full protection of the Bill of Rights against every government simply as an incident of citizenship. As a private citizen between his stints in the White House and the Capitol, he agitated in favor of Radical Republican political causes in the run-up to the adoption of the 14th Amendment.

And he had an amusingly alliterative name.

Sunday, March 15, 2009

Il Seraglio at the Lyric

We were fortunate enough to make it up to Chicago on Friday evening for the Lyric Opera's performance of Mozart's The Abduction from the Seraglio (Die Entfuhrung aus dem Serail). The production was attractive, although the set had a few odd quirks (a large platform with an exposed substructure formed the main set for Act II---and the chorus came out twice and rotated the entire thing for no particular reason; the only set for Act III was a lone door stood in the middle of the stage).

Chas Rader Shieber did a good job supplementing the humor: a troupe of blindfolded wenches spend most of the opera being led from one part of the pasha's palace to another, to comic effect; Pedrillo conveniently retrieves a lute from the prompter's box, and Osmin and Blonde take full advantage of the opportunities afforded by their feuding. However, at the same time there were oddities. The production appears to portray the story as a reminiscence of the pasha---an aged doppelganger silently stalks the pasha throughout the opera, swooning at Konstanze's beauty. Likewise, three burkha-ed women wander in occasionally, although they appear actually to "be there." Why not just tell the story? I'm looking at you, Achim Freyer.

I saw a nameless commenter on an Amazon.com work the other day who described Die Entfuhrung as one of the three greatest opera (have we gotten to the point where we ought to treat the word as singular? I am unsure) of all time---Don Giovanni and Cosi fan Tutti rounded out his triumvirate. Frankly, I had never heard of it until seeing it on Lyric's schedule. While beautiful, I don't know that I would lavish that sort of praise on it. I simply am not willing to accept that the art form reached its apex with the singspiel.

Be that as it may, high marks go to Aleksandra Kurzak (Blonde) and Andrea Silvestrelli (Osmin). Erin Wall's Konstanze was gorgeous, but amazingly staid. I am inclined to suspect, given the character, that the somber, near-plodding tone is built into her part and thus that she executed perfectly. But if that is the case I simply don't care for the role quite as much; the pain of forlorn love could stand a bit more expression. Matthew Polenzani (Belmonte) did a fine job as well, sticking out all three uncut acts and four arias with beauty and melody. He was, however, notably quiet. The Civic Opera House possesses superb accoustics (and we had stupendous seats, at least compared to the second-balcony eyries my parents always had at the Memphis Orpheum Theater)---but Polenzani remained quiet even over the small Mozart orchestra. Steve Davislim sang Pedrillo with a cough and did an excellent job. David Steiger's Pasha Selim was not objectionable, simply ordinary. I remain impressed with maestro Sr. Andrew Davis, but without a familiarity of the piece I lack standing to pass on whether he gave a "good" reading.

All in all, a superb outing. We brought along a dear friend and a lovely lady of his acquaintance for their first operatic performance, and were pleased to see them enjoy the outing. I wish immensely that I could make it back to Chicago on the 20th or 27th for Cavalleria and Pagliacci, but I don't see it happening, sadly.

Tuesday, March 10, 2009

Quod voluit non dixit

"The Court may conjecture that a fee [as opposed to a life estate and remainder] was intended by the testator, but quod voluit non dixit; and they are bound to consider the series of authorities which reject these private conjectures, and set up permanent rules of construction in their place, as the law of the land." French v. M'Ilhenny, 2 Binn. 13 (S. Ct. Penn. 1809).

The maxim, of course, means "that he did not say [in the instrument] what he intended." The Court rightly observes the argument's invalidity vis a vis a testamentary instrument, but the fact that it has a latin maxim associated with it reflects its persistence. If modern casebooks are to be believed, this is, in fact, the dominant form of probate argument today. What a deplorable state of affairs we have.

Monday, March 9, 2009

Il Trovatore at the Met

I listened with great pleasure to the Met's matinee broadcast of Il Trovatore two weeks ago. The production is a new one on loan from the Lyric. They've pushed the setting up to the 19th century; the feeling apparently was that the internal turmoil of late-medieval Spain is too obscure to make effective drama for an American audience and that the post-Napoleonic conflicts depicted by Goya would permit a more effective staging. While American audiences surely lack a thorough-going knowledge of the interal struggles that splintered Spain during the Reconquista, I doubt they possess a meaningfully greater grasp of the country's nineteenth-century civil wars.

The production set apparently featured large turntable-mounted facades and painted Goya-esque backdrops. The gimmick factor may just be the times (this season's fine Eugene Onegin production featured almost no scenary or props), but it may also have something to do with the Met's recent Trovatore-related mishaps. Several sources described the house's 1987 and 2000 productions as "disasters." This Trovatore did well in Chicago, and Gelb may have felt a solid combination of past results and gimmicks on a popular repertory piece was needed to exorcise the previous bad memories.

The matinee performance went quite well, at least aurally. The hilariously inept chicanery being perpetrated with La Sonnambula vindicate my skepticism of updated stagings, so I won't speak to what I didn't see. But I did have one quibble with the performance: Ferrando. Cound di Luna's chief henchman, his most memorable lines come in the first few minutes, with abbietta zingara, the background story to the opera's plot. I don't know whether Kwangchul Youn just doesn't have the voice for the piece or whether Gianandrea Noseda had the orchestra playing too loudly, but the pit drowned out the bass at several key points. Ferrando's voice should carry over the orchestra on the series of eighth notes at the end of each stanza (e.g. "la rea, la rea, discacciano ch'entrarvioso"), and it just wasn't there. I will continue to prefer my 1991 Met recording with James Morris as Ferrando and Placido Domingo in the titlel role.


"A deed is delivered as an escrow, when the delivery is conditional, that is, when it is delivered to a third person, to keep until something be done by the grantee; and it is of no force until the condition be fulfilled. The condition may consist in the payment of money as well as in the performance of any other act."
- Jackson, ex. dem. Gratz et al. v. Catlin, 2 Johns. 248 (pincite unavailable) (S. Ct. N.Y. 1807).

Thursday, March 5, 2009

Property, 1804

"Every right that can be made the subject of an action for the recovery of damages is a right of property, including the right to the comfort and society of a wife or minor child." Boescher v. Boescher, 5 Ohio Dec. 144 (Ohio Com. Pl. 1804) (reporter's syllabus).

I came across this case while doing research for a paper, and the summary of the holding in the syllabus jumped out at me. The court does not actually articulate this rule, it merely finds that the parental right in raising a child and having him in one's home was in the case at bar a property right protected by due process requirements. I wonder whether the reporter's summary of the general rule is accurate. If so, it would seem to represent an earlier shift away from a strict application of numerus clausus than is sometimes supposed (or at least sometimes suggested by professors).