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.

Bees

"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).

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.

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?

"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.

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.